text:
December 2, 2007
43 comments:
- rhhardin said...
I don't know why we can't get Cheney.
- michael farris said...
"I don't know why we can't get Cheney"
Who's this 'we'?
Republicans can't get him because I'm not sure if the leadership is that dumb/out-of-touch.
Democrats can't get him (As republican nominee) because the republican leadership isn't that stupid. - 12/2/07, 8:35 AM
- EnigmatiCore said...
The Republican leadership has proven themselves to be stupider than even the Democratic leadership, and the Democrats have been stupid enough to nominate folks like John Kerry and Mike Dukakis.
Therefore, I conclude it is not the smarts of the Republican leadership, but the fact that Cheney isn't, you know, running.
IIRC, Ann just adores Huck. I recall her fawning over him some years ago when he did some extra-special marriage+ thingy. The love was obvious. - 12/2/07, 8:44 AM
- Paddy O. said...
Pandering works.
Huckabee is a Baptist minister who knows how to sounds challenging while tickling the ears of his listeners.
Huckabee can play the Edwards game better than Edwards.
For supposedly being sophisticated voters, Iowans are sure easily taken in by smiles and slick words. - 12/2/07, 9:06 AM
- rhhardin said...
Old Punch cartoon, two pigs looking at a sack
Alfonse: Maurice, don't go in there, it's a poke!
Maurice: But Alfonse, there's garbage in there! - 12/2/07, 9:10 AM
- downtownlad said...
They love him because he hates teh gays more than anyone else. He hates them so much, he doesn't even call them gay, he calls them homosexuals.
What might be interesting is if a Huckabee win in Iowa makes Romney looks weak, and McCain wins New Hampshire.
A McCain/Huckabee matchup would surely result in a Huckabee win. Because the Republicans hate McCain more than anyone, even though he agrees with them all the core issues except immigration. And even on immigration, McCain has the same position as Bush. I can't figure that one out. - 12/2/07, 10:18 AM
- George said...
Why is the Huck surging?
It's the way he answered The BIble Question in last week's debate.
"Sure. I believe the Bible is exactly what it is. It's the word of revelation to us from God himself. (Applause) And the fact is that when people ask, "Do we believe all of it?" You either believe it, or you don't believe it. But, in the greater sense, I think what the question tried to make us feel like was that, well, if you believe the part that says "Go and pluck out your eye," well, none of us believe that we ought to go pluck out our eye. That obviously is allegorical.
But the Bible has some messages that nobody really can confuse and really [are] not left up to interpretation [such as] "Love your neighbor as yourself" and "As much as you've done it to the least of these brethren, you've done it unto me."
Until we get those simple, real easy things right, I'm not sure we ought to spend a whole lot of time fighting over the other parts that are a little bit complicated.
And as the only person here on the stage with a theology degree, there are parts of it I don't fully comprehend and understand, because the Bible is a revelation of an infinite God, and no finite person is ever going to fully understand it. If they do, their God is too small."
(Interestingly, the CNN transcript does not capitalize the word "God.")
Romney blew the answer as badly as Dukakis did the Kitty-rape-death sentence question, and Guiliani answered it the way a lawyer would.
Thompson said he had some Bibles at home, but he wouldn't say which versions they were or where he was keeping them. Not the best answer. - 12/2/07, 10:20 AM
- rcocean said...
Huckster is now the Liberals favorite Republican. Always a bad sign.
He's almost a Maverick. - 12/2/07, 11:23 AM
- EnigmatiCore said...
"He hates them so much, he doesn't even call them gay, he calls them homosexuals."
Is there a new bit of PC I need to learn here? It is insensitive to say someone is a homosexual?
Is there any place I can go to keep up on which terms are ok and which are not, because I am finding the shifting sands difficult to stand upon. - 12/2/07, 11:26 AM
- downtownlad said...
Enigmaticore - It's been a slander to call gay people homosexuals since 1972.
It's more polite to call black people niggers. - 12/2/07, 11:30 AM
- Freeman Hunt said...
IIRC, Ann just adores Huck. I recall her fawning over him some years ago when he did some extra-special marriage+ thingy.
She didn't fawn over him. She criticized him. - 12/2/07, 11:49 AM
- rcocean said...
Are you gay? You seem very interested in Homosexuals. - 12/2/07, 12:00 PM
- rcocean said...
Listened to the Huckster on This week.
He's smooth. If you want someone to beat Hillary, purely from a political point of view, he's your man.
Cool vs. Warm
Calculating vs. Honest
Secular vs. Religious
NY vs. Arkansas
Uptight vs. Humorous
Strident vs. Low-key
Elite vs. Populist
Fake Compassion vs. Real compassion
Too bad he's not really a conservative. George nailed him on illegal immigration. Huckster not only supports Drivers License's for Illegals, he thinks anyone who opposed it was racist.
He also strikes me as someone who would "grow" in office. - 12/2/07, 12:26 PM
- Richard Fagin said...
Ahem, are we prepared to elect ANOTHER Arkansas governor as President? Wasn't the last one quite enough?
The last governor of Massachusetts to become President was a great guy, though, if Romney has any change at all. It's so cool seing that face on a statue glaring at the wacked-out Smithies in beautiful downtown Northampton. The wacked-out Smithies probably have no idea who he was. - 12/2/07, 12:38 PM
- EnigmatiCore said...
Hm. Well, you learn something new every day.
Is it an equally bad slur to call straight people heterosexuals? - 12/2/07, 12:59 PM
- Harsh Pencil said...
I think downtownlad is one of those mentally healthy Republicans.
- downtownlad said...
Exactly enigmaticore. When is the last time you heard a straight person refer to someone as a heterosexual. They would almost always use the word "straight". Yet you will never hear Huckabee say the word gay, he will always use the word "homosexual", because he knows its offensive, and it's a code for the evangelicals who know exactly what he means. And it's obviously working.
- Palladian said...
I like "faggot".
- Gedaliya said...
DTL is hilarious in his role as most angry homosexual. Now it is unacceptable to call homosexuals homosexuals?
I guess I must have missed the memo. - 12/2/07, 3:14 PM
- Cedarford said...
Huckabee can play the Edwards game better than Edwards.
For supposedly being sophisticated voters, Iowans are sure easily taken in by smiles and slick words.
He also benefits from Romney unable to shake coming across as plastic. Thompson being a lackadaisical campaigner. And the voters gradually sickening of 9/11! 9/11!! as a reason Paddy O is right about Iowans loving slick talkers with bad records like Edwards and Huckabee.
It isn't surprising that with the media abandoning their last darling, McCain, they would seek another maverick who excels in the "values format" the Base and the media locked into - over god, guns, abortion. A venue where Huckabee is as comfortable as pastor Pat Robertson was when he was running.
I would hope that Huckabee is just the media-driven Flavor of the Month.
Not even the Republicans, IMO, are ready to run a Creationist as President. And the Huckster is a big taxer, favors Open Borders, has Rudy-scale corruption problems - all issues the nation and the Republicans are against.
The way things are going on the Democrat side, I wouldn't be surprised if Party bigwigs aren't telling Noble Algore to lose weight and be on standby at the Convention.
