Robert Allen Brecheen appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254, along with the denial of his request for a stay of execution pursuant to 28 U.S.C. Secs. 1651, 2251. Mr. Brecheen contends the district court failed to recognize several asserted constitutional errors relating to his murder conviction and corresponding death sentence. In this appeal, we are called upon to reexamine those asserted errors, which include the denial of a fair trial because of the denial of motion for change of venue and because of prosecutorial misconduct, denial of a fair sentencing phase because of ineffective assistance of counsel, insufficient mitigating instructions, and overbroad application of aggravating factors. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and we grant Mr. Brecheen's request for a certificate of probable cause pursuant to 28 U.S.C. Sec. 2253. Finding no basis to grant relief, however, we affirm the district court's denial of Mr. Brecheen's petition.

Mr. Brecheen was convicted by a jury of first degree murder and first degree burglary.1 The jury imposed the death penalty after it found the existence of one aggravating circumstance, namely, that Mr. Brecheen knowingly created a great risk of death to more than one person. See Okla.Stat. tit. 21, Sec. 701.12(2).

Mr. Brecheen was found guilty of killing Marie Stubbs in her living room one evening in March of 1983. From the bedroom, her husband, Hilton Stubbs, saw her fall to the floor. He then reached for his gun and rolled from his bed onto the bedroom floor. After the intruder came to the bedroom and fired into the empty bed, Mr. Stubbs fired at the intruder. The two exchanged fire once again as the intruder left the house and headed north. Though Mr. Stubbs could not identify the intruder, Mr. Brecheen was found by police approximately two hundred yards north of the Stubbs' house, severely wounded. At trial, Mr. Brecheen admitted to being present in the house and holding the gun that killed Mrs. Stubbs. He explained he was forced to the Stubbses' house by an unidentified man who also forced him to carry a gun to the door. The defense argued the gun went off accidentally.

On direct appeal, the Oklahoma Court of Criminal Appeals2 affirmed his conviction and sentence of death.3 Brecheen I, 732 P.2d at 899. Mr. Brecheen then sought postconviction relief in the Oklahoma state courts.4 The state district court denied relief after holding an evidentiary hearing on the question of ineffective assistance of counsel at the sentencing phase. The Oklahoma Court of Criminal Appeals affirmed the denial of postconviction relief after finding that the bulk of Mr. Brecheen's alleged errors were, or could have been, raised on direct appeal and were therefore not subject to review under Okla.Stat. tit. 22 Sec. 1086.5 Brecheen v. State, 835 P.2d 117, 121 (Okla.Crim.App.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1063, 122 L.Ed.2d 368 (1993) (Brecheen II ).

Mr. Brecheen thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Oklahoma. In an order dated June 30, 1994 (No. CIV 94-318-S), the Chief Judge of the district denied Mr. Brecheen's petition and his motion for a stay of execution, which had been set for July 6, 1994. On July 1, 1994, we granted Mr. Brecheen's emergency application for a temporary stay of execution to allow for the appointment of counsel, along with expedited appeal and oral argument. See Coleman v. Brown, 753 F.2d 832, 833 (10th Cir.1985). On appeal to this court, Mr. Brecheen reasserts the six arguments offered in his petition for a writ of habeas corpus in the federal district court: (1) denial of fair trial based on the trial court's denial of his motion for a change of venue; (2) denial of a fair trial due to prosecutorial misconduct; (3) violation of due process during sentencing for failure to offer a "presumption of life" instruction; (4) violation of the Eighth Amendment during sentencing for overbroad use of a statutory aggravating circumstance; (5) ineffective assistance of counsel during the sentencing phase; and (6) cumulative error. We address these claims seriatim.

Mr. Brecheen initially claims that the state trial court erred in denying his motion for a change of venue. He claims that under the facts of this case, the actions of the state trial court amounted to a denial of his right to a fair trial by impartial jurors under the Sixth and Fourteenth Amendments. He further alleges that the standard applied by the appellate court in reviewing the state trial courts' change of venue decisions is similarly unconstitutional as a violation of due process.

Before jury selection, Mr. Brecheen moved for a change of venue from Carter County, Oklahoma, specifically from the town of Ardmore where the crime had occurred. Counsel for Mr. Brecheen claimed local and statewide newspaper and television accounts contained statements of facts that were still disputed and could be misconstrued by potential jurors as undisputed. As counsel explained, though, "we don't take the position that this pretrial publicity has been outlandish or there has been any undue or prejudicial invasion of Mr. Brecheen's rights.... [T]he problem is a good bit more subtle." The trial court reserved judgment on the motion until after making an attempt to seat a jury. During voir dire, an additional concern for defense counsel arose as most venirepersons indicated they had been past customers of the victim's western wear shop in town.

All potential jurors were asked by the trial court about their relationship with the victim and her husband, of their awareness of various media accounts, and whether such knowledge would impair their ability to reach an impartial decision. Both the prosecuting and defense attorneys also inquired along these lines. Eleven of the thirty-nine venirepersons were excluded for cause because of their exposure to pretrial publicity or friendship with the victim and her family. Of the jurors finally empaneled, all but one were prior customers of the victim's store. One juror knew the victim's daughter in a business context. All jurors were exposed to media accounts of the crime, but some expressed doubt at their ability to recall details from those accounts. One juror admitted to forming an opinion during his reading of the account but stated he could dismiss that opinion once the trial began. All jurors were asked, at least twice, whether such knowledge would influence their judgment, and all responded negatively. Defense counsel waived two peremptory challenges as the jurors were seated.

Following the empaneling, the trial court held another hearing to rule on the motion for change of venue and concluded the jurors' promises of impartiality could be trusted. This decision was affirmed on direct appeal.

An exhaustive voir dire was conducted at trial. Those who served on the jury stated they could fairly and impartially judge the case on the evidence presented. Those who formed opinions concerning appellant's guilt or doubted their ability to serve impartially were excused. We find there was adequate safeguard of the jury process ... and the need for a change of venue was not established.

Brecheen I, 732 P.2d at 893 (citation omitted). During state postconviction proceedings, the Oklahoma Court of Appeals again affirmed. "[W]hile the jury was not totally ignorant of the facts and the circumstances behind this case, the trial court's decision to retain venue in Carter County was correct and no relief is warranted on this ground." Brecheen II, 835 P.2d at 120. The federal district court rejected this argument as well, concluding that under applicable Supreme Court precedent, Mr. Brecheen's right to due process was not violated by the denial of his motion to change venue. We agree.

Our review of a state trial court's rulings on juror impartiality is "limited to enforcing the commands of the United States Constitution." Mu'Min v. Virginia, 500 U.S. 415, 422, 111 S.Ct. 1899, 1903, 114 L.Ed.2d 493 (1991). A federal habeas court may reverse a state trial court's findings only upon a showing of " 'manifest error.' " Id. at 428, 111 S.Ct. at 1907 (quoting Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888-89, 81 L.Ed.2d 847 (1984)); Church v. Sullivan, 942 F.2d 1501, 1518 (10th Cir.1991). Part of the rationale behind the limited nature of federal review of a state trial court's findings is that "[t]he state trial judge had the benefit of observing the general demeanor of the jurors as the basis for his general finding." Church, 942 F.2d at 1519; see also Patton, 467 U.S. at 1038, 104 S.Ct. at 2892-93 (trial court's resolution of demeanor is entitled to "special deference"). Therefore, a habeas petitioner seeking to establish this type of due process violation must demonstrate either that the trial resulted in actual prejudice or that it gave rise to a presumption of prejudice because it involved "such a probability that prejudice will result that it is deemed inherently lacking in due process." Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965). Mr. Brecheen points to no actual hostility or impartiality by the jurors; therefore, we limit our discussion to whether Mr. Brecheen availed himself of a presumption of prejudice.

We do not read Mr. Brecheen's argument to depict the inflammatory local media publicity as is found in several Supreme Court decisions. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (due process violation from five volumes of news clippings, accommodation for the press in the courthouse and courtroom, publication of potential juror's names and addresses allowing the public to contact potential jurors pretrial); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (defendant's filmed confession repeatedly broadcast on the local television news of the small town); Estes, 381 U.S. 532, 85 S.Ct. 1628 (eleven volumes of press clippings, pretrial hearings broadcast on local television). We agree with the federal district court that there is no indication from review of the newspaper accounts or from defense counsel's depictions, during the pretrial and post-voir dire hearings, that the influence of the media so pervaded the proceedings as to deny Mr. Brecheen due process.

