Oklahoma Department of Corrections

Michael B. Selsor

ProDeathPenalty.com

Oklahoma Attorney General (News Release)

Green Country Family Waits Decades For Justice

NewsOn6.com

Apr 23, 2012

TULSA, Oklahoma - A Green Country family has waited nearly four decades for justice. Michael Selsor was given a death sentence for murdering Clayton Chandler in 1975. Selsor's execution is next week. Chandler's family has been fighting for 37 years for this execution, waiting while Selsor had years of appeals and a second trial. Now that clemency has been denied, they're finally allowed to tell their story.

On September 15th, 1975, Clayton Chandler was getting ready to close the U-Tote-M convenience store, along with worker Ina Morris, when Michael Selsor and Richard Dodson came in to rob it. They later told police they agreed ahead of time: leave no witnesses. "He had a choice," daughter Debbie Huggins said. "He did not have to kill Dad; he did not have to pull the trigger." After getting around $500 from the register, Selsor shot Clayton six times; he died on the floor. Dodson shot Morris in the head, neck and shoulder, but she survived. The two men were later arrested in California.

At the first trial, a jury found Selsor guilty and sentenced him to die. But the next year, the Supreme Court declared the death penalty unconstitutional and seven years after that, Selsor was up for parole. "We thought our nightmare in hell was losing Dad, little did we know what was in store for us," Debbie said. For the next 20 years, Debbie and her mother drove to the prison twice a year to oppose parole for both men. "Every year you went before the parole board," Debbie said. "It took you back to the night he died, gut wrenching, the fear, the trauma, the feelings, they all come forward." Selsor's many appeals paid off and he was granted a new trial 20 years after his first, but that jury also found him guilty and sentenced him to death.

More Than 36 years after Clayton Chandler was gunned down, Selsor is scheduled to die. "No remorse, no I'm sorry, nothing but hate," Debbie said. Debbie says she and her mother were not driven to fight all these years out of a sense of revenge, only by the desire to get justice for the man they loved and lost. "My dad did not have a choice," Debbie said. "He's gone. Michael Selsor should pay the same price."

Both Selsor and Dodson had records when arrested for murdering Clayton. Plus, Selsor told police they'd committed four robberies before the one they weren't arrested for. In previous robberies, they stabbed the clerk and shot another with a shotgun. Selsor's execution is next Tuesday.

Selsor v. State, 562 P.2d 926 (Okla.Crim. App. 1977). (Direct Appeal)

Defendant was convicted in the District Court, Tulsa County, William W. Means, J., of murder in the first degree, shooting with intent to kill, and armed robbery and he appealed. The Court of Criminal Appeals, Bliss, J., held that any error in requiring defendant and codefendant to be represented by the same counsel at trial was harmless; that police officer was properly permitted to testify that certain lead particles found at the scene of the crime were expended bullets; that there was no error in admitting photographs showing the position of the victim's body; that error in admitting evidence found during one illegal search was harmless; and that error in admitting confession given by codefendant was harmless. Affirmed as modified. Brett, J., concurred in part and dissented in part and filed an opinion.

BLISS, Judge:

Appellant, Michael Bascum Selsor, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, with the offenses of Armed Robbery, CRF—75—2183; Shooting With Intent to Kill, CRF—75—2182; and, Murder in the First Degree, CRF—75—2181, After Former Conviction of a Felony. A guilty verdict was returned as to all three charges, punishment being assessed at death for Murder in the First Degree; twenty (20) years' imprisonment for Shooting With Intent to Kill; and, twenty-five (25) years' imprisonment for Armed Robbery. The right to appeal the Armed Robbery conviction was waived by the defendant. From the remaining judgments and sentences, a timely appeal has been perfected to this Court. Defendant was tried conjointly with co-defendant Richard Eugene Dodson. For a recitation of the facts see Dodson v. State, Okl.Cr., 562 P.2d 916 (1977).

In his first assignment of error, defendant asserts the unconstitutionality of Oklahoma's death penalty statute, 21 O.S.Supp.1973, s 701.3. With this we agree. See Riggs v. Branch (State), Okl.Cr., 554 P.2d 823 (1976). Defendant's second and third assignments of error concern the failure of the trial court to either sever the two co-defendants' cases, or to grant outside counsel to one of the two co-defendants. This was necessary, the defense asserts, because of the conflicting nature of the defenses of each co-defendant. The claim was made prior to trial that the defendant would plead simply not guilty, but that co-defendant Dodson would plead not guilty by reason of insanity; and, that these were inconsistent defenses in that defendant would seek to deny, and force the State to prove, any complicity on his part, whereas co-defendant Dodson, in order to establish his insanity defense, would have to admit his own involvement. Defense counsel asserts that they were put in an ethically untenable position by being forced to try both defendants conjointly, in that they had to decide which defendant they wished to defend with the most zeal. If co-defendant Dodson were put on the stand to establish his defense, then defendant would necessarily be implicated; if counsel did not wish to so implicate the defendant, then Dodson would be denied his defense. The severance or appointment of outside counsel, it is claimed, would have cured the problem.

Assuming for the sake of argument that this theory is correct, nevertheless it must be noted, however, that co-defendant Dodson wholly failed to produce any competent evidence by which he could establish his defense of insanity. The medical expert, Dr. Garcia, stated that he had no opinion regarding co-defendant Dodson's sanity at the time of the commission of the crime. Co-defendant Dodson did not take the stand in an attempt to establish the defense, and therefore any fears which counsel may have had of co-defendant Dodson implicating the defendant turned out to be groundless. Further, the defendant cannot complain that co-defendant Dodson was unable to establish or prevented from establishing his defense of insanity by the claimed ‘turn around’ in the testimony of Dr. Garcia. Any error in this regard would tend to vitiate co-defendant Dodson's conviction, not the defendant's. We are of the opinion that no prejudice was shown because of the failure of the trial court to grant severance or outside counsel.

In dealing with severance this Court said in Bowers v. State, Okl.Cr., 542 P.2d 950, 953 (1975): ‘In consideration of the severance issue, the general rule is that the granting of a severance is discretionary with the trial court, and the Court of Criminal Appeals will not disturb the trial court's ruling, absent a showing that prejudice resulted therein. . . .’ (Citations omitted) Therefore, defendant's second and third assignments of error are without merit.

In his fourth assignment of error defendant complains of the admission into evidence of certain photographs depicting the body of Clayton Chandler, killed during the commission of the robbery. This assignment of error is without merit. The pictures are not gruesome or bloody, and they were admitted with the stated purpose of showing the position of the body. In any case, pictures of this sort are always useful in establishing the corpus delicti of a crime. The introduction of such photographs is a matter largely within the discretion of the trial court, and if such photographs have probative value which outweigh the danger of prejudice to the defendant, the evidence is admissible. Jones v. State, Okl.Cr., 542 P.2d 1316 (1975).

The defendant contends in his fifth assignment of error that the trial court erred by allowing the State to introduce into evidence State's Exhibit No. 14, certain lead particles found in the back area of the store where the robbery occurred. The defendant argues that Officer Tom Lewallen was not qualified as an expert, nor did he testify as to what factors led him to believe that the lead particles were actually expended bullets. We must disagree with both contentions. The record reflects that after testifying as to his qualifications concerning educational background and working experience, the following question was propounded by the prosecuting attorney: ‘Q. And, will you tell this Court and jury, have you had an occasion to be qualified as an expert in firearms identification in the past in other courts? ‘A. Yes, sir. I've offered expert testimony in Tulsa County Courts, Osage County Courts and Oklahoma County Courts. ‘MR. SHAFFER: We would offer Officer Lewallen, Your Honor, as an expert in the field of firearms identification based on his experience as related in this court. ‘BY THE COURT: You may proceed.’ (Tr. 372) The witness thereafter testified as to the test he performed on the lead projectiles and his conclusions therefrom, without objection by the defendant. We therefore find this assignment of error to be without merit. See, Box v. State, Okl.Cr., 541 P.2d 262 (1975).

In his sixth assignment of error defendant asserts that his confession, given to Santa Barbara Police Officer Evans, should not have been admitted into evidence because he was not properly informed of his constitutional rights. Defendant does not claim that there was a total failure to give such rights, but rather that considerable interrogation was had before the Miranda rights were given to him. The entire conversation between Officer Evans and defendant was recorded on tape, and a transcript was prepared therefrom. We have examined this transcript and find that although defendant was not immediately given a Miranda warning, said warning was given before any actual interrogation was begun. The questions asked prior to the warnings being given were of a general sort, and did not pertain to the commission of any crime. Additionally, nothing that was said by the defendant prior to the giving of the Miranda warnings was in any way inculpatory, nor was it introduced into evidence.

Similarly, we find that there was no evidence that the confession was involuntarily given, although the officer who obtained it was a skillful interrogator. Thus, since the defendant voluntarily waived his constitutional rights, we find that his confession was properly admitted, and defendant's sixth assignment of error is without merit.

Defendant contends in his seventh assignment of error that the trial court erred in permitting co-defendant Dodson's confessions to be introduced into evidence. This is so defendant argues because the confessions made by Dodson seriously inculpated defendant as well, and they were thus violative of the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in that defendant was denied an opportunity to confront and cross-examine co-defendant Dodson. However, a reference to the case of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), shows that defendant's contentions are without merit. Schneble held, in essence, that the Bruton rule is subject to the harmless constitutional error doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also, Breedlove v. State, Okl.Cr., 525 P.2d 1254 (1974).

In the present case, confessions of both defendants were introduced into evidence after appropriate determinations of voluntariness and adherence to constitutional requirements. Defendant's confession was a complete admission of complicity in the crime. The events defendant related to Officer Evans, and which were repeated by Evans from the witness stand, were entirely consistent and comported with the objected evidence related by the eyewitness and the various investigators who worked on the crime. As such, any admissions by co-defendant Dodson which were repeated from the witness stand and which implicated defendant were harmless beyond a reasonable doubt. We are convinced that if a new trial were to be granted, with the exclusion of co-defendant Dodson's confession, the verdict would be the same. As the United States, Supreme Court said in the Syllabus to Schneble v. Florida, supra, as follows: ‘Any violation of Burton that might have occurred was harmless beyond a reasonable doubt in view of the overwhelming evidence of petitioner's guilt as manifested by his confession, which completely comported with the objective evidence, and the comparatively insignificant effect of the codefendant's admission. . . .’

Defendant's eighth assignment of error contains two propositions, both of which concern the searches of defendant's car in California. In the first proposition it is contended that the search of the vehicle on the beach immediately subsequent to the defendant's arrest, and the seizure of the nine shot revolver therefrom, was illegal as an unreasonable search and seizure, and that therefore this evidence should have been suppressed. This argument is without merit. The automobile was on a crowded public beach with many children about. The officers had information from a hitchhiker, whom defendants had given a ride, that there was a gun in the car. Additionally, the officers did not know if defendants had an accomplice lurking about. The trial court held that these circumstances were sufficiently exigent to justify a warrantless intrusion. We agree. In Johnson v. State, Okl.Cr., 554 P.2d 51, 54 (1976), we stated: “It is argued that the searching officers had time and opportunity to procure a search warrant prior to the search, and for this reason the search in question was illegal. It has been decided that this naked fact alone does not render the search of an automobile illegal.' Jenkins v. State, 116 Tex.Cr.R. 374, 32 S.W.2d 848 (1930). See also, United States v. Roberts, D.C., 90 F.Supp. 718 (1950). Therefore, the relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. One of the exceptions to the general search warrant rule is the situation where exigent circumstances or a state of exigency exists. . . .' (Citations omitted) Defendant's first proposition is without merit.

In his second proposition, defendant asserts that the second search of defendant's car by Tulsa Officer D. A. Roberts while the car was impounded in the Santa Barbara Police Garage was illegal. The justification for this search was that it was made for the sole purpose of obtaining clothes for the defendants to wear on the return trip to Tulsa. Several live .22 caliber cartridges were recovered, and it was shown at trial that certain marks or scratches on these shells were identical to certain scratches or marks found on expended .22 caliber shells which were recovered from the scene of the crime. The trial court ruled that Officer Roberts' actions in searching the car for clothing for the defendants were reasonable, and that the officer thus had a right to be where he was when the recovered shells came into ‘plain view.’ We find that this second search of defendant's vehicle was made without a warrant and without defendant's consent, and was thus illegal. While it is true that may have existed probable cause for the search of the vehicle, it is also true that at the time the second search occurred there existed no exigent circumstances justifying a warrantless intrusion. The car was impounded and secured in the police garage. If it be true that the officers only intended to secure clothing for the defendant and co-defendants, and we have no reason to doubt this, then, at the very least, consent of defendant and co-defendants should have been obtained.

However, we are constrained to find the erroneous admission of these shells harmless. There was no question that the corpus delicti of the crime was established. The admissions of the defendant as related by Officer Evans were no mere inculpatory statements from which guilt could be inferred, but rather were a full-blown confession complete in every detail. The United States Supreme Court said in Schneble v. Florida, supra, 405 U.S. at 432, 92 S.Ct. at 1060, ‘. . . Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required. . . .’ (Citations omitted) Thus viewed, we are of the opinion in the present case that the minds of an average jury would not have found the State's case significantly less persuasive had the shells found in defendant's car and the related testimony been excluded. See Schneble v. Florida, supra. There was thus no substantial prejudice to the rights of the defendant by the erroneous admission of these shells, and what was proven by them. This being so, defendant's second proposition in his seventh assignment of error is without merit. Title 20 O.S.1971, s 3001, harmless error statute.

In his final assignment of error defendant asserts several propositions dealing with alleged prosecutorial misconduct. Most of these propositions are not supported by citations of authority, and thus we are not bound to consider them. As we have said in Sandefur v. State, Okl.Cr., 461 P.2d 954 (1969), it is necessary for plaintiff in error not only to assert error, but to support his contentions by both argument and the citations of authority. Where this is not done and it is apparent that the defendant has been deprived of no fundamental rights, this Court will not search the books for authority to support the mere assertion that the trial court has erred. In any case, we have examined all of defendant's claims hereinunder and find that the prosecutor conducted himself fairly and with no attempt to bias or prejudice the jury. Finding no error, defendant's final assignment of error is without merit. For the foregoing reasons, the sentence in Case No. CRF—75—2181, Murder in the First Degree, is hereby MODIFIED to Life imprisonment, and otherwise AFFIRMED; judgments and sentences in Case No. CRF—75—2182, Shooting With Intent to Kill and Case No. CRF—75—2183, Armed Robbery, are AFFIRMED. BUSSEY, P.J., concurs.

BRETT, J., concurring in part and dissenting in part:

I concur in the results reached in this decision, but I dissent to the manner in which Officer Tom Lewallen was permitted to qualify himself as an expert. I believe the Officer should have been qualified in the same manner that any other expert witness is qualified.

Selsor v. Turnbull, 947 P.2d 579 (Okl.Cr.App. 1997). (State Habeas)

Inmate filed petition for writ of prohibition and/or mandamus, seeking to strike Bill of Particulars and prohibit District Court from conducting jury trial exposing him to death penalty, or possibility of life without parole, on retrial of murder prosecution. The Court of Criminal Appeals, held that filing of Bill of Particulars under death penalty statutes then in effect did not violate prohibition against ex post facto laws or implicate Equal Protection Clause. Petition denied; stay dissolved.

ORDER DENYING PETITION FOR WRIT OF PROHIBITION AND/OR MANDAMUS, AND DISSOLVING STAY OF PROCEEDINGS

The Petitioner, Michael B. Selsor, has filed an application to assume original jurisdiction and a petition for writ of prohibition and/or mandamus asking this Court to strike the Bill of Particulars and prohibit the District Court of Tulsa County from conducting a jury trial which exposes Petitioner to the death penalty, or to the possibility of life without parole, in Case No. CF 75-2181. Initially, this Court stayed proceedings in that case and directed a response from the Respondent or his designated representative. Selsor v. Turnbull, No. P 97-911 (Okl.Cr. July 3, 1997) (not for publication). A response has been filed on behalf of the Respondent by the Attorney General for the State of Oklahoma.

In Case No. CF 75-2181, Petitioner was convicted of Murder in the First Degree and was sentenced to Death. On appeal, Petitioner's conviction was affirmed, but his death sentence was modified to life imprisonment due to the unconstitutionality of Oklahoma's death penalty statute, 21 O.S.Supp.1973, § 701.3. Selsor v. State, 562 P.2d 926 (Okl.Cr.1977). Petitioner continued to file collateral proceedings in state and federal court attacking his conviction and modified sentence. Petitioner's conviction and his modified sentence were ultimately overturned, and Case No. CF 75-2181 was remanded to the District Court of Tulsa County for a new trial. Selsor v. Kaiser, 81 F.3d 1492 (10th Cir.1996). In re-trial proceedings, Petitioner is again charged for the offense of Murder in the First Degree. The State has filed a Bill of Particulars again seeking the Death penalty against Petitioner.

In this proceeding, Petitioner again relies on Riggs v. Branch, 554 P.2d 823 (Okl.Cr.1976) FN1, to support his complaint that the State's filing of the Bill of Particulars on re-trial, under current death penalty statutes, violates the prohibition against ex post facto laws. Petitioner cites Riggs and its ex post facto analysis to argue there was no death penalty statute in effect in 1975 because the only constitutionally valid punishment at the time of his alleged crime was life imprisonment. He contends life imprisonment is the only sentence that may be imposed for a 1975 First Degree Murder charge, and that retrial proceedings must be limited to such punishment. He claims that to now apply a new and different set of rules than were applied to defendants who were similarly sentenced under Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, is plainly a violation of equal protection. Petitioner further complains his exposure to the possibility of greater punishment than that constitutionally in effect at the time of the alleged crime is due only to violations of his right to effective assistance of counsel, and to allow such exposure flies in the face of due process. FN1. Riggs was used in Petitioner's appeal from his original Judgment and Sentence to modify his sentence of Death to a term of Life imprisonment. Selsor, 562 P.2d at 927, 931.

The State's response includes preliminary allegations that Petitioner has not filed sufficient records and transcripts in support of his petition. The State also argues Petitioner has the remedy of a direct appeal to raise the current issues, if he is convicted and sentenced to death on re-trial. However, this Court must recognize that Petitioner's Judgment and Sentence in Tulsa County District Court Case No. CF 75-2181 has been vacated and the case remanded for re-trial. Selsor v. Kaiser, 81 F.3d 1492 (10th Cir.1996). Both parties acknowledge that after remand, the State filed a Bill of Particulars seeking imposition of the death penalty. We find under the facts of this case, and although Petitioner could have provided more records and transcripts, that the record is sufficient for deciding this matter. Moreover, we find that the issue presented can be decided as a matter of law, and that requiring the legal issue to be addressed on appeal, after a trial that includes a death penalty phase, would not be an adequate remedy under the unique facts of this case. Rule 10.6(A) and (B), 22 O.S.Supp.1996, Ch.18, App., Rules of the Court of Criminal Appeals.

In the substantive portions of its response, the State first tries to distinguish Riggs by claiming it addressed both the statutory changes to the elements of First Degree Murder and the statutory changes to the punishment prescribed therefor, whereas this proceeding only involves statutory changes to the punishment prescribed. However, statutory changes to the elements of Murder in the First Degree were not at issue in Riggs,FN2 and are not at issue in this proceeding.FN3 Therefore, Riggs cannot be distinguished on that basis. The State's response also contends the brief ex post facto analysis presented in Riggs was soon revealed to be inaccurate. With this contention we agree.

FN2. The issue underlying Riggs was whether a death sentence returned pursuant to a law, such as 21 O.S.Supp.1973, § 701.3, which imposed a mandatory death penalty either for a broad category of homicidal offenses, or even for a narrower definition of first-degree murder that limited the categories of killings, constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments. Woodson v. North Carolina, 428 U.S. 280, 287, 96 S.Ct. 2978, 2983, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 332, 96 S.Ct. 3001, 3005, 49 L.Ed.2d 974 (1976); see also Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Justus v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Lusty v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1214 (1976); Davis v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1215 (1976); Rowbotham v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Williams and Justus v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976). FN3. This proceeding is limited only to those cases, such as Petitioner's, where the elements of Murder in the First Degree were and are satisfied under both Section 701.1 as it then existed, and under Section 701.10 which was subsequently enacted.

Riggs was decided during the chaos caused when the United States Supreme Court overturned the death penalty statutes of several states, and during the scramble by those states to ensure there were constitutional penalty provisions in place for the offense of Murder in the First Degree. Riggs, 554 P.2d at 824-25 nn.1-3. This Court attempted to analyze United States Supreme Court precedent in effect at the time, and determined that Riggs, and other defendants who had committed homicide murder while the statutes with unconstitutional death penalty provisions were in effect, could not be tried under newly enacted statutes. Riggs, 554 P.2d at 825. This Court found the evidentiary burden of proof under the newly enacted statutes had been changed to the detriment of Riggs and the other defendants, and to apply the newly enacted statutes to them would be to violate the ex post facto provisions of the Constitution of the United States. Id. After this Court attempted to construe federal ex post facto law in Riggs, the United States Supreme Court directly addressed the issue of whether the ex post facto clause prohibited the application, of newly enacted statutes for imposing the death penalty, to defendants whose crimes were committed prior to the enactment of the new statutes. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In its ex post facto analysis, the Supreme Court compared the newly enacted statutes to the statutes in effect on the date the crime was committed, even though the old statutes, like Section 701.3, had been declared unconstitutional. The United States Supreme Court held the changes in death penalty statutes were procedural and on the whole ameliorative, and could be applied retroactively without an ex post facto violation. Id.

In different contexts, this Court has adopted and applied the reasoning and analysis of Dobbert. Cartwright v. State, 778 P.2d 479 (Okl.Cr.1989). This Court has acknowledged an ex post facto argument is not won by proving disadvantage alone. Cartwright, 778 P.2d at 482. In addition, the true focus of ex post facto analysis is on (1) the elements of the offense, (2) the conditions and quantum of punishment, and (3) the quantity and degree of proof necessary to establish guilt. Id. Contrary to Petitioner's arguments, there was a death penalty statute in effect in 1975, and on the date his crime was committed, in the form of 21 O.S.Supp.1973, § 701.3. Contrary to this Court's analysis in Riggs, the newly enacted death penalty statutes did not change the burden of proof to the detriment of Riggs and other defendants, as compared to the burden of proof under Section 701.3. Under Section 701.3, the only available sentence was death. Under newly enacted death penalty statutes, the sentencing options increased in favor of a defendant to include not only death but also the possibility of life imprisonment, and now life without parole. 21 O.S.Supp.1976, §§ 701.9 and 701.10; 21 O.S.1991, § 701.9, and Supp.1996, § 701.10. Under Section 701.3, the State was only required to prove the elements of the crime of First Degree Murder. Once those elements were proven, the State had no further burden of proof because the death penalty was required. Under newly enacted death penalty statutes, the State not only must prove the same elements of the crime of First Degree Murder, but also must prove aggravating circumstances before the death penalty can be imposed. Id. Therefore, newly enacted death penalty statutes (1) did not increase the elements of the offense of First Degree Murder, (2) did not increase but in fact decreased the conditions and quantum of punishment, and (3) did not decrease but in fact increased the quantity and degree of proof necessary to establish guilt, and are not ex post facto. Dobbert, supra; Cartwright, supra. The ex post facto analysis and the holdings thereunder in Riggs v. Branch, 554 P.2d 823 (Okl.Cr.1976) are hereby overturned.

Ex post facto analysis only applies to legislative enactments, however, changes in the law by judicial construction, such as overturning Riggs, implicates the Due Process Clause and requires consideration of ex post facto principles. Cartwright, 778 P.2d at 482. This Court has previously addressed the retroactive application of a judicial interpretation of a statute, which changed the law thus allowing independent reweighing of aggravating and mitigating circumstances and denying defendants automatic modification of a death sentence to life imprisonment, and found the Due Process Clause was not violated under an ex post facto analysis. Castro v. State, 749 P.2d 1146 (Okl.Cr.1987), cert. denied 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). Similarly, the change in law by judicial decision that Riggs should be overturned does not violate the Due Process Clause or ex post facto principles, because it does not change the crime for which Petitioner is charged, increase the punishment prescribed therefor, or increase the quantity or degree of proof necessary to establish his guilt. Castro, 749 P.2d at 1151.

Petitioner's equal protection claim can be easily and summarily disposed of. Petitioner is simply no longer similarly situated to those defendants subject to Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs. Petitioner's Judgment and Sentence has been vacated and he stands before this Court, similarly situated to defendants awaiting trial under current murder and death penalty statutes. Dobbert, 432 U.S. at 301, 97 S.Ct. at 2302, 53 L.Ed.2d at 361; see also Cheatham v. State, 900 P.2d 414, 428-30 (Okl.Cr.1995).

Finally, we reject Petitioner's claim that to subject him to the death penalty, because his Sixth Amendment right to effective assistance of counsel was violated, flies in the face of due process. Petitioner has not supported this claim with citation to any authority. Rule 3.5(C)(4), Rules, supra. Moreover, if a defendant has not been acquitted of the death penalty and his conviction and sentence are reversed on appeal or collateral proceedings, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law, including death. Salazar v. State, 919 P.2d 1120, 1127 (Okl.Cr.1996). Finally, subjecting Petitioner to the death penalty does not appear to be punishment for Petitioner's successful attack on his Judgment and Sentence, but merely an application of the correct law, and/or a correction of the applicable law. See Stafford v. State, 800 P.2d 738, 740 (Okl.Cr.1990).

IT IS THEREFORE THE ORDER OF THIS COURT that the petition for writ of prohibition and/or mandamus should be, and is hereby, DENIED. The stay of proceedings in Case No. CF 75-2181 previously imposed by this Court should be, and is hereby, DISSOLVED.

Selsor v. State, 2 P.3d 344 (Okla.Crim.App. 2000). (Direct Appeal)

After defendant's petition for federal writ of habeas corpus was granted by the United States Court of Appeals for the Tenth Circuit, 81 F.3d 1492, defendant was convicted, on retrial before a jury in the District Court, Tulsa County, E.R. (Ned) Turnbull, J., of first degree murder, shooting with intent to kill, and robbery with firearms, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Chapel, J., held that: (1) trying defendant under current version of first degree murder statute, rather than version in effect when the crime was committed, was not ex post facto violation; (2) defendant's sentence of life imprisonment for shooting with intent to kill under current statute was ex post facto violation; and (3) double jeopardy protection required dismissal of robbery with firearms conviction. Affirmed in part, reversed in part, and remanded. Lile, J., concurred in result.

CHAPEL, Judge:

¶ 1 On September 19, 1975, Michael Selsor was charged (along with codefendant Richard Dodson) with: First Degree Murder in violation of 21 O.S. Supp.1973, § 701.1 in Tulsa County District Court Case No. CRF-75-2181; Shooting with Intent to Kill in violation of 21 O.S.1971, § 652 in Tulsa County District Court Case No. CRF-75-2182; and Robbery with Firearms in violation of 21 O.S.1971, § 801 in Tulsa County District Court Case No. CRF-75-2183. Selsor was tried by jury and convicted in each case. In accordance with the jury's recommendation, the Honorable William W. Means sentenced Selsor to death for First Degree Murder, twenty (20) years imprisonment for Shooting with Intent to Kill, and twenty-five (25) years imprisonment for Robbery with Firearms. Selsor appealed. On appeal, Selsor's convictions were affirmed, but his death sentence was modified to life imprisonment.FN1 FN1. Selsor v. State, 1977 OK CR 141, 562 P.2d 926.