The way things are going on the Republican side, I would think some people wouldn't mind losing the 2008 contest as long as they can pin Dems with losing the 1st War against radical Islam as Dems flee Iraq and Afghanistan with light casualties. They could pick Newt, a surefire loser, but an intelligent, articulate man who could refocus the Republicans on a new successful path after the failure of corporate crony Bushism.
Or we could hope that Obama somehow shows he has executive potential.
Or hope that someone slips Red Bull into Toadface Thompson by IV.
Or hope that Mitt Romney stops trying to out-Jesus and out-compete on values against people whose minds were locked in place by age 12 in Bible School and haven't changed their minds on anything since. And focus on his strength - turning around grave organizational problems with vision and intelligent leadership.Which would require old Mitt to shift gears from "Values Mitt" to "Leader Mitt" and hope he comes across more human.
McCain is too old, too pro-immigration and treacherous to be acceptable to me. Even over Hillary. "Vote for me because I was captured by the enemy and abused which makes me the greatest Victim-Hero of all, with quirky ideas on improving the satisfaction level of terrorists with their stay with us?"
And Rudy is a minefield of unresolved issues. Kerik. Fatigue over his "America's Hero-Mayor" facade. His tens of millions heading Giuliani & Associates looking for 9/11 pork. Personal life. His hooking up with the old neocon crowd favoring expanded war - adding Syria, Iran, maybe the NORKs and Venezuela. And that NYC pushiness and arrogance that NYC-based media loves, but the rest of the country only likes from time to time - not living with for 4 years or more - hurts him hard...
Like "my dear fellow Senate friends" McCain, Rudy and his "America's Mayor" routine are best kept in the past. - 12/2/07, 3:19 PM
- rcocean said...
Wow, now "homosexual" is a "Code Word".
I love "code words". They're handy and very convenient. Whenever you want to call someone a name with no evidence, just say they're using a "Code word". Examples;
Law and Order = Racist;
Illegal immigration = Racist;
New York banker = anti-semite;
and now Homosexual = homophobe. - 12/2/07, 3:32 PM
- jeff said...
"Enigmaticore - It's been a slander to call gay people homosexuals since 1972.
It's more polite to call black people niggers."
What a load of crap.
Run that by one of your gay black friends sometime.
You throw around the "breeders" slur?
Something that sometimes can be considered insulting, but has never been anything other than amusing to me. - 12/2/07, 4:07 PM
- EnigmatiCore said...
"When is the last time you heard a straight person refer to someone as a heterosexual."
Quite often, actually. Straight, hetero, heterosexual. All used interchangeably.
I think your assertion that calling someone by the technically correct term "homosexual" is worse than calling a black a n* is beyond silly, especially if many people are completely unaware that it is supposedly some sort of slur.
In fact, if I use the term, you would be mistaken to assume that I meant it as a slur, despite the fact that you have told me that you would take it as such. I simply don't agree with your take and refuse to play my part in taking proper English and turning it into taboo in leiu of some euphemism like 'gay'. I'll use both terms interchangeably, and I mean nothing different when I use them. - 12/2/07, 4:14 PM
- Walter said...
I hear heterosexual on a semi-regular basis, but then again I have a wide circle of friends.
Google "Heterosexual" and you will find that it is used more than you might think.
I also agree with enigmaticore.
If you upset by the use of the homosexual, then you are either:
1. Looking to be offended (for any reason)
2. People have been insulting you/other gays by saying homosexual as if it was an insult (see Liberal).
If what you believe is the 2nd case, then you should embrace the word and own it. Take it back from the homo/gay haters before they move on to do the same thing to the word gay. - 12/2/07, 4:23 PM
- EnigmatiCore said...
I agree with Walter.
DTL, I know you have had some real a-holes in your life (you've said as much). But looking to be offended is not the answer. - 12/2/07, 4:29 PM
- Paco Wové said...
DTL, I know you have had some real a-holes in your life (you've said as much). But looking to be offended is not the answer.
That assumes that DTL is actually attempting to argue in good faith, which I think is highly unlikely. As far as I can tell, he's here to insult people, and he'll sieze upon any issue -- or just make one up -- to do that. - 12/2/07, 4:46 PM
- George said...
Check out Huck on ABC.
How telegenic...the teddy bear eyes.
Then, at about 12 minutes, watch what he says—or doesn't say—when asked if Romney is a Christian.
He won't acknowledge that fact.
Like asking someone in 1960 if JFK was a Christian.
"Uh, well, that's for others to say, not me."
A cute and nasty piece of work, this Huckster. - 12/2/07, 4:54 PM
- Palladian said...
Yes, it's wrong to assume that dtl actually believes anything it says here. It's just here to stir up shit, and getting (more) bitter because commenters have largely wised up.
"technically correct term"
Sorry, but I don't believe that there is a "technically correct term" for human sexuality if you're attempting to describe a strictly binary system. "Homosexual", like "heterosexual" is an ugly 19th century Greek-Latin hybrid word that, although sadly accepted as adequate, is technically and etymologically meaningless. Better to use a more interesting, more euphonious and equally meaningless designation such as "gay" or "faggot" or "queer". "Heterosexual" and "homosexual" are ugly faux-clinical words that should be left in the ugly, faux-clinical 19th century where they were spawned. - 12/2/07, 5:02 PM
- EnigmatiCore said...
"is an ugly 19th century Greek-Latin hybrid word"
Like automobile? - 12/2/07, 5:10 PM
- EnigmatiCore said...
Or was that early 20th Century?
- EnigmatiCore said...
rcocean-- don't get too carried away. Often "New York bankers" or "New York moneymen" are code words for teh Jews.
- Paddy O. said...
Homer Simpson: They turned the Navy into a floating joke. They ruined all our best names like Bruce and Lance and Julian. Those were the toughest names we had! Now they're just...
John: Queer?
Homer Simpson: Yeah, and that's another thing! I resent you people using that word. That's our word for making fun of you! We need it! - 12/2/07, 5:43 PM
- Fred said...
That is good news for Republicans, in my opinion. I really love Mike Huckabee even though I don't agree with all of his policies. He symbolizes everything that President Bush promised He would be, and more. If ever the party needed to fall on the side of compassionate or social conservatism, it's now. Anything less would result in a nice landslide for the Dems.
- Darkbloom said...
Calling a gay person homosexual is not offensive. But when someone refuses to use the word gay and exclusively uses the word homosexual, that is obviously calculated to offend.
- Fred said...
George: It isn't just what people have heard in the debates, it's a whole lot more.
There are two candidates I love to hear speak, Mike Huckabee and Ron Paul. They are brilliant speakers, they shake rooms with their words and people who aren't stuck in the polarized world can fall in love with these candidates, quite easily.
They've got heart, they can connect with supporters and they have very active minds. Many of the candidates on both sides are very easy to read. You can tell what kind of people they are, you can tell how they'd lead and more or less what kind of decisions they'd make while in office. You can tell who is a thinker, an intellectual, or who'll defers to their leadership skills, staff, and experts to help them make important decisions.