In the absence of pervasive media influence, then, a presumption of prejudice may be based upon "indications in the totality of the circumstances that petitioner's trial was not fundamentally fair." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Fundamentally unfair circumstances may be indicated by an inflammatory atmosphere within the community or courtroom, by specific statements of jurors, or by the difficulty with which an impartial panel was selected. Id. at 800-03, 95 S.Ct. at 2036-38. Under a manifest error standard, however, " '[t]he relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.' " Mu'Min, 500 U.S. at 430, 111 S.Ct. at 1908 (quoting Patton, 467 U.S. at 1035, 104 S.Ct. at 2890-91).

Observing the entire record, we find no evidence of a fundamentally unfair proceeding. As in Mu'Min, "[t]he voir dire examination conducted by the trial court in this case was by no means perfunctory." Mu'Min, 500 U.S. at 431, 111 S.Ct. at 1908. The trial court responded to petitioner's pretrial motion with extensive voir dire and fulfilled his obligation by making a specific finding that the panel's statements of impartiality could be trusted. See Mu'Min, 500 U.S. at 425, 111 S.Ct. at 1905 (noting that the trial court must ultimately decide whether a juror's statements of impartiality are "to be believed"); id. at 427, 111 S.Ct. at 1906 (stating that the trial court has "wide discretion" in conducting voir dire and noting that "primary reliance on the judgment of the trial court makes good sense").

Only one colloquy with a potential juror raises a momentary concern. One potential juror admitted he had formed a prior opinion while reading a newspaper story describing the crime. With questioning from defense counsel, though, the potential juror clearly stated he could "approach the trial without an opinion as to [Mr. Brecheen's] guilt or innocence." Defense counsel did not request the potential juror be excused for cause, nor did he elect to use a peremptory challenge for this potential juror. We are satisfied that no fundamental error occurred at this point. "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). Finally, the fact that slightly over one-quarter of the venire was excluded for cause does not indicate a pervasive community or courtroom hostility toward Mr. Brecheen. See Murphy, 421 U.S. at 803, 95 S.Ct. at 2037-38 (exclusion of under one-quarter of the venire does not indicate "a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own"). We find no manifest error in the state trial court's denial of change of venue.6B.

The second half of Mr. Brecheen's argument is that the Oklahoma Court of Criminal Appeals applied an unconstitutional standard of review in deciding whether the trial court properly denied his motion to change venue.7 Specifically, Mr. Brecheen asserts that the use of the "virtual impossibility" standard,8 which was applicable at the time of his trial and his direct appeal,9 is unconstitutional.

In rejecting this claim, we reiterate our only concern is whether Mr. Brecheen's federal constitutional right to a fair and impartial jury, guaranteed to him by the Fourteenth Amendment, was violated in this case. See Mu'Min, 500 U.S. at 422, 111 S.Ct. at 1903-04 (citing Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973)); see also Brecheen v. Oklahoma, 485 U.S. 909, 910, 108 S.Ct. 1085, 1085-86, 99 L.Ed.2d 244 (1988) (Marshall, J., dissenting from denial of certiorari) (indicating the issue is "whether particular state standards for change of venue comport with the requirements of due process."). For reasons stated above, we have already concluded that the procedures employed by the state trial court were constitutionally adequate and that Mr. Brecheen's rights were not violated. Therefore, even assuming, arguendo, that the use of the virtual impossibility standard could be unconstitutional under a particular set of circumstances, see id. at 911, 108 S.Ct. at 1086-87 minimal standards of due process were in fact afforded to Mr. Brecheen in this case. Therefore, the issue of what substantive standard of review was employed by the Oklahoma courts is irrelevant because this trial was fundamentally fair. Therefore, we reject this assignment of error.

In sum, we have measured the actions of the state trial court concerning the jury selection process and the change of venue issue against the standard of due process that is required by the United States Constitution. Having done so, we conclude that the Oklahoma state courts did not violate Mr. Brecheen's constitutional right to a fair and impartial jury.

Mr. Brecheen next asserts a claim of prosecutorial misconduct, alleging he was denied a fair trial because of comments made by the prosecutor throughout the course of the trial. Because Mr. Brecheen's trial counsel did not make a timely objection to any of the comments forming the basis for this claim, the Oklahoma Court of Criminal Appeals' review on direct appeal was limited to deciding whether this constituted "fundamental error." Brecheen I, 732 P.2d at 896 (citing Rushing v. State, 676 P.2d 842 (Okla.Crim.App.1984)). Because the alleged errors did not rise to this level, the Court of Criminal Appeals rejected this claim. Id. In reviewing Mr. Brecheen's application for postconviction relief, the Oklahoma Court of Criminal Appeals declined to hear this claim pursuant to state law and therefore did not address it. Brecheen II, 835 P.2d at 119 n. 1.

Before the district court, the State asserted, inter alia, this issue was procedurally barred. The district court concluded that this claim had been exhausted and therefore addressed it on the merits without specifically deciding the procedural bar issue. We do not, however, fault the district court for not deciding this question because of some ambiguity in the State's assertion of a procedural bar. We conclude the state court's judgment does not rest on an "independent" state ground and therefore does not act as a procedural bar to habeas corpus review. On the merits, however, we find no error.

It is a well-established principle that the Supreme Court will not review a state court's interpretation of federal law on direct review, "if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991) (citing, inter alia, Klinger v. Missouri, 80 U.S. (13 Wall.) 257, 263, 20 L.Ed. 635 (1872)). A state court's finding is considered "independent if it is separate and distinct from federal law." Andrews v. Deland, 943 F.2d 1162, 1188 n. 40 (10th Cir.1991) (citing Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985)), cert. denied, --- U.S. ----, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992). A state court's finding is deemed to be "adequate" if it is applied "evenhandedly"; that is, if it is " 'strictly or regularly followed.' " Andrews, 943 F.2d at 1188 n. 40 (quoting Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982)). In the direct review setting, application of the adequate and independent state ground doctrine is jurisdictional: resolution of a federal issue could not affect a judgment that was adequately supported by an alternative ruling of state law, and therefore, review by the Supreme Court "could amount to nothing more than an advisory opinion" in violation of U.S. Const. art. III. Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 462-64, 89 L.Ed. 789 (1945).

Although well-established in the direct review context, it was not until the relatively recent decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that the Supreme Court extended the adequate and independent state ground doctrine to federal habeas review. Id. at 87, 97 S.Ct. at 2506; see also County Court of Ulster County v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979). In the habeas context, however, the adequate and independent state ground doctrine is not jurisdictional but "is grounded in concerns of comity and federalism." Coleman, 501 U.S. at 730, 111 S.Ct. at 2554, (discussing the different underpinnings of the adequate and independent state ground doctrine on direct and collateral review). The doctrine provides that "[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991). Review is precluded "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308 (1989); Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th Cir.1993).

The law of procedural defaults thus applies to preclude federal habeas review of claims that have not been adjudicated on the merits by a state court because of noncompliance with a state procedural rule. E.g., Coleman, 501 U.S. at 728, 111 S.Ct. at 2553; Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506-07. Although earlier habeas corpus precedents may have suggested to the contrary, Coleman explicitly recognizes the "important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565 (citing McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 1468-69, 113 L.Ed.2d 517 (1991)). It is clear these precepts apply with equal force in capital cases. See Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986); Parks v. Reynolds, 958 F.2d 989, 994-95 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1310, 117 L.Ed.2d 530 (1992). With this understanding of the law of procedural defaults, we must now determine whether Mr. Brecheen's prosecutorial misconduct claim is procedurally barred.

In the present case, the Oklahoma Court of Criminal Appeals' review of Mr. Brecheen's prosecutorial misconduct claim was limited to review for "fundamental error." See Brecheen I, 732 P.2d at 896. Despite what appears to be a ruling based on noncompliance with a state procedural rule, Ake holds that such a determination amounts to an adjudication of the merits of a federal claim under Oklahoma law for purposes of deciding whether a claim is procedurally barred.