¶ 2 Selsor filed two consecutive applications for post-conviction relief. The Tulsa County District Court denied each application, and this Court affirmed. Selsor then petitioned for federal habeas relief in the United States District Court for the Northern District of Oklahoma. After the petition was denied, Selsor appealed to the Tenth Circuit Court of Appeals, which remanded Selsor's petition to the District Court for a hearing.FN2 The district court again denied Selsor's petition, and Selsor again appealed. His petition for habeas corpus was granted by the Tenth Circuit, which provided for his retrial “within a reasonable amount of time.”FN3 FN2. Selsor v. Kaiser, 22 F.3d 1029 (10th Cir.1994). FN3. Selsor v. Kaiser, 81 F.3d 1492 (10th Cir.1996).

¶ 3 Prior to Selsor's retrial, the State filed a Bill of Particulars alleging four aggravating circumstances to support a sentence of death. Selsor filed a Motion to Strike the Bill of Particulars, asserting that the retroactive application of the current death penalty statutes violated prohibitions against ex post facto laws. After the trial court denied Selsor's motion, he petitioned this Court for a Writ of Prohibition and/or Mandamus. This Court issued a stay, ordered a response from the district court, then denied Selsor's petition on the merits.FN4 FN4. Selsor v. Turnbull, 1997 OK CR 61, 947 P.2d 579.

¶ 4 Selsor was tried by jury and convicted of First Degree Murder in violation of 21 O.S.Supp.1973, § 701, Shooting with Intent to Kill in violation of 21 O.S.1971, § 652, and Robbery with Firearms in violation of 21 O.S.1971, § 801. The jury found two aggravating circumstances: i, that Selsor knowingly created a great risk of death to more than one person; and ii, that Selsor committed the murder to avoid or prevent lawful arrest. In accordance with the jury's recommendation, the Honorable E.R. Turnbull sentenced Selsor to death for First Degree Murder, life imprisonment for Shooting with Intent to Kill, and twenty (20) years imprisonment for Robbery with Firearms.

FACTS

¶ 5 At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, “You've got to be kidding me.” Dodson then fired a shot striking Morris in the shoulder.

¶ 6 Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled.

¶ 7 On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses.

ISSUES RELATING TO JURY SELECTION

¶ 8 Selsor asserts in Proposition VII that he was denied a fair trial and a reliable sentencing determination because the trial court denied his motion for individual voir dire. In overruling the motion at the hearing, the trial court nevertheless stated that it would keep the motion under advisement should a need for individual voir dire arise at trial. Such matters fall within the trial court's discretion.FN5 FN5. Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 593, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999). Selsor also briefly argues that individual voir dire should always be required when requested for death qualification of a jury. While it is probably better and safer to question jurors individually regarding their beliefs concerning the death penalty, it is not required and is discretionary with the trial court.

¶ 9 Selsor specifically complains that he was prejudiced by the denial of individual voir dire after four members of the panel, purportedly educated by previous venire persons on how to avoid jury service, were successful in being excused. Upon learning what was occurring, the trial court admonished prospective jurors to answer questions honestly, because based upon past experience jurors may have answered questions untruthfully to avoid jury service. To Selsor, these facts establish that “one cannot be confident that the jury was picked fairly.”

¶ 10 Selsor's argument is speculative. He has not established that the trial court abused its discretion or that he was prejudiced. The jury was selected fairly. Selsor's attorneys extensively questioned the prospective jurors. Selsor was presumably satisfied with the selection process and result because he did not renew his request for individual voir dire or exercise all of his peremptory challenges at trial. This proposition is denied.

ISSUES RELATING TO SELSOR'S RETRIAL AND THE EX POST FACTO CLAUSE

¶ 11 In Propositions I-V, Selsor makes several interrelated arguments that he was not eligible to be sentenced to death and that he was tried pursuant to the wrong First Degree Murder statute. Specifically, Selsor argues that his conviction and death sentence violated the State and Federal Constitutions because: i, the retroactive application of the current death penalty statute violated ex post facto laws; ii, the retroactive application of the current death penalty statute violated ex post facto provisions, the multiple punishments provision of the Double Jeopardy Clause, and principles of equal protection and due process; iii, the retroactive application of this Court's decision overruling Riggs v. Branch violated due process; iv, sentencing Selsor to death violated the fundamental fairness doctrine; and v, the Information did not inform Selsor of the homicide theory upon which the State would rely to obtain a conviction, and the jury instructions were defective because they did not identify all the elements of the offense with which he was charged.

¶ 12 Selsor has previously litigated some of these issues due to the unique procedural history of his case. In 1975, Selsor was charged with First Degree Murder, Shooting with Intent to Kill, and Robbery with Firearms. Selsor was tried, convicted of all three charges, and sentenced to death for the murder charge. On appeal, Selsor's conviction was affirmed, but his death sentence was modified to life imprisonment due to the unconstitutionality of the then-existing death penalty statute, 21 O.S.Supp.1973, § 701.3. FN6 Selsor thereafter attacked his convictions and sentences for approximately twenty (20) years in state and federal court and finally won a new trial.FN7 He was held pending retrial on the original Information charging him with First Degree Murder in violation of 21 O.S.Supp.1973, 701.1(2). The State sought the death penalty on retrial. Selsor filed a Motion to Strike, asserting that since there was no valid death penalty statute in effect when he allegedly committed First Degree Murder, to expose him to the death penalty on retrial would violate constitutional prohibitions against ex post facto laws. Selsor petitioned this Court for relief after the district court denied his Motion to Strike. In denying Selsor's petition,FN8 this Court rejected several issues he once again pursues in this appeal. FN6. See Selsor, 562 P.2d at 927. FN7. See Selsor, 81 F.3d at 1492. FN8. See Selsor, 947 P.2d at 583, overruling Riggs v. Branch, 1976 OK CR 216, 554 P.2d 823.

¶ 13 Precisely as in Selsor v. Turnbull, Selsor here argues in Proposition II that the retroactive application of the current death penalty statute violates ex post facto provisions and equal protection. This Court's analysis in Selsor v. Turnbull is dispositive. First, this Court determined that the retroactive application of the current death penalty statutes did not violate the ex post facto provisions of the State and Federal Constitutions because the “newly enacted death penalty statutes (1) did not increase the elements of First Degree Murder, (2) did not increase but in fact decreased the conditions and quantum of punishment, and (3) did not decrease but in fact increased the quantity and degree of proof necessary to establish guilt.” FN9 FN9. Selsor, 947 P.2d at 582-83; citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). See also Collins v. Youngblood, 497 U.S. 37, 45, 110 S.Ct. 2715, 2720, 111 L.Ed.2d 30 (1990) (generally procedural changes in the law that disadvantage a defendant do not violate the Ex Post Facto Clause).

¶ 14 Second, this Court denied Selsor's equal protection claim, as he was simply no longer similarly situated to those defendants subject to Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs. [Selsor's] Judgment and Sentence has been vacated and he stands before this Court similarly situated to defendants awaiting trial under current murder and death penalty statutes.FN10 FN10. Selsor, 947 P.2d at 583.

¶ 15 In Selsor v. Turnbull, this Court also anticipated and resolved two issues Selsor failed specifically to raise then but which he raises now in Propositions II and III, respectively: i, whether the retroactive application of the current death penalty statute violated the multiple punishments provision of the Double Jeopardy Clause; and ii, whether the retroactive application of this Court's decision overruling Riggs v. Branch violated due process. This Court resolved the double jeopardy issue, finding that “if a defendant has not been acquitted of the death penalty and his conviction and sentence are reversed on appeal or collateral proceedings, the slate is wiped clean, and a defendant may be subjected to any punishment authorized by law, including death.”FN11 This Court also found that the retroactive application of this Court's decision overruling Riggs v. Branch to this case did not violate due process.FN12 We specifically stated: “the change in law by judicial decision that Riggs should be overturned does not violate due process ... because it does not change the crime for which [Selsor] is charged, increase the punishment prescribed therefore, or increase the quantity, or degree of proof necessary to establish his guilt.”FN13 In sum, Selsor's arguments in Propositions II and III were adequately resolved in Selsor v. Turnbull; nothing in his brief is convincing or persuasive enough to change those results.FN14 FN11. Id., citing Salazar v. State, 1996 OK CR 25, 919 P.2d 1120, 1127, cert. denied, 528 U.S. 895, 120 S.Ct. 226, 145 L.Ed.2d 190 (1999). Additionally, contrary to Selsor's argument, his slate was wiped clean because his conviction and sentence were not reversed due to insufficient evidence. FN12. Id. FN13. Id. FN14. Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 506, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000) (issues previously raised by defendant in an extraordinary writ and decided on merits will not be reconsidered on appeal).

¶ 16 In Proposition I, Selsor argues that the ex post facto provisions of the federal and state constitutions were violated because he was tried in 1998 pursuant to the First Degree Murder statute (21 O.S.1991, § 701.7(A)) in effect then rather than the statute in effect when he allegedly committed the crime (21 O.S.Supp.1973, § 701). In Proposition V, he asserts that his jury was mis-instructed on the applicable elements of First Degree Murder and that the Information did not adequately notify him of the charges against which he had to defend. We address these propositions together and conclude that they both lack merit.

¶ 17 This Court focuses on the following factors when determining whether there has been an ex post facto violation: i, the elements of the offense; ii, the conditions and quantum of punishment; and iii, the quantity and degree of proof necessary to establish guilt.FN15 Although the elements of First Degree Murder and the burden of proof contained in the 1973 statute (under which Selsor was charged) differ from those contained in the current statute, Selsor's jury was instructed on all the elements of First Degree Murder under the 1973 statute. FN15. Cartwright v. State, 1989 OK CR 41, 778 P.2d 479, 482, cert. denied, 497 U.S. 1015, 110 S.Ct. 3261, 111 L.Ed.2d 771 (1990); Coleman v. Saffle, 869 F.2d 1377, 1386 (10th Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990).

¶ 18 While all elements of First Degree Murder under the 1973 statute were not contained within Instruction 9, they were included within the instructions as a whole.FN16 Instruction 18 correctly informs the jury on the elements of Robbery with Firearms. The essential elements of that offense are the same under the statute applicable at the time of Selsor's crime ( 21 O.S.1971, § 801) and the current statute ( 21 O.S.1991, § 801). FN17 Thus, considering Instructions 9 and 18 together indicates that Selsor's jury was instructed upon and found him guilty of all the elements of First Degree Murder under the applicable 1973 statute. As such, the defendant was not convicted under a lesser burden of proof, and under these circumstances, we do not find a violation of the ex post facto provisions of the State and Federal constitutions.FN18 FN16. Pursuant to 21 O.S.Supp.1973, § 701.1, the jury had to find that Selsor (1) killed a human being, (2) with a premeditated design to effect death, (3) without authority of law, (4) while committing robbery with a firearm. In Instruction 9, Selsor's jury was instructed on First Degree Murder pursuant to 21 O.S.1991, § 701.7(A), under which the jury had to find that Selsor (1) unlawfully caused the death of a human, (2) with malice aforethought. While it appears that the “premeditated design” and “malice aforethought” elements differ, this Court has concluded they are interchangeable. Conover v. State, 1997 OK CR 6, 933 P.2d 904, 910. Additionally, the murder had to be committed in the course of the robbery. Instructions 9 and 18 omit this requirement. However, this was harmless beyond a reasonable doubt because the facts at trial established Selsor committed the murder in the course of the robbery. FN17. 21 O.S.1971, § 801 and 21 O.S.1991, § 801 provide in pertinent part: Any person or persons who, with the use of any firearms ... robs any person or persons, or ... place of business ... either day or night, shall be guilty of a felony. FN18. In a perfect trial, these elements should have been in one instruction to strictly comply with 21 O.S.Supp.1973, § 701, and Selsor would have been sentenced as he was by the jury consistent with the current death penalty statutes. See Dobbert, 432 U.S. at 292, 97 S.Ct. at 2298. While not perfect, the trial was fair; Selsor was not harmed in any way by the separation of the elements within two instructions. McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1380, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995) (“Jury instructions are sufficient if, taken as a whole, they accurately state the applicable law.”).

¶ 19 Our disposition of Proposition I resolves the arguments Selsor raises in Proposition V. Selsor was charged, tried, and convicted pursuant to the original Information filed in the case, which correctly informed him of the 1973 statute and facts supporting its alleged violation.FN19 The Information was therefore sufficient. Moreover, Selsor's jury was properly instructed and found all elements of First Degree Murder pursuant to the correct statute.FN20 This proposition is denied. FN19. See Parker v. State, 1996 OK CR 19, 917 P.2d 980, 986, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997). The purpose of an Information is to provide notice of what charges a defendant must defend. The Information in this case provided full and complete notice stating the correct charge and applicable facts in full compliance with due process. Selsor was well aware of the charges against which he was to defend. FN20. McGregor, 885 P.2d at 1380.

¶ 20 However, as the State concedes, Selsor's Robbery with Firearms conviction must be dismissed based upon double jeopardy because all the elements of Robbery with Firearms are included within the elements of the First Degree Murder pursuant to the 1973 statute.FN21 Thus, Selsor's conviction for Robbery with Firearms is reversed and remanded with instructions to dismiss. FN21. Hamilton v. State, 1997 OK CR 14, 937 P.2d 1001, 1008-09, cert. denied, 522 U.S. 1059, 118 S.Ct. 716, 139 L.Ed.2d 657 (1998).

¶ 21 In Proposition IV, Selsor argues that sentencing him to death based upon the “unique situation present in this case” is fundamentally unfair.FN22 To be fundamentally unfair and violate due process, the infraction must “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples toward those charged with the most heinous offenses.” FN23 Here, Selsor was on notice and warned of the possibility of a death sentence based upon the original charge. Selsor then availed himself of the appeal process and gained a new trial, where he could have been acquitted and released or convicted and sentenced to death. Selsor knew the risks and benefits before he began the appellate process; he received a fair trial, and his punishment is consistent with the penalties he was warned of when he was charged. FN22. Br. of Appellant at 56. FN23. Wallace v. State, 1995 OK CR 19, 893 P.2d 504, 518, cert. denied, 516 U.S. 888, 116 S.Ct. 232, 133 L.Ed.2d 160 (Chapel, J., specially concurring) (citations omitted).

¶ 22 In Proposition VI, Selsor argues that the state and federal constitutional prohibitions against ex post facto laws were violated when he was sentenced to life imprisonment based upon the punishment provisions of the current Shooting with Intent to Kill statute. The State concedes this error in its brief.

¶ 23 Selsor was charged with violating 21 O.S.1971, § 652 (“the 1971 statute”), which was in effect at the time of the offense. The maximum possible punishment pursuant to the 1971 statute was twenty (20) years imprisonment. However, Selsor's jury was instructed that the maximum punishment was life imprisonment based upon 21 O.S.1991, § 652-the current Shooting with Intent to Kill statute. The jury recommended that Selsor receive the maximum punishment of life imprisonment, and that sentence was imposed by the trial court. Thus, the Ex Post Facto Clause was violated because the sentence imposed exceeded the maximum allowable at the time of the offense.FN24 Accordingly, Selsor's sentence for Shooting with Intent to Kill is modified from life imprisonment to twenty (20) years imprisonment. FN24. Applegate v. State, 1995 OK CR 49, 904 P.2d 130, 134 (changing the punishment to inflict a greater punishment than that in effect when the crime was committed violates Ex Post Facto Clause).

ISSUES RELATING TO PUNISHMENT

¶ 24 Selsor argues in Proposition IX that at least three errors occurred in the State's admission of victim impact evidence at trial: i, Ina Morris's testimony was inadmissible because she was not a “family member”, and the notice and hearing procedures were not followed as required by Cargle v. State;FN25 ii, the other victims' testimony was prejudicial because it focused on their emotional loss, and its probative value was substantially outweighed by its undue prejudice; and iii, victim impact evidence is an unconstitutional “super” aggravating circumstance present in every capital case. FN25. 1995 OK CR 77, 909 P.2d 806, 828, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996).

¶ 25 Selsor argues that Ina Morris's testimony was inadmissible as victim impact evidence because she was not a “family member” of the victim. FN26 Indeed, portions of Morris's testimony were inadmissible for this reason,FN27 such as the psychological and emotional impact the shooting had upon Morris's life.FN28 However, most of her testimony was admissible to support the “knowingly created a great risk of death to more than one person” aggravating circumstance, as disclosed by the State in its notice of evidence in aggravation.FN29 Morris's testimony concerning being shot and the medical attention she received for her injuries was clearly relevant to the “great risk of death to more than one person” aggravating circumstance. FN26. 21 O.S.Supp.1992, § 701.10 (State may introduce evidence about the victim and about the impact of the murder on the family of the victim). FN27. See Gilbert v. State, 1997 OK CR 71, 951 P.2d 98, 117, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998) (victim impact evidence restricted by statute to impact of homicide on victim's family members for homicide on trial); see also 21 O.S.Supp.1992, § 701.10. FN28. Morris should not have testified that after the shooting it took four or five years of counseling for her to be able to function because of her fear and nightmares. FN29. The State also alleged in the notice that some of Morris's testimony would support the heinous, atrocious and cruel aggravating circumstance. However, Morris's testimony only marginally, if at all, supported this aggravating circumstance. The majority of her testimony supported the great risk of death aggravating circumstance.

¶ 26 Selsor did not timely object to this inadmissible evidence, waiving all but plain error.FN30 The inadmissible portions of Morris's testimony did not go to the foundation of Selsor's case or take from him a substantial right. FN31 Since the Court finds all of Morris's testimony either admissible to support the aggravating circumstances or inadmissible victim impact evidence, the Court need not address whether the Cargle notice and hearing procedures were satisfied because Cargle is inapposite. FN30. Selsor did later move to strike the testimony and for mistrial. This was shortly after the district court's statement that it found some of Morris's testimony objectionable. The district court overruled the Motion to Strike as untimely. FN31. See 20 O.S.1991, § 3001.1; Malicoat v. State, 2000 OK CR 1,

¶ 34, 992 P.2d 383.

¶ 27 Selsor next argues that a portion of the victim impact evidence introduced through Debbie Huggins and Anne Chandler was prejudicial because it focused solely on the emotional impact of the victim's murder on those testifying. Selsor accordingly contends that the evidence should not have been admitted at trial because its prejudicial effect substantially outweighed its probative value. Selsor overstates his case. There was nothing inflammatory or prejudicial about the victim impact evidence introduced through Ms. Huggins and Ms. Chandler. This victim impact evidence, taken as a whole, fairly and concisely encompassed the financial, emotional, psychological, and physical effects of the murder on them and the uniqueness of the victim. FN32 There was no error in its admission. FN32. See 22 O.S.Supp.1993, § 984; Cargle, 909 P.2d at 828.

¶ 28 Selsor concludes by arguing that victim impact evidence is a “super” aggravating circumstance present in every capital case, and adds that victim impact evidence negates the constitutionally-required narrowing function for Oklahoma's death penalty sentencing scheme. This issue has been addressed and rejected by this Court,FN33 and Selsor's argument fails to persuade us otherwise. FN33. Mollett v. State, 1997 OK CR 28, 939 P.2d 1, 12, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998); Cargle, 909 P.2d at 826.

¶ 29 Selsor argues in Proposition X that the aggravating circumstance of “knowingly creating a great risk of death to more than one person” is unconstitutionally vague because it does not properly narrow the jury's sentencing decision. This aggravating circumstance has been found constitutional as defined and applied,FN34 and Selsor offers no new arguments for reconsidering that conclusion. Selsor continues by arguing that even if constitutionally valid, the evidence was insufficient to prove beyond a reasonable doubt the applicability of this aggravating circumstance to his case. FN34. Valdez v. State, 1995 OK CR 18, 900 P.2d 363, 382, cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341.

¶ 30 This Court views the evidence supporting an aggravating circumstance in a light most favorable to the State to determine whether any rational trier of fact could have found the facts necessary to support it beyond a reasonable doubt.FN35 This Court reviews the record to determine if a defendant created a great risk of death to another in close proximity, in time and intent, to the murder.FN36 Under these standards, the evidence here was sufficient. FN35. Salazar, 919 P.2d at 1123. FN36. Valdez, 900 P.2d at 382.

¶ 31 Selsor and Dodson agreed before entering the store to leave “no witnesses.” Store employees Chandler and Morris were the only people present at the time of the robbery. Upon completing the robbery, Selsor shot and killed Chandler, and Dodson repeatedly shot Morris. Morris was undoubtedly at risk of death in terms of time, intent and location to Chandler's murder.

¶ 32 However, Selsor argues that Dodson's actions cannot be imputed to him in determining the sufficiency of the evidence for this aggravating circumstance. Selsor and Dodson aided and abetted each other in this murder, shooting, and robbery. If criminal liability can attach for a codefendant's act that a defendant has aided and abetted, liability for an aggravating circumstance can also attach for a codefendant's act that a defendant has aided and abetted.FN37 Had Morris died, Selsor could have been convicted of her murder; that fact alone would have established this aggravating circumstance.FN38 FN37. Ochoa, 963 P.2d at 604. FN38. Id.

¶ 33 In Proposition XI, Selsor argues that the use of inadmissible and prejudicial evidence to support the “continuing threat” aggravating circumstance improperly contributed to his death verdict even though the jury did not find this aggravating circumstance to exist. Selsor's argument fails. Assuming, as Selsor argues, that his confession to the two uncorroborated robberies was inadmissible and that the evidence concerning the Wilson robbery was cumulative and unnecessarily prejudicial, it did not contribute to his death verdict.

¶ 34 Selsor's jury found two aggravating circumstances: i, that Selsor knowingly created a great risk of death to more than one person; and ii, that the murder was committed for the purpose of avoiding or preventing a lawful arrest.FN39 The record establishes that both of these aggravating circumstances were proven by the facts of this murder and robbery and not any of the evidence complained of by Selsor.FN40 Accordingly, we conclude beyond a reasonable doubt that the jury's death verdict was not affected by the admission of the evidence supporting the continuing threat aggravating circumstance. FN39. Id. FN40. Le v. State, 1997 OK CR 55, 947 P.2d 535, 555, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)(prosecutor's argument directed at aggravating circumstance harmless error when jury did not find aggravating circumstance); Romano v. State, 1995 OK CR 74, 909 P.2d 92, 118, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996) (appellant not prejudiced by “overall effect” of presenting evidence regarding the continuing threat aggravating circumstance rejected by the jury because other aggravating circumstances supported by sufficient independent evidence).

ISSUES RELATING TO BOTH STAGES OF TRIAL

¶ 35 In Proposition VIII, Selsor asserts in five sub-propositions that repeated instances of prosecutorial misconduct denied him a fair trial. However, none of the instances of alleged misconduct were objected to, waiving all but plain error. Additionally, the parties “have wide latitude in closing arguments to discuss the evidence and reasonable inferences and this Court will grant relief only where grossly improper and unwarranted arguments affects the defendant's rights.”FN41 FN41. Le, 947 P.2d at 554.

¶ 36 Selsor first submits that the prosecutor's comment that the first shot (which was fired by Dodson) was only a warning was erroneous. To Selsor, this misled the jury into believing that he was more culpable than Dodson. The record reveals that the comment was a reasonable inference from the evidence. The testimony indicates that Dodson fired the first shot so that Morris would comply with his commands. Thus, Dodson's first shot could fairly be characterized in argument as a “warning.”

¶ 37 Selsor contends that the prosecutor improperly evoked sympathy for the victims in voir dire and first stage closing argument. The colloquy in voir dire and comment in closing argument were not objected to waiving all but plain error. None of the comments affected Selsor's rights nor went to the foundation of the case; most were proper and were based upon the evidence.

¶ 38 Selsor also contends that the prosecutor demeaned his mitigation evidence by arguing facts outside the record. The prosecutor's arguments were fair challenges to Selsor's mitigating evidence. Moreover, the comments were not based upon facts outside the record but were reasonable inferences and arguments from the facts adduced at trial. There was no error.

¶ 39 Selsor argues that the prosecutor improperly compared the advantages of Selsor's life in prison to the plight of the dead victim. These comments by the prosecutor are not error. Instead, they fairly commented on Selsor's mitigation evidence and merely asked the jury to consider what Selsor's life was like and would be like in prison based upon the evidence at trial in determining the appropriate punishment. This is proper argument.

¶ 40 Selsor asserts that the prosecution argued the improperly elicited victim impact testimony from Ina Morris discussed in Proposition IX, supra. The brief argument about which Selsor complains does focus somewhat on the inadmissible portions of Morris's testimony.FN42 However, the prosecutor cannot be condemned for arguing the evidence as admitted at trial. Moreover, as found in Proposition IX, this evidence did not deny Selsor a fair trial or contribute to the jury's sentencing decision. The same can be said for the prosecutor's argument concerning this evidence. FN42. See Proposition IX, supra.

¶ 41 Selsor concludes by arguing that the combined effect of the prosecutor's misconduct denied him a fair trial. Having found none of the comments were made in error or prejudicial, their combination did not prejudice Selsor or deny him a fair trial. This proposition is denied.

¶ 42 Selsor claims in Proposition XII that he was denied effective assistance of trial counsel. Selsor must show that counsel's performance was deficient and that he was prejudiced as a result.FN43 To prove deficient performance, Selsor must overcome the strong presumption that counsel's representation “fell within a wide range of reasonable professional assistance and equaled sound trial strategy.” FN44 This Court views counsel's challenged conduct on the facts of the case as seen at the time to determine if it was professionally unreasonable, and if so, will determine whether the result of the proceeding was fundamentally unfair or unreliable. FN45 FN43. Malicoat, 2000 OK CR 1,

¶ 48, 992 P.2d 383. FN44. Id. FN45. Id.

¶ 43 Selsor first asserts that if this Court finds that trial counsel waived the allegations of errors raised in Propositions I and V, then trial counsel was ineffective. This Court denied the asserted errors in Propositions I and V on their merits. Thus, trial counsel's performance was not deficient, and Selsor was not prejudiced.

¶ 44 Selsor next complains that counsel was ineffective for failing to object to several instances of prosecutorial misconduct and inadmissible victim impact evidence. In Proposition VIII, we determined that the prosecutor's comments were not error. In Proposition IX, we noted that portions of Ina Morris's testimony were inadmissible but did not affect the jury's sentencing decision. Thus, Selsor's counsel's failure to object to the prosecutor's arguments or to nonprejudicial victim impact evidence does not constitute ineffective assistance.FN46 FN46. See Valdez, 900 P.2d at 388.

¶ 45 Selsor next asserts counsel's performance was deficient for failing to object to the constitutionality and applicability of the “great risk of death” aggravating circumstance. As discussed in reviewing Proposition X, this aggravating circumstance is constitutional. Since there was sufficient evidence to support it in this case, counsel was not ineffective.

¶ 46 Selsor concludes by arguing counsel was ineffective for failing to specifically object at trial to inadmissible and prejudicial evidence offered in support of the “continuing threat” aggravating circumstance.FN47 Selsor asserted that the admission of this evidence was error in Proposition XI. For the reasons asserted in Proposition XI, assuming Selsor could establish that his counsel's performance was deficient, he was not prejudiced. Accordingly, this proposition is denied. FN47. Additionally, Selsor's counsel objected to most of the evidence complained of in Proposition XI.

¶ 47 In Proposition XIII, Selsor argues that he is entitled to relief due to the accumulation of error in the case. While we have determined that Selsor's Robbery with Firearms conviction must be reversed and remanded with instructions to dismiss and that Selsor's sentence for Shooting with Intent to Kill must be modified to twenty (20) years, none of the other individual errors affected a substantial right, went to the foundation of the case, or contributed to the jury's verdicts. Further, when these errors are considered cumulatively, they do not require relief.FN48 This proposition is denied. FN48. Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 365-66, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997).