This is one of the reasons I love the primary season, you can spend some time and psychoanalyze the candidates. We know their politics more or less, but pick apart their words and actions and consider how they respond to certain kinds of stimuli. - 12/2/07, 6:07 PM
- George said...
This guy connected, too. - 12/2/07, 6:12 PM
- rcocean said...
If "New York Bankers" is a code word for Jews, the what is the code word for "New York bankers".
I don't like Big Banks, especially the ones in Hew York, but I don't want any gentile NY bankers to feel left out.
Another problem with "Code words" is that we don't have a "code book". - 12/2/07, 6:13 PM
- hdhouse said...
rhhardin said...
I don't know why we can't get Cheney."
Didn't Cheney die some time ago and come back as some guy named Fred?
In any event, at least perhaps (oh gosh..please God!) the GOP might nominate Huckabee...make(s) my day! - 12/2/07, 6:27 PM
- Trooper York said...
Then the old man got to cussing and cussed everything and everybody he could think of, and then cussed them all over again to make sure he hadn't skipped any, and after that he polished off with a kind of a general cuss all round, including a considerable parcel of people which he didn't know the names of, and so called them what's-his-name when he got to them, and went right along with his cussing.
Then Senator McCain finished and it was my turn in the debate.
(The Adventures of Huckabee Finn) - 12/2/07, 6:44 PM
- EnigmatiCore said...
I just am not in the mood to give a serious answer. But I can't think of a good joking one, so here goes.
I don't have a good answer on what to do about the lack of Code Book. But I can tell you that if a topic is not specifically about something that would normally involve New York Bankers, and someone suddenly starts complaining about the involvement of New York Bankers, you might want to consider that they might be using code.
Especially if they are Ron Paul fans. - 12/2/07, 8:22 PM
- Hayes said...
Huckabee is George W. Bush 2.0 -- plain and simple. From what i have read in Iowa, people aren't flocking to Huck because of his wonderful policy positions. Huckabee has been explicitly trumpeting his Christian credentials and good works, which implicitly highlights Romney's Mormon faith. This is not an unintended consequence, in my book. I don't think that it is dirty politics or bad faith on Huckabee's part, he just knows what will play well in Iowa, and Romney's group must know what Huckabee does now: there is an unspoken unease about his faith in some influential circles.
And, now Romney is giving the speech... - 12/3/07, 6:15 AM
- George said...
Jesus Juice and Love Offerings
Is this a great country, or what? - 12/3/07, 7:33 AM
- Randy (Internet Ronin) said...
One Great Leap Forward every hundred years is enough for our small world. It is not yet time for another.


text:
Wednesday, February 24
Amazing Crafts Site: DTLK-Kids
As a teacher and a parent, I love DLTK-Kids website. It's run by a Canadian mom, and offers more arts and crafts ideas than you could ever possibly use.
You can easily search by month, theme or holiday, and samples of finished products are shown, along with appropriate age levels. My favourite feature would have to be "Search By Material": perfect if you're wondering exactly what you can do with all of those baby food jars piled in the closet, or the collection of egg cartons you found in the art room.
In addition to crafts, you can find printables (math worksheets, bingo cards, writing paper, chore charts, doorknob hangers) and other activities (even ABC/123 stuff for preschoolers).
Though many faiths and cultures are represented on the site, there is a great collection of Bible crafts, printables and ready-made lessons, perfect for religious or Sunday schools.
DLTK also offers terrific birthday party ideas, complete with themes, cakes, banners and games (wouldn't little Dora lovers enjoy playing "Guess What's In Backpack!")
Another "must-bookmark" site to add to your favourites...right after This Mom Loves!
6 comments:
we've been using this web page for several years. Often the kids or I will have a craft idea, but I need directions to actually make it happen. This site usually has the steps I couldn't figure out.
Joan. - February 24, 2010 at 11:56 PM
I Love this site too. I use it all the time to find crafts to do with my boys or the beaver group I am a leader of. It is very easy to get around to find what you are looking for.
Pam - February 25, 2010 at 10:37 AM
I use this website all the time for my kids and for work. Great ideas!
- February 25, 2010 at 6:07 PM
This looks like a great site to check out. Thanks for the useful ideas!
- February 25, 2010 at 7:58 PM
Thanks for mentioning the site Kate! I'm a sister-in-law to DLTK and answer mail and work on the Bible section of the site. I'm glad you enjoy the site, we love working on it.
Sharla - March 1, 2010 at 1:54 PM
- crystalc said...
I love this site. Other good ones include starfall.com and primarygames.com
- March 3, 2010 at 4:49 PM

subset: commoncrawl


text:
I guess Billups and his fat ass wasn't the reason for our slow tempo and lack of scoring in Detroit. They seem to put up 100 at will out there. D. Jones was playing some pretty good D on CP3 when I was watching. It was sort of an eye opener for me just seeing the raw energy from the Nuggs. It was like watching the zoo crew with Rodman added in.
Yep looks like he chose to hang with the wrong teammates....should have stayed with CB instead of Rip, Tay and Sheed. He would have more money to feed his kids and more playoff money to spend if they make it to the semi finals or WCF finals. Joe must have told him that I will take care of you next year if you come back....Joe had everybody fooled..including himself.
In two games, Billups has scored 67 points, made 12-of-15 3-pointers and sunk all 19 of his free throws while getting a dozen assists and not committing any turnovers,,,,,,
Yet another incomprehensible commment from Karl on CB's skills. "I do want to kind of apologize. I said he's a player without skills'' after the series opener, Nuggets coach George Karl said. "He's very skilled. But he plays the game without skills a lot. He plays the game with a brain, and a teamness, a point guard leadership. Then he figures out when to put the skills in the game. "I'm happy he's putting a few more skills on the court lately. It's pretty cool.''
The only way this works out bad for Joe is if the Pistons flop, like they did. Now, Jow doesn't have to worry about "taking care of Dyess" next year cause Dyess's conscious will tell him it's time to leave.
There's an old survey done about a year ago which asked us who we would trade...Amir or Chauncey. Chauncey gets about 63% of the trade vote. What were we thinkin..........
Are you talking about this one? http://www.pistonsforum.com/detroit-pistons-general-discussion/poll-194-pick-em-public.html We know how Joe voted.
It a took a trade to re-motivate CB. Whatever works I guess. It is only the 1st 2 games - we have seen playoff runs before.
New Orleans could win both at home very easily. The Nuggets looked like they were getting a lot of energy from their crowd. If Billups had an average game, it would have been competitive.
GK has a weird demeanor. The producer should quite telling the camera men to show him 50 times per game. His emotions don't seem to correspond with the events on the court.
It;'s very strange, and extremely annoying. I don't need to see a "reaction" from him to every play the Nuggets make.
Where did State8 get the sack to make such a crazy poll? I voted move Chaunc, say what !! Karls' mind must be in a state of consternation having never seen his team play so well. CB has no skills, CB doesn't use his skills, say what ? - CB may be in trouble later if he thinks he can carry that team all the way. He needs to get much more from Nene and KMart to hang with the Kobes. Should be a clash of Titans. Ohhh, the bigger they come the harder they fall.