In Ake, the Supreme Court, interpreting Oklahoma law, held Oklahoma's waiver rule does not apply to fundamental trial error, which necessarily included federal constitutional error. Ake, 470 U.S. at 74-75, 105 S.Ct. at 1091-92. The Court then stated:

Thus, the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question.

Id. at 75, 105 S.Ct. at 1092. Therefore, because this state procedural ruling is dependent on an antecedent ruling of federal law, "the state-law prong of the court's holding is not independent of federal law." Id.; cf. Gutierrez v. Moriarty, 922 F.2d 1464, 1469 (10th Cir.) (comparing New Mexico law as to waiver of constitutional rights with Oklahoma law), cert. denied, --- U.S. ----, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991). Therefore, under the holding of Ake, we conclude the Court of Criminal Appeals' decision did not rest on an "independent" state law ground and therefore this claim is not procedurally barred.10 Therefore, we must now address the merits of this claim.

Mr. Brecheen's prosecutorial misconduct claim is based on several prejudicial statements made during the prosecution's voir dire and closing argument. He argues the prosecutor improperly (1) attempted to frighten the jury into convicting Mr. Brecheen; (2) called for revenge; (3) made deterrence arguments to the jury; (4) appealed to the jury's passions and prejudices; (5) misstated evidence; (6) appealed to the jury's sense of civic responsibility; (7) attacked defense counsel; and (8) used Biblical references. In addition, Mr. Brecheen briefly suggests the cumulative effect of these statements amounts to a constitutional violation.

The following illustrates the tenor of the prosecutor's remarks:

Murder is the coldest word.... It's cold. You think about the word and it will run chills down your spine, because it's [sic] what it's talking about is the deliberate intention of one human being to take from another the most precious thing they have, and that's their human life.

....

I submit to you ladies and gentlemen, that this tragedy, death of Mrs. Stubbs--talk about somebody suffering, suffering, pleading for sympathy and if I wanted to do that, I could do that right now. He hasn't suffered anything--not like she did, to be standing in your own home, comfortably watching TV, somebody come to your door with a gun--thinking that's your wife, your husband as they flee from that door and that gun goes off in their head. Think about waking up and walking to the living room and finding that laying there.

....

How much harder, cooler, calmer can an individual get than to take a gun and go to an acquaintance's home, kill them when they answer the door and try to kill another one. How much colder and harder can a human being get, to go in there with the intention of taking a human life, before you ever get there, thinking about it, to plan it out, to walk up there and do it. You can't, ladies and gentlemen. There's no harder you can get. There's no--no way a human mind can get any harder than that; no remorse, nothing.

....

The murder ... is a crime against, and a threat to every other member of that community, county and state, and unless it is punished, unless it is carried out, then we have no government, then we have no law, then we have chaos and anarchy.... The average person can take a hundred locks and put on their doors, have all of their guns and be prepared to fend off any attack, anybody that wants to come in, any strong man that wants to take over, anybody that wants to take over can do it, unless the law works, and the law works here. It works with twelve people.

Counsel for Mr. Brecheen incorrectly directs us to violations of state law allegedly caused by these statements. Our review as a federal habeas court is for federal constitutional violation; "the narrow one of due process, and not the broad exercise of supervisory power." Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); accord Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471-72, 91 L.Ed.2d 144 (1986). As we noted in Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987), "[r]emarks that would cause us to reverse in a direct appeal of a federal conviction [under our supervisory powers] are not necessarily grounds for reversal when spoken in state courts." Id. at 1237.

In general, Donnelly directs us to limit our review of this type of claim to the question of whether the challenged statements "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643, 94 S.Ct. at 1871; accord Darden, 477 U.S. at 181, 106 S.Ct. at 2471-72; Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir.1990). In making this "fundamental fairness" determination, we must "consider[ ] the pertinent surrounding circumstances at trial," Mahorney, 917 F.2d at 473, including the strength of the state's case relating to the petitioner's guilt, Coleman v. Brown, 802 F.2d at 1237, and the prejudice, if any, attributable to the prosecutor's comments, Mahorney, 917 F.2d at 472-73. If, however, the impropriety complained of " 'effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair.' " Yarrington v. Davies, 992 F.2d 1077, 1079 (10th Cir.1993) (emphasis added) (quoting Mahorney, 917 F.2d at 472).

Mr. Brecheen does not argue the prosecutor's statements violated a specific constitutional right; therefore, we analyze this claim under the fundamental fairness standard of Donnelly, see Yarrington, 992 F.2d at 1080, and not Mahorney as Mr. Brecheen urges. See Coleman v. Saffle, 869 F.2d 1377, 1395 (10th Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990). After a careful review of the totality of circumstances of the trial, we do not find the statements of the prosecutor so prejudiced the jury against the petitioner as to deny him the fundamental fairness to which he is entitled under the Constitution.

"[I]t is not enough that the prosecutor['s] remarks were undesirable or even universally condemned." Darden, 477 U.S. at 181, 106 S.Ct. at 2471. Writing separately on Mr. Brecheen's direct appeal, one judge of the Oklahoma Court of Criminal Appeals commented:

It is difficult to understand why the State would risk reversal or modification by making such clearly improper and unnecessary comments during closing argument. However, in light of the strong evidence of guilt, the failure to make timely objections and requests for admonishments to disregard, and the failure to show prejudice, it is unnecessary to reverse or modify the conviction.

Brecheen I, 732 P.2d at 900 (Parks, Presiding Judge, concurring). In addition, the district court noted "some of the prosecutor's statements were unnecessary and improper," but also confirmed that "[c]onsideration of the trial record reveals there is convincingly strong evidence against Petitioner." Brecheen, No. CIV-94-318-S, slip op. at 33, 35. While "improper appeals to societal alarm" and requests for "vengeance for the community to set an example" are unwarranted, they are also not the type of comments that the Supreme Court has suggested might amount to a due process violation. See Darden, 477 U.S. at 181-82, 106 S.Ct. at 2471-72, quoted in Saffle, 869 F.2d at 1396. Thus, while we agree with the determination of courts before us that the conduct of the state prosecutor was unbecoming to his office and needlessly jeopardized his case, we also agree that Mr. Brecheen has not shown how these remarks, either individually or collectively, violated his right to due process.

Mr. Brecheen next assigns error relating to the instructions given to the sentencing jury.

In his direct appeal, Mr. Brecheen argued, inter alia, that permitting the imposition of the death penalty if the defendant knowingly created a great risk of danger to more than one person under Oklahoma law violated the Eighth Amendment because it was unconstitutionally overbroad. The Oklahoma Court of Criminal Appeals rejected this challenge in reliance on its existing precedent. See Brecheen I, 732 P.2d at 899. In his subsequent application for postconviction relief, Mr. Brecheen attempted to reassert this claim along with another claim regarding the trial court's failure to give a so-called "presumption of life" instruction. The Oklahoma Court of Criminal Appeals invoked Okla.Stat. tit. 22 Sec. 1086 and concluded the first claim had already been asserted and would not be reconsidered and the second claim could have been asserted on direct appeal such that it was now barred by res judicata. See Brecheen II, 835 P.2d at 119 n. 1. We address these claims in reverse order.

Mr. Brecheen's allegation that the trial court erred by failing to give a "presumption of life" instruction was not raised on direct appeal. For reasons discussed earlier, we recognize Oklahoma's procedural bar to claims that were waived on direct appeal as an adequate and independent state ground for not reaching the merits of the claim. See Steele, 11 F.3d at 1522 & n. 5. Therefore, unless Mr. Brecheen can show that one of the narrow, recognized exceptions to the procedural bar rule is applicable, we will not, out of respect for the Oklahoma courts' procedural rules, adjudicate the merits of this claim. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2564-65. Mr. Brecheen does not argue that he has shown cause and prejudice to override his procedural default; instead, he relies on the "fundamental miscarriage of justice" exception. See Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986), quoted in Harris, 489 U.S. at 262, 109 S.Ct. at 1042-43; see also Coleman, 501 U.S. at 749-50, 111 S.Ct. at 2564-65.