MANDATORY SENTENCE REVIEW

¶ 48 In accordance with 21 O.S.1991, § 701.13(C), we must determine: i, whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and ii, whether the evidence supports the jury's finding of aggravating circumstances. Based upon the record, we cannot say Selsor's death sentence was imposed because the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.1991, § 701.13(C).

¶ 49 The jury was instructed on four aggravating circumstances and found the existence of two: i, that Selsor knowingly created a great risk of death to more than one person; and ii, that Selsor committed the murder to avoid or prevent lawful arrest. Selsor presented evidence that he had been a model prisoner during his twenty-plus years in the prison system. Several Department of Correction employees testified that despite their belief in the death penalty, Selsor did not deserve it, was involved in various prison programs, and was honest and hardworking. The jury was also instructed on twelve (12) mitigating factors. Upon our review of the record, we find the sentence of death to be factually substantiated and appropriate.

STRUBHAR, P.J., LUMPKIN, V.P.J., and JOHNSON, J., concur. LILE, J., concurs in results.

Selsor v. Kaiser, 81 F.3d 1492 (10th Cir. 1996). (Habeas)

After inmate's state convictions for first-degree murder, armed robbery, and shooting with intent to kill, were upheld on appeal, and state postconviction relief was denied, inmate petitioned for federal writ of habeas corpus. The United States District Court for the Northern District of Oklahoma, James O. Ellison, Chief Judge, denied relief, and petitioner appealed. The Court of Appeals, Baldock, Circuit Judge, 22 F.3d 1029, affirmed in part but remanded on ineffective assistance of counsel claim. On remand, the District Court again denied relief, and petitioner appealed. The Court of Appeals, Holloway, Circuit Judge, held that: (1) state trial court, on motion for severance, improperly failed to either appoint separate counsel or conduct requisite searching inquiry for potential conflict of interest; (2) petitioner was not required to show actual conflict since prejudice was presumed; and (3) there was actual conflict of interest which adversely affected trial counsel's performance. Reversed and remanded with directions.

HOLLOWAY, Circuit Judge.

Petitioner-Appellant Michael B. Selsor appeals from the district court's denial of his petition for a writ of habeas corpus. The judge rejected Selsor's constitutional claim of denial of effective assistance of counsel where two public defenders were required by the state trial court to represent the interests of both Selsor and his codefendant Richard Dodson despite timely objections by the attorneys and Selsor that Dodson's and Selsor's interests conflicted. We disagree with the ruling below.

I

FACTUAL BACKGROUND

On September 15, 1975, a U-Tote-M store in Tulsa, Oklahoma, was robbed. One of the store employees, Clayton Chandler, was shot to death and the other, Ina Morris, was shot and wounded. Selsor and Dodson were arrested for the robbery and shootings. Selsor was charged in state court with robbery with firearms in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Dodson was charged with robbery with firearms, after former conviction of a felony in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill, after former conviction of a felony in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Selsor and Dodson were tried together and were both jointly represented by the same two public defenders from the same office. One attorney conducted both defenses while the other attorney supervised that attorney. Selsor v. Kaiser, 22 F.3d 1029, 1031 (10th Cir.1994) ( Selsor I ). At trial Ina Morris, the U-Tote-M employee wounded in the robbery, testified about the ordeal. She stated that she had gone into the store's walk-in cooler, and that while in there “[a] man walked up to the first window [of the cooler] and opened it up and looked at me.” State Tr. at 183. She said the man then walked around to the big walk-in door and pointed a revolver at her. Id. at 184, 186. He told her to get on her knees on the floor. Id. at 186. She testified that she “just looked at him” because she “couldn't believe it.” Id. She said to the gunman “You've got to be kidding.” Id.

The gunman then fired a shot at her, hitting her in the right shoulder. State Tr. at 187. She got down on her knees. The gunman told her that if she looked up he would kill her. Id. at 188. Three to five minutes later Morris raised her head and saw the gunman standing outside the window, holding both hands on the gun. Id. at 190-91. She then saw him pull the trigger and heard the bullets hit the window. She ducked. Id. at 191. She heard more than two bullets fired. Her body went numb. Id. at 192. She lay down and lost consciousness. She was wounded in her right shoulder, on the right side of the back of her head, on top of her head, underneath her jaw, in her back and in her neck. Id. at 199. Two bullets were left in her neck. Id. Morris regained consciousness approximately five to seven minutes later. State Tr. at 193. She walked north in the cooler and looked out to see Clayton Chandler lying on the floor of the U-Tote-M. Id. at 194. Mr. Chandler died as a result of his injuries. Morris identified Dodson as the man who shot her. Id. at 204. She gave no testimony about seeing any assailant other than Dodson, nor did she testify that she heard any shots other than those from Dodson. She did state, however, that the door to the walk-in cooler was closed and that she heard the cooler fan, a noise she described as “[v]ery loud.” Id. at 189. Ms. Morris was the only eyewitness to the crime and her testimony did not implicate Selsor. The evidence against Selsor instead was based on his and Dodson's confessions as presented through the testimony of two police officers, Officer Evans, a major crimes investigator for the Santa Barbara, California Police Department, and Officer Roberts of the Tulsa Police Department.

Officer Evans testified that on September 22, 1975, he and a Sergeant Williams interviewed Dodson at the Santa Barbara Police Department. State Tr. at 238. Officer Evans testified that [Dodson] stated that he and Mr. Selsor were driving a green '67 Pontiac.... He stated that they had been together in this car on the evening of September 15th around 11:00 P.M. and had passed by this U-TOTE-M store which he thought was located at 66th and 33rd, in that vicinity. He stated that both of them were in the car as they passed by this store a couple of times and Mr. Dodson stated that he noticed that the traffic was light around the store and the outlying area and that there was a light fog or something. He then stated that they both were armed.

.... Q And, what did he say in that regard? A Mr. Dodson was armed with a nine shot .22 caliber revolver, black and silver and Mr. Selsor was armed with a .22 automatic Lugger Blackhawk. Q Now, did he say anything in regard to any plan concerning this matter on 33rd West Avenue other than what you have thus far related? A Yes, he did. Q What did he say in that regard? A He stated that prior to entering the store in a conversation with Mr. Selsor there was discussion of taking these people out. .... Q Did he ever indicate in the conversation what he meant by taking them out? A Later in the conversation it was shown that taking them out meant killing them. Q And, when you use the expression, taking these people out, did you know at the time he told you this who he had reference to? A By name or incident? Q Well, by perhaps position with the store? A Yes, meaning the proprietors of the store. State Tr. at 277-79.

Officer Evans also testified about an interview that he and a Detective Martin had with Selsor subsequent to the interview with Dodson. Officer Evans stated that Selsor said “that he and Mr. Dodson had approached the U-Tote-M store at 61st and 33rd Street and they were in a green '67 Pontiac of [sic] which belonged to Mr. Selsor.” State Tr. at 283. Selsor stated that they “didn't intend to have any witnesses around and had planned on killing the proprietors after the robbery.” Id. Evans testified that Selsor said “that he was armed with a .22 caliber Lugger Blackhawk automatic, had a nine shot clip, and that Mr. Dodson was armed with a nine shot .22 caliber revolver.” Id. at 284. Officer Evans then recounted Selsor's description of the robbery: Mr. Selsor stated he demanded the money in a sack and he said the elderly gentleman complied and gave him the money from the cash drawer, the cash register and the safe. Mr. Selsor stated that he told the guy to quit piddling with the change as he was putting the money in, he wasn't interested in that. I asked Mr. Selsor what then occurred and he stated that he had off-set his position, showing me in the interview room, and fired several shots from this .22 automatic into the elderly man. Id. at 285. According to Evans, Selsor “stated that all the bullets went into the chest area and it [sic] must have hit the heart.” Id. at 286. In addition to the testimony of Officer Evans, Officer D.A. Roberts of the Tulsa Police Department testified about a conversation he had with Dodson at the Tulsa County Jail on September 30, 1975. Officer Roberts said that We started the conversation off, I advised him I'd like to know how it went down and the order that it happened. He related it started with a conversation between himself and Selsor, that Selsor had said, We got to take out the witnesses involved in this case. .... At that time I asked him if he felt Selsor really meant that. He said, Well, he convinced me of it. He said, I thought he did, he looked serious. State Tr. at 358-59.

The state introduced the .22 caliber revolver used by Dodson. Id. at 288, 305. The .22 caliber automatic allegedly used by Selsor was not introduced. However, Officer Roberts testified that Dodson told him Selsor threw the gun into some body of water along Interstate 80. In addition, the state introduced spent shell casings recovered from the crime scene which an expert testified came from an automatic weapon. State Tr. at 227-29, 376-77. The defense made no opening statement. The only witness called by the defense was Dr. Garcia, a forensic psychiatrist from Eastern State Hospital at Vinita, Oklahoma, who testified only about Dodson's mental condition. State Tr. at 381-86. The defense closing argument was brief, constituting a mere two pages of the trial transcript and in essence simply asserting that the jury should not take the defendants' lives. Id. at 406-07.

Selsor was convicted of armed robbery, shooting with intent to kill, and first degree murder. He was sentenced to 20 years' imprisonment for shooting with intent to kill, 25 years' imprisonment for armed robbery, and for the murder conviction, he was sentenced to death. The Oklahoma Court of Criminal Appeals affirmed Selsor's convictions and sentences except the death sentence which was modified to life imprisonment. Selsor v. State, 562 P.2d 926 (Okla.Crim.App.1977).FN1 Dodson was convicted of shooting with intent to kill after former conviction of a felony and robbery with firearms after former conviction of a felony, but was acquitted of first degree murder. Dodson was sentenced to 199 years for shooting with intent to kill and 50 years for the armed robbery conviction. His convictions and sentences were affirmed. Dodson v. State, 562 P.2d 916 (Okla.Crim.App.1977). FN1. At the time of the crime, the only punishment in Oklahoma for first degree murder was death. 21 O.S.Supp.1973, § 701.3. Thus, there was no sentencing phase. In Riggs v. Branch, 554 P.2d 823 (Okla.Crim.App.1976), the court concluded that this death penalty provision had been effectively stricken from the Oklahoma first degree murder statute. Id. at 827. In Selsor v. State, 562 P.2d 926, 927 (Okla.Crim.App.1977), the court, citing Riggs, agreed with Selsor's assertion that § 701.3 was unconstitutional. The court therefore modified Selsor's death sentence to life imprisonment. 562 P.2d at 931.

II

POST-CONVICTION PROCEEDINGS

On November 8, 1978, Selsor filed an application for post-conviction relief in state court. That petition was denied on February 29, 1980, and the denial was affirmed in an unpublished order of the Oklahoma Court of Criminal Appeals on June 11, 1980. On July 3, 1989, Selsor filed a second application for post-conviction relief in state court. That application was denied on July 24, 1989, and that ruling was affirmed by the Oklahoma Court of Criminal Appeals in an unpublished order on August 18, 1989. On October 21, 1991, Selsor filed a pro se petition for federal habeas relief in the Northern District of Oklahoma, claiming in essence that (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's conflict of interest- i.e., the same attorney represented both Petitioner and Dodson; and (2) the separate convictions and sentence for felony murder and the underlying felony- i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment. Selsor I, 22 F.3d at 1031.

On December 4, 1992, the federal district court denied the petition on its merits. On appeal we affirmed the district court's rejection of Selsor's double jeopardy claim but reversed and remanded for further proceedings on the claim of ineffective assistance of counsel. Id. at 1036. We held that Selsor's case was controlled by Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and directed the district court on remand to “determine whether: (1) Petitioner's objection at trial to the joint representation was timely, and, if so, (2) whether the trial court took ‘adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel.’ ” Selsor I, 22 F.3d at 1033-34 (quoting Holloway, 435 U.S. at 484, 98 S.Ct. at 1178). On remand the district judge concluded that Selsor's objection to the joint representation was timely. I R. doc. 29 (Order of November 10, 1994) at 2. However, he held that the state trial court made an adequate inquiry into the possibility of a conflict of interest and denied Selsor's petition. Selsor appeals.

III

THE CLAIM OF DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” The Sixth Amendment guarantees a defendant in a federal criminal case the right to effective assistance of counsel, Powell v. Alabama, 287 U.S. 45, 66-68, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932), and this means “the effective assistance of competent counsel.” United States v. Gallegos, 39 F.3d 276, 277 (10th Cir.1994). The Fourteenth Amendment makes this right applicable to the states. Id. “The Sixth Amendment right to effective assistance of counsel encompasses the ‘correlative right to representation that is free from conflicts of interest.’ ” United States v. Cook, 45 F.3d 388, 393 (10th Cir.1995) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981)). Whether Selsor received effective assistance of counsel or waived any conflict of interest is a mixed question of fact and law, reviewed de novo. See Hamilton v. Ford, 969 F.2d 1006, 1010 (11th Cir.1992), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993).

A

Holloway v. Arkansas Principles

In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the Supreme Court held that where there were timely objections to joint representation, and accompanying representations by counsel on the probable risk of a conflict of interests, and the trial judge failed either to appoint separate counsel or take adequate steps to ascertain whether the risk of conflict of interest was too remote to warrant separate counsel, the defendants were deprived of their Sixth Amendment guarantee of “assistance of counsel.” Id. at 484, 98 S.Ct. at 1179. Thus, “whenever a trial court improperly requires joint representation over timely objection reversal is automatic.” Id. at 488, 98 S.Ct. at 1181. See also Selsor I, 22 F.3d at 1033 (where a defendant timely objects to joint representation and the judge fails to make adequate inquiry or appoint separate counsel, prejudice is presumed); United States v. McCullah, 76 F.3d 1087, 1098-99 (10th Cir.1996); Hamilton, 969 F.2d at 1011 (“when defendants make timely objections to joint representation, they need not show an actual conflict of interest when a trial court fails to inquire adequately into the basis of the objection.”). We have stressed that the trial judge “has an ‘ “independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment.” ’ ” Cook, 45 F.3d at 393 (quoting United States v. Levy, 25 F.3d 146, 153 (2d Cir.1994) (quoting in turn Wheat v. United States, 486 U.S. 153, 161, 108 S.Ct. 1692, 1698, 100 L.Ed.2d 140 (1988))).

In Holloway three defendants were each charged with robbery and rape. The trial court appointed one public defender to represent all three defendants. Shortly thereafter the public defender moved for appointment of separate counsel for the three defendants because of the possibility of a conflict of interests. The motion was denied. Prior to the jury being empaneled, defense counsel renewed the motion for separate counsel, arguing “that one or two of the defendants may testify and if they do, then I will not be able to cross-examine them because I have received confidential information from them.” 435 U.S. at 478, 98 S.Ct. at 1175. The trial court again denied the motion and trial began. During the presentation of the defense, the public defender informed the court that despite contrary advice, all three defendants had decided to testify. Their testimony created a serious conflict of interests because the public defender could not cross-examine witnesses against his clients as those witnesses were also his clients. Despite this conflict, the trial court required the public defender to continue the joint representation and convictions followed, which the Arkansas Supreme Court upheld. The Supreme Court reversed, holding that the failure of the trial judge “either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel ... in the face of the representations made by counsel ... deprived petitioners of the guarantee of ‘assistance of counsel.’ ” 435 U.S. at 484, 98 S.Ct. at 1178-79. The Court relied on the long-standing principle laid down in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942): “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.... The trial court should protect the right of an accused to have the assistance of counsel.... .... “Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court.” [ Glasser,] 315 U.S., at 71, 76 [62 S.Ct., at 465, 467] (emphasis added). 435 U.S. at 484-85, 98 S.Ct. at 1173.

The Court noted some of the specific dangers inherent in joint representation: Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of clients in order to minimize the culpability of one by emphasizing that of another. Examples can be readily multiplied. The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters. ... 435 U.S. at 490, 98 S.Ct. at 1181 (emphasis added). In Selsor I we held that Holloway controls the instant case. We remanded for the federal habeas court to determine (1) whether Selsor's objection at trial to joint representation was timely, and if so, (2) whether the state trial judge took adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant separate counsel. 22 F.3d at 1033-34.FN2 The federal habeas judge found that Selsor's objections were timely, but he rejected Selsor's arguments that the state judges committed constitutional error in requiring joint representation of Selsor and Dodson. We turn now to consider the correctness of the latter ruling below. FN2. We recognize that Selsor's trial occurred before the Holloway decision. However, the state conceded at oral argument that Holloway was based on Glasser and therefore it candidly admitted that it could not in good faith argue that Selsor was attempting to claim the benefit of a new rule. Moreover, Selsor I held that Holloway was the applicable legal standard and that decision is the law of the case. When a court decides on a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). There may be grounds for relaxing the application of the law of the case doctrine, see, e.g., United States v. Platero, 72 F.3d 806, 810-11 (10th Cir.1995), but no such grounds exist here. Therefore, we must follow the holding of Selsor I.

B

The Application of Holloway Here

On November 10, 1975, the state public defender, Richard Hoffman, filed a motion for severance on behalf of Selsor in which he asserted that the defenses of the two defendants were “separate and distinct,” and that co-defendant Dodson “could attempt to implicate this Defendant [Selsor] in order to try and extricate himself from involvement.” Plaintiff's Ex. 2 at 2 and 3. On January 14, 1976, Selsor filed a petition for pro se representation. Plaintiff's Ex. 3. In that petition, Selsor stated “I wish private counsel to be specially appointed in my behalf. Should this Court refuse this request, I wish to represent myself in any and all criminal charges pending against me.” Id. On January 15, 1976, Hoffman filed an affidavit stating that it was in Selsor's best interest that the motion for severance be zealously argued but that it was in Dodson's best interest that a motion for severance not be argued. Plaintiff's Ex. 4 at 1 and 2. He then represented that “the Tulsa County Public Defenders Office is, therefore, placed in the position of having to zealously represent opposing points of view.” Id.

¶ 3. He noted that “there is a serious possibility that Richard Eugene Dodson take [sic] the witness stand in his own behalf and that testimony could be prejudice [sic] to Michael B. Selsor.” Id.

¶ 4. A hearing was held on January 16, 1976 before a state district judge. At that hearing, Hoffman informed the court that Dodson would change his plea from not guilty to not guilty by reason of insanity. Plaintiff's Ex. 5 (transcript of 1/16/76 hearing) at 31. He noted that Dodson might testify, and if so, “the statements made by him could be extremely prejudicial to the defendant Michael Bascum Selsor.” Id. Hoffman argued for severance, saying he felt that the public defender's office has been placed in a strange situation in that to ardently and zealously argue this [severance] motion on behalf of Mr. Selsor, we are in affect [sic] arguing against Mr. Dodson in some regard in that the evidence will tend to place Mr. Selsor in a like relation to Mr. Dodson whereby he should be severed where Mr. Dodson could perhaps benefit before a jury by the light that the evidence will place on the co-defendant Selsor. Id. The motion was denied. See Appendix to this opinion (Excerpt of January 16, 1976 Hearing Transcript). This statement, along with previous submissions filed by counsel and Selsor, squarely placed the conflict of interests issue before the state judges.

On January 21, 1976, prior to jury selection, Mr. Corley, the other state public defender representing Selsor and Dodson, requested that outside counsel be appointed for one of the defendants, and again argued for severance: [T]he defense on behalf of defendant Dodson will be that of insanity-not guilty by reason of insanity. The defense of defendant Selsor will simply be not guilty. Now, what this will necessarily mean is that on behalf of defendant Dodson we must acknowledge presence at the scene of the crime and complicity in the crime and deny such on behalf of defendant Selsor. Now, that leaves us in the very awkward position of having to choose which one we're going to defend, because if we claim insanity on behalf of the defendant Dodson and maintain that he was acting in a state of mind wherein he was incapable of determine [sic] right from wrong and partially from the insistence of the co-defendant, we must with no reservation condemn the defendant Selsor. If we defend the defendant Selsor and deny his guilt, then there is no way possible we can present the insanity defense on behalf of the defendant Dodson which leaves an interesting question; how do we choose which one we are going to defend? State Trial Transcript at 3-4 (emphasis added). The state trial judge, a different judge than the one at the January 16 hearing, made no inquiry into the potential conflict. He told the two public defenders: “You and Mr. Hoffman can decide which one you want to particularly represent if you think that is necessary.” Id. at 6. He noted the motion was the same one presented at the January 16 hearing and said: “As I reviewed the authority submitted to [the hearing judge] and the authorities he gathered and put in detail and as I concur in his rulings on your motion to sever, I will deny it also and give you an exception.” Id. at 6-7. See Appendix to this opinion (Excerpt of Trial Transcript, January 21, 1976).

On January 22, 1976, prior to opening statements, public defender Corley again renewed the motion to sever: MR. CORLEY: I would like to renew our motion to sever on the ground that it now appears at this time that we will indeed be calling Dr. Garcia as a witness to present our defense of insanity on behalf of defendant Dodson and I don't see any way in the world we can, without any conflict, defend the defendant Selsor at the same time. I just don't see any way. It was suggested yesterday that this was merely a ploy to attempt to create reversable [sic] error. Now, goodness knows, that in this case, Your Honor knows the facts, that we need reversable [sic] error, there's no question about it, we don't deny that. I will state unequivocally that what we're doing is not intended to create any error, it's in good faith. As a matter of fact, at one time we did debate or kick around the possibility of not seriously pursuing this so maybe there would be error, but we decided we owed an obligation to our clients to vigorously defend them at trial as best we could and the only way we can do it was to move for a severance and split the cases because there was no way we could consistently defend both of them at the same time. It is in good faith and we will be willing to swear under oath to that affect [sic]. In fact, Your Honor suggested that one of us take one client and one take the other. I want to make our understanding of the situation perfectly clear for the record. Mr. Hoffman, as Your Honor can tell, is now doing most of the trying of the case and I am assisting him. I consider myself primarily more in the advisory capacity than anything else. Mr. Hoffman has tried only one jury case, I've tried probably twenty-five or thirty and for this reason I am assisting him.

BY THE COURT: Mr. Corley, I do not want to listen to you say you are not prepared. MR. CORLEY: I didn't say I wasn't prepared, Your Honor. BY THE COURT: I'll not listen to that. I don't want to hear that. MR. CORLEY: I say this because I don't see how we can professionally consistently under the Cannon [sic] of Ethics one take one and one take the other because I must assist him with both of them. This means that if I defend one I must at the same time advise him with regard to the person of the adversary [sic] position. I can't do it consistent with the Cannon [sic] of Ethics. BY THE COURT: The motion will be overruled as I stated yesterday. State Tr. at 152-54 (emphasis added). Selsor and Dodson then proceeded to trial, both represented by public defenders Hoffman and Corley.

The defense moved for severance three more times during the trial-on January 22, during the testimony of Officer Evans, State Tr. at 276; on January 23, at the close of the state's case-in-chief, id. at 380; and finally again on January 23 at the close of the defense case, id. at 394. All of these motions were denied. It is clear that the issue of a potential conflict of interest resulting from the joint representation was repeatedly brought home to both the state judge at the pretrial hearing and the state trial judge. Because the state does not challenge the federal habeas judge's conclusion that there was a timely objection to the joint representation, our inquiry addresses only whether the state court judges took adequate steps to ascertain whether the risk of conflict of interest was too remote to warrant separate counsel. Holloway, 435 U.S. at 484, 98 S.Ct. at 1178. The federal district judge concluded that there was an adequate inquiry and denied Selsor's habeas petition. We must disagree. In United States ex rel. Zembowski v. DeRobertis, 771 F.2d 1057 (7th Cir.1985), the Seventh Circuit affirmed a grant of habeas relief to a petitioner who, like Selsor, was represented by the same counsel as his codefendant at their joint trial: When presented with [counsel's] claim of conflicting defenses, at a minimum the trial court should have requested that [counsel] give him some idea of what the conflict entailed, to allow him to determine whether to order [counsel] to withdraw.... Holloway does not require that [counsel] disclose his trial strategy or violate his duty of confidentiality to his clients, so that the substance of what he disclosed may have been quite limited. Still the judge had an obligation to determine whether the conflicting defenses encompassed more than the evidence incriminating [codefendant] Thomas, and if so whether the possibility of an actual conflict's developing mandated the court's ordering [counsel] to withdraw from joint representation.... Id. at 1063 (emphasis added). In Smith v. Anderson, 689 F.2d 59, 63 (6th Cir.1982), the Sixth Circuit held that “[i]n the realm of the Sixth Amendment, when an objection to joint representation is properly raised and dismissed without a searching review, which can demonstrate that counsel's fear for his effectiveness is groundless, a constitutional violation occurs.” (Emphasis added.) The court further stated that Flowing naturally from these elemental principles are the holdings of Holloway v. Arkansas and Glasser v. United States that counsel simply may not be required by the court to undertake joint representation without a convincing showing that counsel's protestations that such multiple representation is fraught with potential conflicts of interest are groundless. Id. (emphasis added).

In making an inquiry into potential conflicts, the trial judge must bear in mind that “[a]n ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of trial.’ ” Holloway, 435 U.S. at 485, 98 S.Ct. at 1179 (quoting State v. Davis, 110 Ariz. 29, 514 P.2d 1025, 1027 (1973)). In addition, “attorneys are officers of the court, and ‘when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.’ ” Id. at 486, 98 S.Ct. at 1179 (quoting State v. Brazile, 226 La. 254, 75 So.2d 856, 860-61 (1954)). Thus the trial court can require counsel who has raised the objection to joint representation to continue such representation only if, after a searching inquiry, it is clear that counsel's claim of conflict of interest is “groundless.”

We find instructive Hamilton v. Ford, supra, cited by Selsor. The petitioner there, like Selsor, was tried jointly with his codefendant, was jointly represented, and timely objected to joint representation. The Eleventh Circuit granted a conditional writ, holding that the state trial judge's inquiry was inadequate: We also find that the trial court inadequately inquired into the possibility of a conflict of interest. The court's inquiry consisted solely of commenting in a colloquy during the first day of trial that it doubted that defense counsel wished to elaborate how there was a conflict of interest. Defense counsel did not respond because the comment was made in open court. The court then stated that it had read the trial file in relation to an unrelated motion and did not see how a conflict of interest could arise. No further inquiry was made. We find that the reading of a file for an unrelated purpose is inadequate exploration of the possibility of conflict. Further, by asking defense counsel to disclose trial strategy in open court, the trial court improperly placed counsel in a situation where in order to adequately respond he would have had to disclose client confidences, thereby breaching attorney/client confidentiality. As the Supreme Court stated in Holloway, “[O]ur holding [does not] preclude a trial court from exploring the adequacy of the basis of defense counsel's representations regarding a conflict of interest without improperly requiring disclosure of the confidential communications of the client.” 435 U.S. at 487, 98 S.Ct. at 1179. 969 F.2d at 1013. Hamilton concluded that an adequate inquiry must be targeted at the conflict issue and that the inquiry must be searching, without improperly requiring defense counsel to disclose confidential communications. We agree. FN3. The state relies on several cases where courts have rejected defendants' arguments that severance was required because their defenses were incompatible with those of their codefendants. See United States v. Brown, 784 F.2d 1033 (10th Cir.1986); United States v. Swingler, 758 F.2d 477 (10th Cir.1985); United States v. Lee, 744 F.2d 1124 (5th Cir.1984). They are distinguishable because they do not involve joint representation. Milton v. Morris, 767 F.2d 1443 (9th Cir.1985), and United States v. Lee, 589 F.2d 980 (9th Cir.), cert. denied, 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 382 (1979), both conflict of interest cases cited by the state, are also distinguishable because they did not involve joint representation problems.