You know how Chauncey barely dunks right? Look at about 45 seconds in this video and he has a crazy dunk in HS. I wonder why half these guys don't dunk in the NBA when they obviously can easily get up that high. YouTube - YOUNG BILLUPS
Any player over 6ft can dunk in the NBA, any black guy over 6ft I should say, but why would you when Guys like Lebron, Kobe etc can jump 2 feet higher than you. You get an extra point for a three anyway.


text:
Published: January 7, 2014 - 11:14 PM
No. 9 Iowa State 87, No. 7 Baylor 72
DeAndre Kane had a season-high 30 points with nine assists, eight rebounds and five steals as host Iowa State rolled past Baylor, setting a school record with its 14th consecutive win.
Melvin Ejim added 18 points for the Cyclones (14-0, 2-0 Big 12). They outscored Baylor 47-34 in the second half and rolled to a surprisingly decisive win over a fellow Big 12 title contender.
Kane had 17 points in the first half, helping his struggling teammates take a two-point lead. The rest of the Cyclones got untracked early in the second half and blew past the Bears with a 28-12 run.
Gary Franklin and Brady Heslip both had 15 points for Baylor (12-2, 0-1), which saw its win streak snapped at six games.
Baylor couldn't have asked for a tougher draw to open Big 12. The Cyclones had already beaten ranked teams Michigan and Iowa at home this season and entered play 39-3 in Ames since 2011-12.
The Bears hung around until early in the second half, when Iowa State slowly but surely overwhelmed yet another visitor.
The Cyclones pushed their lead to 63-51 as Kane, a senior transfer from Marshall, and Monte Morris answered what seemed like a momentum-killing 3 from Heslip with layups.
Taurean Prince was called for a flagrant foul on Kane with just under 10 minutes left. Kane hit both free throws, and Naz Long's 3 put Iowa State ahead 68-54.
This was the first matchup of top 10 teams in Ames in 13 years.
It could end up having a huge say in the Big 12 title race.
Though Baylor and Iowa State were picked to finish behind Kansas and Oklahoma State, the prospect of the Bears and Cyclones competing for the league title suddenly looks a lot more realistic than it did in November.
The Jayhawks have already lost four times. The Cowboys dropped their Big 12 opener at Kansas State in their first game without center Michael Cobbins, who's out for the season.
No. 16 Duke 79, Georgia Tech 57
Rodney Hood scored 15 of his 27 points in the second half, and host Duke beat Georgia Tech.
Quinn Cook added 13 points and slumping freshman Jabari Parker had 12 on 4-of-12 shooting for the Blue Devils (12-3, 1-1 Atlantic Coast Conference).
Playing their first game outside the top 10 since November 2007, they spent half the night proving they deserved their drop before Hood helped them pull away for their 25th consecutive win at Cameron Indoor Stadium.
Marcus Georges-Hunt scored 18 points for the short-handed Yellow Jackets (9-6, 0-2), who shot 49 percent yet lost their second game in a row.
Duke had trouble getting any sort of separation until Hood hit 3-pointers 45 seconds apart down the stretch.
No. 25 Kansas State 65, TCU 47
Thomas Gipson scored 19 points and grabbed eight rebounds and Marcus Foster added 16 points to lead visiting Kansas State (12-3, 2-0) over TCU (9-5, 0-2) in a Big 12 game.
Kansas State built a 10-point lead at halftime and continued to increase the margin in the second half.


text:
306 F3d 982 Duckett v. Mullin
306 F.3d 982
Robert Don DUCKETT, Petitioner-Appellant,
Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
No. 00-6292.
United States Court of Appeals, Tenth Circuit.
September 4, 2002.
Mark L. Henricksen (Lanita Henricksen, with him on the briefs), Henricksen & Henricksen, El Reno, Oklahoma, for Petitioner-Appellant.
Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.
Before KELLY, LUCERO, and MURPHY, Circuit Judges.
LUCERO, Circuit Judge.
Robert Don Duckett, an Oklahoma state prisoner convicted of first-degree murder and sentenced to death, appeals the district court's denial of his petition for a writ of habeas corpus. This court granted Duckett a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c) with respect to five of his claims of legal error: (1) that the conduct and comments of the state prosecutor deprived him of a fair trial; (2) that trial counsel's failure to investigate and present mitigating evidence deprived him of effective assistance of counsel; (3) that the federal district court erred by refusing to provide him funds with which to retain an expert witness for the evidentiary hearing conducted by the court; (4) that the admission into evidence of a videotape of the murder scene deprived him of a fair and impartial jury; and (5) that the application of the "murder to avoid arrest" aggravating circumstance deprived him of a fair trial. Having studied this matter closely, we conclude that Duckett is not entitled to habeas relief on any of these claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.
* On October 18, 1988, John Howard was found dead in his apartment in Oklahoma City, having been severely beaten with a fireplace poker and the wooden stand of an ashtray. His hands and feet were bound with a wire hanger, and there were blood stains and spatters throughout the apartment. Howard's keys and car were missing, along with over $200 from the convenience store that he managed.
A few weeks prior to this incident, Howard picked up Duckett — an escapee from prison who had been convicted of robbery by force — while Duckett was hitchhiking on an interstate in Oklahoma City. Howard befriended Duckett, helped him obtain employment at the State Fair and later at his convenience store, and offered to let Duckett stay with him at his apartment.
On November 1, 1988, Duckett was arrested in Clear Creek, Arizona, while driving Howard's car. He had switched the license plates on Howard's car with those of another vehicle in the parking lot of Howard's apartment complex. Police found in the car a blood-stained jacket and jeans, along with bank bags from Howard's convenience store.
During questioning by Oklahoma authorities, Duckett admitted that he and Howard had fought and exchanged five or six blows, but that when Duckett left, Howard was on his feet and breathing. He had bound Howard's hands, Duckett explained, in order to keep Howard from coming after him. Duckett also told authorities that he had been gang-raped in prison and that he and Howard had been fighting over a homosexual pass that Howard had made toward him.
The Oklahoma Court of Criminal Appeals ("OCCA"), summarizing much of the crime-scene evidence, noted that
[the victim's] ankle was broken and he had been struck at least 19 separate times. Among various other head wounds, his skull was fractured in numerous places and his left eye was ruptured and punctured. There were blood spatters both high and low on the walls, indicating that [Duckett] continued to beat him after he was on the ground and incapable of running away. Blood smears on the victim's jeans indicate that he either was trying to crawl away or was dragged through the blood. Blood spatters on the windows and the closed curtains indicate that [Duckett] beat the victim with the curtains open, and then continued to beat the victim after stopping to close the curtains. The victim's hands and feet were bound with wire, and he had, at one point, been gagged with a rolled up sock and a bandanna.
Duckett v. State, 919 P.2d 7, 13 (Okla. Crim.App.1995).