The Supreme Court recently expounded on the narrow scope of this exception and indicated it is equivalent to a showing of "actual innocence." See Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993); Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992) (discussing Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality opinion)). "The fundamental miscarriage of justice exception is available 'only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.' " Herrera, --- U.S. at ----, 113 S.Ct. at 862 (emphasis in original) (quoting Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627 (plurality opinion)). This rule is "grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons," Herrera, --- U.S. at ----, 113 S.Ct. at 862 (citing McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470), and these standards apply with full force in capital cases. See Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2769-70, 106 L.Ed.2d 1 (1989) (plurality opinion), quoted in Herrera, --- U.S. at ----, 113 S.Ct. at 863.

As the name suggests, the appropriate inquiry concerns actual or factual innocence, as compared to legal innocence. See Steele, 11 F.3d at 1522 n. 8. " '[D]emonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is "actually innocent" of the sentence he or she received.' " Sawyer, --- U.S. at ----, 112 S.Ct. at 2519 (quoting Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1218 n. 6, 103 L.Ed.2d 435 (1989)); Steele, 11 F.3d at 1522 & n. 8. As in the case of a petitioner who can demonstrate cause and prejudice to override a procedural default, a sufficient showing of actual innocence serves only to excuse a habeas petitioner's procedural default so a court may adjudicate the merits of the underlying claim. A claim of actual innocence, in other words, "is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera, --- U.S. at ----, 113 S.Ct. at 862 (emphasis added); see also Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649-50; Steele, 11 F.3d at 1522 & n. 8.

In the specific context of a sentencing challenge, the Supreme Court has held actual innocence requires the petitioner to show "by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty under [state] law." Sawyer, --- U.S. at ----, 112 S.Ct. at 2523. Persuaded by the "eligibility" test of the Fifth and Eleventh Circuits, the Court held the correct focus is on "those elements which render a defendant eligible for the death penalty, and not on additional mitigating evidence which was prevented from being introduced as a result of a claimed constitutional error." Id.

Applying these teachings to this case, we conclude Mr. Brecheen has not shown how our failure to address the merits of this claim because of his procedural default will result in a miscarriage of justice. He has not demonstrated that the failure to give this mitigating instruction, which we assume was warranted, affected his "eligibility" to receive the death penalty under Sawyer and its progeny. The Supreme Court's adoption of the eligibility standard in Sawyer refutes the position that we should look to the presence or absence of particular mitigating circumstances such as the alleged failure to give a mitigating instruction. Therefore, we reject this allegation of error.

Mr. Brecheen next raises an Eighth Amendment challenge to Oklahoma's application of the "great risk of death" aggravating circumstance in regard to his sentence.11 Because the Oklahoma Court of Criminal Appeals adjudicated this claim on the merits in Mr. Brecheen's direct appeal, it is not subject to a procedural bar, notwithstanding the Court of Criminal Appeals' decision not to rehear this claim on his application for postconviction relief. See Ylst, 501 U.S. at 804, 111 S.Ct. at 2595.

Oklahoma's rule preventing relitigation in state postconviction proceedings of claims raised and decided on direct appeal does not constitute a procedural bar to federal habeas review. In Ylst, 501 U.S. 797, 111 S.Ct. 2590, the Supreme Court considered the effect of unexplained state court orders on an earlier reasoned state court order for purposes of federal habeas review. The Court noted that because a state court's subsequent unexplained order is "not meant to convey anything as to the reason for the decision," id. at 803, 111 S.Ct. at 2594 (emphasis in original), a "look through" rule that gives the later unexplained decision "no effect" most nearly reflects the role that such decisions are intended to play. Id. at 804, 111 S.Ct. at 2595 (emphasis in original) (footnote omitted). In practice, the look-through rule tells a federal habeas court to ignore the unexplained order and focus upon the last reasoned state court decision. Id. at 803, 111 S.Ct. at 2594; Church, 942 F.2d at 1507. In so doing, the federal habeas court places itself in a position to determine if the reasoning used in that state court opinion " 'fairly appear[s] to rest primarily upon federal law,' " Ylst, 501 U.S. at 802, 111 S.Ct. at 2594 (quoting Coleman, 501 U.S. at 737, 111 S.Ct. at 2558), such that habeas review is proper, or if the state court decision rested on an adequate and independent state ground, i.e., a procedural bar. Ylst, 501 U.S. at 802, 111 S.Ct. at 2594.

The presumption that subsequent unexplained orders should be given no effect is a relatively accurate barometer in most cases. Id. at 804, 111 S.Ct. at 2595 ("The maxim is that silence implies consent ... and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below."). As the Court noted in a footnote, however, the only recurring circumstance where this presumption is unrealistic is the situation presently before us, where

the later state decision rests upon a prohibition against further [emphasis in original] state review--for example, an unexplained denial of state habeas resting in fact upon a rule ... preventing the relitigation on state habeas of claims raised on direct appeal. In that circumstance, even though the presumption does not posit the real reason for the later denial, it does produce a result ('looking through' to the last reasoned decision) that is the correct one for federal habeas courts. Since a later state decision based upon ineligibility for further state review [does not] rest[ ] upon [a] procedural default ... its effect upon the availability of federal habeas is nil--which is precisely the effect accorded by the 'look-through' presumption.

Id. at 804 n. 3, 111 S.Ct. at 2595 n. 3 (emphasis added).

Thus, under the Ylst footnote, if a state court addresses the merits of a particular federal claim on direct appeal, as it did here with respect to Mr. Brecheen's Eighth Amendment claim, then its subsequent refusal to grant "further" state review in an application for postconviction relief should be given no effect and does not constitute a procedural bar for purposes of federal habeas corpus review. Id. at 803-04 & n. 3, 111 S.Ct. at 2594-95 & n. 3. Therefore, we are free to examine the merits of this aspect of Mr. Brecheen's Eighth Amendment challenge, which posits that the "great risk of death to others" aggravating circumstance is unconstitutional because it does not provide the sentencer with a rationally reviewable standard. Because we conclude that this aggravating circumstance is consistent with the dictates of the Supreme Court's interpretation of the Eighth Amendment, we reject this claim of error.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the various opinions of the Supreme Court established the principle that the Eighth Amendment imposes some limitations on the ability of the States to impose the punishment of death. This core tenet was adhered to in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), where a plurality of the Court stated that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Id. at 189, 96 S.Ct. at 2932 (opinion of Stewart, Powell, and Stevens, JJ.); see also Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3098-99, 111 L.Ed.2d 606 (1990) (majority opinion). In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), Justice Stewart's plurality opinion reiterated that "if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty." Id. at 428, 100 S.Ct. at 1764 (plurality opinion); Lewis, 497 U.S. at 774, 110 S.Ct. at 3098-99; Zant v. Stephens, 462 U.S. 862, 874, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983) (quoting Gregg, 428 U.S. at 189, 96 S.Ct. at 2932-33).

To provide the necessary guidance to a capital sentencing jury, and thereby reduce the concerns relating to the potential for arbitrary application of the death penalty, those states that allow the imposition of this "qualitatively different" punishment have enacted comprehensive statutory schemes to regulate the circumstances under which it may be administered. Cartwright v. Maynard, 822 F.2d 1477, 1483 (10th Cir.1987) (en banc) (Cartwright II ), aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

In some states, aggravating circumstances are simply a device for "narrow[ing] the class of first degree murderers that are eligible for the death penalty." Id. at 1480 (citing cases decided under Georgia, Utah, and Louisiana law where the courts use aggravating circumstances to determine which first degree murders are capital offenses). In other states, including Oklahoma, aggravating circumstances serve a "decidedly different" function. Id. As we stated in Cartwright II:

An aggravating circumstance under the Oklahoma scheme does not establish a threshold that distinguishes capital murders from other first degree murders. In Oklahoma any first degree murder is punishable by life imprisonment or death. Okla.Stat.Ann. tit. 21, Sec. 701.9 (West.1983).... Oklahoma uses an aggravating circumstance to guide the discretion of the sentencer in determining whether the death penalty should be imposed for a particular murder. Okla.Stat.Ann. tit. 21, Sec. 701.10 (West 1983).