Although Stringer v. Jackson, 862 F.2d 1108 (5th Cir.1988), vacated on other grounds sub nom. Stringer v. Black, 494 U.S. 1074, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), also relied upon by the state, was a case of joint representation, it is distinguishable on two grounds: (1) in Stringer the defendants were tried separately, and (2) Stringer, unlike Selsor, failed to object at trial to the joint representation and therefore fell under the more stringent standard of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), rather than the Holloway standard. Cuyler requires a defendant to demonstrate “an actual conflict existed by pointing to specific instances in the record which reflect that [counsel's] performance in his behalf was adversely affected.” Stringer, 862 F.2d at 1117 (citing Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718). The federal habeas judge here found Hamilton distinguishable. He said that in Selsor's case “[t]he trial court engaged in an extensive discussion of the possibility of a conflict of interest regarding Petitioner's representation with counsel for both the prosecution and the defense.” Order of November 10, 1994 at 2. We disagree. Our review of the record convinces us that neither of the state court judges made an adequate inquiry as required by Holloway. The first state judge recognized that the confessions by the codefendants raised an issue under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),FN4 but he concluded that Bruton did not apply. His Bruton inquiry, however, did not address the possibility of a conflict of interest resulting from the joint representation. Thus the judge's inquiry into the possibility of a conflict of interest was inadequate. See Appendix to this opinion. FN4. “ Bruton holds that the sixth amendment rights of a defendant are violated if the defendant's nontestifying codefendant makes a confession that implicates the defendant and the Government introduces the confession into evidence at their joint trial.” United States v. Hill, 901 F.2d 880, 883 (10th Cir.1990).

Selsor argues that “the [state] court failed to consider the conflicting defenses counsel would present at trial.” Appellant's Brief at 14. We agree. The state court treated the joint representation problem “as an internal problem for the Public Defender's office.” Plaintiff's Ex. 5 at 38. FN5 There was no inquiry into how Selsor's defense might be adversely affected by the joint representation even though the potential conflict of interest was patent. As defense counsel noted, Dodson would assert an insanity defense which required him to admit his role in the offenses, including his participation with Selsor. Selsor's defense was to deny any involvement. These inconsistent positions could color the judgment of the defense attorneys throughout the trial.FN6 An adequate consideration of the conflict would have revealed the impossibility of going forward with the joint representation. Yet the state judge “turn[ed] a blind eye to an obvious possible conflict,” Cook, 45 F.3d at 394 (quoting Levy, 25 F.3d at 154), and required the continued joint representation. We are persuaded that the state judge failed to fulfill his constitutional duty by “insisting ... that counsel undertake to represent interests which might diverge from those of his first client, when the possibility of that divergence [was] brought home to the court.” Glasser, 315 U.S. at 76, 62 S.Ct. at 467.

FN5. We do not sit in supervision of state court enforcement of attorney ethical standards. See Fero v. Kerby, 39 F.3d 1462, 1480 (10th Cir.1994) (“federal courts hold no supervisory power over state judicial proceedings”), cert. denied, 515 U.S. 1122, 115 S.Ct. 2278, 132 L.Ed.2d 282 (1995); cf. Gallegos, 39 F.3d at 279 (“a violation of [state ethical] rules will not in itself constitute a constitutional violation under Cuyler and related cases.”); English v. United States, 620 F.2d 150, 151 n. 3 (7th Cir.) (noting that attorney's representation of multiple defendants may have violated ethical rule but that such violation did not establish a constitutional violation), cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75 (1980). However, we note that the state judge's assertion that the representation of Selsor and Dodson was an internal problem of the public defender's office might have been at odds with the Oklahoma ethical standards then in effect.

At the time of Selsor's trial, attorneys practicing in Oklahoma state courts were bound by the American Bar Association Code of Professional Responsibility as adopted in Oklahoma. See 5 O.S.1971, Ch. 1, App. 3. DR 5-105(B) provided “[a] lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another....” DR 5-105(D) provided “[i]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.” (Emphasis added.) These provisions appear to have ethically prohibited the Tulsa public defenders office from representing both Selsor and Dodson. See also ABA Comm. on Professional Responsibility, Informal Op. 1418 (1978) (representing clients with conflict of interest by the same public defender department) (under DR 5-105(D), “if one [public defender] handling one defendant is disqualified from handling both defendants, the Department is disqualified from accepting both.”). Cf. United States v. McCullah, 76 F.3d 1087, 1099 (10th Cir.1996) (no Sixth Amendment violation because of a conflict of interest where a prospective government witness was represented by the same federal public defender office as that of the public defenders who represented defendant; witness did not testify, so conflict never materialized, and defendant “was represented by attorneys in the same federal public defender office, not by the same attorney as [the prospective witness].”). In any event, as previously noted, both public defenders here represented both Selsor and Dodson at the trial, rather than each attorney representing one of the defendants, and the state judge required that dual representation to continue over the repeated objections for Selsor. FN6. Our record suggests several points of potential conflict between the interests of Selsor and Dodson which should have been perceived by the state court judges: (1) if Dodson testified, Selsor's interest would indicate aggressive cross-examination; (2) Selsor's interest would be served by an independent decision whether he should testify, unencumbered by the possible impact of his testimony on Dodson; (3) Selsor's interest would perhaps be served by vigorous argument for severance, unencumbered by Dodson's interest in opposing severance; and (4) Selsor's ability to pursue a plea agreement may have been stronger had Selsor been able to operate independently of Dodson, see Holloway v. Arkansas, 435 U.S. at 490, 98 S.Ct. at 1181.

As noted, the conflict of interest issue was raised again on January 21, 1976 before the trial judge, a different state judge. Selsor argues that the trial judge “made no individual findings regarding the possibility of a conflict of interest, relying on [the] previous ruling.” Appellant's Brief at 15. We agree. The state trial judge's questions focused only on the timing of Dodson's change of plea and he simply agreed with the first judge's ruling at the January 16 hearing. See Appendix to this opinion. Thus both state judges “turned a blind eye” to the obvious possibility of a conflict of interest. Cook, 45 F.3d at 394. We hold that neither inquiry was adequate under Holloway. The state asserts that “[t]he issue of the propriety of the [state] trial court's finding [on the conflict of interests] is not squarely before this Court on appeal.” Appellee's Brief at 7. We disagree. The inquiry required surely encompasses a sound resolution of the conflict problem. We must reject the narrow reasoning of the state judge, which the federal habeas judge followed.FN7 Otherwise the inquiry mandated by Holloway would be an empty ritual. As the Sixth Circuit held in Smith v. Anderson, supra, the inquiry is the mandatory procedure for deciding whether counsel's claim of conflict is “groundless.” 689 F.2d at 63. In fact, in Hernandez v. Mondragon, 824 F.2d 825, 826-27 (10th Cir.1987), before we affirmed the denial of habeas relief we held that the inquiry requirement of Holloway was followed, and that the conclusions reached by the federal district court, including a conclusion that there was no conflict of interest, were correct.

FN7. The federal habeas judge held below: The Court finds that the trial court made adequate inquiry into the possibility of conflict. The Court does not explore the soundness of result reached in the trial court's “adequate inquiry” under Holloway, but only the adequacy of the inquiry. The trial court's adequate inquiry negated the presumption of ineffective assistance of counsel that would otherwise exist in the face of Petitioner's timely objection to joint representation. I R. doc. 29 at 3. Our review of the record convinces us that the state court judges did not “take adequate steps to ascertain whether the risk [of conflict] was too remote to warrant separate counsel.” Holloway, 435 U.S. at 484, 98 S.Ct. at 1178. Defense counsel's conflict claims were clearly not “groundless” and should not have been rejected. Since the state court failed to discharge its constitutional duty, conditional habeas relief must be granted. Cook, 45 F.3d at 393; Hamilton, 969 F.2d at 1011.

C

The Showing Required of Petitioner Selsor

We have rejected above the State's argument that there was an adequate inquiry under Holloway concerning the conflict of interests claimed in the instant case. There is an additional argument made by the State that the showing by Selsor here failed to demonstrate an actual conflict of interest adversely affecting his lawyer's performance. Appellee's Brief at 12. The State relies on Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), and Hernandez v. Mondragon, 824 F.2d at 825-27. In Selsor I we addressed the requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for a showing of actual conflict. In Selsor I we concluded that

Strickland's requirement of a showing of actual conflict presupposes that trial courts conduct an appropriate inquiry when the defendant properly raises the [conflict of interest] issue. Holloway, however, addresses the situation where the trial court fails to make such an inquiry in the face of the defendant's timely objection. As a result, the Strickland rule requiring a defendant to demonstrate an actual conflict of interest in order to obtain a presumption of prejudice is inapplicable to a Holloway-type case. We therefore conclude the holding in Holloway-i.e., that prejudice is presumed when the trial court fails to either appoint separate counsel or make an adequate inquiry, in the face of the defendant's timely objection-satisfies Strickland's prejudice requirement without a showing of actual conflict. 22 F.3d at 1033 (second emphasis added). Thus, it is the law of this circuit, and the law of the case in this controversy, that in this Holloway-situation, the defendant did not need to show actual conflict. That was decided in Selsor I. And since there is no justification shown for relaxing the law of the case, we will follow the holding of Selsor I, noted above. Thus, prejudice is presumed FN8 with respect to Selsor because the state trial court failed to appoint separate counsel and, as we now hold in this opinion, the state judge also failed to make an adequate inquiry, despite the defendant's timely objection to representation of both defendants by attorneys Corley and Hoffman.

FN8. In Holloway, the Court emphasized the holding of Glasser, 315 U.S. at 75-76, 62 S.Ct. at 467-68, that “To determine the precise degree of prejudice sustained by Glasser as a result of the [district] court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial....” But from the cases cited it is clear that the prejudice is presumed regardless of whether it was independently shown. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), for example, stands for the principle that “[a] conviction must be reversed if [the asserted trial error occurred], even if no particular prejudice is shown and even if the defendant was clearly guilty.” Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 837, 17 L.Ed.2d 705 (1967) (Stewart, J., concurring); see also id., at 23, and n. 8, 87 S.Ct. at 827 and n. 8 (opinion of the Court). 435 U.S. at 488-89, 98 S.Ct. at 1181.

Moreover, our holding that conditional habeas relief must be granted in Selsor's case need not depend on a presumed conflict of interest because here the record demonstrates an actual conflict that adversely affected the performance of Selsor's counsel. In United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990), we said “Actual conflict” and “adverse effect” are not self-defining phrases, [citations omitted], but in the context of the instant case, we hold that defense counsel's performance was adversely affected by an actual conflict of interest if a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests. Id. at 1500 (emphasis added). Under this standard, it is clear that here defense counsel's performance was adversely affected by his duties to codefendant Dodson.

The state asserts that there is no evidence in the record that one defendant had evidence that would exculpate himself and inculpate his co-defendant. Each defendant alone confessed, implicating himself. The confession of each would have been admissible even if separate trials were given and separate counsel was appointed.... .... There is nothing in the record to show that counsel would have acted any differently if he only represented one defendant other than possibly placing each defendant on the stand. However, the confessions of each would have still been admissible.... In light of the above authority, the Appellant has failed to show that an actual conflict existed and similarly the record fails to show that an actual conflict existed and the trial court properly did not appoint separate counsel. Appellee's Brief at 13-14. We disagree with the state's argument that the record does not show an actual conflict. The record reveals that defense counsel's cross-examination of Officer Evans was damaging to Selsor. During that examination, the following exchange occurred: Q Now, you previously stated that there was some conversation between the two defendants prior to entering the U-TOTE-M store concerning taking them out, is that correct? A That's correct. Q Do you remember who said to whom-can you tell the jury something more about that conversation, if you recall? .... A I had asked Mr. Dodson if there had been any plans of this previous to going in the store and he stated that Mr. Selsor had mentioned taking them out, but he didn't believe he was for real and Mr. Selsor's comment on that was that, We discussed it and we didn't want to leave any witnesses behind and I only did my part. Q It's your testimony that their statements were different in that regard? A Not that much. It was the same to me. Q Okay. So, it was Mr. Dodson who said something to the affect [sic] that he didn't believe Mr. Selsor was serious in that regard. A He stated that after he had mentioned that they had discussed taking them out, he said that he didn't believe he was for real. Q Okay. Did he tell you concerning that evening in your interview with him, did Mr. Dodson state that he and Mr. Selsor were different and that kind of thing was not his way of doing things? A I don't recall that. .... Q Officer, at the time when you asked Mr. Dodson if he had shot the girl after hearing the firing in the background to his rear, you did ask him if he shot the girl, is that correct? A Yes. Q And, did he give any indication of his mental condition at that time? A He stated that when he heard the other shot that he had freaked out, stepped back, pointed the gun and fired it five or six times. Q Did he express intention to wound the individual in the cooler? A Just that he had pointed it in the direction of the female behind the glass. Q Did he say that he didn't intend to hit her? Did he say, I didn't try to hit her? A He may have said that, yes. Q Did he say, I did not intend to hit her through, I just shot through? A He said, I didn't try to hit her, I just shot through. State Tr. at 313-16 (emphasis added).

It is clear from this exchange that defense counsel was attempting to show that Dodson did not intend to “take out the witnesses” or to shoot Morris. This line of questioning was in keeping with counsel's duties to Dodson. However, this drove counsel into an actual conflict by creating the appearance that Selsor was more culpable than Dodson. Counsel's line of questioning elicited Dodson's statement that Selsor had said: “we didn't want to leave any witnesses behind and I only did my part.” This was a foreseeable result of defense counsel's inquiry in this area. Defense counsel's question “did Mr. Dodson state that he and Mr. Selsor were different and that kind of thing was not his way of doing things?” was an attempt to show that Dodson did not intend to “take out” the witnesses, but that Selsor did intend to do so. The damaging effect is obvious-no conflict-free counsel would have asked that question on behalf of Selsor.FN9

FN9. We must note that during direct examination, Officer Evans testified that both Dodson and Selsor told him that they had planned to kill the witnesses. State Tr. at 278, 283. Thus, Selsor's statement that they planned to kill witnesses was already before the jury. However, defense counsel's attempt to diminish Dodson's culpability vis-a-vis Selsor served to emphasize Selsor's culpability and thereby aid the prosecution case against Selsor. We cannot, of course, measure the prejudicial effect to Selsor of defense counsel's cross-examination of Officer Evans, but we believe it important to note that the prosecution in its closing arguments relied heavily on the defendants' statements about “taking out” witnesses. See State Tr. at 400, 408, 414, 416. Because Dodson was acquitted of murder and Selsor was convicted, there is at least an indication that defense counsel's conduct may have helped convict Selsor. We hold that there was an actual conflict of interest that adversely affected counsel's performance on behalf of Selsor. Therefore, we are convinced that this record shows violations of Selsor's Sixth and Fourteenth Amendment rights to effective assistance of counsel.

IV

CONCLUSION

Under the Sixth and Fourteenth Amendment principles laid down by the Supreme Court, we hold that Selsor's convictions are constitutionally invalid and cannot stand. Accordingly, the denial of habeas relief is REVERSED. Selsor's convictions are adjudged constitutionally invalid under the Sixth and Fourteenth Amendments. The case is REMANDED to the District Court for the Northern District of Oklahoma with directions to enter judgment invalidating Selsor's convictions in accordance with this opinion, but providing that such judgment is without prejudice to further proceedings by the state for retrial of the petitioner within a reasonable time. If such a retrial results in valid convictions and sentences, the federal habeas proceedings shall be dismissed; if, however, the state does not conduct a new trial within a reasonable time, as determined by the habeas court below, then the writ shall issue.

APPENDIX

Excerpt of Transcript of Hearing, January 16, 1976

BY THE COURT: .... Now, the next proposition of concern is the fact that the defenses are separate and distinct, paragraph two [of the motion to sever], a danger exists that this co-defendant would attempt to implicate this defendant in order to try to extricate himself from the involvement for the said co-defendant in the above styled cases of previous felony convictions. You have not made any remarks [?] for the balance of your statements and the motion for severance [?]....FN10 FN10. The question marks signify portions of this hearing transcript which are unclear or illegible. This transcript seems to have been taken off of microfilm and the quality is poor in places. .... ... I see nothing in the balance aside from the very serious Bruton problem which I find would not be applicable in this case that would require a severance motion. The problem of individual representation for each of these defendants, I think, is an internal problem for the Public Defender's office. Unless something of the nature of the Fugett case that counsel has cited [ Fugett v. State, 461 P.2d 1002 (Okla.Crim.App.1969) ] would arise and that, of course, was a situation, I think, that as I recall the case, did involve a problem of one of the defendants taking the stand and did involve the Bruton rule. Again, I think that with a multiple personnel Public Defender's office we can affectively [sic] represent, have representation of these defendants where we don't have a group problem. MR. HOFFMAN: Your Honor, might I note for the record that the defendant has formally executed an affidavit firing the [?] Public Defender's office. BY THE COURT: Now, that's the next step. The next step [?] is your application to have private counsel appointed. I [?] think we need to get over that hurdle before we see whether this defendant is entitled to have self representation, whether he still desires to have that in light of the ruling here. So, at this time, I would overrule the motion for severance, deny the application because I don't think the facts under Fugett would require private counsel hiring, would be applicable in this case and then I suggest that maybe you have a conference with your defendant Mr. Selsor on seeing whether he would like to re-urge his Pro se application under the Supreme Court ruling. MR. HOFFMAN: Might I note for the Court, Your Honor, that previously, I believe it was last week, I confronted Your Honor with this problem we had in regard to it being an internal problem with the Public Defender's office. Mr. Selsor was provided with an alternative counsel from the Public Defender's office in that Pete Silva, a member of our office, was assigned by Les Earl, the Chief Public Defender to represent Michael Selsor in this case and Mr. Selsor refused his assistance at that time. BY THE COURT: All right. You all have had an opportunity to visit with Mr. Selsor and see if he wants to be heard personally on his motion for representation. As far as [?] I'm concerned you're still representing him. At this time I [?] have not granted an application to withdraw. If you want a minute [?] or two to visit with him, I'll let you do that. That will [?] leave the remaining application of his Pro se representation to be ruled upon.... .... BY THE COURT: We had pending the last petition of the defendant in this case, the petition for Pro se representation in the event he was disallowed the opportunity to have private counsel under the Fugett decision and disallowed a severance. Is there an announcement? MR. HOFFMAN: Your Honor, at this time the defendant would withdraw his application for Pro se representation and continue having representation with the Public Defender's office. I might state on behalf of the Public Defender's office that we would still allege the position that this provides us with an inexorable conflict in that we have to provide separate and distinct defenses for these defendants in contradiction to each other in the one proceeding. BY THE COURT: At this time then with the record reflecting counsel has been present throughout these proceedings as initially indicated, Mr. Selsor's presence throughout these proceedings, we will allow the withdrawal of [?] Pro se representation application by the petitioner [?] announcement of counsel of record. We will indicate [?] the trial is originally set for this coming Monday.... Plaintiff's Ex. 5 (Transcript of Hearing on January 16, 1976) at 36-41 (emphasis added).

Excerpt of Trial Transcript, January 21, 1976

MR. CORLEY: We filed on the 10th day of November, 1975 a motion for severance on behalf of defendant Michael Selsor. I believe we have also requested that outside counsel be appointed for either one of these defendants. We would again re-urge our motion for severance on behalf of each defendant orally at this time, if we may, Your Honor, for this reason, the defense on behalf of defendant Dodson will be that of insanity-not guilty by reason of insanity. The defense of defendant Selsor will simply be not guilty. Now, what this will necessarily mean is that on behalf of defendant Dodson we must acknowledge presence at the scene of the crime and complicity in the crime and deny such on behalf of defendant Selsor. Now, that leaves us in the very awkward position of having to choose which one we're going to defend, because if we claim insanity on behalf of the defendant Dodson and maintain that he was acting in a state of mind wherein he was incapable of determine right from wrong and partially from the insistence of the co-defendant, we must with no reservation condemn the defendant Selsor. If we defend the defendant Selsor and deny his guilt, then there is no way possible we can present the insanity defense on behalf of the defendant Dodson which leaves an interesting question; how do we choose which one we are going to defend? Do we flip a coin, do we have some kind of a contest between the two, do we let them engage in a tug of war, what do we do, which one are we going to defend? We're very serious and we filed a motion to withdraw from one of these cases. To me, Your Honor, it's a classic case of a conflict in this case and I don't see any possible way. If your Honor forces us to defend both of them, we really haven't decided at this time which one we're going to vigorously defend and which one we're not going to defend. I just don't see any way we can reconcile the two. BY THE COURT: These crimes were alleged to have been committed in September. When were you appointed to defend these defendants? MR. CORLEY: The record should reflect that, Your Honor, it was immediately upon their first appearance in court. BY THE COURT: They were ordered held for trial by the Magistrate at the preliminary on the 14th of October, 1975. I believe these cases have been set for trial before, have they not? MR. CORLEY: I don't believe they have, Your Honor. We filed a motion on the 10th of November, 1975. It's not a new motion. .... BY THE COURT: Do I understand correctly, Mr. Corley, that the plea was entered on behalf of the defendant Dodson heretofore was not guilty period? MR. CORLEY: That's correct, Your Honor. It's his choice at this time to enter a plea before the jury trial of not guilty by reason of insanity. BY THE COURT: Well, I understand that pleas are to be entered at the time of arraignment and not at the time of trial for the very good reason that it would prevent the situation that you say you find yourself in. It's been set for trial. MR. CORLEY: Your Honor, I believe that we were not able to send them to Eastern State Hospital until after the District Court arraignment. It was not until after that time that this became obvious to us. BY THE COURT: Both you and Mr. Hoffman have been in the case from the beginning, is that correct? MR. CORLEY: Yes, we were both present at the preliminary hearing, yes, sir. We have represented both defendants, Mr. Hoffman primarily is representing the defendants and I am appearing to assist him in whatever assistance I can give him based on the fact that I have a little more experience than he does, assist him in making the record also. BY THE COURT: I understood they were your cases from what he told you last week. MR. CORLEY: As far as our office records were concerned they are assigned to Judge Ricketts and as Your Honor knows I am assigned to Judge Ricketts' court so any case assigned there would be mine. We talked about this, I believe, before the preliminary hearing and he agreed to try the cases on the condition that I would assist him and be with him at all times. BY THE COURT: I don't know if I have a copy of those motions you are looking at. May I see them? Mr. Corley, your motion to withdraw will be denied and give you an exception. You and Mr. Hoffman can decide which one you want to particularly represent if you think that is necessary. You also have a motion to sever and this is the same motion which was argued before Judge Ricketts. MR. CORLEY: Yes, sir. BY THE COURT: As I reviewed the authority submitted to him and the authorities he gathered and put in detail and as I concur in his rulings on your motion to sever, I will deny it also and give you an exception. State Trial Transcript at 3-7 (emphasis added).

Selsor v. Workman, 644 F.3d 984 (10th Cir. 2011). (Habeas)

Background: Following affirmance of his state-court first-degree murder conviction, petitioner sought federal habeas relief. The United States District Court for the Northern District of Oklahoma, Claire V. Eagan, J., 2009 WL 3233806, entered order denying petition, and petitioner appealed.

Holdings: The Court of Appeals, Briscoe, Chief Judge, held that: (1) state appellate court's reversal of previous decision holding that defendants convicted under prior first-degree murder statute were subject to life imprisonment and its decision to allow prosecution at retrial to seek death sentence for defendant did not have ex post facto effect in violation of defendant's due process rights; (2) sentencing of defendant to death following retrial did not violate prohibition against double jeopardy; (3) defendant could not prevail on his equal protection claim; and (4) prosecutor's remarks about defendant's mitigation witnesses did not deprive him of fair sentencing hearing. Affirmed.

BRISCOE, Chief Judge.

Petitioner Michael Selsor, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. Selsor asserts seven issues on appeal: (1) whether a state appellate ruling allowing the prosecution at his retrial proceedings to seek the death penalty against him violated his due process rights; (2) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Double Jeopardy Clause; (3) whether the state trial court violated his constitutional rights at the retrial proceedings by instructing the jury as to the elements of a post-crime first degree murder statute, rather than the elements of the pre-crime first degree murder statute under which he was originally charged; (4) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Equal Protection Clause; (5) whether the prosecution acted vindictively, in violation of his due process rights, by seeking the death penalty at his retrial proceedings; (6) whether the penalty phase of his retrial proceedings was rendered fundamentally unfair by prosecutorial misconduct; and (7) whether the admission, during the penalty phase of the retrial proceedings, of testimony from the victim's family members regarding the appropriate sentence violated his rights under the Eighth Amendment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Factual background

The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Selsor's most recent direct appeal: At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U–TOTE–M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, “You've got to be kidding me.” Dodson then fired a shot striking Morris in the shoulder. Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled. On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses. Selsor v. State (Selsor II), 2 P.3d 344, 347–48 (Okla.Crim.App.2000) (internal paragraph numbers omitted).

Selsor's original trial and direct appeal

Following his arrest, Selsor “was charged in the District Court, Tulsa County, with the offenses of Armed Robbery, CRF–75–2183; Shooting With Intent to Kill, CRF–75–2182; and, Murder in the First Degree, CRF–75–2181, After Former Conviction of a Felony.” Selsor v. State (Selsor I), 562 P.2d 926, 927 (Okla.Crim.App.1977). The case proceeded to trial in January 1976, and Selsor “was tried conjointly with co-defendant ... Dodson.” FN1 Id. “A guilty verdict was returned as to all three charges [against Selsor], punishment being assessed at death for Murder in the First Degree; twenty (20) years' imprisonment for Shooting With Intent to Kill; and, twenty-five (25) years' imprisonment for Armed Robbery.” FN2 Id. FN1. Both defendants were represented, over their respective objections, by the same two lawyers from the Tulsa County public defender's office. As discussed below, that joint representation was ultimately the basis for this court's 1996 decision to grant a writ of habeas corpus in Selsor's favor. FN2. Dodson was acquitted of first degree murder, but convicted of the other two charges.

Selsor filed a direct appeal challenging his convictions and sentences. On April 6, 1977, the OCCA issued a published decision affirming all of Selsor's convictions, as well as the sentences imposed for the Shooting With Intent to Kill and Armed Robbery convictions. The OCCA, however, modified Selsor's death sentence to life imprisonment. In doing so, the OCCA concluded, consistent with its then-recent decision in Riggs v. Branch, 554 P.2d 823 (Okla.Crim.App.1976), that the Oklahoma death penalty statute under which Selsor was sentenced, Okla. Stat. tit. 21, § 701.3 (1973), was unconstitutional. Selsor I, 562 P.2d at 927.

Selsor's first application for state post-conviction relief

On November 8, 1978, Selsor filed a pro se application for post-conviction relief in state district court. The application asserted a single claim for relief from his convictions, i.e., that “THE TRIAL COURT ERRED BY REQUIRING [Dodson] AND [Selsor] TO, OVER [their] OBJECTION, BE TRIED JOINTLY WITH THE SAME COUNSEL FROM THE PUBLIC DEFENDERS OFFICE.” S. R., Vol. I at 160. On February 28, 1980, the state district court denied Selsor's application, noting that Selsor's claim had previously been rejected by the OCCA on direct appeal. The state district court's denial of post-conviction relief was affirmed by the OCCA on June 12, 1980. Selsor's second application for state post-conviction relief “On July 3, 1989, Selsor filed a second application for post-conviction relief in state court.” FN3 Selsor v. Kaiser (Kaiser II), 81 F.3d 1492, 1496 (10th Cir.1996). “That application was denied on July 24, 1989, and that ruling was affirmed by the [OCCA] in an unpublished order on August 18, 1989.” Id. FN3. The records from this proceeding were not included in the record before us, and Selsor's own brief, when referring to these proceedings, contains no citations to the record. Thus, it is unclear precisely what claim or claims Selsor asserted in his second application for state post-conviction relief.