In June 1989, Duckett was tried before a jury and convicted of first-degree murder, larceny of an automobile after prior conviction of a felony, and concealing stolen property after prior conviction of a felony. During the sentencing phase of the trial, the jury found the existence of five aggravating circumstances:
1) that Mr. Duckett was previously convicted of a violent felony; 2) that the murder was especially heinous, atrocious or cruel; 3) that the murder was committed for the purpose of avoiding arrest or prosecution; 4) that the murder was committed while Mr. Duckett was serving a sentence of imprisonment; and 5) that Mr. Duckett constituted a continuing threat to society.
Id. at 12-13. The jury recommended the death penalty for the murder conviction, and in July 1989, the trial judge accepted this recommendation and sentenced Duckett to death.
Duckett filed a direct appeal alleging thirty-two propositions of error. Although the OCCA found several trial errors, it affirmed Duckett's convictions and sentence. After the United States Supreme Court denied his petition for a writ of certiorari, Duckett filed an application for post-conviction relief before the OCCA, urging six propositions of error. That application was denied. In May 1998, Duckett filed a petition for a writ of habeas corpus in federal district court, seeking relief on nearly forty grounds. After conducting an evidentiary hearing on several of these claims, the district court denied the petition. Duckett thereupon sought a COA in this court with respect to a number of issues, and we granted his request with respect to the five claims noted above.
Because Duckett filed his petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the provisions of AEDPA are applicable to his case. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Pursuant to AEDPA, we may not grant habeas relief on behalf of a person in custody pursuant to the judgment of a state court with respect to any claim adjudicated on the merits in state court unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
* Duckett contends that the conduct and comments of the state prosecutors, District Attorney Robert Macy and Assistant District Attorney ("ADA") Brad Miller, deprived him of his constitutional right to a fair trial and due process of law. He points to over a dozen separate instances of alleged prosecutorial misconduct whose "cumulative effect" was allegedly prejudicial, "even if the single errors do not entitle the Petitioner to relief." (Appellant's Br. at 11.) Alternatively, he suggests that the prosecutors "knowingly and egregiously" infected his trial with such misconduct, destroying the integrity of the proceedings and making this the "unusual case" in which a showing of prejudice is unnecessary. (Id. at 11, 28.)
1. Prosecutorial Misconduct and Prejudice
Allegations of prosecutorial misconduct are mixed questions of fact and law that we review de novo. Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir.1994). Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Nonetheless, "when 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." Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir.1990) (citing DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868). Inquiry into the fundamental fairness of a trial requires us to examine the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868. In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution.... Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero, 39 F.3d at 1474 (quotations omitted). We address each of Duckett's claims of prosecutorial misconduct in turn.
During voir dire, defense counsel asked a prospective juror, "Do you think that it's possible that there are other reasons [besides trying to hide something] the Defendant might not want to take the stand?" (1 Tr. at 173.) District Attorney Macy then said aloud, "like two prior convictions." (1 id.) Although he admitted making the remark, Macy claimed he said it in a low voice and that the jury could not have heard him. The trial court refused defense counsel's request to have the jury dismissed as tainted. Also during voir dire, defense counsel asked another potential juror, "And, you think [an] insanity defense is a copout?" (2 id. at 387.) Macy then allegedly said, "you bet." (2 id.) Macy denied making this statement, and because the court did not hear the comment it again overruled a defense request to have the jury dismissed as tainted. The OCCA determined that Duckett had not shown any prejudice in connection with these statements. Duckett presents us with no evidence that the remarks were heard by the jury, and offers us no legal argument as to why the OCCA's ruling was unreasonable.
Duckett contends that ADA Miller made a series of inappropriate remarks during closing arguments at the guilt phase of the trial. He notes that Miller characterized a defense expert who testified that Duckett suffered from Post Traumatic Stress Disorder ("PTSD") as a "clinician, essentially a counselor. He is not trained as a scholar or a statistician, apparently he's not a very good test interpreter." (5 id. 1052.) The trial court overruled defense counsel's objection that Miller was impugning the witness based on his own opinion rather than anything in the record. Proceeding with his critique of the witness and the witness's psychological evaluation of Duckett, Miller then asked the jury, "Is that a thorough evaluation? Is that an impartial evaluation? Is that an evaluation by someone for someone because they're getting paid?" (5 id. at 1056.) On appeal, the OCCA held that these statements did not constitute error because prosecutors "may comment on the veracity of [defense expert] witnesses and their testimony." Duckett, 919 P.2d at 19. We conclude that the OCCA's ruling was not unreasonable, particularly given the disputed nature of the expert's testimony at trial. Cf. McGregor v. Gibson, 219 F.3d 1245, 1256-57 (10th Cir. 2000) (denying habeas relief on a claim that challenged the prosecutor's remarks attacking defense experts and petitioner's insanity defense), overruled on other grounds by 248 F.3d 946 (10th Cir.2001) (en banc).
Later, District Attorney Macy stated that "robberies are committed every day for a lot less than a car, robberies in which killings are involved." (5 Tr. at 1080.) Having earlier acknowledged defense counsel's continuing objection to such statements from the prosecution, the trial court never directly addressed the propriety of this comment. On appeal, however, the OCCA determined that the statement was proper because it was an appropriate comment on the evidence made in response to Duckett's argument that he would not have committed murder just to steal a car. (See 5 id. at 1070 ("You don't kill somebody like that for a car [and] two hundred bucks.").) Duckett argues that he was prejudiced by Macy's statement because it stressed to the jury its role as a protector of the community. He does not explain, however, why the OCCA's ruling was an unreasonable application of federal law, and we conclude that it was not.
Later during closing argument Macy stated, "The evidence says he's guilty. Don't you be a party to turning a cold-blooded murderer loose." (5 id. at 1095.) Defense counsel objected, but the objection was overruled by the trial court because "it's already done." (5 id. 1052.) The OCCA found this remark to be improper argument and refused to condone it, but stated that "in light of the overwhelming evidence against [Duckett] and the fact that this was an isolated comment, we do not find it to be prejudicial." Duckett, 919 P.2d at 19. Before this court, Duckett contends that "this statement stressed to the jury its role as protector of the community, and created a sense of societal alarm, implying that the jurors would violate their oaths if they did not convict the Petitioner." (Appellant's Br. at 15.) We have stated, however, that even "[a]n improper appeal to societal alarm typically does not amount to a denial of due process," Jones v. Gibson, 206 F.3d 946, 959 (10th Cir.), cert. denied, 531 U.S. 998, 121 S.Ct. 496, 148 L.Ed.2d 467 (2000), and we conclude that Duckett has not demonstrated that he was denied due process under the present circumstances.
During his closing argument Macy also stated, "Anytime I say or Mr. Miller says `I think,' it's unintentional. We do not view our — we do not express our opinions. Anything that I state, anything Mr. Miller states is the position of the State of Oklahoma based on the evidence in this case." (5 Tr. at 1079.) Duckett, citing Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 87 L.Ed. 734 (1943), contends that by his comments Macy improperly aligned himself with the state to bolster his argument. The OCCA found the comments to be harmless error. Although generally "prosecutors should not... place their own integrity and credibility in issue," Moore v. Gibson, 195 F.3d 1152, 1173 (10th Cir.1999), we conclude that the OCCA's ruling on this issue was not unreasonable.