Id. (emphasis in original). In Oklahoma, aggravating factors perform a "crucial function in a capital punishment statute" by establishing standards that "channel the discretion of the sentencer" in its decision of whether the circumstances of a particular crime warrant imposition of the death penalty. Id. at 1485. These aggravating factors reflect a legislative determination of which extraordinary situations entailing "special indicia of blameworthiness or dangerousness in the killing," id., "reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant, 462 U.S. at 877, 103 S.Ct. at 2742. In essence, then, aggravating circumstances in Oklahoma "direct the sentencer's attention to a particular aspect of a killing that justifies the death penalty." Cartwright II, 822 F.2d at 1485.

Capital punishment issues under the Eighth Amendment may implicate concerns related to the eligibility decision, the selection decision, or both. See Tuilaepa v. California, --- U.S. ----, ----, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994). The eligibility decision focuses on whether the individual has been convicted "of a crime for which the death penalty is a proportionate punishment." Id. (citing Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)). Precedent establishes that death is a proportionate punishment in a homicide case as long as the trier of fact finds one constitutionally sufficient aggravating circumstance (or its equivalent) at either the guilt or the penalty phase. Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2634 (citing Lowenfield v. Phelps, 484 U.S. 231, 244-46, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988); Zant, 462 U.S. at 878, 103 S.Ct. at 2743).

In contrast to the eligibility decision, the selection decision focuses on whether a particular individual who is eligible for the death penalty should in fact receive that sentence or whether some lesser sentence is warranted. See Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant, 462 U.S. at 879, 103 S.Ct. at 2743-44 (emphasis in original), quoted in Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635. In order to satisfy this individualized determination requirement, the sentencer must be afforded the opportunity to "consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime." Tuilaepa, at ----, 114 S.Ct. at 2635 (citing Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083-84, 108 L.Ed.2d 255 (1990)). In Johnson v. Texas, --- U.S. ----, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), the Court stated that "[a]s long as the mitigating evidence is within 'the effective reach of the sentencer,' the requirements of the Eighth Amendment are satisfied." Id. at ----, 113 S.Ct. at 2669 (quoting Graham v. Collins, --- U.S. ----, ----, 113 S.Ct. 892, 901, 122 L.Ed.2d 260 (1993)).

The primary issue before us involves a determination of whether the jury's consideration of Oklahoma's "great risk of death to others" aggravating circumstance in making the eligibility decision contravened the Eighth Amendment. Tuilaepa holds that there are two criteria for determining whether a particular aggravating circumstance is constitutional. "First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder." Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635 (citing Arave v. Creech, --- U.S. ----, ----, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993) ("If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm." (Emphasis in original.)). "Second, the aggravating circumstance may not be unconstitutionally vague." Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635; Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057-58, 111 L.Ed.2d 511 (1990) (stating that the court must determine "whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer."). We must now measure Okla.Stat. tit. 21, Sec. 701.12(2) against these requirements.

a.

We have no trouble concluding this aggravating circumstance comports with the "subclass" requirement. The aggravating factor that resulted in the imposition of the death penalty in this case applies if it is shown that the defendant "knowingly created a great risk of death to more than one person." Okla.Stat. tit. 21, Sec. 701.12(2). This factor cannot reasonably be said to apply to every defendant convicted of murder, as in the case of Oklahoma's "especially heinous, atrocious, or cruel" aggravating circumstance, which we invalidated in Cartwright II and which was affirmed by the Supreme Court, or Georgia's "outrageously or wantonly vile, horrible or inhuman" circumstance invalidated in Godfrey. See Walton, 497 U.S. at 652-56, 110 S.Ct. at 3057 (discussing why these aggravating circumstances were invalid). But cf. Arave, --- U.S. at ----, 113 S.Ct. at 1541-45 (upholding the constitutionality of Idaho's aggravating factor which requires proof that "the defendant exhibited utter disregard for human life."). In contrast to the aggravating circumstances at issue in Cartwright and Godfrey, the "great risk of death to others" factor applied in this case only applies to a defined and limited subclass of murderers, namely, those where the defendant's conduct not only resulted in murder, but also posed a significant risk of death to other individuals. Because this circumstance could not reasonably be interpreted as applying to every defendant convicted of murder, we find that it is properly limited to a particular subclass and is therefore constitutional under the Eighth Amendment, as interpreted in Tuilaepa and Arave.

b.

With respect to the vagueness component of the inquiry, we find Mr. Brecheen's argument fails to note that the panel's decision in Cartwright, which is still valid precedent after en banc review,12 see Cartwright II, 822 F.2d at 1478 n. 2, rejected the precise claim of vagueness advanced here with respect to this specific aggravating circumstance. See Cartwright v. Maynard, 802 F.2d 1203, 1221-22 (10th Cir.1986) (Cartwright I ) (citing, inter alia, Proffitt v. Florida, 428 U.S. 242, 256, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976) (upholding the Florida courts' construction of a similarly worded aggravating factor)). Reviewing Oklahoma case law prior to 1986, we found the construction of the "great risk" factor by Oklahoma courts provided consistent guidance to the jury so as to limit its discretion and thereby withstand an Eighth Amendment challenge. See Cartwright I, 802 F.2d at 1222. We find no deviation from this conclusion since that time. See, e.g., Snow v. State, 876 P.2d 291 (Okla.Crim.App.1994); Ellis v. State, 867 P.2d 1289 (Okla.Crim.App.1992), cert. denied, --- U.S. ----, 115 S.Ct. 178, 130 L.Ed.2d 113 (1994); Trice v. State, 853 P.2d 203 (Okla.Crim.App.), cert. denied, --- U.S. ----, 114 S.Ct. 638, 126 L.Ed.2d 597 (1993); Nguyen v. State, 769 P.2d 167 (Okla.Crim.App.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989). The construction given to this circumstance by the Oklahoma courts does not require the death of more than one person. It only requires an act or acts by the defendant that create the risk of death to another who is in close proximity to the killing itself in terms of time, location, and intent. Snow, 876 P.2d at 297.

In this case, the jury found Mr. Brecheen killed Mrs. Stubbs, fired a gun several times into the empty bed of Mr. Stubbs, and then returned fire into the Stubbses' residence as he fled. The sentencer's ultimate conclusion that this conduct constitutes a "great risk of danger to more than one person" is entirely consistent with both the facts of this case and the Oklahoma courts' construction of this factor. Because "our vagueness review is quite deferential," Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635, and because this factor "has some 'common-sense core of meaning ... that criminal juries should be capable of understanding,' " Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2636 (quoting with approval Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959-60, 49 L.Ed.2d 929 (1976) (White, J., concurring in judgment)), we find that this aggravating factor is not unconstitutionally vague.13IV. Ineffective Assistance of Counsel

Mr. Brecheen's final assignment of error is a claim he received ineffective assistance of trial counsel at the sentencing phase of his trial. The procedural posture of this claim requires some elaboration.

Mr. Brecheen did not raise this claim on his direct appeal. In his application for postconviction relief, Mr. Brecheen, with new counsel, raised this issue before the state district court. The state court granted an evidentiary hearing in which Mr. Brecheen offered expert testimony evaluating trial counsel's sentencing phase conduct. The state district court ultimately concluded on the merits that there was no Sixth Amendment violation. On postconviction review, however, the Oklahoma Court of Criminal Appeals did not resolve this issue on the merits. Instead, it concluded this issue was res judicata under Sec. 1086 because it was "not raised during the direct appeal, notwithstanding similar allegations with respect to the first stage proceedings. No compelling explanation for the late raising is offered." Brecheen II, 835 P.2d at 119 n. 1.

In reviewing Mr. Brecheen's federal habeas petition, the district court found the ineffective assistance claim procedurally barred, but, out of an "overabundance of caution," that court considered and dismissed the issue on the merits. No. CIV-94-318-S, slip op. at 12-18. On appeal, Mr. Brecheen argues the federal district court erred in failing to grant him a separate evidentiary hearing on this issue, in finding this claim procedurally barred and in dismissing it on the merits. We address these claims in turn.