Selsor's first federal habeas proceedings

In October of 1991, Selsor filed a pro se petition for federal habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. Selsor v. Kaiser (Kaiser I), 22 F.3d 1029, 1031 (10th Cir.1994). Selsor's petition asserted “two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's conflict of interest—i.e., the same attorney represented both [Selsor] and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony—i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment.” Id. The district court denied Selsor's petition on December 4, 1992. Id. In doing so, the district court addressed and rejected the ineffective assistance claim on the merits, but concluded that Selsor's double jeopardy claim was procedurally barred.

Selsor appealed the district court's ruling to this court. This court appointed a federal public defender to represent Selsor. On May 2, 1994, this court issued a published opinion reversing the decision of the district court and remanding for further proceedings. More specifically, this court concluded “that the district court applied the incorrect legal standard” to Selsor's Sixth Amendment claim, id. at 1033, and thus remanded the case to the district court to “determine whether: (1) [Selsor]'s objection at trial to the joint representation was timely, and, if so, (2) whether the trial court took ‘adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel,’ ” id. at 1033–34 (quoting Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). “On remand the district [court] concluded that Selsor's objection to the joint representation was timely.” Kaiser II, 81 F.3d at 1496. “However, [the district court] held that the state trial court made an adequate inquiry into the possibility of a conflict of interest....” Id. Thus, the district court “denied Selsor's petition.” Id. Selsor appealed again to this court. On April 8, 1996, this court issued a published opinion (Kaiser II) reversing the district court's ruling. In doing so, this court held “there was an actual conflict of interest that adversely affected counsel's performance on behalf of Selsor,” resulting in “violations of Selsor's Sixth and Fourteenth Amendment rights to effective assistance of counsel.” Id. at 1506. Accordingly, this court remanded the case to the district court “with directions to enter judgment invalidating Selsor's convictions ..., but providing that such judgment [wa]s without prejudice to further proceedings by the state for retrial of [Selsor] within a reasonable time.” Id.

Selsor's new trial

The Tulsa County District Attorney's Office initiated retrial proceedings in May of 1996. On August 6, 1996, the prosecution filed a Bill of Particulars alleging that Selsor “should be punished by Death” for “the offense of Murder in the First Degree, as charged in the [original] Information,” as a result of the following aggravating circumstances: (1) “[t]he Defendant knowingly created a great risk of death to more than one person”; (2) “[t]he murder was especially heinous, atrocious, or cruel”; (3) “[t]he murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution”; and (4) “[t]he existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” S. R., Vol. I at 191.

Selsor moved to strike the Bill of Particulars, arguing that “[a]llowing the State to seek the death penalty against [him would] violate[ ] the prohibition against ex post facto laws and expose [him] to more severe punishment than was lawful at the time [he] committed the alleged crime” of Murder in the First Degree. Id., Vol. II at 203. On July 20, 1997, on the eve of trial, the state trial court denied Selsor's motion. Selsor immediately petitioned the OCCA for a writ of mandamus and obtained from that court a stay of the impending trial. Id. at 288. On October 14, 1997, the OCCA issued a published decision affirming the trial court's decision. Selsor v. Turnbull, 947 P.2d 579 (Okla.Crim.App.1997). In doing so, the OCCA expressly overturned its decision in Riggs (which concluded, in pertinent part, that the death penalty statutes enacted by the Oklahoma Legislature in 1976 changed the burden of proof to the detriment of criminal defendants, as compared to the burden of proof under the 1973 first degree murder statute), and then concluded that the filing of a Bill of Particulars under the contemporaneous death penalty statutes (i.e., statutes enacted in 1976 that remained effective in 1997) did not violate the prohibition against ex post facto laws or implicate the Equal Protection Clause. Id. at 583.

Following the OCCA's decision, Selsor's retrial began on February 2, 1998. At the outset, Selsor's counsel moved to dismiss the charges against Selsor, arguing that the Information, which was filed in 1975 and which charged Selsor under the language of the 1973 first degree murder statute, alleged both “that ... Selsor with premeditated design effect[ed] the death of Clayton Chandler and during the course of a robbery with firearms did kill Clayton Chandler.” Tr., Vol. IV at 738. The state trial court overruled Selsor's motion. Id. at 739 (“I think that the Information, albeit old, properly informs Mr. Selsor of the charge that is against him.”). At the conclusion of the government's first-stage evidence, the jury found Selsor guilty of the three charges against him, i.e., murder in the first degree, shooting with intent to kill, and robbery with firearms.

The second-stage proceedings began following a short recess. To prove the four alleged aggravating circumstances, the prosecution presented evidence that Selsor and Dodson committed four similar armed robberies shortly prior to the robbery of the Tulsa U–TOTE–M convenience store, two of which involved the actual use of violence against store clerks (specifically the shooting of one clerk by Selsor and the stabbing of another clerk by Dodson). The prosecution also presented evidence establishing that Selsor attempted to escape from prison in December 1984. Lastly, the prosecution presented testimony from the widow and daughter of Clayton Chandler, the murder victim in the case, and from Ina Morris, the store clerk wounded by Dodson during the robbery. All three of these witnesses read into the record victim impact statements they had prepared prior to trial. As part of their testimony, each of these three witnesses testified that they agreed with the District Attorney's recommended sentence of death. Selsor in turn presented testimony from a data entry clerk employed by the Tulsa County Sheriff's Department, who testified that during the nineteen months Selsor was confined in the Tulsa County Jail awaiting retrial, Selsor had no write-ups of any kind. Selsor also presented testimony from four current or former Oklahoma Department of Corrections employees, all of whom knew Selsor because of their contact with him during his post-trial incarceration. All four of these witnesses testified, in pertinent part, that, despite their being generally in favor of the death penalty, they disagreed with the District Attorney's recommended sentence of death for Selsor.

At the conclusion of the second-stage evidence, the jury found the existence of two of the four aggravating circumstances alleged by the prosecution: that Selsor knowingly created a great risk of death to more than one person, and that the murder was committed for the purpose of avoiding and preventing a lawful arrest. In turn, the jury fixed Selsor's punishment at death for the first degree murder conviction. As for the other two counts of conviction, the jury recommended life imprisonment for the shooting with intent to kill conviction, and twenty years' imprisonment for the robbery with firearms conviction. The state trial court entered judgment consistent with the verdicts on May 6, 1998. The judgment stated, in pertinent part, that Selsor was found guilty of “MURDER, 1st DEGREE,” in violation of “21–701.7,” the 1976 murder statute enacted by the Oklahoma state legislature. S. R., Vol. III at 436.

Selsor's direct appeal from the new trial

Selsor appealed his convictions and sentence to the OCCA. On May 10, 2000, the OCCA issued a published opinion affirming Selsor's first degree murder conviction and death sentence, as well as Selsor's shooting with intent to kill conviction and related sentence of life imprisonment, but reversing the conviction and sentence for robbery with firearms and remanding to the state trial court with instructions to dismiss that charge. Selsor II, 2 P.3d at 346. More specifically, the OCCA concluded that the robbery with firearms conviction “must be dismissed based upon double jeopardy because all the elements of Robbery with Firearms are included within the elements of the First Degree Murder pursuant to the 1973 statute.” Id. at 351. Selsor filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied on May 21, 2001. Selsor v. Oklahoma, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001).

The instant federal habeas proceedings

Selsor initiated the instant federal habeas proceedings on October 3, 2001, by filing a motion for appointment of counsel. The district court granted Selsor's motion and, on May 20, 2002, Selsor's appointed counsel filed a petition for writ of habeas corpus on Selsor's behalf asserting eighteen grounds for relief. Respondent filed a response to the petition, as well as a certified copy of the relevant state court records. On September 29, 2009, the district court issued an opinion and order denying Selsor's petition in its entirety. On that same date, the district court entered judgment in favor of respondent and against Selsor. Following the entry of an amended judgment on November 24, 2009, Selsor moved for a certificate of appealability with respect to nine issues. The district court granted Selsor's motion. Of the nine issues on which a COA was granted, Selsor has since filed appellate pleadings addressing seven of those issues.

II

A. Standard of review

Because Selsor filed his federal habeas petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA's provisions govern these proceedings. Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id. If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). “When reviewing a state court's application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly.” McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). “Rather, we must be convinced that the application was also objectively unreasonable.” Id. “This standard does not require our abject deference, ... but nonetheless prohibits us from substituting our own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal quotation marks omitted). If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)'s deferential standards of review do not apply in such circumstances, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.

B. Analysis

1. Due process violation—OCCA's overruling of Riggs

Selsor contends, in Proposition One of his appellate brief, that the OCCA in Turnbull violated the Ex Post Facto Clause as applied to judicial decisions through the Due Process Clause by overruling its decision in Riggs and allowing the prosecution at the retrial proceedings to seek the death penalty against him.

a) Background information

On June 29, 1972, the United States Supreme Court held that a Georgia state statute that allowed for unbridled jury discretion in the imposition of death sentences violated the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 240, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); id. at 309–10, 92 S.Ct. 2726 (Stewart, J., concurring); id. at 313, 92 S.Ct. 2726 (White, J., concurring). In the wake of Furman, states generally responded in one of two ways. Some, like Georgia, “legislated standards to guide jury discretion” in the imposition of the death penalty. Woodson v. North Carolina, 428 U.S. 280, 299, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Others “adopted mandatory measures” requiring the imposition of the death penalty for any person convicted of first degree murder (although the states doing so adopted differing definitions of the crime of first degree murder). Id. Oklahoma fell into the latter camp. In 1973, the Oklahoma Legislature adopted a statutory scheme that mandated imposition of the death penalty for anyone convicted of first degree murder, and defined first degree murder as follows:

Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being, is murder in the first degree in the following cases: 1. When perpetrated against any peace officer, prosecuting attorney, corrections employee or fireman engaged in the performance of his official duties; 2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when death occurs following the sexual molestation of a child under the age of sixteen (16) years; 3. When perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of the witness, or when perpetrated against any human being while intending to kill such witness; 4. When perpetrated against the President or Vice President of the United States of America, any official in the line of succession to the Presidency of the United States of America, the Governor or Lieutenant Governor of this state, a judge of any appellate court or court of record of this state, or any person actively engaged in a campaign for the office of the Presidency or Vice Presidency of the United States of America; 5. When perpetrated by any person engaged in the pirating of an aircraft, train, bus or other commercial vehicle for hire which regularly transports passengers; 6. When perpetrated by a person who effects the death of a human being in exchange for money or any other thing of value, or by the person procuring the killing; 7. Murder by a person under a sentence of life imprisonment in the penitentiary; 8. When perpetrated against two or more persons arising out of the same transaction or occurrence or series of events closely related in time and location; 9. When perpetrated against a child while in violation of Section 843, Title 21 of the Oklahoma Statutes; and 10. Intentional murder by the unlawful and malicious use of a bomb or of any similar explosive. Okla. Stat. tit. 21, § 701.1 (1973).

These state legislative responses to Furman in turn led to new court challenges. On July 2, 1976, the United States Supreme Court issued a trio of decisions addressing the two general types of revised death penalty schemes. In Woodson, 428 U.S. at 305, 96 S.Ct. 2978, and Roberts v. Louisiana, 428 U.S. 325, 336, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the Court held that mandatory death penalty schemes adopted by North Carolina and Louisiana, i.e., schemes under which a person convicted of first degree murder was automatically sentenced to death without consideration of the defendant's character and record or of the circumstances of the particular offense, violated the Eighth and Fourteenth Amendments. In the third decision issued that day, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court held that Georgia's post- Furman death penalty scheme, which provided for bifurcated capital trial proceedings, set forth specific procedures guiding the sentencing judge or jury in its selection of an appropriate sentence (including the consideration of aggravating and mitigating circumstances), and mandated expedited direct review by the Georgia Supreme Court “of the appropriateness of imposing the sentence of death in the particular case,” id. at 166, 96 S.Ct. 2909, survived Eighth Amendment scrutiny. Id. at 187, 207, 96 S.Ct. 2909. In doing so, the Court held that “the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance,” and that “[a]s a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” Id. at 195, 96 S.Ct. 2909.

Four days later, on July 6, 1976, the Supreme Court applied its decisions in Woodson and Roberts and reversed six Oklahoma capital cases that were pending before it. Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Justus v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Rowbotham v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Lusty v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1214 (1976); Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Davis v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1215 (1976). In doing so, the Supreme Court held that “[t]he imposition and carrying out of the death penalty under the law of Oklahoma constitute[d] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Williams, 428 U.S. at 907, 96 S.Ct. 3218.

The Oklahoma legislature responded to these Supreme Court decisions by calling a special session, repealing the 1973 statute, and enacting, effective July 24, 1976, new first and second degree murder statutes. Importantly, for purposes of the instant appeal, the new statutes effectively expanded the definition of first degree murder by defining it in the following manner: A. A person commits murder in the first degree when he unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof. B. A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary or first degree arson. Okla. Stat. tit. 21, § 701.7 (1976). In other words, in contrast to the 1973 murder statute, which defined first degree murder to require both malice aforethought and commission of the murder in one of several specified circumstances, the 1976 statute defined first degree murder to require only malice aforethought or commission of the murder during one of several enumerated felonies.

The OCCA first addressed these judicial and legislative events in its Riggs decision issued on September 2, 1976. The petitioner in Riggs had been charged with first degree murder under Oklahoma's 1973 death penalty statute. However, that charge was filed on July 9, 1976, three days after the Supreme Court held Oklahoma's 1973 death penalty statute to be unconstitutional. Immediately after the charge was filed, Riggs responded by filing a petition for writ of habeas corpus with the state trial court “alleging that the Supreme Court ... had declared Oklahoma's First Degree Murder Statute unconstitutional and thus he was being illegally restrained.” Riggs, 554 P.2d at 824. After the state trial court denied the petition, Riggs appealed to the OCCA. The OCCA noted at the outset that its task was to determine the status of those defendants either charged or having committed the crime of Murder in the First Degree or Murder in the Second Degree, and those defendants convicted of said offenses prior to the effective date of our new [1976] murder statutes. We find it appropriate to move with the necessary speed to clarify and attempt to fill what has been termed “the apparent void” in our Murder law prior to the effective date of our new homicide murder statute. Id. at 825. Continuing, the OCCA noted that [t]his determination [wa]s mandatory as to that class of defendants charged with or committing homicide murder prior to the effective date of our new statute; they cannot be tried under the new statute, as the evidentiary burden of proof under it ha[d] been changed to their detriment. * * * To [hold] otherwise in th[is] situation[ ] would be to violate the ex post facto provision of the Constitution of the United States, Article 1, Section 10. * * * For this reason the new homicide murder statute cannot be applied retroactively by judicial construction. Id. (emphasis added).

The OCCA then addressed “the status of those defendants ... convicted of First Degree Murder and sentenced to death prior to the enactment of the new [1976] statute.” Id. “A threshold inquiry in resolving the status of th[is] class [ ] of defendants,” id., the OCCA held, was “to examine the effect of the Supreme Court decisions upon the Oklahoma homicide murder statutes,” id. at 825–26. Citing the Supreme Court's post- Woodson and Roberts reversal of the six pending Oklahoma capital cases, the OCCA “conclude[d] the death penalty as provided in 21 O.S.Supp.1973, § 701.3 [ (the 1973 death penalty statute) ], ha[d] been effectively stricken from [the] statute, which [itself had been] repealed.” Id. at 827. However, the OCCA in turn concluded that “the remaining provisions of [Oklahoma's 1973] homicide murder statute remain [ed] in effect after the striking of the death penalty provision.” Id. The OCCA then addressed “what constitute[d] the appropriate constitutionally permissible punishment which should befall [defendants] ... convicted of murder in the first degree, or ... committing the offense of murder in the first degree prior to 12:01 a.m. of July 24, 1976[, the date the 1976 murder statute became effective].” Id. at 828. Noting that a section of the 1973 murder statute authorized the OCCA to exercise its discretion and modify a sentence of death, the OCCA concluded “that the alternative sentence [that could] be imposed against those individuals convicted of murder in the first degree prior to the effective date of [the] new murder homicide statute [wa]s life imprisonment.” Id. at 829. As for “individual[s] committing, but not convicted of, the crime of murder in the first degree prior to 12:01 a.m., July 24, 1976,” the OCCA held, “the appropriate penalty for murder in the first degree [wa]s ‘life in the penitentiary at hard labor,’ under the 1973 statute.” Id.

On June 17, 1977, approximately nine months after the issuance of Riggs, the Supreme Court issued its opinion in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The petitioner in Dobbert was a Florida state prisoner convicted of two murders and sentenced to death. “The murders of which petitioner was convicted were alleged to have occurred” in late 1971 and early 1972. Id. at 288, 97 S.Ct. 2290. “During that period of time, Fla. Stat. Ann. §§ 775.082 (1971) and 921.141 (Supp.1971–1972), as then written, provided that a person convicted of a capital felony was to be punished by death unless the verdict included a recommendation of mercy by a majority of the jury.” Id. “[O]n July 17, 1972, ... the Florida Supreme Court found the 1971 Florida death penalty statutes inconsistent with Furman.” Id. “Late in 1972 Florida enacted a new death penalty procedure,” id., under which the trial judge, after considering the recommendation of a sentencing jury, was required to “weigh eight aggravating factors against seven statutory mitigating factors to determine whether the death penalty should be imposed,” Proffitt v. Florida, 428 U.S. 242, 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).FN4 The petitioner in Dobbert “argue[d] that the change in the role of the judge and jury in the imposition of the death sentence in Florida between the time of the first-degree murder [he committed] and the time of [his] trial constitute[d] an ex post facto violation.” 432 U.S. at 292, 97 S.Ct. 2290 (italics in original). The Supreme Court rejected this argument, however, “conclud[ing] that the changes in the law [we]re procedural, and on the whole ameliorative, and that there [wa]s no ex post facto violation.” Id. (italics in original). More specifically, the Supreme Court noted that “[t]he new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime.” Id. at 293–94, 97 S.Ct. 2290. The petitioner also asserted a “second ex post facto claim,” i.e., “that at the time he” committed the murders “there was no death penalty ‘in effect’ in Florida ... because the earlier statute enacted by the legislature was, after the time he acted, found by the Supreme Court of Florida to be invalid under ... Furman....” Id. at 297, 97 S.Ct. 2290 (italics in original). In other words, petitioner argued, “there was no ‘valid’ death penalty in effect in Florida as of the date of his actions.” Id. The Supreme Court disagreed, stating that petitioner's “sophistic argument mock[ed] the substance of the Ex Post Facto Clause.” Id. (italics in original). According to the Court, “the existence of the [first degree murder] statute served as an ‘operative fact’ to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder,” and “[t]his was sufficient compliance with the ex post facto provision of the United States Constitution.” Id. at 298, 97 S.Ct. 2290 (italics in original). FN4. It is significant to note that although the Florida legislature in late 1972 altered the state's procedural scheme for imposition of the death penalty, it did not substantially alter the pre-existing definition of murder in the first degree. See Fla. Stat. § 782.04 (2010), Amendment Notes (explaining historical changes to statute).

The final relevant piece of procedural history occurred in 1997. At that time, Selsor was being retried in state court pursuant to this court's decision in Kaiser II. Selsor moved to strike the Bill of Particulars filed by the prosecution, arguing that “[a]llowing the State to seek the death penalty against [him would] violate[ ] the prohibition against ex post facto laws and expose [him] to more severe punishment than was lawful at the time [he] committed the alleged crime” of Murder in the First Degree. S. R., Vol. II at 203. The state trial court denied Selsor's motion, and Selsor immediately petitioned the OCCA for a writ of mandamus. On October 14, 1997, the OCCA issued its decision in Turnbull and, at the urging of the prosecution, expressly overturned its decision in Riggs. In doing so, the OCCA stated: Riggs was decided during the chaos caused when the United States Supreme Court overturned the death penalty statutes of several states, and during the scramble by those states to ensure there were constitutional penalty provisions in place for the offense of Murder in the First Degree. Riggs, 554 P.2d at 824–25 nn. 1–3. This Court attempted to analyze United States Supreme Court precedent in effect at the time, and determined that Riggs, and other defendants who had committed homicide murder while the statutes with unconstitutional death penalty provisions were in effect, could not be tried under newly enacted statutes. Riggs, 554 P.2d at 825. This Court found the evidentiary burden of proof under the newly enacted statutes had been changed to the detriment of Riggs and the other defendants, and to apply the newly enacted statutes to them would be to violate the ex post facto provisions of the Constitution of the United States. Id.

After this Court attempted to construe federal ex post facto law in Riggs, the United States Supreme Court directly addressed the issue of whether the ex post facto clause prohibited the application, of newly enacted statutes for imposing the death penalty, to defendants whose crimes were committed prior to the enactment of the new statutes. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In its ex post facto analysis, the Supreme Court compared the newly enacted statutes to the statutes in effect on the date the crime was committed, even though the old statutes, like Section 701.3, had been declared unconstitutional. The United States Supreme Court held the changes in death penalty statutes were procedural and on the whole ameliorative, and could be applied retroactively without an ex post facto violation. Id. In different contexts, this Court has adopted and applied the reasoning and analysis of Dobbert. Cartwright v. State, 778 P.2d 479 (Okl.Cr.1989). This Court has acknowledged an ex post facto argument is not won by proving disadvantage alone. Cartwright, 778 P.2d at 482. In addition, the true focus of ex post facto analysis is on (1) the elements of the offense, (2) the conditions and quantum of punishment, and (3) the quantity and degree of proof necessary to establish guilt. Id.

Contrary to Petitioner's arguments, there was a death penalty statute in effect in 1975, and on the date his crime was committed, in the form of 21 O.S.Supp.1973, § 701.3. Contrary to this Court's analysis in Riggs, the newly enacted death penalty statutes did not change the burden of proof to the detriment of Riggs and other defendants, as compared to the burden of proof under Section 701.3. Under Section 701.3, the only available sentence was death. Under newly enacted death penalty statutes, the sentencing options increased in favor of a defendant to include not only death but also the possibility of life imprisonment, and now life without parole. 21 O.S.Supp.1976, §§ 701.9 and 701.10; 21 O.S.1991, § 701.9, and Supp.1996, § 701.10. Under Section 701.3, the State was only required to prove the elements of the crime of First Degree Murder. Once those elements were proven, the State had no further burden of proof because the death penalty was required. Under newly enacted death penalty statutes, the State not only must prove the same elements of the crime of First Degree Murder, but also must prove aggravating circumstances before the death penalty can be imposed. Id. Therefore, newly enacted death penalty statutes (1) did not increase the elements of the offense of First Degree Murder, (2) did not increase but in fact decreased the conditions and quantum of punishment, and (3) did not decrease but in fact increased the quantity and degree of proof necessary to establish guilt, and are not ex post facto. Dobbert, supra; Cartwright, supra. The ex post facto analysis and the holdings thereunder in Riggs v. Branch, 554 P.2d 823 (Okl.Cr.1976) are hereby overturned.

Ex post facto analysis only applies to legislative enactments, however, changes in the law by judicial construction, such as overturning Riggs, implicates the Due Process Clause and requires consideration of ex post facto principles. Cartwright, 778 P.2d at 482. This Court has previously addressed the retroactive application of a judicial interpretation of a statute, which changed the law thus allowing independent reweighing of aggravating and mitigating circumstances and denying defendants automatic modification of a death sentence to life imprisonment, and found the Due Process Clause was not violated under an ex post facto analysis. Castro v. State, 749 P.2d 1146 (Okl.Cr.1987), cert. denied 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). Similarly, the change in law by judicial decision that Riggs should be overturned does not violate the Due Process Clause or ex post facto principles, because it does not change the crime for which Petitioner is charged, increase the punishment prescribed therefor, or increase the quantity or degree of proof necessary to establish his guilt. Castro, 749 P.2d at 1151.

Petitioner's equal protection claim can be easily and summarily disposed of. Petitioner is simply no longer similarly situated to those defendants subject to Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs. Petitioner's Judgment and Sentence has been vacated and he stands before this Court, similarly situated to defendants awaiting trial under current murder and death penalty statutes. Dobbert, 432 U.S. at 301, 97 S.Ct. at 2302, 53 L.Ed.2d at 361; see also Cheatham v. State, 900 P.2d 414, 428–30 (Okl.Cr.1995). Finally, we reject Petitioner's claim that to subject him to the death penalty, because his Sixth Amendment right to effective assistance of counsel was violated, flies in the face of due process. Petitioner has not supported this claim with citation to any authority. Rule 3.5(C)(4), Rules [of the Court of Criminal Appeals ]. Moreover, if a defendant has not been acquitted of the death penalty and his conviction and sentence are reversed on appeal or collateral proceedings, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law, including death. Salazar v. State, 919 P.2d 1120, 1127 (Okl.Cr.1996). Finally, subjecting Petitioner to the death penalty does not appear to be punishment for Petitioner's successful attack on his Judgment and Sentence, but merely an application of the correct law, and/or a correction of the applicable law. See Stafford v. State, 800 P.2d 738, 740 (Okl.Cr.1990). 947 P.2d at 582–83.

b) Selsor's arguments

Selsor contends that “the OCCA both unreasonably applied clearly established federal law and deprived [him] of due process” when, in Turnbull, it “constru[ed] its 1976 decision in Riggs[ ] to mean something no reasonable person would have understood that case to mean, overruling this purported holding, and applying the overruling retroactively to [him], thereby permitting the State to obtain a death sentence against him.” Aplt. Br. at 21–22. In support, Selsor contends that “ Riggs held that even if someone in [his] position were retried for murder, he faced a maximum sentence of life imprisonment.” Id. at 22. According to Selsor, he “reasonably relied on [ Riggs ] when he pursued post-conviction relief,” believing he could not again be subjected to a sentence of death. Id. Selsor argues that the OCCA's “ Turnbull decision, overruling Riggs, was both unforeseeable and indefensible” because “ Riggs had stood unchallenged for two decades, had produced the very result the State requested in that case, had provided the basis for [his] life sentence, and had been cited only with approval by the OCCA.” Id. In turn, Selsor contends that “[t]he due process question ... is whether [he] had fair warning when he collaterally attacked his unconstitutional conviction that he could be resentenced to death if he secured a new trial.” Id. at 33.

c) Clearly established federal law applicable to the issue

Selsor contends, citing Bouie v. City of Columbia, 378 U.S. 347, 353–54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), that “[w]hen a state court unforeseeably changes the scope of a criminal law, and applies that change retroactively, to a defendant's detriment, it violates the Due Process Clause.” FN5 Aplt. Br. at 32 (emphasis in original). Bouie “arose out of a ‘sit-in’ demonstration at Eckerd's Drug Store in Columbia, South Carolina,” on March 14, 1960. 378 U.S. at 348, 84 S.Ct. 1697. The petitioners, “two Negro college students, took seats in a booth in the restaurant department at Eckerd's,” “which was reserved for whites,” “and waited to be served.” Id. “After they were seated, an employee of the store put up a chain with a ‘no trespassing’ sign attached.” Id. After refusing to leave, petitioners were eventually arrested and charged with breach of the peace, resisting arrest, and criminal trespass. Petitioners were subsequently acquitted of breach of the peace, but convicted of resisting arrest and criminal trespass. On direct appeal, the South Carolina Supreme Court reversed the resisting arrest charges due to insufficient evidence, but affirmed the criminal trespass convictions. Petitioners subsequently sought and were granted certiorari review by the United States Supreme Court.