Duckett complains that ADA Miller improperly attacked his insanity defense by referring to it as "this Johnny-come-lately insanity defense" (5 Tr. at 1068) and by suggesting that Duckett was lying: "Now insanity. That's his only way out of here," (id.). Miller also stated that "at the time they gave [Duckett] enough evidence, enough hard evidence, to show that he didn't have any choice but to come up with something else, some other excuse.... He had only one choice. He had to come up with an excuse, excuse was insanity." (5 id. at 1049.) Although Duckett raised this claim in his brief before the OCCA on direct appeal, that court obviously overlooked this particular claim in its denial of relief. We therefore can accord no deference to the state court's disposition of the matter.1 Even assuming, however, that these remarks were improper under Oklahoma law, see, e.g., Hoover v. State, 738 P.2d 943, 946 (Okla.Crim.App. 1987) (noting that a reference to defendant's theory as a "smoke screen" was improper, and listing cases reaching a similar result), overruled on other grounds by Williams v. State, 794 P.2d 759 (Okla. Crim.App.1990), and Lenion v. State, 763 P.2d 381 (Okla.Crim.App.1988), we conclude that they did not render Duckett's trial fundamentally unfair. Cf. McGregor, 219 F.3d at 1256-57 (denying habeas relief on a claim challenging the prosecutor's insinuations that petitioner's insanity defense was a fraud).
The jury was instructed by the trial court to consider the lesser included offenses of murder in the second degree and manslaughter in the first degree. Duckett contends, however, that Miller attempted to nullify the court's instructions by making the following comments to the jury: "Now, the Judge has given you lesser-included instructions on homicide offenses. The law requires this." (5 Tr. at 1042); "[Y]ou'll see that just one reading will allow their summary dismissal from this case." (5 id. at 1043); "Again, ladies and gentlemen, as I said, one reading of those Instructions, I submit to you, will allow you to summarily dismiss these [lesser included] crimes." (5 id. at 1044); and "You have a lot [of] extra law, like I just said, that you have to look through [w]hat the law requires." (5 id. at 1046-47). The OCCA held that the prosecution was "properly exercising its right to comment on the evidence and to draw inferences from it, by pointing out how the evidence did not support the lesser-included instructions, but did support first-degree murder." Duckett, 919 P.2d at 20. Duckett contends that Miller's remarks left the jury with "no option to convict on a non-capital offense." (Appellant's Br. at 20.) We disagree with Duckett's characterization of the effect of the prosecution's remarks and further note that we ordinarily assume that jurors have followed a judge's instructions. See Walker v. Gibson, 228 F.3d 1217, 1243 (10th Cir.2000), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir.2001) (en banc), and cert. denied, 533 U.S. 933, 121 S.Ct. 2560, 150 L.Ed.2d 725 (2001). We conclude that Duckett has failed to show that the OCCA's decision was unreasonable.
Duckett's final allegation of prosecutorial misconduct occurring at the guilt phase concerns District Attorney Macy's statement to the jury that Duckett was "getting a fair shake. He is getting a fair trial. He's getting every right granted him due to the Constitution [of] the state of Oklahoma, Constitution [of] the United States. You know who didn't get his rights? John Howard. Somebody forgot about his rights. He had a right to live." (5 Tr. at 1077.) Duckett, citing Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), contends that Macy's statements were, in essence, victim-impact argument that is inappropriate at the guilt phase and that they infringed his right to a fair trial. On appeal, the OCCA stated that such comments "have been expressly condemned by this Court as being overly prejudicial to a defendant." Duckett, 919 P.2d at 19. Nonetheless, the OCCA concluded that "in light of the overwhelming evidence against [Duckett] and the fact that it was an isolated comment, we do not find it to be prejudicial." Id. We conclude that this determination was not unreasonable.
Duckett also alleges that the prosecution made improper comments during the sentencing phase of the trial. The Eighth Amendment requires that sentencing procedures in a capital case be evaluated under a heightened standard of reliability. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). We have therefore held that "[t]he standard governing appellate review of closing arguments during the sentencing stage of capital cases is whether the comments might have affected the sentencing decision." Coleman v. Brown, 802 F.2d 1227, 1238 (10th Cir.1986).
During closing arguments at the sentencing phase Macy asked the jury, "Ladies and gentlemen, is [Duckett] a threat to society? Don't you bet your lives on it." (6 Tr. at 1279.) Macy also asked whether it would be
justice [to] send this man down to prison, let him have clean sheets to sleep on every night, three good meals a day, visits by his friends and family, while John Howard lies cold in his grave? Is that justice? Is that your concept of justice? How do Jayme and Tom and John's son go visit him?
(6 id. at 1285.) The OCCA held that "[t]hese kinds of comments cannot be condoned. There is no reason for them and counsel knows better and does not need to go so far in the future. However, we cannot find that the comments affected the verdict." Duckett, 919 P.2d at 19. Once again, Duckett offers us no reason to conclude that the OCCA was unreasonable in holding that these statements alone did not deprive him of a fair trial or affect his sentencing proceeding.
Having reviewed the entirety of the proceedings, we conclude that Duckett has failed to demonstrate that any of the OCCA's above determinations concerning trial error were unreasonable. He has likewise failed to show any error in the OCCA's determination that not one of Macy's improper statements was prejudicial in and of itself. Finally, he has failed to convince us that any of Macy's misconduct deprived him of a specific constitutional right that might merit habeas relief pursuant to Mahorney, 917 F.2d at 472.
We next address whether the cumulative effect of the prosecutorial misconduct identified by the OCCA deprived Duckett of a fair trial. Although each of the trial errors found by the OCCA was determined to be individually harmless, the "cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990); see also Brecheen v. Reynolds, 41 F.3d 1343, 1355-56 (10th Cir.1994). "A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless." Rivera, 900 F.2d at 1470. The OCCA determined that the cumulative effect of the prosecutorial misconduct did not deprive Duckett of a fair trial. Duckett, 919 P.2d at 19. Having reviewed the transcripts from the voir dire, trial, and sentencing proceedings, we conclude that the improper prosecutorial statements identified by the OCCA did not, even when accumulated, have a sufficient prejudicial effect to deny Duckett a fair trial or to have affected his sentencing proceeding. Evidence supporting his guilt was strong, as was evidence supporting the jury's finding of those aggravating circumstances that were properly before it for consideration.2
2. Integrity of the Proceedings
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quotations omitted). Nonetheless, the Court in Brecht noted that its holding
does not foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury's verdict.