We agree with the district court that Mr. Brecheen was not entitled to an additional evidentiary hearing in federal court because he received a full and fair hearing in state court. See Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1294 (1994).

In Parks v. Brown, 840 F.2d 1496 (10th Cir.1987), we stated there is no absolute right to an evidentiary hearing "in every case involving a claim of ineffectiveness of counsel." Id. at 1509. Rather, the determination of whether an evidentiary hearing is mandated involves application of a two-pronged test. First, the petitioner bears the burden of "alleg[ing] facts which, if proved, would entitle him to relief." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963);14 Lucero v. Kerby, 7 F.3d 1520, 1522 (10th Cir.1993). If the petitioner carries this burden, then an evidentiary hearing is required " 'if the habeas applicant did not receive a full and fair evidentiary hearing in the state court, either at the time of the trial or in a collateral proceeding.' " Church, 942 F.2d at 1510 (emphasis added) (quoting Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57); see also Keeney, --- U.S. at ----, 112 S.Ct. at 1720. The "full and fair" hearing exception is especially applicable if "a state court has made findings as to those very facts." Meeks v. Singletary, 963 F.2d 316, 319 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993). Because Mr. Brecheen has not alleged any specific facts that would entitle him to relief other than the facts adduced at the state court hearing, and because we believe the hearing afforded Mr. Brecheen a full and fair hearing at the state level, we agree with the district court's conclusion not to grant an evidentiary hearing.

During the state court evidentiary hearing, current counsel for Mr. Brecheen presented testimony of the attorney who handled the trial in this case, along with the testimony of several potential mitigating witnesses and the investigator hired by current counsel to locate mitigating affiants. Mr. Brecheen testified as well in his own behalf. Furthermore, the state court admitted the deposition testimony of an expert witness who evaluated trial counsel's performance and admitted the affidavits of several persons who supported Mr. Brecheen. Under these circumstances, and accounting for the fact that a state court's findings of fact are entitled to a presumption of correctness,15 and in the absence of any evidence to the contrary, we believe Mr. Brecheen received a full and fair postconviction evidentiary hearing on the question of ineffective assistance of counsel in state district court. Therefore, the district court's conclusion that another evidentiary hearing was not necessary was correct.

Mr. Brecheen next claims the district court erred in finding this claim procedurally barred. The district court concluded that the Court of Criminal Appeals' decision rejecting Mr. Brecheen's postconviction appeal of this claim rested on his failure to raise it on direct appeal, which the district court viewed as an adequate and independent state ground to support the decision. Although we conclude the Court of Criminal Appeals' decision rested on a state law ground "independent" of federal law (i.e., waiver), we do not believe in this case Oklahoma's application of this procedural rule was an "adequate" state ground. Therefore, we agree with Mr. Brecheen that his claim is not procedurally barred.

The general rule is the failure to raise a claim at trial or on direct appeal will preclude federal habeas corpus review of the merits of the claim absent a showing of either cause and prejudice or a fundamental miscarriage of justice. See Andrews, 943 F.2d at 1188; Osborn v. Shillinger, 861 F.2d 612, 622 (10th Cir.1988). When, however, the underlying claim is ineffective assistance of counsel, then our cases indicate the "general" rule must give way because of countervailing concerns unique to ineffective assistance claims. In Osborn, we quoted the following passage from Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986):

"Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment [ineffective assistance of counsel] claims to trial and direct review would seriously interfere with an accused's right to effective representation."

Osborn, 861 F.2d at 622 (quoting Kimmelman, 477 U.S. at 378, 106 S.Ct. at 2584-85). This need to give a meaningful opportunity to assess and develop a claim of ineffective assistance of counsel, coupled with the fact that such claims may require an opportunity to develop additional facts,16 compel the conclusion that "ineffective assistance claims may be brought for the first time collaterally." Osborn, 861 F.2d at 622; accord Andrews, 943 F.2d at 1192-93. Osborn indicates that this result is dictated by the interplay of two factors: the need for additional fact-finding, along with the need to permit the petitioner to consult with separate counsel on appeal in order to obtain an objective assessment as to trial counsel's performance. Osborn, 861 F.2d at 623.

Although Mr. Brecheen was represented by separate counsel on his direct appeal, a fact distinguishing this case from Osborn, he nonetheless did not have an opportunity to develop any additional facts relating to trial counsel's performance in the direct review process since evidentiary hearings are unavailable at the appellate level. He was, however, given this opportunity when he filed his postconviction petition, and his claim was ultimately denied on the merits after a hearing. Yet on appeal, the Court of Criminal Appeals refused to review this claim on the merits, even after a hearing had taken place, because it concluded the claim was waived for not having been raised on direct appeal. See Brecheen II, 835 P.2d at 119 n. 1. While this determination provides an "independent" state law ground for rejecting this claim, we do not believe it is an adequate basis. The practical effect of this ruling is to force Mr. Brecheen either to raise this claim on direct appeal, with new counsel but without the benefit of additional fact-finding, or have the claim forfeited under state law. This Hobson's choice cannot constitute an adequate state ground under the controlling case law because it deprives Mr. Brecheen of any meaningful review of his ineffective assistance claim. What Osborn and its progeny give Mr. Brecheen--the opportunity to raise this claim on collateral review--the Court of Criminal Appeals effectively takes away by finding the claim waived. Therefore, we do not find this claim procedurally barred, and accordingly, we turn to the merits to determine whether trial counsel was ineffective.

The primary thrust of Mr. Brecheen's ineffectiveness argument is that defense counsel failed to present additional mitigating evidence during the sentencing phase of his trial. Trial counsel's ineffectiveness purportedly stemmed from his lack of investigation and preparation as to the available mitigating evidence. To demonstrate this lack of investigation, Mr. Brecheen, in his attempt to obtain postconviction relief, filed numerous affidavits from family, friends, and coworkers who contend they would have appeared to testify on his behalf had they been called. After the state district court held an evidentiary hearing on this issue, it concluded that:

Time and hindsight aid the defendant and current counsel in scrutinizing the conduct of trial counsel. However, when viewed in the context of the then existing circumstances, the Court is not convinced that conduct falls below the standard set by Strickland v. Washington, 466 U.S. 688, 104 S.Ct. [2052] 2053, 80 L.Ed.2d 674 (1984). In so deciding as the trier of fact at the evidentiary hearing, the Court finds the defendant discussed with his attorney his option regarding mitigating evidence and made a voluntary decision to forego the opportunity to call witnesses. However, this is but one of the factors which causes the Court to determine the defendant was adequately represented.

Order of Feb. 10, 1989, No. CRF-83-127, slip op. at 1-2 (20th Judicial District, Oklahoma).

The district court agreed with the state court's conclusion. The district court first concluded that Mr. Brecheen introduced some mitigating evidence during the sentencing phase, namely, the guilt phase mitigating evidence that was incorporated into the sentencing phase. The district court then found that trial counsel's decision to limit the amount of mitigating evidence to be introduced at the sentencing phase was a reasonable tactical decision, especially in light of Mr. Brecheen's request that counsel forego the introduction of additional mitigating evidence. We address the district court's conclusion after first enunciating the legal standards that govern our review of this issue.

The Sixth Amendment to the Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "The Supreme Court has long 'recognized that "the right to counsel is the right to effective assistance of counsel" ' under the Sixth Amendment." Osborn, 861 F.2d at 624 (emphasis added) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64); accord Dutton v. Brown, 812 F.2d 593, 597 (10th Cir.1987). This right extends to a capital sentencing hearing. Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989).

To prevail on a Sixth Amendment claim of actual17 ineffective assistance of counsel under the Sixth Amendment, Mr. Brecheen must first show that counsel "committed serious errors in light of 'prevailing professional norms' " in that the representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65; Haddock, 12 F.3d 950, 955 (10th Cir.1993). In so doing, the petitioner must overcome the "strong presumption" that counsel's conduct falls within the "wide range of reasonable professional assistance" that " 'might be considered sound trial strategy,' " Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)); he must, in other words, overcome the presumption that counsel's conduct was constitutionally effective. Haddock, 12 F.3d at 955. A claim of ineffective assistance "must be reviewed from the perspective of counsel at the time," Porter v. Singletary, 14 F.3d 554, 558 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994), and therefore may not be predicated on " 'the distorting effects of hindsight.' " Parks, 840 F.2d at 1510 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Finally, in reviewing ineffective assistance claims, we "address not what is prudent or appropriate, but only what is constitutionally compelled." Cronic, 466 U.S. at 665 n. 38, 104 S.Ct. at 2050 n. 38, cited with approval in Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3125-26, 97 L.Ed.2d 638 (1987).