FN5. Selsor also quotes and cites the Supreme Court's decision in Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). Aplt. Br. at 32–33. Rogers, however, was issued approximately four years after the OCCA's decision in Turnbull. Consequently, Rogers cannot be treated as part of the “clearly established Federal law” we must consider in reviewing the OCCA's Turnbull decision under the deferential standard of review outlined in 28 U.S.C. § 2254(d)(1). See Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144, (2003) (holding that “ ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.”). This does not, however, appear to have any impact whatsoever on our resolution of Selsor's due process claim. Indeed, as we outline below in our discussion of Selsor's ex post facto claim, Rogers appears to have narrowed the reach of the Bouie decision, and thus Rogers lends no support to Selsor's due process claim. As the Supreme Court's interpretation of the Due Process Clause in Bouie can be read more broadly than its later rulings in Rogers, it is to Selsor's benefit that we apply Bouie to this claim challenging the OCCA's overruling of Riggs.

Before the Supreme Court, petitioners argued, in pertinent part, “that they were denied due process of law ... because the [trespass] statute failed to afford fair warning that the conduct for which they [were] convicted had been made a crime.” Id. at 349, 84 S.Ct. 1697. In support, petitioners noted that although the statute of conviction prohibited “entry upon the lands of another ... after notice from the owner or tenant prohibiting such entry,” id., the South Carolina Supreme Court, in affirming their convictions, had “construed the statute to cover not only the act of entry on the premises of another after receiving notice not to enter, but also the act of remaining on the premises of another after receiving notice to leave,” id. at 350, 84 S.Ct. 1697. Petitioners argued “that by applying such a construction of the statute to affirm their convictions ..., the State ... punished them for conduct that was not criminal at the time they committed it, and hence ... violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits.” Id. In addressing petitioners' argument, the Supreme Court began by acknowledging “[t]he basic principle that a criminal statute must give fair warning of the conduct that it makes a crime....” Id. In turn, the Court held “[t]here can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Id. at 352, 84 S.Ct. 1697. Indeed, the Court noted, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.” Id. at 353, 84 S.Ct. 1697 (italics in original). And, the Court emphasized, “[i]f a state legislature is barred by the Ex Post Facto Clause from passing [an ex post facto] law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Id. at 353–54, 84 S.Ct. 1697 (italics in original). Thus, the Court held, “[w]hen a[n] ... unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.” Id. at 354–55, 84 S.Ct. 1697. Finally, applying these principles to the facts before it, the Court “agree[d] with petitioners that” the statute of conviction “did not give them fair warning, at the time of their conduct ..., that the act for which they ... st[oo]d convicted was rendered criminal by the statute.” Id. at 355, 84 S.Ct. 1697.

Selsor also suggests that Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), is relevant to, and supportive of, his due process claim.FN6 The petitioner in Lankford, an Idaho state criminal defendant, was charged with two counts of first-degree murder and advised by the trial judge at the time of arraignment that the maximum punishment on either charge was life imprisonment or death. The petitioner was subsequently convicted by a jury of both counts. In response to a presentencing order issued by the trial judge, the prosecution advised petitioner and the trial judge that it would not be seeking the death penalty. Consequently, at the sentencing hearing, neither side discussed the death penalty as a possible sentence. At the conclusion of the sentencing hearing, however, the trial judge concluded that the petitioner's crimes warranted punishment more severe than that recommended by the prosecution, and sentenced petitioner to death on the basis of five aggravating circumstances. On appeal, the Idaho Supreme Court rejected petitioner's claim that the trial judge violated the Due Process Clause by failing to give notice of his intention to consider imposing the death sentence despite the prosecution's notice that it was not seeking that penalty. In so ruling, the Idaho Supreme Court held that the trial judge's express advisement at the time of arraignment, combined with the terms of the Idaho Code, provided sufficient notice that the death penalty might be imposed. FN6. On March 1, 2011, Selsor filed a notice of supplemental authority pursuant to Fed. R.App. P. 28(j) identifying three additional authorities in support of his due process claim: NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 456–57, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Saint Francis College v. Al–Khazraji, 481 U.S. 604, 608–09, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); and Wiley v. Epps, 625 F.3d 199, 211 (5th Cir.2010). Notably, Selsor did not cite either of the two Supreme Court cases in the appellate brief he filed with the OCCA raising the due process issue. And Wiley, aside from being a circuit rather than a Supreme Court decision, was decided long after the OCCA addressed the due process issue. In any event, we are not persuaded that any of these decisions are relevant to Selsor's due process issue.

The Supreme Court granted certiorari “to decide whether the sentencing process followed in th[e] ... case satisfied the requirements of the Due Process Clause of the Fourteenth Amendment.” Id. at 111, 111 S.Ct. 1723. At the outset of its opinion, the Court emphasized two undisputed facts: first, “that the character of the sentencing proceeding did not provide petitioner with any indication that the trial judge contemplated death as a sentence,” id. at 119, 111 S.Ct. 1723; and second, that “[t]he presentencing order entered by the trial court requiring the [prosecution] to advise whether it sought the death penalty, and if so, requiring the parties to specify the aggravating and mitigating circumstances on which they intended to rely, was comparable to a pretrial order limiting the issues to be tried,” id. at 120, 111 S.Ct. 1723. The Court also presumed that “[i]f defense counsel had been notified that the trial judge was contemplating a death sentence based on five specific aggravating circumstances, ... she would have advanced arguments that addressed these circumstances....” Id. at 122, 111 S.Ct. 1723. Based upon these facts and this presumption, the Court concluded that the trial judge's “silence following the [prosecution]'s response to the presentencing order had the practical effect of concealing from the parties the principal issue to be decided at the hearing.” Id. at 126, 111 S.Ct. 1723. “Notice of issues to be resolved by the adversary process,” the Court emphasized, “is a fundamental characteristic of fair procedure.” Id. In sum, the Court held, “[p]etitioner's lack of adequate notice that the judge was contemplating the imposition of the death sentence created an impermissible risk that the adversary process may have malfunctioned in th[e] case.” Id. at 127, 111 S.Ct. 1723. Consequently, the Court reversed the judgment of the Idaho Supreme Court and remanded the case for further proceedings. Id. at 128, 111 S.Ct. 1723.

d) The OCCA's ruling on the issue

In Turnbull, in which Selsor sought mandamus relief on the eve of his retrial, the OCCA sua sponte addressed and rejected the question of whether its overruling of Riggs violated Selsor's due process rights. On direct appeal following his 1998 retrial, Selsor asked the OCCA to revisit the issue. The OCCA again concluded that no due process violation occurred, stating as follows: In Selsor v. Turnbull, this Court ... anticipated and resolved [an] issue [ ] Selsor failed specifically to raise then but which he raises now in Proposition[ ] ... III ...: whether the retroactive application of this Court's decision overruling Riggs v. Branch violated due process. * * * This Court ... found that the retroactive application of this Court's decision overruling Riggs v. Branch to this case did not violate due process. We specifically stated: “the change in law by judicial decision that Riggs should be overturned does not violate due process ... because it does not change the crime for which [Selsor] is charged, increase the punishment prescribed therefore, or increase the quantity, or degree of proof necessary to establish his guilt.” In sum, Selsor's argument[ ] in Proposition[ ] ... III w [as] adequately resolved in Selsor v. Turnbull; nothing in his brief is convincing or persuasive enough to change those results. Selsor II, 2 P.3d at 349–50.

e) § 2254 analysis

The OCCA's resolution of Selsor's due process issue was neither contrary to, nor an unreasonable application of, Bouie.FN7 To begin with, Selsor's case differs from Bouie in terms of the substance of the judicial decision at issue: whereas the South Carolina Supreme Court in Bouie was interpreting the scope of a criminal statute, the OCCA in Turnbull was revisiting one of its own decisions involving an issue of constitutional law (i.e., whether application of the punishment scheme set forth in Oklahoma's 1976 murder statute to defendants charged with violating the prior 1973 murder statute violated the prohibition against ex post facto laws). Moreover, even ignoring this distinction, the OCCA's reversal of Riggs in Turnbull did not have an ex post facto effect. Specifically, by concluding, contrary to its decision in Riggs, that defendants charged with violating Oklahoma's 1973 murder statute could be sentenced to death, the OCCA in Turnbull did not authorize a greater punishment “than the law annexed to the crime ... when committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (outlining four types of ex post facto criminal laws); see Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) ( “To prevail on this sort of ex post facto claim, [a defendant] must show both that the law [or decision] he challenges operates retroactively ... and that it raises the penalty from whatever the law provided when he acted.”). At the time Selsor murdered Clayton Chandler, Oklahoma's 1973 murder statute required imposition of the death penalty for any defendant convicted of first degree murder. Thus, because Turnbull did not “raise[ ] the penalty from what[ ] the law provided when [Selsor] acted,” Johnson, 529 U.S. at 699, 120 S.Ct. 1795, it did not have an ex post facto effect. And, because Turnbull did not have an ex post facto effect, it could not have violated the due process principles outlined in Bouie, i.e., in 1975, when Clayton Chandler was murdered, Selsor had “fair warning” that a conviction of first degree murder in Oklahoma would result in the death penalty. FN7. The OCCA's decision in Turnbull was erroneous in one key respect: the OCCA was mistaken in concluding that “the newly enacted death penalty statutes did not change the burden of proof to the detriment of Riggs and other defendants, as compared to the burden of proof under Section 701.3.” 947 P.2d at 582. In reaching this conclusion, the OCCA overlooked a key difference between the Florida statute at issue in Dobbert and the Oklahoma statute at issue before it. As previously noted, the changes implemented by Florida to its murder scheme did not alter the definition of first degree murder. In contrast, Oklahoma's 1976 murder statute altered the definition of first degree murder to require proof of either (but not both) of the two critical elements required under the 1973 murder statute (i.e., malice aforethought and commission of the murder during a statutorily designated felony offense). But the OCCA's error in this regard does not lend support to Selsor's due process claim.

Likewise, the OCCA's resolution of Selsor's due process issue was neither contrary to, nor an unreasonable application of, Lankford. Unlike the petitioner in Lankford, who was effectively deprived of notice that the trial judge was considering imposition of the death penalty, Selsor was afforded adequate notice of the prosecution's intent to seek the death penalty at the 1998 retrial proceedings. In turn, Selsor was able to utilize the adversary process to challenge (albeit unsuccessfully) the constitutionality of the prosecution's action. Thus, unlike the situation in Lankford, there was no “risk [in Selsor's case] that the adversary process may have malfunctioned....” 500 U.S. at 127, 111 S.Ct. 1723.

2. Double jeopardy violation

In Proposition Two of his appellate brief, Selsor contends that the OCCA effectively acquitted him of the death penalty in Selsor I when it modified his sentence to life imprisonment, and that, consequently, his resentencing to death following his second trial violated his rights under the Double Jeopardy Clause. a) Clearly established federal law Between 1919 and 1980, the Supreme Court repeatedly held “that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside.” Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (citing Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); and United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). These holdings rest on the principle that the reversal of a defendant's conviction results in “the slate [being] wiped clean,” and that, consequently, “whatever punishment has actually been suffered under the first conviction ... is ... an unmitigated fiction....” Pearce, 395 U.S. at 721, 89 S.Ct. 2072. Notably, “the sentencing procedures considered in [these] cases did not have the hallmarks of [a] trial on guilt or innocence,” Bullington, 451 U.S. at 439, 101 S.Ct. 1852, and thus “[t]he imposition of a particular sentence ... [wa]s not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed,” id. at 438, 101 S.Ct. 1852.

In Bullington, the Court granted certiorari to consider “whether the reasoning of [these cases] ... appl[ied] under a system,” specifically Missouri's 1978 capital murder scheme, “where a jury's sentencing decision is made at a bifurcated proceeding's second stage at which the prosecution has the burden of proving certain elements beyond a reasonable doubt before the death penalty may be imposed.” Id. at 432, 101 S.Ct. 1852. The petitioner in Bullington was convicted by a jury of capital murder. At the ensuing penalty phase of the trial, the prosecution attempted to prove the existence of two aggravating circumstances. The jury, however, “returned its additional verdict fixing petitioner's punishment not at death, but at imprisonment for life without eligibility for probation or parole for 50 years.” Id. at 435–36, 101 S.Ct. 1852. Thereafter, the petitioner successfully moved for a new trial on the grounds “that Missouri's constitutional and statutory provisions allowing women to claim automatic exemption from jury service deprived [him] of his Sixth and Fourteenth Amendment right to a jury drawn from a fair cross-section of the community.” Id. at 436, 101 S.Ct. 1852. On retrial, the prosecution served notice “that it intended again to seek the death penalty” on the basis of the “same aggravating circumstances” it attempted to prove at the first trial. Id. The petitioner “moved to strike the notice, arguing that the Double Jeopardy Clause ... barred the imposition of the penalty of death when the first jury had declined to impose the death sentence.” Id. After the trial court informally announced its intention to grant petitioner's motion to strike, the prosecution sought a writ of prohibition first from an intermediate state appellate court, and then from the Supreme Court of Missouri. The Supreme Court of Missouri “issued a preliminary writ of prohibition” and, “[a]fter argument, ... sustained the [prosecution]'s position and made the writ absolute.” Id. at 437, 101 S.Ct. 1852. “It held that neither the Double Jeopardy Clause, nor the Eighth Amendment, nor the Due Process Clause barred the imposition of the death penalty upon petitioner at his new trial....” Id.

The United States Supreme Court, in granting certiorari and addressing the issues raised by petitioner, noted at the outset that “[t]he procedure that resulted in the imposition of the sentence of life imprisonment upon [the] petitioner ... at his first trial ... differ[ed] significantly from those employed in any of the Court's cases where the Double Jeopardy Clause ha[d] been held inapplicable to sentencing.” Id. at 438, 101 S.Ct. 1852. Specifically, the Court noted, the sentencing phase of the trial “resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence.” Id. This procedural difference, the Court went on to conclude, “meant that the jury ha[d] already acquitted the [petitioner] of whatever was necessary to impose the death sentence,” id. at 445, 101 S.Ct. 1852 (internal quotation marks and citation omitted), and thus served to place the case within “an important exception ... to the [clean slate] rule recognized in Pearce,” id. at 442, 101 S.Ct. 1852 (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)), i.e., that “ Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case” against the defendant, id. at 443, 101 S.Ct. 1852. In reaching this conclusion, the Court emphasized that “[t]he values that underlie th[e] principle” that “[a] verdict of acquittal on the issue of guilt or innocence is ... absolutely final” “are equally applicable when a jury has rejected the State's claim that the defendant deserves to die....” Id. at 445, 101 S.Ct. 1852. Finally, the Court emphasized that its decision did “not at all depend upon the [prosecution]'s announced intention to rely only upon the same aggravating circumstances it sought to prove at petitioner's first trial or upon its statement that it would introduce no new evidence in support of its contention that petitioner deserve[d] the death penalty.” Id. at 446, 101 S.Ct. 1852. “Having received one fair opportunity to offer whatever proof it could assemble,” the Court held, “the State [wa]s not entitled to another.” Id. (internal quotation marks and citation omitted).

Three years later, in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), the Supreme Court applied Bullington to reverse a death sentence imposed on an Arizona state defendant. The defendant therein was convicted by a jury of first degree murder and armed robbery, and sentenced by the trial judge to life imprisonment for the murder conviction and 21 years' imprisonment for the armed robbery conviction. In imposing the life sentence, the trial judge found that none of the three statutory aggravating factors alleged by the prosecution existed. On appeal, the prosecution “contended that the trial court had committed an error of law in interpreting the [alleged] pecuniary gain aggravating circumstance to apply only to contract killings.” Rumsey, 467 U.S. at 207, 104 S.Ct. 2305. The Arizona Supreme Court agreed and thus ordered “the sentence of life imprisonment ... to be set aside and the matter remanded for redetermination of aggravating and mitigating circumstances and resentencing.” Id. (internal quotation marks and citation omitted). “On remand the trial court held a new sentencing hearing,” during which the parties presented arguments but no new evidence. Id. The trial court ultimately found the presence of the pecuniary gain aggravating circumstance and sentenced the defendant to death for the murder conviction. Id. at 208, 104 S.Ct. 2305. On direct appeal, the Arizona Supreme Court “concluded that, under ... Bullington ..., [defendant]'s [death] sentence violated the constitutional prohibition on double jeopardy” and “therefore ordered [the] sentence ... reduced to life imprisonment....” Id. at 208–09, 104 S.Ct. 2305.

The United States Supreme Court subsequently granted the state of Arizona's petition for writ of certiorari and affirmed the decision of the Arizona Supreme Court. Id. at 209, 104 S.Ct. 2305. In doing so, the Supreme Court noted that “[t]he capital sentencing proceeding in Arizona share [d] the same characteristics of the Missouri proceeding [at issue in Bullington] that ma[d]e it resemble a trial for purposes of the Double Jeopardy Clause.” Id. The Court in turn concluded that “[a]pplication of the Bullington principle render[ed] [defendant]'s death sentence a violation of the Double Jeopardy Clause because [defendant]'s initial sentence of life imprisonment was undoubtedly an acquittal on the merits of the central issue in the proceeding—whether death was the appropriate punishment for [defendant]'s offense.” Id. at 211, 104 S.Ct. 2305. More specifically, “[t]he trial court entered findings denying the existence of each of the seven statutory aggravating circumstances, and as required by state law, the court then entered judgment in [defendant]'s favor on the issue of death.” Id. The Court held that the state trial court's “judgment, based on findings sufficient to establish legal entitlement to the life sentence, amount[ed] to an acquittal on the merits and, as such, bar[red] any retrial of the appropriateness of the death penalty.” Id. Lastly, the Court held that the trial court's reliance in the original sentencing proceeding “on a misconstruction of the pecuniary gain aggravating circumstance” did “not change the double jeopardy effects of a judgment that amount[ed] to an acquittal on the merits.” Id. In other words, the Court held, “an acquittal on the merits bars retrial even if based on legal error.” Id.

In 1986, the Court granted certiorari in another Arizona death penalty case to decide “whether the Double Jeopardy Clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied, but does not find the evidence insufficient to support the death penalty.” Poland v. Arizona, 476 U.S. 147, 148, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). The two petitioners in Poland committed an armed robbery of “a Purolator van that was making cash deliveries to various banks in northern Arizona.” Id. As part of the robbery, petitioners killed two armed guards by taking them “to a lake and dump[ing] them into the water in sacks weighted with rocks.” Id. Petitioners were subsequently convicted by a jury in Arizona state court of first degree murder and sentenced to death by the trial judge. In support of the death sentences, the trial judge found that the murders were committed in an especially heinous, cruel, or depraved manner. Although the prosecution argued the existence of another statutory aggravating factor, specifically that petitioners had committed the offense as consideration for the receipt, or in expectation of the receipt, of something of pecuniary value, the trial judge rejected it on the grounds that the aggravator encompassed only “contract killing[s].” Id. at 149, 106 S.Ct. 1749.

On direct appeal, the Arizona Supreme Court concluded that the petitioners' convictions were “tainted by a jury-room discussion of evidence not admitted at trial,” and accordingly reversed the convictions and ordered a retrial. Id. at 150, 106 S.Ct. 1749. The Arizona Supreme Court also reviewed the sentencing proceedings and concluded that (a) the evidence “was insufficient to support a finding of the ‘especially heinous, cruel, or depraved’ aggravating circumstance,” (b) the trial judge misinterpreted the law by concluding that the “pecuniary gain” aggravator was limited to situations involving contract killings, and (c) the trial judge could, if petitioners were again convicted of first degree murder, “find the existence of this aggravating circumstance.” Id. (internal quotation marks and citation omitted). On remand, the “petitioners were again convicted of first-degree murder.” Id. At the sentencing hearing, the prosecution alleged the same two aggravators (the “especially heinous, cruel, or depraved” aggravator and the “pecuniary gain” aggravator) it had asserted at the original trial, as well as a third aggravator against one of the petitioners (that this petitioner was previously convicted of a felony involving the use or threat of violence on another person). Id. “The trial judge found all of the aggravating circumstances alleged by the prosecution, and again sentenced both petitioners to death.” Id. “Petitioners argued on [direct] appeal ... that the Double Jeopardy Clause barred reimposition of the death penalty” because, in their view, “the Arizona Supreme Court's decision on their first appeal that the evidence failed to support the ‘especially heinous, cruel, or depraved’ aggravating circumstance amounted to an ‘acquittal’ of the death penalty.” Id. at 151, 106 S.Ct. 1749. The Arizona Supreme Court rejected this argument, emphasizing that its earlier holding “ ‘was simply that the death penalty could not be based solely upon [the “especially heinous, cruel, or depraved”] aggravating circumstance because there was insufficient evidence to support it.’ ” Id. (quoting State v. Poland, 144 Ariz. 388, 698 P.2d 183, 199 (1985)). Although the Arizona Supreme Court agreed with petitioners that the evidence was insufficient to support the “especially heinous, cruel, or depraved” aggravator, it concluded the evidence was sufficient to support the other two aggravators and, after independently weighing the mitigating and aggravating circumstances, “concluded that the death penalty was appropriate in each petitioner's case.” Id.

The United States Supreme Court subsequently “granted certiorari to consider whether reimposing the death penalties on petitioners violated the Double Jeopardy Clause.” Id. Applying the principles outlined in Bullington and Rumsey, the Court stated that “the relevant inquiry in the cases before [it] [wa]s whether the sentencing judge or the reviewing court ha[d] ‘decid[ed] that the prosecution ha[d] not proved its case’ for the death penalty and hence ha[d] ‘acquitted’ petitioners.” Id. at 154, 106 S.Ct. 1749 (quoting Bullington, 451 U.S. at 443, 101 S.Ct. 1852). Addressing this question, the Court concluded that “[a]t no point during petitioners' first capital sentencing hearing and appeal did either the sentencer or the reviewing court hold that the prosecution had ‘failed to prove its case’ that petitioners deserved the death penalty.” Id. Further, the Court rejected petitioners' argument “that the Arizona Supreme Court ‘acquitted’ them of the death penalty by finding the ‘evidence [insufficient] to support the sole aggravating circumstances found by the sentencer.’ ” Id. at 155, 106 S.Ct. 1749 (quoting petitioners' brief; brackets in original). More specifically, the Court “reject[ed] the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an ‘acquittal’ of that circumstance for double jeopardy purposes.” Id. “ Bullington,” the Court noted, “indicates that the proper inquiry is whether the sentencer or reviewing court has ‘decided that the prosecution has not proved its case’ that the death penalty is appropriate.” Id. (emphasis in original). And, the Court further noted, it was “not prepared to extend Bullington further and view the capital sentencing hearing as a set of minitrials on the existence of each aggravating circumstance.” Id. at 155–56, 106 S.Ct. 1749. Because “[a]ggravating circumstances ... are ‘standards to guide the making of [the] choice’ between the alternative verdicts of death and life imprisonment,” the Court stated, “the [trial] judge's finding of any particular aggravating circumstance does not of itself ‘convict’ a defendant ( i.e., require the death penalty), and the failure to find any particular aggravating circumstances does not ‘acquit’ a defendant ( i.e., preclude the death penalty).” Id. at 156, 106 S.Ct. 1749. Although the Court acknowledged “that the sentencer's finding, albeit erroneous, that no aggravating circumstance is present is an ‘acquittal’ barring a second death sentence proceeding,” the Court emphasized “[t]his [wa]s because ‘the law attaches particular significance to an acquittal.’ ” Id. (quoting United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)). “This concern with protecting the finality of acquittals is not implicated,” the Court held, “when, as in the[ ] cases [before it], a defendant is sentenced to death, i.e., ‘convicted.’ ” Id. The Court thus held “that the trial judge's rejection of the ‘pecuniary gain’ aggravating circumstance ... was not an ‘acquittal’ of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court.” Id. at 157, 106 S.Ct. 1749. “Furthermore,” the Court held, “because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty ‘acquittal’ by that court,” and thus “[t]he Double Jeopardy Clause ... did not foreclose a second sentencing hearing at which the ‘clean slate’ rule applied.” Id.

The most recent Supreme Court decision relevant to Selsor's double jeopardy claim is Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). The petitioner in Sattazahn was convicted in a Pennsylvania state court of various crimes, including first degree murder. At the penalty phase of the trial, the prosecution “presented evidence of one statutory aggravating circumstance: commission of the murder while in the perpetration of a felony,” and the petitioner presented evidence of two mitigating circumstances. Id. at 104, 123 S.Ct. 732. At the close of the evidence, “the jury deliberated for some 3 1/2 hours” before sending a note to the trial court stating they were “hopelessly deadlocked at 9–3 for life imprisonment.” Id. “The trial judge, in accordance with Pennsylvania law, discharged the jury as hung, and indicated that he would enter the required life sentence, which he later did.” Id. at 104–05, 123 S.Ct. 732 (internal citations omitted). On direct appeal, the Pennsylvania Superior Court concluded that the jury instructions were erroneous and “reversed petitioner's first-degree murder conviction and remanded for a new trial.” Id. at 105, 123 S.Ct. 732. On remand, the prosecution filed a notice of intent to seek the death penalty, alleging the same aggravating circumstance it had attempted to prove at the first trial, but also “a second aggravating circumstance, petitioner's significant history of felony convictions involving the use or threat of violence to the person.” Id. “At the second trial, the jury again convicted petitioner of first-degree murder, but this time imposed a sentence of death.” Id. On direct appeal, the Pennsylvania Supreme Court “concluded that neither the Double Jeopardy Clause nor the Due Process Clause barred Pennsylvania from seeking the death penalty at petitioner's retrial.” Id.