Id. at 638 n. 9, 113 S.Ct. 1710. Duckett contends that the prosecutorial misconduct engaged in by the prosecution was deliberate and egregious, making this the "unusual case" entitled to Brecht's "footnote-nine exception."3
As evidence that the prosecutorial misconduct in the present case was deliberate, Duckett notes that District Attorney Macy has been chastised for participating in the same type of improper argumentation in other cases. For instance, just one year before trial in the instant case, the OCCA reversed a murder conviction prosecuted by Macy, soundly condemning his often underhanded trial tactics in the process. See McCarty v. State, 765 P.2d 1215, 1220-21 (Okla.Crim.App.1988) (noting, inter alia, that Macy improperly expressed his personal opinion of the guilt of the accused; informed the jury it had a responsibility to convict on the basis of his own sense of justice; requested sympathy for the defendant's victims; and expressed his personal opinion as to the appropriateness of the death penalty). The OCCA concluded that the cumulative effect of this misconduct warranted vacation of defendant's death sentence, stating that it would "not stand idly by wringing its hands, expressing nothing more than a ritualistic verbal spanking and an attitude of helpless piety in denouncing the deplorable conduct of prosecutors such as we have found in this case." 765 P.2d at 1221 (quotations omitted).4
In the present case, District Attorney Macy's behavior, which the district court found to be "inappropriate and juvenile" (1 R. Doc. 62 at 22), is emphatically not condoned by this court. To the contrary, our past experiences with this prosecutor leave us convinced that his "inappropriate" commentary at trial was intentional and calculated. See, e.g., Paxton v. Ward, 199 F.3d 1197, 1216-18 (10th Cir.1999) (reversing conviction after noting that Macy acted "deceitfully" and "crossed the [constitutional] line between a hard blow and a foul one" when he invited the jury to draw an adverse inference from defendant's failure to counter the state's case); Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir.1999) (concluding that similar misconduct by Macy did not require reversal, but noting that "[o]ur conclusion that the comments at issue did not render the trial fundamentally unfair does not, however, amount to an endorsement of the comments, nor to a holding that they could never rise to the level of a due process violation absent the overwhelming evidence of guilt and aggravating circumstances present in this case").
Our nation's confidence in the fair and just administration of the death penalty is disserved by prosecutors who cynically test the bounds of the harmless-error doctrine. During his career, Macy would have done well to heed the hortatory words of Justice Sutherland, who explained in Berger v. United States that a government prosecutor
is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). As amply — but not exhaustively — demonstrated above, in his career Macy has struck hard blows and he has struck foul ones. Under the harmless-error doctrine we cannot afford relief to all defendants who have been subjected to his foul blows. This fact speaks only to our limited role in the federal system of justice and affords no ethical absolution for the prosecutor who repeatedly engages in such misconduct. Nor can the harmless-error doctrine check the erosion, engendered by such misbehavior, in the public's perception of the fairness of our nation's death-penalty proceedings. Macy's persistent misconduct, though it has not legally harmed the defendant in the present case, has without doubt harmed the reputation of Oklahoma's criminal justice system and left the unenviable legacy of an indelibly tarnished legal career.
In this case, for lack of a showing of prejudice, we deny habeas relief. The due process concerns flagged by footnote nine of Brecht will manifest themselves only in very limited circumstances. We agree with the Ninth Circuit that "the key consideration" to whether the footnote's exemption will be applicable "is whether the integrity of the proceeding was so infected that the entire trial was unfair." Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir. 1994). Brecht itself involved a prosecutor's repeated improper and egregious remarks to the jury, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), concerning the defendant's pretrial silence. See Brecht, 507 U.S. at 625-26, 113 S.Ct. 1710. Nevertheless, the Supreme Court analyzed the prosecutorial misconduct under a harmless-error standard, finding that the facts in the case did not involve a "deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct." Id. at 637 n. 9, 113 S.Ct. 1710. We conclude that Duckett has likewise failed to show that the prosecutorial misconduct in the present case so infected the trial as to make the proceeding fundamentally unfair and thus immune from harmless-error review.
Duckett argues that his trial counsel was ineffective for failing to investigate mitigation evidence for the sentencing phase. An ineffective-assistance-of-counsel claim is a mixed question of fact and law that, having been presented to the state court, is subject to the standards of review set forth in 28 U.S.C. § 2254. Gonzales v. McKune, 247 F.3d 1066, 1072 (10th Cir. 2001).
Duckett specifically contends that trial counsel was ineffective because he unreasonably failed to uncover facts indicating that Duckett had been sexually abused by a family member5 and that Duckett was substantially impaired at the time of the murder due to his addiction to marijuana, methamphetamine, and cocaine.6 Because Duckett did not assert this claim on direct appeal, under Oklahoma's Post-Conviction Procedure Act, Okla. Stat. tit. 22, § 1089(C), he was procedurally barred from raising the claim before the OCCA on post-conviction review. In an attempt to clear the procedural-bar hurdle, Duckett argued before the OCCA that his appellate counsel was ineffective for failing to raise the claim on direct review. The OCCA considered Duckett's argument and rejected it. In doing so, it explained that Rust Eddy, an investigator hired by Duckett's trial counsel, had stated in an affidavit submitted to that court that
while it would have been typical for [Eddy] to ask the defendant and those who knew him about the use of illegal drugs, he has no recollection of information concerning Petitioner's history of drug use or the specific facts concerning Petitioner's drug abuse in the weeks and days before the offense. Mr. Eddy next states:
During the course of preparation for trial, Mr. Duckett's defense team discovered that Mr. Duckett may have been suffering from Post Traumatic Stress Disorder stemming from a prison rape during his incarceration [at] the Joseph Harp Correctional Center. After we discovered this fact, the defense team abandoned the development of any other defense theories and focused on the Post Traumatic Stress Disorder. As a result, I do not recall whether we continued an investigation into Mr. Duckett's drug use.
It is clear that defense counsel's decision not to pursue other possible defenses was a tactical one. We must apply a "heavy measure of deference" to trial counsel's strategic decision to raise the defense of temporary insanity associated with Post Traumatic Stress Disorder rather than a defense or mitigation based upon diminished capacity or drug intoxication at the time [of] the offense as propounded by Petitioner. See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To conclude that trial counsel's defense strategy and resulting decisions concerning further exploration of other defenses were unreasonable would be to second guess trial counsel's performance by hindsight. Strickland does not require this degree of judicial scrutiny. Id. at 689, 104 S.Ct. 2052. We find that trial counsel's strategic defense decisions were neither deficient nor prejudicial and that [he] provided Petitioner reasonably effective assistance. Accordingly, appellate counsel was not ineffective in failing to attack trial counsel's performance. An attack after the fact is so easy. Trial counsel here acted properly. This proposition is denied.
(3 R. Doc. 26 App. 10 at 5-6 (emphasis in original, parallel citations omitted).)
Because the OCCA determined that Duckett had waived his claim of ineffective assistance of trial counsel, habeas review is precluded in this court unless Duckett can either establish that cause and prejudice excused his default, or show that our refusal to consider his claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Duckett does not assert a fundamental miscarriage of justice, instead reurging before this court that we should find cause for the default in the ineffectiveness of his appellate counsel. See id. at 752-54, 111 S.Ct. 2546 (holding that constitutionally ineffective assistance can establish cause to excuse a procedural default). Because, as noted above, the OCCA considered Duckett's claim of ineffective assistance of appellate counsel, we review its determination pursuant to the standards set forth in AEDPA.