If constitutionally deficient performance is shown, then Mr. Brecheen must demonstrate that "there is a 'reasonable probability' that the outcome would have been different had those errors not occurred." Haddock, 12 F.3d at 955 (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064-65, 2068; Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993)). In the specific context of a challenge to a death sentence, the prejudice component of Strickland focuses on whether "the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, quoted in Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993). The petitioner carries the burden of establishing both that the purported deficiencies unreasonably fell beneath prevailing norms of professional conduct and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64; Yarrington, 992 F.2d at 1079. In essence, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

"[T]he performance and prejudice prongs under Strickland involve mixed questions of law and fact which we review de novo." United States v. Owens, 882 F.2d 1493, 1501-02 n. 16 (10th Cir.1989), quoted in United States v. Whalen, 976 F.2d 1346, 1347 (10th Cir.1992); see also Haddock, 12 F.3d at 955; United States v. Miller, 907 F.2d 994, 997 (10th Cir.1990); Porter, 14 F.3d at 558. Accordingly, "in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. Sec. 2254(d)." Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, quoted in Bolender v. Singletary, 16 F.3d 1547, 1558 n. 12 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994); Miller, 907 F.2d at 997 (quoting Wycoff v. Nix, 869 F.2d 1111, 1117 (8th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989)). The state court's findings of historical fact, however, are entitled to the presumption of correctness. Miller, 907 F.2d at 997; Bolender, 16 F.3d at 1558 n. 12. The federal district court's findings of fact are subject to review only for clear error. See Haddock, 12 F.3d at 955; Miller, 907 F.2d at 996; cf. Whalen, 976 F.2d at 1347 (clear error standard applies to district court's findings of fact in a Sec. 2255 action).

a.

The gravamen of Mr. Brecheen's argument on the merits is that trial counsel's performance during the sentencing phase was ineffective due to his lack of preparation and inadequate investigation of possible mitigating circumstances.18

In the context of the sentencing phase of a capital case, we agree with our sister circuits and emphasize that "[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988) (emphasis added) (citing Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)); accord Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994); Porter, 14 F.3d at 557; Lightbourne v. Dugger, 829 F.2d 1012, 1025 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988). Because of the existence of this duty, we also agree that "[t]he failure to conduct a reasonable investigation into possible mitigating circumstances" may "fall outside the scope of reasonable professional assistance," Bolender, 16 F.3d at 1557; Lightbourne, 829 F.2d at 1025; see also Sanders, 21 F.3d at 1456, and thereby amount to deficient representation under the first prong of Strickland.19 In stating that an attorney has an affirmative duty to conduct an investigation into the existence of potential mitigating evidence, we do not imply that this duty is boundless. To the contrary, an attorney "is not required to investigate all leads" as long as the decision not to pursue a particular lead, or to pursue a particular lead only so far, is reasonable under the circumstances. See Bolender, 16 F.3d at 1557 & n. 11 (citing cases); Harris, 874 F.2d at 763 (citing Strickland, 466 U.S. at 691, 104 S.Ct. at 2066-67).

In this case, we are unpersuaded by Mr. Brecheen's argument that his trial counsel inadequately prepared and investigated for the sentencing phase of trial. Our review of the evidentiary hearing and the entire record in this case supports the findings of the district court that trial counsel did in fact prepare and present some mitigating evidence at the sentencing phase. Mr. Brecheen's trial counsel, as part of general preparation for the trial, directed an investigation of Mr. Brecheen and his family. Counsel was aware of Mr. Brecheen's background, which he shared with the jury during the guilt phase and which was necessarily incorporated into the sentencing phase. That evidence included testimony that Mr. Brecheen had moved back home to assist his family when his father became ill; that he was a high school graduate with two years of training as a carpenter; that he was one of nine children in a large, church-going family; and that he had held a supervisory position in an oil field job. There was also evidence presented from his mother that he was a polite individual, and evidence from his fiancee that she still intended to marry Mr. Brecheen regardless of what happened. During his closing argument at the sentencing phase, trial counsel reiterated most, if not all, of this evidence along with additional mitigating circumstances. Moreover, review of the affidavits submitted by Mr. Brecheen's current counsel show trial counsel talked with other family members about testifying as character witnesses, but that he chose not to pursue that course of action for fear of risking a stronger response from the government.20

We do not believe that trial counsel's preparatory action in this case constituted inadequate investigatory work under Strickland. Leads were discovered and reasonably followed by counsel, and mitigating evidence was both presented and prepared to be presented. Tactical considerations, such as the effect of cross-examination on the credibility of the proposed witnesses, were also taken into account. Although others may choose to do differently, that is not the standard of our review. Moreover, recognizing the fact-specific nature of this inquiry, we believe our conclusion that trial counsel was not ineffective here is entirely consistent with our precedents holding that trial counsel was inadequate based on his or her complete lack of investigative efforts. See Stafford v. Saffle, 34 F.3d 1557 (10th Cir.1994) (finding that counsel's failure to conduct any investigation for possible mitigating evidence amounted to deficient conduct); Osborn, 861 F.2d at 626-27 (finding counsel's lack of preparation constituted deficient conduct); see also Sanders, 21 F.3d at 1456-57 (citing Ninth Circuit cases); Bolender, 16 F.3d at 1558 & 1559-60 n. 16 (citing Eleventh Circuit decisions); Brewer v. Aiken, 935 F.2d 850, 857-59 (7th Cir.1991). See generally Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.) ("It should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness."), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985).

We therefore conclude the district court's findings of adequate investigation and preparation are adequately supported by the state court record. Therefore, Mr. Brecheen's ineffective assistance of counsel claim on this point must fail.

b.

Mr. Brecheen next asserts that even if trial counsel discharged his duty to investigate, he was still ineffective for failing to introduce this additional mitigating evidence, notwithstanding Mr. Brecheen's request that counsel forego the introduction of that mitigating evidence. Because we conclude the decision not to introduce additional mitigating evidence was a reasonable tactical choice on the part of Mr. Brecheen's trial counsel, we reject this claim of error.

We agree with the Fifth and Eleventh Circuits that " '[c]ounsel has no absolute duty to present mitigating character evidence' at all." Bolender, 16 F.3d at 1557 (citing Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987)); Devier, 3 F.3d at 1453. From this, it follows a fortiori that the failure to present available mitigating evidence is not per se ineffective assistance of counsel. Bolender, 16 F.3d at 1557; King v. Puckett, 1 F.3d 280, 284 (5th Cir.1993).

If counsel has mitigating evidence available but elects not to present that evidence, then the inquiry must focus on the reason or reasons for the decision not to introduce that evidence. If counsel had "a reasonable basis for his strategic decision that an explanation of petitioner's history would not have minimized the risk of the death penalty," Burger, 483 U.S. at 795, 107 S.Ct. at 3126, quoted in Devier, 3 F.3d at 1453, then that decision must be given "a strong presumption of correctness" and "the inquiry is generally at an end." Porter, 14 F.3d at 557; see also Laws v. Armontrout, 863 F.2d 1377, 1385 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). If, however, the decision is not tactical, and counsel's performance is therefore deficient, then the first prong of Strickland is satisfied. The court must then engage in a "harmlessness review," Middleton, 849 F.2d at 493, to determine whether petitioner carried his burden of demonstrating that he was prejudiced by the deficient performance. Porter, 14 F.3d at 557; Middleton, 849 F.2d at 493.