The United States Supreme Court granted certiorari to “consider once again the applicability of the Fifth Amendment's Double Jeopardy Clause in the context of capital-sentencing proceedings.” Id. at 103, 123 S.Ct. 732. Although the Court's precedent established that “ ‘a retrial following a “hung jury” does not violate the Double Jeopardy Clause,’ ” id. at 109, 123 S.Ct. 732 (quoting Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984)), the petitioner argued “that given the unique treatment afforded capital-sentencing proceedings under Bullington, double-jeopardy protections were triggered when the jury deadlocked at his first sentencing proceeding and the court prescribed a sentence of life imprisonment pursuant to Pennsylvania state law,” id. The Supreme Court rejected petitioner's argument. “Under the Bullington line of cases,” the Court explained, “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ ” Id. And, the Court further explained, neither the jury's deadlock nor the trial court's subsequent entry of a life sentence constituted an acquittal because there were no factual findings sufficient to establish petitioner's legal entitlement to a life sentence. Id.

b) OCCA's resolution of the issue

In Turnbull, the OCCA sua sponte “anticipated and resolved” the double jeopardy argument that Selsor now asserts. Selsor II, 2 P.3d at 349. Specifically, the OCCA stated: [I]f a defendant has not been acquitted of the death penalty and his conviction and sentence are reversed on appeal or collateral proceedings, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law, including death. Turnbull, 947 P.2d at 583 (citing Salazar v. State, 919 P.2d 1120, 1127 (Okla.Crim.App.1996)). Selsor asked the OCCA to revisit the issue on direct appeal following his retrial. Selsor argued that his “case present[ed] the unique question of whether an appellate court's modification of a death sentence on appeal to life imprisonment on the grounds that the statute under which the defendant was sentenced was subsequently declared unconstitutional constitutes an implied acquittal of the death penalty.” State Aplt. Br. at 38. Selsor in turn argued “that under the Supreme Court's jurisprudence,” specifically Bullington, Rumsey, and Poland, the OCCA's decision in Selsor I “to modify [his] death sentence to life imprisonment constituted an ‘implied acquittal’ on the merits of the central issue in the proceeding: whether death was the appropriate punishment for the offense.” Id. The OCCA summarily rejected the claim, concluding that the argument was “adequately resolved in ... Turnbull,” and that “nothing in [Selsor's new appellate] brief [wa]s convincing or persuasive enough to change th[at] result [ ].” Selsor II, 2 P.3d at 350.

c) § 2254(d) analysis

Underlying the OCCA's rejection of Selsor's double jeopardy claim was the implicit conclusion that the OCCA had not, in modifying Selsor's death sentence to life imprisonment in Selsor I, “acquitted” Selsor of the death penalty. As discussed in greater detail below, this conclusion was neither contrary to, nor an unreasonable application of, clearly established federal law. On direct appeal from his first trial, Selsor argued that he was sentenced under an unconstitutional death penalty statute (i.e., Oklahoma's 1973 death penalty statute). The OCCA agreed with Selsor, summarily stating: In his first assignment of error, defendant asserts the unconstitutionality of Oklahoma's death penalty statute, 21 O.S. Supp.1973, § 701.3. With this we agree. See Riggs v. Branch ( State), Okl.Cr., 554 P.2d 823 (1976). Selsor I, 562 P.2d at 927. At the conclusion of its decision, the OCCA then stated, in pertinent part: For the foregoing reasons, the sentence in Case No. CRF–75–2181, Murder in the First Degree, is hereby MODIFIED to Life imprisonment, and otherwise AFFIRMED.... Id. at 931.

The conclusory nature of the OCCA's reasoning in Selsor I, combined with its citation to Riggs, makes it necessary to examine Riggs in some detail. As previously noted, Riggs was decided in the immediate wake of the Supreme Court's rejection of post- Furman, mandatory death penalty schemes adopted by a number of states, including Oklahoma. The OCCA acknowledged these Supreme Court decisions at the outset of Riggs and in turn concluded that its task was “to determine the status of ... those defendants[, like Selsor,] convicted of [First Degree Murder] prior to the effective date of [Oklahoma's] new [1976] murder statute[ ].” Riggs, 554 P.2d at 825. In resolving this question, the OCCA concluded that “the death penalty as provided in [the 1973 first degree murder statute] ha[d] been effectively stricken from [the] statute,” id. at 827, but that “a constitutionally permissible penalty remain[ed]” for those defendants convicted of first degree murder under the 1973 statute, id. at 828. Specifically, the OCCA noted that although the 1973 murder statute mandated a sentence of death for anyone convicted of first degree murder, it also authorized the OCCA to modify a sentence of death to life imprisonment based upon “errors of law occurring at trial” or because “the death penalty was discriminatorily or disproportionately imposed.” Id. (internal quotations omitted; citing Okla. Stat. tit. 21, § 701.5 (1973)). Finally, exercising that modification power, the OCCA concluded “that the appropriate penalty for murder in the first degree ... under the 1973 statute” was life imprisonment. Id. at 829. Thus, in sum, the OCCA effectively modified, on the basis of constitutional error, all death sentences imposed on defendants convicted of first degree murder under Oklahoma's 1973 murder statute.

Returning to Selsor I, it is apparent that the OCCA, by applying its decision in Riggs to modify Selsor's death sentence to a term of life imprisonment, did not, as Selsor now suggests, “acquit” him of the death sentence. See Aplt. Br. at 50 (suggesting that Selsor I amounted to a determination “ ‘that the prosecution ha[d] not proven its case that the death penalty [wa]s appropriate.’ ” (quoting Poland, 476 U.S. at 155, 106 S.Ct. 1749)). Indeed, the OCCA's decision could not have amounted to such an acquittal because the prosecution in Selsor's original trial was never required, and thus did not attempt, to prove that Selsor should be sentenced to death. Rather, Oklahoma's 1973 murder statute mandated the imposition of the death penalty for any defendant convicted of first degree murder. And it was the mandatory nature of the death penalty and the consequential Eighth Amendment violation that prompted the OCCA to modify Selsor's sentence to life imprisonment. Thus, there was never any determination by the OCCA that the prosecution failed to prove its case for the death penalty to be imposed against Selsor. We thus conclude that Selsor is not entitled to federal habeas relief on the basis of his double jeopardy claim.

3. Ex post facto/due process violation

In Proposition Three of his appellate brief, Selsor contends that at his 1998 retrial he was effectively prosecuted and convicted under Oklahoma's 1976 murder statute, rather than the 1973 murder statute he was charged with violating, and that, as a result, his first degree murder conviction violates the Ex Post Facto Clause. In support, Selsor notes that in Turnbull the OCCA “proclaimed that [he] was now ‘similarly situated to defendants awaiting trial under current murder and death penalty statutes.’ ” Aplt. Br. at 55 (quoting Turnbull, 947 P.2d at 583). Selsor contends that “[t]he prosecutor, defense counsel, and the trial court apparently took that pronouncement at face value, and conducted [his] trial under the 1976 murder statute, including its changed definition of first-degree murder.” Id. However, Selsor notes, when he argued on direct appeal from his second trial “that this violated his rights under the Ex Post Facto Clause, the OCCA once again changed its tune,” id., and held that “Selsor was not tried under the 1976 law,” id. at 56. “In so ruling,” Selsor argues, “the OCCA unreasonably determined the factual question of whether [he] was tried under the 1976 murder statute....” Id. Consequently, he argues, “this Court should review [his] ex post facto claim de novo and grant him the writ as to his unconstitutional conviction.” Id.

a) Clearly established federal law

Although Selsor frames the alleged error as an ex post facto violation, we believe the alleged error is more appropriately treated as a due process violation. “The Ex Post Facto Clause, by its own terms, does not apply to courts.” Rogers, 532 U.S. at 460, 121 S.Ct. 1693. Instead, “[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature....” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). In this case, there is no assertion that the alleged error resulted from a legislative act FN8; instead, Selsor's claim hinges on the assertion that the state trial court erroneously instructed the jury as to the elements of the 1976 murder statute, rather than the elements of the 1973 murder statute Selsor was charged with violating. FN8. There is no indication that the Oklahoma legislature intended for the 1976 murder statute to be applied retroactively to criminal defendants, such as Selsor, who committed their crimes prior to its enactment, and respondents do not argue otherwise.

The Supreme Court has “observed ... that limitations on ex post facto judicial decisionmaking are inherent in the notion of due process.” Rogers, 532 U.S. at 456, 121 S.Ct. 1693. In other words, a judicial decision that has an ex post facto effect can give rise to “a valid due process claim.” United States v. Marcus, ––– U.S. ––––, 130 S.Ct. 2159, 2165, 176 L.Ed.2d 1012 (2010) (citing Bouie, 378 U.S. at 353–54, 84 S.Ct. 1697). The Supreme Court has cautioned, however, that the Due Process Clause does not, depending upon the context of the judicial decision at issue, necessarily incorporate all of the specific prohibitions of the Ex Post Facto Clause. Rogers, 532 U.S. at 458–60, 121 S.Ct. 1693.

b) Facts relevant to claim

Selsor was originally charged by information with first degree murder in violation of Oklahoma's 1973 murder statute. See Okla. Stat. tit. 21, § 701.1 (1973). That statute defined the crime of first degree murder to require proof of “a premeditated design to effect the death of the person killed, or of any other human being,” and commission of the murder during the course of one of several enumerated felony offenses, including armed robbery. Id. Consistent with that statutory definition, the information filed against Selsor alleged that he, “with a premeditated design to effect the death of one CLAYTON CHANDLER,” and “while being then and there engaged in committing the crime of Robbery With Firearms did kill the said CLAYTON CHANDLER by means of a firearm loaded with powder....” S. R., Vol. I at 10. At Selsor's retrial proceedings, the prosecution relied on the original information. However, the prosecution also filed a Bill of Particulars (something it was not required to do under the 1973 murder statute) alleging the existence of two aggravating circumstances enumerated in Oklahoma's 1976 murder statute. See Okla. Stat. tit. 21, § 701.12 (1976). Selsor moved to strike the Bill of Particulars. After the state trial court denied Selsor's motion, Selsor petitioned the OCCA for a writ of mandamus and asserted a number of constitutional objections to the Bill of Particulars.

The OCCA, in its Turnbull decision, rejected Selsor's petition. In rejecting Selsor's claim that the prosecution's pursuit of the death penalty against him violated his rights under the Equal Protection Clause, the OCCA stated that Selsor “[wa]s no longer similarly situated to those defendants subject to Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs.” Turnbull, 947 P.2d at 583. Selsor's “Judgment and Sentence has been vacated,” the OCCA stated, “ and he stands before this Court, similarly situated to defendants awaiting trial under current murder and death penalty statutes.” FN9 Id. (emphasis added). FN9. Although Selsor now suggests that these statements amounted to a factual determination by the OCCA that he was being tried under Oklahoma's 1976 murder statute, we disagree. In our view, the OCCA was simply explaining that Selsor was “similarly situated” to defendants being tried under the 1976 murder statute in that he was awaiting retrial, with no existing conviction or sentence in place.

Following the issuance of Turnbull, Selsor's case returned to the state trial court, where his retrial proceedings began. At the close of the first-stage evidence, the state trial court read to the jury the language of the information that was filed against Selsor in 1975. S. R., Vol. III at 351–54. That language stated, in pertinent part: The Defendant in this case, MICHAEL B. SELSOR, stands charged by an Information filed by the State of Oklahoma with the crime of MURDER IN THE FIRST DEGREE. The Information alleges that RICHARD EUGENE DODSON and MICHAEL B. SELSOR, on or about the 15th day of September, 1975, in Tulsa County, State of Oklahoma, and within the jurisdiction of this Court, did unlawfully, feloniously, and willfully, while acting in concert each with the other, without authority of law, and with a premeditated design to effect the death of one CLAYTON CHANDLER, the said RICHARD EUGENE DODSON and the said MICHAEL B. SELSOR did, while being then and there engaged in committing the crime of Robbery with firearms, did kill the said CLAYTON CHANDLER by means of a firearm loaded with powder and shot, held in the hands of the said defendants and with which they pointed at, fired, and shot the said CLAYTON CHANDLER, said shot causing mortal wounds in the body of the said CLAYTON CHANDLER, from which mortal wounds the said CLAYTON CHANDLER did languish and die; * * * The Defendant in this case, MICHAEL B. SELSOR, stands charged by an Information filed by the State of Oklahoma with the crime of ROBBERY WITH FIREARMS. The Information alleges that RICHARD EUGENE DODSON and MICHAEL B. SELSOR, on or about the 15th day of September, 1975, in Tulsa County, State of Oklahoma and within the jurisdiction of this Court, did unlawfully, feloniously and wrongfully, while acting in concert each with the other, rob one CLAYTON CHANDLER, by wrongfully taking and carrying away certain money belonging to U–TOTE–M STORE # 918, and in the possession of said CLAYTON CHANDLER, and in his immediate presence, without his consent and against his will, said robbery being accomplished by said defendants with the use of a certain firearm, to-wit: a .22 caliber pistol, and which they used to menace and threaten the said CLAYTON CHANDLER with harm if he resisted, and by said assault, threats and menace did then and there put the said CLAYTON CHANDLER in fear of immediate and unlawful injury to his person and overcame all his resistance, and while so intimidating him did then and there wrongfully take and obtain from him the money aforesaid, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State. Id. at 351–54.

The state trial court then proceeded to provide the jury with specific instructions regarding the crime of first degree murder. In doing so, the state trial court outlined for the jury the essential elements of first degree murder under Oklahoma's 1976 murder statute, rather than the 1973 murder statute under which Selsor was charged: The defendant is charged with: MURDER IN THE FIRST DEGREE of CLAYTON CHANDLER on September 15, 1975, in Tulsa County, Oklahoma. Id. at 361. No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are: First, the death of a human; Second, the death was unlawful; Third, the death was caused by the defendant; Fourth, the death was caused with malice aforethought. Id. at 363. The state trial court also separately instructed the jury on the elements of the crime of Robbery With Firearms: The defendant is charged with: ROBBERY WITH FIREARMS of CLAYTON CHANDLER on September 15th, 1975, in Tulsa County, Oklahoma. Id. at 371. No person may be convicted of ROBBERY WITH FIREARMS unless the State has proved beyond a reasonable doubt each element of the crime. These elements are: First, wrongful; Second, taking; Third, carrying away; Fourth, personal property; Fifth, of another; Sixth, from the person of another; Seventh, by force/fear; Eighth, through use of a loaded firearm. Id. at 372. After deliberating, the jury found Selsor guilty of both of these crimes, as well as the crime of Shooting With Intent to Kill.

c) OCCA's rejection of the claim

On direct appeal to the OCCA from his retrial, Selsor argued, in pertinent part, that the state trial court's retroactive application of the 1976 first degree murder statute and its corresponding penalty provisions violated the prohibition against ex post facto laws. The OCCA rejected that argument, stating as follows: In Proposition I, Selsor argues that the ex post facto provisions of the federal and state constitutions were violated because he was tried in 1998 pursuant to the First Degree Murder statute (21 O.S.1991, § 701.7(A)) in effect then rather than the statute in effect when he allegedly committed the crime (21 O.S. Supp.1973, § 701). In Proposition V, he asserts that his jury was mis-instructed on the applicable elements of First Degree Murder and that the Information did not adequately notify him of the charges against which he had to defend. We address these propositions together and conclude that they both lack merit.

This Court focuses on the following factors when determining whether there has been an ex post facto violation: i, the elements of the offense; ii, the conditions and quantum of punishment; and iii, the quantity and degree of proof necessary to establish guilt. Although the elements of First Degree Murder and the burden of proof contained in the 1973 statute (under which Selsor was charged) differ from those contained in the current statute, Selsor's jury was instructed on all the elements of First Degree Murder under the 1973 statute. While all elements of First Degree Murder under the 1973 statute were not contained within Instruction 9, they were included within the instructions as a whole. Instruction 18 correctly informs the jury on the elements of Robbery with Firearms. The essential elements of that offense are the same under the statute applicable at the time of Selsor's crime (21 O.S.1971, § 801) and the current statute (21 O.S.1991, § 801). Thus, considering Instructions 9 and 18 together indicates that Selsor's jury was instructed upon and found him guilty of all the elements of First Degree Murder under the applicable 1973 statute. As such, the defendant was not convicted under a lesser burden of proof, and under these circumstances, we do not find a violation of the ex post facto provisions of the State and Federal constitutions. Selsor II, 2 P.3d at 350 (internal paragraph numbers and footnotes omitted).

d) § 2254(d) analysis

The OCCA correctly noted that the state trial court's first degree murder instruction (Instruction 9) failed to include all of the essential elements under the 1973 murder statute. But rather than considering whether this resulted in constitutional error, the OCCA instead looked to the remainder of the state trial court's jury instructions and concluded that, because Instruction 18 correctly informed the jury of the elements of Robbery with Firearms, the instructions as a whole encompassed all of the essential elements of the 1973 murder statute. In turn, the OCCA concluded that no constitutional error occurred.

This reasoning is backwards. While the presence of Instruction 18 may be relevant to the question of harmlessness, it does nothing to alter the fact that Selsor was convicted of first degree murder under the elements of the 1976 murder statute. As we have noted, Oklahoma's 1976 murder statute, in contrast to Oklahoma's 1973 murder statute, allowed the State to convict a defendant of first degree murder on the basis of malice aforethought alone, without proving that the killing occurred during the commission of one of several statutorily designated felony offenses. And because the 1976 murder statute required fewer elements of proof than the 1973 murder statute, the state trial court's instructional error clearly had an ex post facto effect on Selsor. Specifically, Selsor was effectively subjected to a law “that aggravate[d] a crime, or ma[d]e[ ] it greater than it was, when committed.” Calder, 3 U.S. (3 Dall.) at 390 (emphasis in original). Consequently, we conclude the OCCA unreasonably determined that no constitutional error resulted from the state trial court's first degree murder instructions.

Having concluded that the state trial court's instructions effectively violated Selsor's due process rights, and that the OCCA's resolution of this issue was contrary to, or an unreasonable application of, clearly established federal law, two related questions remain: whether the error is subject to harmless error review and, if so, “whether the error was harmless.” Patton v. Mullin, 425 F.3d 788, 819 (10th Cir.2005). Although Selsor correctly notes that the Supreme Court has never addressed whether ex post facto violations are subject to harmless error review, the constitutional violation that occurred here is not, as we have already explained, an ex post facto violation. Rather, it is a due process violation with an ex post facto effect. And on that point, the Supreme Court has recently and clearly spoken. In Marcus, a criminal defendant was indicted on charges that he engaged in unlawful conduct between January 1999 and October 2001. At trial, the government presented evidence of the defendant's conduct during that entire period, and the jury convicted him. On appeal, the defendant argued that because the statutes he was convicted of violating did not become law until October 28, 2000, there was an Ex Post Facto Clause violation, and that the violation was a structural error that warranted reversal without a showing of prejudice. The Supreme Court, however, rejected those arguments. The Court first held, citing its decision in Marks, that it was “incorrect to classify the error at issue as an Ex Post Facto Clause violation....” Marcus, 130 S.Ct. at 2165. Instead, the Court held, “if the jury ... convicted [the defendant] based exclusively on noncriminal, preenactment conduct, [the defendant] would have a valid due process claim.” Id. (citing Bouie, 378 U.S. at 353–54, 84 S.Ct. 1697). The Court in turn rejected the notion that such a due process violation was a structural error. Id. (“We see no reason why, when a judge fails to give an instruction, a reviewing court would find it any more difficult to assess the likely consequences of that failure than with numerous other kinds of instructional errors that we have previously held to be non-‘structural’....”).

In light of Marcus, we conclude that the due process violation that resulted from the state trial court's instructional error is amenable to harmless error review. And “[b]ecause the OCCA did not reach th[e] issue, it is reviewed by this court under the harmless error standard announced in Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).” Marcus, 130 S.Ct. at 2165; see Fry v. Pliler, 551 U.S. 112, 121–22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (holding that the Brecht standard governs in federal habeas cases regardless of whether state courts recognized the error and applied any harmless error review). Under Brecht, “the standard for determining whether habeas relief must be granted is whether the ... error [at issue] ‘had substantial and injurious effect or influence in determining the jury's verdict.’ ” 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). In other words, did the constitutional error at issue “result[ ] in ‘actual prejudice’ ”? Id. at 637, 113 S.Ct. 1710. We have little trouble concluding that the state trial court's instructional error did not have a substantial and injurious effect on the jury's guilt phase verdict. To be sure, the instructional error, as we have already discussed, allowed the jury to convict Selsor of first degree murder on the basis of fewer essential elements than were required for conviction under the applicable 1973 murder statute. But the presence of Instruction 18, which correctly outlined for the jury the elements of Robbery with Firearms, combined with the jury's findings of guilt on the First Degree Murder and Robbery with Firearms charges, meant that the jury found the existence of all but one of the essential elements of the 1973 murder statute. And the only essential element that was not covered by the state trial court's instructions, i.e., that the murder occurred “while in the commission” of the robbery, was essentially undisputed. In other words, the prosecution's evidence clearly established, without dispute from Selsor, that Selsor murdered Chandler during the course of the convenience store robbery. In short, then, the instructional error resulted in no “actual prejudice” at the guilt phase of Selsor's trial. FN10. Selsor does not argue that the state trial court's instructional error resulted in actual prejudice at the guilt phase of his trial. Instead, he argues that “the ex post facto violation render[ed] [his] conviction legally void....” Aplt. Br. at 68. As we have explained, however, the state trial court's error did not result in an ex post facto violation, but rather a due process violation that is amenable to harmless error review.

We must still address, however, whether the state trial court's instructional error had a substantial and injurious effect on the jury's penalty phase verdict. Selsor argues that the error had precisely such an effect because it “led to the jury's consideration and finding of an invalid aggravating factor....” Aplt. Br. at 69. In support, Selsor notes that the jury at the penalty phase “was instructed that it could find the ‘avoid arrest or prosecution’ aggravator only if it determined that Selsor killed Chandler to avoid arrest for ‘another crime separate and distinct from the murder.’ ” Id. (quoting S. R., Vol. III at 403; emphasis in original). This instruction, Selsor argues, “was consistent with the OCCA's decisions holding that the ‘avoid arrest or prosecution’ aggravator required proof of ‘a predicate offense, separate from the murder, for which the defendant seeks to avoid arrest or prosecution,’ ” id. at 69–70 (quoting Scott v. State, 891 P.2d 1283, 1294 (Okla.Crim.App.1995)), and “was also consistent with the guilt phase instructions [his] jury received ... explaining that the murder and robbery were separate offenses, each of which ‘must stand on its own merits,’ ” id. at 70 (quoting S. R., Vol. III at 360). Had the jury been properly instructed on the 1973 murder statute, Selsor argues, “the jury could not have found the aggravator” because, “[u]nder the 1973 law, the robbery was an essential element of” first degree murder “and thus could not serve as a predicate for the ‘avoid arrest or prosecution’ aggravator.” Id. In turn, Selsor argues, the jury “thus would have found only the ‘risk of death to more than one person’ aggravator,” and “[t]he ... finding of only a single aggravator likely would have shifted the balance in favor of a life sentence.” Id. at 71. Thus, Selsor asserts, the district court's instructional error “had a substantial and injurious effect on the jury's death verdict....” Id.

We disagree. To be sure, the OCCA's decisions provide that establishment of the “avoid arrest or prosecution” aggravator requires proof that “the defendant committed some ‘predicate crime,’ separate from the murder.” Mitchell v. State, 136 P.3d 671, 677 (Okla.Crim.App.2006) (citing cases from the mid–1990's). But what Selsor overlooks is that the OCCA's decisions also provide that “in cases in which the capital defendant is charged with first-degree felony murder, the crime that serves as the underlying felony for the murder conviction can also serve as the predicate crime for the avoid arrest aggravator in the second stage.” Id. at 678 (citing prior cases from 1994, 2000, and 2004). Thus, even though the prosecution in Selsor's case had to prove commission of the robbery in order to convict Selsor of first degree murder under the 1973 murder statute, the robbery could still properly serve as the predicate crime for the avoid arrest aggravator. Accordingly, the state trial court's instructional error did not invalidate the avoid arrest aggravator, and in turn did not have a substantial and injurious effect on the jury's second-stage findings.

4. Equal protection—imposition of death penalty for pre–1976 murder

In Proposition Four of his appellate brief, Selsor contends that “[b]y resentencing [him] to death, both the State and the OCCA have deprived him of equal protection of the laws, in violation of the Fourteenth Amendment.” Aplt. Br. at 72. More specifically, Selsor contends that “[t]he State treated [him] differently from all other defendants convicted of murders occurring between May 17, 1973 and July 24, 1976, by obtaining a death sentence against him alone.” Id.

a) Clearly established federal law applicable to the claim

Selsor points to a number of Supreme Court decisions in support of his equal protection claim. To begin with, Selsor cites to City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), for the general proposition that “[t]he Equal Protection Clause of the Fourteenth Amendment ... is essentially a direction that all persons similarly situated should be treated alike.” Selsor also notes that in Jones v. Helms, 452 U.S. 412, 423–24, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), the Supreme Court held that “[t]he Equal Protection Clause provides a basis ... for contending that general rules are being applied in an arbitrary or discriminatory way.” In turn, Selsor notes that the State typically must establish “a rational basis for [a] difference in treatment,” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), meaning that “the classification itself [must be] rationally related to a legitimate governmental interest,” U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). Lastly, Selsor asserts that where, as here, the challenged government action implicates a fundamental right (in his case, he asserts, the right to life), “the government has the burden of proving that [the challenged] classifications ‘are narrowly tailored measures that further compelling governmental interests.’ ” Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)).

b) The OCCA's resolution of the claim

Selsor presented his equal protection claim to the OCCA in the context of the mandamus action he filed in 1997 seeking to challenge the state trial court's denial of his motion to dismiss the prosecution's Bill of Particulars. The OCCA rejected the claim, concluding as follows: Petitioner's equal protection claim can be easily and summarily disposed of. Petitioner is simply no longer similarly situated to those defendants subject to Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs. Petitioner's Judgment and Sentence has been vacated and he stands before this Court, similarly situated to defendants awaiting trial under current murder and death penalty statutes. Dobbert, 432 U.S. at 301, 97 S.Ct. at 2302, 53 L.Ed.2d at 361; see also Cheatham v. State, 900 P.2d 414, 428–30 (Okl.Cr.1995). Turnbull, 947 P.2d at 583.

c) § 2254(d) analysis

According to Selsor, the relevant comparison group for purposes of his equal protection claim includes all Oklahoma state defendants convicted of murders occurring between May 17, 1973 and July 24, 1976. In so defining this comparison group, Selsor obviously “regards ... as immaterial to the similarly-situated analysis,” United States v. Moore, 543 F.3d 891, 897 (7th Cir.2008), the fact that he, unlike every other member of that group, obtained federal habeas relief, had his original convictions and sentences invalidated, and was afforded a new trial, Kaiser II, 81 F.3d at 1506. In our view, however, the OCCA's more narrow construction of the “similarly situated” test, and its related conclusion that Selsor was not similarly situated to the identified group because of his successful federal habeas action and subsequent retrial, was an entirely reasonable construction of clearly established federal law. Although the Supreme Court, as far as we can determine, has never precisely defined the meaning of “similarly situated,” it has emphasized that the comparative group identified by the plaintiff/petitioner must be “similarly situated in relevant respects.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n. 4, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). This court, in turn, has attempted to provide a somewhat more detailed definition, noting that “the degree to which others are viewed as similarly situated [for equal protection analysis purposes] depends substantially on the facts and context of the case,” and that, consequently, many “legitimate” “variables” may serve to distinguish the plaintiff from those other persons. Jennings v. Stillwater, 383 F.3d 1199, 1213–14 (10th Cir.2004). Other circuits have held that the comparison group identified by the party asserting an equal protection claim must be “identical in all relevant respects.” Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir.2009) (internal quotation marks omitted). Together, these principles clearly support the OCCA's conclusion that Selsor was not, because of having obtained federal habeas relief and received a new trial, “similarly situated” to his identified comparison group. Thus, we conclude Selsor is not entitled to federal habeas relief on the basis of his equal protection claim.