We digress momentarily to explain why we believe Mr. Brecheen's argument that his purported waiver of his right to present mitigating evidence was not made knowingly, intelligently and voluntarily is misdirected. The "knowing, intelligent and voluntary" standard for a waiver, which is traceable to Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), applies to a defined and limited class of issues that, because of their stature as "fundamental" decisions, are waivable only by the defendant. See United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). In Teague, the Eleventh Circuit noted the dichotomy between "fundamental" rights, such as the right to plead guilty, see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),21 the right to a jury trial, see Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the right to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and other trial rights that "primarily involve trial strategy and tactics," including the decision as to "what evidence should be introduced." Teague, 953 F.2d at 1531. Having thus established this dichotomy, the Eleventh Circuit stated that fundamental rights are waivable only by the defendant because of the personal nature and importance of the right. Id. In contrast, however, the court expressly found that nonfundamental trial rights, including evidentiary matters, "are waivable by defense counsel on the defendant's behalf." Id.

Thus, although the narrow legal issue in Teague, whether the right to testify recognized in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) was a fundamental right, is not on point, the reasoning employed in Teague is clearly relevant to Mr. Brecheen's waiver argument in this case. In short, the question as to the propriety of introducing additional mitigating evidence in this case is not a fundamental right subject to the Zerbst waiver standard, but rather, fits squarely into the category of rights that are nonfundamental and that are not reviewed for compliance with the heightened waiver standard.22 Therefore, while trial counsel still retains an obligation to discuss this type of strategic matter with the client, given the client's right to assist in his own defense, see Godinez v. Moran, --- U.S. ----, ----, 113 S.Ct. 2680, 2686, 125 L.Ed.2d 321 (1993), we think the ultimate decision whether to introduce this type of evidence is vested in trial counsel. E.g., Bolender, 16 F.3d at 1557 (" 'A lawyer's election not to present mitigating evidence is a tactical choice.' " (Citation omitted and emphasis added)). No claim has been advanced in this case that trial counsel did not consult with Mr. Brecheen before making this decision. Therefore, as long as counsel's decision is reasonable, it is not the prerogative of the federal courts to second-guess it.

As we have stated, then, the relevant inquiry is whether trial counsel's decision was an informed tactical decision that was reasonable under the circumstances of the case. Having delineated the appropriate legal framework, "it is important to note that 'the mere incantation of "strategy" does not insulate attorney behavior from review; an attorney must have chosen not to present mitigating evidence after having investigated the defendant's background, and that choice must have been reasonable under the circumstances.' " Bolender, 16 F.3d at 1558 (quoting Stevens, 968 F.2d at 1083) (emphasis in original).

Applying these principles to the case at bar, we find counsel's actions were in fact based on reasonable investigative efforts and that the decision constituted a reasonable tactical choice under the circumstances. The sequence of events relating to the sentencing proceedings is as follows. After the jury returned its verdict of guilty at the first phase of the trial, the sentencing proceedings were to begin in the evening after a long day of testimony in which the jury had heard from Mr. Brecheen and his mother. As the jury returned its guilty verdict, trial counsel observed several jurors were extremely upset and agitated. Rather than seek to postpone sentencing deliberations into the next days, trial counsel believed those jurors who did not feel strongly about the guilty verdict might refuse to vote unanimously for the death penalty if asked to deliberate as soon as possible. Trial counsel also testified that, at that time, his strategy was to first present the defendant, then the defendant's sisters followed by his fiancee. Because some contradictory testimony had been elicited earlier among Mr. Brecheen, his mother, and his fiancee, trial counsel was concerned about further impeachment of the potential witnesses.

Just prior to the sentencing phase, defense counsel told the trial judge that Mr. Brecheen, having been informed of his right to present mitigating testimony, did not wish to delay the proceeding by putting on additional evidence. The trial court instructed the jury, in Mr. Brecheen's presence, to consider evidence relative to mitigation that was presented on the defendant's behalf during the guilt phase of trial because the defendant did not wish to present any further evidence.

While it might have been preferable for the state trial court to interview Mr. Brecheen prior to the sentencing phase, as was suggested by trial counsel, the evidence adduced during the state postconviction evidentiary hearing shows both trial counsel and Mr. Brecheen were given full opportunity to explain this sequence of events. The postconviction trial court, as trier of fact, found "the defendant discussed with his attorney his option regarding mitigating evidence and made a voluntary decision to forego the opportunity to call witnesses." Although this finding is not entitled to a presumption of correctness, we find that it is nonetheless correct on its merits and that it supports a conclusion that the decision not to present additional mitigating evidence was within the realm of reasonable tactical decisions.

In sum, counsel incorporated the mitigating evidence adduced at the guilt phase of trial into the sentencing phase. In addition, counsel was prepared to present mitigating evidence and had assembled witnesses in the courtroom in anticipation of offering their testimony. In light of Mr. Brecheen's request to forego introducing additional evidence, however, counsel weighed several factors, including tactical considerations, and in the exercise of his professional judgment, agreed with the request. As the Supreme Court has stated, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Counsel then drew the jury's attention to relevant testimony they had heard that day and to other mitigating factors in an attempt to persuade the jury to spare Mr. Brecheen from the sentence that it ultimately imposed. Under these circumstances, we cannot conclude Mr. Brecheen was deprived of his constitutional right to effective assistance of counsel.23

Review of a death sentence is among the most serious examinations any court of law ever undertakes. We have given exhaustive and serious consideration to Mr. Brecheen's claims, as have each of the state and federal courts preceding us, in recognition of the fact that "[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case." Burger, 483 U.S. at 785, 107 S.Ct. at 3121. Mr. Brecheen was tried before an impartial jury with the assistance of competent counsel in a proceeding unaffected by constitutional error. Accordingly, we AFFIRM the decision of the federal district court denying Mr. Brecheen's petition for a writ of habeas corpus. His request for a stay of execution, see McFarland v. Scott, --- U.S. ----, ----, 114 S.Ct. 2568, 2573-74, 129 L.Ed.2d 666 (1994), shall be extended pending the timely filing of a petition for a stay, or for a writ of certiorari, or both, with the United States Supreme Court and during the pendency of any proceedings before that Court.

EBEL, Circuit Judge, dissenting.

This is a difficult case and my decision to dissent is a close one. I agree with much of what the majority opinion says. Indeed, my only quarrel is with the majority's conclusion that Brecheen failed to establish that he had ineffective trial counsel during the sentencing phase of the trial.

The sentencing phase of a capital case is a vitally important proceeding and it requires careful preparation, advanced consultation with the client, and vigorous advocacy. It is not a stepchild to the guilt phase of the trial, but itself deserves to share center stage with the guilt phase. "[F]ailure to present significant mitigating evidence creates a one-sided, non-adversarial sentencing hearing. Such a sentencing hearing undermines the proper functioning of the adversarial process and erodes confidence in the outcome of the case." Ronnie Seidel, Right to Effective Assistance of Counsel at Capital Sentencing: Frey v. Fulcomer, 66 Tem.L.Rev. 1107, 1118 (1993). See Lockett v. Ohio, 438 U.S. 586, 602-06, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973 (1978); ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(A) & (C) (1989) (As soon as counsel begins a capital case he or she "should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase.... The investigation ... should be conducted regardless of any initial assertion by the client that mitigation is not to be offered."). It is at the sentencing phase of the trial that the jury is asked to turn its attention away from whether the defendant is guilty or innocent and to focus on the defendant as an individual. The lawyer's job is to assist the jury in its assessment of who the defendant is and why he or she committed the crime.

Brecheen claims that his counsel, Mr. Sleeper, was ineffective because he failed to discover and present mitigating evidence that raises a reasonable probability that the jury would have declined to vote for the death penalty if such evidence had been before it. We have to decide if Sleeper's representation fell below the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and, if so, whether Brecheen was thereby prejudiced.

To prove that counsel's performance was deficient, Brecheen bears the burden of meeting the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Court held that a defendant must show: (1) "that counsel's performance was deficient" with reference to prevailing professional norms, and (2) "that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064; United States v. Rivera, 900 F.2d 1462, 1472 (10th Cir.1990). Prejudice is shown by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Rivera, 900 F.2d at 1472.

The majority found that Brecheen's counsel did not perform below the Strickland standard and, therefore, the majority did not need to address the prejudice prong of Strickland. The majority offers essentially three explanations for finding Brecheen's counsel not