5. Vindictive prosecution—due process violation

In Proposition Five of his appellate brief, Selsor contends that the State violated his due process rights when, following his successful federal habeas action, it actively sought the death penalty against him. Selsor contends that the State's action in this regard raises an “unrebuttable presumption” of vindictive prosecution. Aplt. Br. at 77.

a) Clearly established federal law applicable to the claim

In support, Selsor points to Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and subsequent Supreme Court “decisions construing that case.” Aplt. Br. at 80. According to Selsor, “[t]hat body of law holds that where, as here, an appellate court reverses a defendant's conviction, and the State, on retrial, seeks a more severe sentence than it sought before the reversal, a presumption of vindictive prosecution arises that mandates invalidation of the more severe sentence, unless the State produces objective proof rebutting the presumption.” Id. (emphasis in original). The general principle relied on by Selsor appears to have first originated in North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 395 U.S. 711 (1969). In Pearce, the Supreme Court addressed the following question: “When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?” Id. at 713, 89 S.Ct. 2072. The Court first held “that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction.” Id. at 723, 89 S.Ct. 2072. In other words, the Court held, “[a] trial judge is not constitutionally prohibited ... from imposing a new sentence, whether greater or less than the original sentence, in light of events subsequent to the first trial that may have thrown new light upon the defendant's ‘life, health, habits, conduct, and mental and moral propensities.’ ” Id. (quoting Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The Court in turn held, however, that the Due Process Clause of the Fourteenth Amendment places certain limitations on the sentence that can be imposed following retrial. In particular, the Court held that “[d]ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Id. at 725, 89 S.Ct. 2072. “And,” the Court further held, “since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motive on the part of the sentencing judge.” Id. “In order to assure the absence of such a motivation,” the Court held, “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear,” and “[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. 2072.

In Blackledge, the Court addressed the related question of whether the Constitution places limitations on the ability of a prosecutor, following a defendant's successful appeal or habeas action, to file more serious charges against the defendant, i.e., charges that carry a more severe sentence than was originally imposed on the defendant after the first trial. In addressing this question, the Court examined Pearce and two of its own post- Pearce decisions and concluded that “[t]he lesson that emerge[d] from [them] [wa]s that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ ” Blackledge, 417 U.S. at 27, 94 S.Ct. 2098. Applying that lesson to the situation before it, the Court held that “[a] person convicted of an offense is entitled to pursue his statutory right to [appeal], without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.” Id. at 28, 94 S.Ct. 2098. In 1984, the Court, prompted by a “conflict among the Circuits,” revisited “the meaning of [its] holding in Pearce.” Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). In doing so, the Court outlined the key portion of Pearce's holding:

To prevent actual vindictiveness from entering into a decision and allay any fear on the part of a defendant that an increased sentence is in fact the product of vindictiveness, the Court fashioned what in essence is a “prophylactic rule,” see Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972), that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” 395 U.S., at 726, 89 S.Ct., at 2081. This rule has been read to “[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982). The rationale for requiring that “the factual data upon which the increased sentence is based” be made part of the record, of course, is that the “constitutional legitimacy,” of the enhanced sentence may thereby be readily assessed on appeal. Ibid. Id. at 564–65, 104 S.Ct. 3217 (brackets in original). The Court in turn noted that Blackledge was the “only ... other circumstance [in which it] ha [d] identified a need to indulge a presumption of vindictiveness of the kind imposed in Pearce.” Id. at 565, 104 S.Ct. 3217. Describing Blackledge, the Court stated:

Although there was no affirmative evidence tendered that the prosecutor brought the [greater] felony charge in bad faith, we agreed that, because the record was devoid of any explanation for the new indictment, relief should be granted. Consistent with Pearce, however, we explicitly observed that a different disposition would have been called for had the State advanced a legitimate nonvindictive justification for the greater charge. This acknowledgment, of course, was no more than a reaffirmation that Pearce established a rebuttable presumption of vindictiveness, not an absolute prohibition on enhancement of sentence. Id. at 566, 104 S.Ct. 3217. The Court proceeded to describe four cases in which it “expressly declined invitations to extend the presumption.” Id. After doing so, the Court summarized the impact of Pearce, Blackledge, and the other four cases: In sum, where the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness. Id. at 569, 104 S.Ct. 3217.FN11 FN11. In 1989, the Court refined Pearce slightly, “hold[ing] that no presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second sentence follows a trial.” Alabama v. Smith, 490 U.S. 794, 795, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). That holding appears to have no impact on Selsor's case.

b) The OCCA's resolution of the claim

Selsor presented this claim to the OCCA in 1997 when, following the state trial court's denial of his motion to strike the Bill of Particulars filed by the prosecution, he petitioned the OCCA for a writ of mandamus. In his filing with the OCCA, Selsor argued, in pertinent part, that in light of Riggs, “there was no death penalty statute in effect in Oklahoma in 1975, when [he] [wa]s alleged to have committed the crime of murder in the first degree,” but that he was nevertheless “facing the death penalty, a greater punishment than that in place at the time of the alleged commission of the crime, because his Sixth Amendment right to effective assistance of counsel was violated” and ultimately vindicated in a federal habeas proceeding. App. to Assume Original Jurisdiction and Pet. for Writ of Prohibition and/or Mandamus at 6, 8–9. Exposing him to such possible punishment, Selsor argued, “fl[ew] in the face of due process.” Id. at 9. Notably, Selsor did not cite to Pearce or Blackledge, nor did he argue that the prosecution acted vindictively in filing the Bill of Particulars against him.FN12 FN12. Despite Selsor's failings, we conclude that the claim he asserted before the OCCA was “the substantial equivalent” of the claim he now asserts in this federal habeas proceeding. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

In addressing Selsor's arguments, the OCCA first held that, “[c]ontrary to [Selsor]'s arguments, there was a death penalty statute in effect in 1975, and on the date his crime was committed, in the form of 21 O.S. Supp.1973, § 701.3.” Turnbull, 947 P.2d at 582. In support, the OCCA stated: Contrary to this Court's analysis in Riggs, the newly enacted death penalty statutes did not change the burden of proof to the detriment of Riggs and other defendants, as compared to the burden of proof under Section 701.3. Under Section 701.3, the only available sentence was death. Under newly enacted death penalty statutes, the sentencing options increased in favor of a defendant to include not only death but also the possibility of life imprisonment, and now life without parole. 21 O.S. Supp.1976, §§ 701.9 and 701.10; 21 O.S.1991, § 701.9, and Supp.1996, § 701.10. Under Section 701.3, the State was only required to prove the elements of the crime of First Degree Murder. Once those elements were proven, the State had no further burden of proof because the death penalty was required. Under newly enacted death penalty statutes, the State not only must prove the same elements of the crime of First Degree Murder, but also must prove aggravating circumstances before the death penalty can be imposed. Id. Therefore, newly enacted death penalty statutes (1) did not increase the elements of the offense of First Degree Murder, (2) did not increase but in fact decreased the conditions and quantum of punishment, and (3) did not decrease but in fact increased the quantity and degree of proof necessary to establish guilt, and are not ex post facto. [citations omitted] The ex post facto analysis and the holdings thereunder in Riggs v. Branch, 554 P.2d 823 (Okl.Cr.1976) are hereby overturned. Id. at 582–83. Later in its opinion, the OCCA rejected Selsor's due process argument:

Finally, we reject Petitioner's claim that to subject him to the death penalty, because his Sixth Amendment right to effective assistance of counsel was violated, flies in the face of due process. Petitioner has not supported this claim with citation to any authority. Rule 3.5(C)(4), Rules [ of the Court of Criminal Appeals ]. Moreover, if a defendant has not been acquitted of the death penalty and his conviction and sentence are reversed on appeal or collateral proceedings, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law, including death. Salazar v. State, 919 P.2d 1120, 1127 (Okl.Cr.1996). Finally, subjecting Petitioner to the death penalty does not appear to be punishment for Petitioner's successful attack on his Judgment and Sentence, but merely an application of the correct law, and/or a correction of the applicable law. See Stafford v. State, 800 P.2d 738, 740 (Okl.Cr.1990). Id. at 583. Both the Salazar and Stafford decisions cited by the OCCA expressly cited to Pearce and its progeny. Salazar, 919 P.2d at 1127 n. 8; Stafford, 800 P.2d at 740.

c) § 2254(d) analysis

Selsor contends the OCCA's decision “directly conflicts with” Blackledge and the Supreme Court's “later decisions construing that case.” Aplt. Br. at 80. According to Selsor, “[t]he OCCA ruled contrary to this clearly established law, because in resting its decision on the perceived absence of evidence of retaliation, it failed to recognize that vindictiveness must be presumed, and that the State bore the burden of rebutting that presumption.” Id. It is apparent from its decision that the OCCA did not expressly address the question of whether Selsor was, under Pearce and its progeny, entitled to a presumption of vindictiveness, or whether Selsor was instead required to prove actual vindictiveness on the part of the prosecution. As the Supreme Court recently emphasized, however, it is unnecessary that a state court “explain [ ] [its] reasoning.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Thus, we must assume, in applying the standards outlined in § 2254(d), that the OCCA concluded Selsor was not entitled to a presumption of vindictiveness and that, in turn, Selsor failed to prove actual vindictiveness.

Neither of these implicit conclusions reached by the OCCA are contrary to, or an unreasonable application of, Pearce or its progeny. Turning first to the question of whether Selsor was entitled to a presumption of vindictiveness, the relevant comparison, according to the Supreme Court, is between the “original sentence” and the “new” or newly-sought sentence. Pearce, 395 U.S. at 723, 89 S.Ct. 2072; Blackledge, 417 U.S. at 27–28, 94 S.Ct. 2098. In Selsor's case, we conclude that the “original sentence” was the death sentence imposed by the state trial court pursuant to the jury's verdict, and not, as suggested by Selsor, the modified sentence of life imprisonment that was ordered by the OCCA on direct appeal in Selsor I. To be sure, neither Pearce nor its progeny dealt with a situation identical to the one at issue here. However, under the standard of review set forth in § 2254(d)(1), Selsor cannot obtain federal habeas relief unless we determine that the OCCA unreasonably construed Pearce and its progeny to require comparison of the “original” sentence to the sentence ultimately sought by the prosecution on retrial. And on that question, Selsor cannot prevail. In other words, because Selsor's situation differed in a key respect from the circumstances in Pearce and its progeny, the OCCA was left to determine whether to define Selsor's “original sentence” as the death sentence imposed at his original trial, or the modified life sentence imposed on direct appeal. Nothing in Pearce or its progeny indicates that the OCCA acted unreasonably in treating Selsor's death sentence as his “original sentence.” Thus, in turn, the OCCA's refusal to apply a presumption of vindictiveness was not violative of § 2254(d)(1).

That leaves only the OCCA's implicit conclusion that Selsor failed to prove actual vindictiveness on the part of the prosecution in filing the Bill of Particulars and seeking the death penalty on retrial. In this federal habeas action, Selsor asserts a host of arguments in an attempt to prove actual vindictiveness: the fact that in his first direct appeal “the State asked the OCCA to modify [his] sentence to life,” Aplt. Br. at 82; “[t]he extraordinary lengths to which the State went in seeking the death penalty following [his] habeas victory,” including “its aggressive and surprising campaign to overrule Riggs,” id. at 83; “[t]he State's pursuit of an excessive sentence on the shooting with intent to kill conviction,” i.e., “ask[ing] the jury for a sentence 250 times greater than it had requested at the first trial,” id. at 84; and the lack “of any explanation by the State for its decision to seek the death penalty,” id. at 86. The problem, however, is that Selsor made no mention of any of these factors (or of Pearce or its progeny) when he presented his due process claim to the OCCA. Thus, the OCCA's implicit conclusion that Selsor failed to carry his burden of presenting sufficient evidence to justify a remand to the state trial court for determination of the actual vindictiveness issue, or, alternatively, its implicit finding of no actual vindictiveness, was entirely reasonable. See 28 U.S.C. § 2254(d)(1) and (2).

6. Prosecutorial misconduct

In Proposition Six of his appellate brief, Selsor contends that the penalty-phase of his trial was rendered “fundamentally unfair” by prosecutorial misconduct. Aplt. Br. at 87. Specifically, Selsor contends that the prosecution, “[b]oth by suggesting, absent a shred of evidentiary support, that [his] mitigation witnesses were testifying untruthfully out of fear of reprisals, and by comparing the value of [his] life in prison to the victim's death, ... created a grave risk that the jury's death verdict was based on passion and prejudice, rather than a reasoned review of the evidence.” Id.

a) Relevant background facts

Selsor's penalty-phase mitigation evidence was comprised of testimony from five non-familial witnesses. The first of those, LaDonna Penny, a data entry clerk for the Tulsa County Sheriff's Department, testified that Selsor received no write-ups during the nineteen months he was confined in the Tulsa County Jail. The remaining four witnesses, Kenneth Williamson, Bervin Knott, Fred Cook, and Linda Morgan, were either employed by, or retired from employment with, the Oklahoma Department of Corrections (ODC) and had interacted with Selsor during his imprisonment following his original conviction. All four of these witnesses testified that, despite supporting the death penalty generally, they disagreed with the prosecution's recommended sentence of death for Selsor. In cross-examining these latter four witnesses, the prosecution focused on certain episodes of misconduct committed by Selsor during his period of confinement, in particular his attempted escape in the early 1980's. The prosecution also elicited a concession from one of the witnesses, Knott, that he would likely again be assigned to supervise Selsor if Selsor was sentenced to life in prison. Knott, however, expressly disagreed with the prosecution's suggestion on cross-examination that it could potentially place him in danger to say negative things about Selsor; indeed, Knott testified that he was not concerned about the ramifications of his testimony. Nevertheless, during its final second-stage closing argument, the prosecution argued that Knott and the other ODC witnesses were scared to say anything negative about Selsor:

And let's talk about the State employees, the [ODC] personnel. I would ask each and every one of you to think about their testimony in context of the evidence in this case. I would submit to you, liken it to your neighbors that you live next door to. Think about if you were asked to come in here and sit in judgment of your neighbors, and all you knew about your neighbors and whether they should receive the death penalty or not is whether they mow their yard, took out their trash, dressed okay, painted their house, and said good morning appropriately. Would you be biased? Would you know all the facts? Would you know why someone wants your neighbor killed? And think about this, ladies and gentlemen, if they're your neighbors, where are they gonna go if they don't receive a sentence of death? They're gonna come right back and they're gonna live right next door to you. Do you think those people don't know that they're rubbing elbows with this Defendant every day? Do they know anything about Anne Chandler [ (the victim's wife) ] and what she's been through for the last 23 years? Do they know anything about his daughter Debbie? Do they know anything about Ina Morris? No. You've heard their testimony. They really don't know. One of them read it in the paper. Ladies and gentlemen, we have a jury system where you all get to come in here and hear both sides. Remember, one of their witnesses was very candid. No, it's not fair to the victims to sit and make a decision if I don't know both sides. Total agreement with that. You've got to know both sides. But you've got individuals who only knew this Defendant in a controlled prison environment for a couple of years. Some of those witnesses, are they biased? Do they have to survive in that system? You bet they do. Their word is their bond. They've worked in the same system. They've worked next to long-term offenders. How is it gonna go when they get back to the walls and all those long-term offenders hear that someone like [Selsor's] last witness, Ms. Morgan, came in here and starts saying, well, this Defendant deserves to die? How do you think that's gonna sit well with the other long-term offenders, the other killers that she works with? Do you think that could put her in jeopardy? Is it fair to those people in that position, knowing what they knew about this case? Was that fair? Tr., Vol. V at 1200–02.

The prosecution also, during its final second-stage closing argument, asked the jury to consider what Selsor's life would be like if sentenced to life imprisonment, and, in doing so, contrasted that with the plight of Selsor's victims: Ladies and gentlemen, I submit to you, based on the evidence you've heard in this case, you've got to decide the punishment in this case. Let's think about the punishment. If you vote for a verdict other than death, what is going to be Mike Selsor's punishment? What is he going to have? He's going to have freedom, freedom to do what he wants. What have you heard about over the last 23 years? This will be your punishment. He [ (Selsor) ] can do what he wants. He can smoke dope, he can hang out with his friends, he can read books, watch TV, write letters, participate in rodeos, workout, play ball, work in the garden. He doesn't have to have a job. You've heard he doesn't even hold a job. He sits around and does what he wants. And all of his needs are met: clothing, food, and shelter. Is that too good for what he's done? Is that the appropriate punishment in this case? Because you do have to live with yourselves and you do have to know what you vote for is what's right. If you believe, hey, Mike [Selsor], here you go. There you go, that's what you get for what you've done, and you go back there and you vote for life without parole. If you feel that is the appropriate punishment that Mike Selsor deserves, then I submit to you, you go back there with conscience, you vote for it.

But what has he done? What has been his reign of terror? Clayton Chandler lost his life, brutally, savagely, without mercy, without pity, without hesitation, without any concern for human life. He took Clayton Chandler from his family. His little girl did not get to see daddy come home that night. When she went into the door to put her arms around dad, there was no dad. He took a husband. Her dreams were in that man. Her dreams. He took the father, the pillar of this society. This was a good man. He didn't do anything to deserve to die like a dog in that store. The nightmare, he created a nightmare. You bet he did. They [ (the government's second-stage witnesses) ] told you about it, and they lived it every single day while he's doing this. Physical suffering. Clayton suffered. He suffered. You bet he did. The surviving family, her 29–year mate, the person she loved, her best friend, her provider, her security, her hero, he's gone. He lays right over there. Ina Morris. It was a tragedy. That night was a tragedy. She was on her knees, asking God to forgive her for her sins. She was shot repeatedly because he [ (Selsor) ] made a blood pact with his partner in crime to leave no witnesses. She has suffered, she has suffered. She lost everything. She lost her innocence, she lost her trust. She couldn't even function, ladies and gentlemen. It took years and years of counseling for, what did it be [sic]? Go outside. And he deserves this. Id. at 1202–04.

b) Clearly established federal law applicable to the claim

Selsor points to a trio of Supreme Court cases in support of his claim: Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943), Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). In Viereck, the Supreme Court condemned as prejudicial to the defendant's right to a fair trial closing remarks made by the prosecutor that were “wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice.” 318 U.S. at 247, 63 S.Ct. 561. In Gardner, a capital case, the Supreme Court did not address prosecutorial misconduct, but instead held generally that “[i]t is of vital importance to the defendant [in a capital case] and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” 430 U.S. at 358, 97 S.Ct. 1197. Finally, in Darden, another capital case, the Supreme Court characterized as “improper,” but ultimately harmless, “several offensive comments” made by the prosecutor during second-stage closing arguments that “reflect[ed] an emotional reaction to the case.” FN13 477 U.S. at 180, 106 S.Ct. 2464. In concluding that the remarks “did not deprive [the defendant] of a fair trial,” id. at 181, 106 S.Ct. 2464, the Court emphasized that the prosecutor's “argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent,” id. at 182, 106 S.Ct. 2464. FN13. These included statements such as, “He [ (the defendant) ] shouldn't be out of his cell unless he has a leash on him and a prison guard at the other end of that leash,” and “I wish that I could see him [ (the defendant) ] sitting here with no face, blown away by a shotgun.” 477 U.S. at 180 n. 12, 106 S.Ct. 2464.

c) The OCCA's resolution of the claim

Selsor first presented his claim to the OCCA on direct appeal from his 1998 retrial, arguing, in pertinent part, that the prosecutor's second-stage arguments deprived him of his right to a fair sentencing hearing. In doing so, however, Selsor failed to cite to any of the three Supreme Court cases he now relies on. In addressing Selsor's arguments, the OCCA noted at the outset that Selsor's counsel failed to object to the purported misconduct at trial, thereby “waiving all but plain error.” Selsor II, 2 P.3d at 354. The OCCA then rejected Selsor's arguments, stating: Selsor ... contends that the prosecutor demeaned his mitigation evidence by arguing facts outside the record. The prosecutor's arguments were fair challenges to Selsor's mitigating evidence. Moreover, the comments were not based upon facts outside the record but were reasonable inferences and arguments from the facts adduced at trial. There was no error. Selsor argues that the prosecutor improperly compared the advantages of Selsor's life in prison to the plight of the dead victim. These comments by the prosecutor are not error. Instead, they fairly commented on Selsor's mitigation evidence and merely asked the jury to consider what Selsor's life was like and would be like in prison based upon the evidence at trial in determining the appropriate punishment. This is proper argument. Id. (internal paragraph numbers omitted).

d) § 2254(d) analysis

“[W]hen a state court applies plain error review in disposing of a federal claim, the decision is on the merits to the extent that the state court finds the claim lacks merit under federal law.” Douglas v. Workman, 560 F.3d 1156, 1171 (10th Cir.2009). That is precisely the situation here: although the OCCA applied plain error review to Selsor's claims, it ultimately concluded the claims lacked merit under controlling federal law. Consequently, the question we must address is whether the OCCA's decision was contrary to, or an unreasonable application of, the three Supreme Court decisions cited by Selsor. See id.; 28 U.S.C. § 2254(d)(1).

We conclude, contrary to Selsor's arguments on appeal, that the OCCA's decision was consistent with Viereck, Gardner, and Darden. To begin with, the challenged remarks by the prosecutor concerning the testimony of the ODC employees were not “wholly irrelevant to any facts or issues in the case,” Viereck, 318 U.S. at 247, 63 S.Ct. 561, but rather, as noted by the OCCA, were intended to directly rebut Selsor's arguments as to why he should be sentenced to life imprisonment. Specifically, the prosecutor was attempting to argue to the jury that the testimony of the ODC employees should be discounted both because they were not privy to all of the relevant facts, and because they might be fearful of future retaliation from Selsor or others if they agreed with the prosecutor's recommended sentence. Although none of the ODC witnesses directly expressed any fear of reprisal, it was both relevant and proper for the prosecutor to have asked the jury to infer this fact from their testimony—except perhaps in the case of Knott, who, as noted, on cross-examination denied any concern for the possible ramifications caused by his testimony. As for the prosecutor's comparison of the plight of the victims and their families with the life Selsor would lead if sentenced to a term of imprisonment, the OCCA reasonably concluded that was a valid comment on the evidence presented during the second-stage proceedings. In cross-examining each of Selsor's ODC witnesses, the prosecutor elicited testimony indicating that Selsor, like other inmates serving terms of imprisonment, could choose whether or not to work, and could participate (and had participated) in various activities, including prison rodeos and gardening. The prosecutor in turn emphasized this testimony during closing arguments to highlight for the jury the consequences of a decision to sentence Selsor to life imprisonment rather than death. To be sure, the prosecutor's related discussion of the plight of the victims and their families may have “arouse[d] [the jury's] passion,” Viereck, 318 U.S. at 247, 63 S.Ct. 561, or “emotion[s],” Gardner, 430 U.S. at 358, 97 S.Ct. 1197. That said, however, the prosecutor did not manipulate or misstate the evidence in that regard. Thus, as was the case in Darden, the prosecutor's remarks did not ultimately impact Selsor's right to a fair sentencing hearing. In sum, Selsor is not entitled to federal habeas relief on the basis of his prosecutorial misconduct claim.

7. Impermissible testimony by victim's family

In his seventh, and final, proposition of error, Selsor contends that the trial court's admission, during the penalty-phase, of testimony from Clayton Chandler's widow and daughter “that they agreed with the prosecution's recommendation of death for Selsor,” Aplt. Br. at 103–04, “served only to inflame the jury's passion and prejudice, and therefore violated the Eighth Amendment,” id. at 104.

a) Relevant background facts

The prosecution, as part of its second-stage evidence, presented testimony from Debbie Huggins, Chandler's daughter, and Anne Chandler, Chandler's widow. Both of these witnesses were allowed to read into the record written victim impact statements they had prepared prior to trial. As part of her victim impact statement, Huggins stated, “I am in agreement with the District Attorney's Office regarding the recommendation of this case.” Tr., Vol. V at 1042. Similarly, Anne Chandler stated, in reading her victim impact statement, “I agree with the District Attorney's recommendations on this case.” Id. at 1045. Selsor's counsel timely objected to both statements, but was overruled by the state trial court.

b) Clearly established federal law applicable to the claim

Selsor, citing Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), contends “[t]he Supreme Court has long held that a victim-impact witness's testimony supporting a death sentence for the defendant violates the Eighth Amendment.” FN14 Aplt. Br. at 105. In Booth, the Court held “that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are inadmissible [under the Eighth Amendment] at a capital sentencing hearing.” Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597. That holding was overruled by the Court in Payne. Id. at 830 & n. 2, 111 S.Ct. 2597. “ Booth also held that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” Id. at 830 n. 2, 111 S.Ct. 2597. Payne did not overrule this portion of Booth. Id. FN14. Selsor also cites to Woodson v. North Carolina, 428 U.S. 280, 290, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Aplt. Br. at 105. Selsor does not explain, however, how Woodson supports his claim, and it is not apparent to us how Woodson is relevant. “This circuit and several other circuits have [since] expressly recognized that the portion of Booth prohibiting family members of a victim from stating ‘characterizations and opinions about the crime, the defendant, and the appropriate sentence’ during the penalty phase of a capital trial survived the holding in Payne and remains valid.” Welch v. Sirmons, 451 F.3d 675, 703 (10th Cir.2006), overruled on other grounds by Wilson v. Workman, 577 F.3d 1284 (10th Cir.2009) (en banc).

c) Selsor's failure to present claim to the OCCA

It is uncontroverted that Selsor never presented this claim to the OCCA. Selsor argues, however, that exhaustion of the claim was futile because the OCCA has consistently upheld admission of similar evidence. Indeed, Selsor asserts, “[t]he OCCA upheld admission of a victim's death recommendation the same day it decided [his] appeal.” Aplt. Br. at 104 (citing Welch v. State, 2 P.3d 356, 373 (Okla.Crim.App.2000) (“Victim impact testimony may include information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence.”)). A state prisoner generally may not raise a claim for federal habeas corpus relief unless he “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To exhaust a claim, a state prisoner must pursue it through “one complete round of the State's established appellate review process,” giving the state courts a “full and fair opportunity” to correct alleged constitutional errors. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). If a state prisoner has not properly exhausted state remedies, the federal courts ordinarily will not entertain an application for a writ of habeas corpus unless exhaustion would have been futile because either “there is an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii). The state prisoner bears the burden of proving that he exhausted state court remedies, see McCormick v. Kline, 572 F.3d 841, 851 (10th Cir.2009), or that exhaustion would have been futile, see Clonce v. Presley, 640 F.2d 271, 273 (10th Cir.1981). In the instant case, we conclude, out of an abundance of caution, that Selsor has sufficiently established that exhaustion of his claim with the OCCA would have been futile. In particular, Selsor correctly notes that the OCCA, both at the time it decided his direct appeal and for several years thereafter, consistently approved of the admission during second-stage capital proceedings of a “victim's opinion of [the] recommended sentence.” Welch, 2 P.3d at 373; see Murphy v. State, 47 P.3d 876, 885 (Okla.Crim.App.2002) (same).

d) The merits of the claim

The Supreme Court's decision in Payne and our own post- Payne cases clearly establish that it is a violation of the Eighth Amendment to allow a victim or a victim's family member to comment, during second-stage proceedings, on the appropriate sentence for a capital defendant. See Welch v. Workman, 607 F.3d 674, 695 (10th Cir.2010). Thus, we conclude that Selsor's Eighth Amendment rights were violated by admission of the challenged testimony from Huggins and Anne Chandler. The question then becomes whether “the prejudicial impact of [this] constitutional error” rises to the “substantial and injurious effect standard set forth in” Brecht. Fry v. Pliler, 551 U.S. 112, 120, 121 n. 3, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). As we have noted, this standard affords a state habeas petitioner plenary review to determine whether a trial error “resulted in actual prejudice.” Id. at 637, 113 S.Ct. 1710 (internal quotation marks omitted). A “substantial and injurious effect” exists when the court finds itself in “grave doubt” about the effect of the error on the jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Notably, “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634, 113 S.Ct. 1710. However, “when a court is ‘in virtual equipoise as to the harmlessness of the error’ under the Brecht standard, the court should ‘treat the error ... as if it affected the verdict....’ ” Fry, 551 U.S. at 121 n. 3, 127 S.Ct. 2321 (quoting O'Neal, 513 U.S. at 435, 115 S.Ct. 992).