In order to succeed on his claim that appellate counsel was ineffective, Duckett must first demonstrate that he would have been entitled under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to relief for the ineffectiveness of trial counsel. See Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir.1999) ("When considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue."). Strickland, of course, requires a showing that counsel's performance was both deficient and prejudicial to the defense. 466 U.S. at 692, 694, 104 S.Ct. 2052. The relevant question is "whether appellate counsel was `objectively unreasonable' in failing to raise [this claim] on direct appeal and, if so, whether there is a `reasonable probability that, but for his counsel's unreasonable failure' to raise these claims, [petitioner] `would have prevailed on his appeal.'" Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir.2001) (quoting Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)), cert. denied, ___ U.S. ___, 123 S.Ct. 145, ___ L.Ed.2d ___ (2002).
We have noted that counsel "has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Brecheen, 41 F.3d at 1366 (quotation omitted). This duty to conduct a reasonable investigation is particularly important with respect to the sentencing phase of a capital trial, and we have thus "recognized a need to apply even closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case." Battenfield v. Gibson, 236 F.3d 1215, 1226 (10th Cir.2001) (quotation omitted). As we explained in Romano v. Gibson,
The sentencing stage is the most critical phase of a death penalty case. Any competent counsel knows the importance of thoroughly investigating and presenting mitigating evidence. As a practical matter, the defendant probably has little or no chance of avoiding the death sentence unless the defense counsel gives the jury something to counter both the horror of the crime and the limited information the prosecution has introduced about the defendant. Mitigating evidence plays an overwhelmingly important role in the just imposition of the death penalty. It affords an opportunity to humanize and explain — to individualize a defendant outside the constraints of the normal rules of evidence.
239 F.3d 1156, 1180 (10th Cir.) (quotations omitted), cert. denied, Woodruff v. Gibson, ___ U.S. ___, 122 S.Ct. 624, 151 L.Ed.2d 545 (2001). We are, moreover, "mindful of the Supreme Court's observation that our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case," in which "counsel's duty to investigate all reasonable lines of defense is strictly observed." Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir.1997).
Nonetheless, "[t]he failure to present available mitigating evidence is not per se ineffective assistance of counsel." Hale v. Gibson, 227 F.3d 1298, 1315 (10th Cir. 2000), cert. denied, 533 U.S. 957, 121 S.Ct. 2608, 150 L.Ed.2d 764 (2001), and "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments," Strickland, 466 U.S. at 691, 104 S.Ct. 2052. In this regard, we have noted that "counsel frequently will `winnow out' weaker claims in order to focus effectively on those more likely to prevail." Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995) (quoting Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986)). Not all decisions to abandon potential lines of defense are, of course, reasonable. "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
We easily conclude that the decision of Duckett's trial counsel to focus its efforts on Duckett's PTSD defense was, under the circumstances, a reasonable tactical decision and that Duckett's trial counsel was not ineffective in this regard. According to Eddy's affidavit, the defense team did, in fact, attempt to investigate Duckett's sexual abuse, and presumably investigated Duckett's history of drug abuse as well. Although Eddy stated in his affidavit that "I currently have no recollection of information concerning Mr. Duckett's history of drug use or the specific facts concerning Mr. Duckett's drug abuse in the weeks and days before the offense" (3 R. Doc. 26 App. 6 at 2), he also noted that "it would have been typical for me to ask the defendant and those who knew the defendant about the defendant's use of illegal drugs and abuse of legal drugs. I have no reason to believe I would have done things any differently in Mr. Duckett's case," (3 id. at 1-2). With respect to the incident of childhood sexual abuse that Duckett may have suffered at the hands of a cousin, Eddy acknowledged that he interviewed Duckett's parents and specifically asked whether either of them had any information that Duckett had been physically or sexually abused as a child; he was answered in the negative.
It would be unreasonable to deem trial counsel ineffective for failing to discover potential mitigating evidence when counsel conducted a reasonable investigation but was stymied by potential witnesses who were not forthcoming. We have in similar circumstances noted that "counsel cannot be faulted for failing to raise claims as to which the client has neglected to supply the essential underlying facts ... [because] clairvoyance is not required of effective trial counsel." United States v. Miller, 907 F.2d 994, 999 (10th Cir.1990) (quotations omitted). Given trial counsel's good-faith investigation, it was a reasonable tactical decision to abandon further inquiry into the drug-and-sexual-abuse line of potential mitigating evidence and instead focus on developing a PTSD defense. We therefore conclude that trial counsel's performance did not fall "below an objective standard of reasonableness," measured "under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052.7 Having determined that Duckett's claim fails the first prong of the Strickland standard, we need not address whether he was prejudiced by counsel's performance. See Romano, 239 F.3d at 1181 ("This court can affirm the denial of habeas relief on whichever Strickland prong is the easier to resolve."). Because trial counsel was not ineffective, appellate counsel correlatively cannot be ineffective for failing to raise a dependent ineffectiveness claim. The conclusion reached by the OCCA on this matter was not, perforce, contrary to clearly established Supreme Court precedent. Because Duckett has failed to demonstrate either cause and prejudice for the procedural default of his claim of ineffective assistance of trial counsel, or that our refusal to consider his claim would result in a fundamental miscarriage of justice, we conclude that we are precluded from addressing the merits of the claim.
Duckett further contends that the federal district court erred by not granting his request for funds to employ an expert witness who would testify at the evidentiary hearing in which the district court considered the ineffective-assistance-of-counsel claim discussed above. Duckett argued before the district court that it was necessary to present expert testimony from a lawyer experienced in conducting capital cases to "opine[] that no legitimate reason existed why trial counsel would not have learned or presented [evidence of sexual molestation and chronic drug abuse] to the jury." (6 R. Doc. at 59.) The district court is, of course, authorized to appoint necessary investigative assistance to a defendant: In any post conviction proceeding under [28 U.S.C. § 2254] seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services....
21 U.S.C. § 848(q)(4)(B). Moreover, contrary to the state's contention in its briefs, expert legal witnesses have not been barred from testifying in this circuit about claims of ineffective assistance of counsel. See, e.g., Smith v. Massey, 235 F.3d 1259, 1269 (10th Cir.2000) (taking into consideration legal expert testimony with respect to an ineffectiveness claim), abrogated on other grounds by Neill, 278 F.3d at 1057 n. 5 (en banc), and cert. denied, ___ U.S. ___, 122 S.Ct. 235, 151 L.Ed.2d 169 (2001); Demarest v. Price, 130 F.3d 922, 936 (10th Cir.1997) (same).
We review a district court's denial of a motion to appoint an expert for abuse of discretion. Matthews v. Price, 83 F.3d 328, 335 (10th Cir.1996); United States v. Nichols, 21 F.3d 1016, 1017 (10th Cir.1994). An indigent defendant requesting appointment of an investigator or expert bears the burden of demonstrating with particularity that "such services are necessary to an adequate defense." United States v. Greschner, 802 F.2d 373, 376 (10th Cir.1986). The district court in the present case was eminently suited to determine the essentially legal question of whether defense counsel's adoption of its legal strategy was or was not deficient. Duckett has brought forward no compelling arguments that would lead us to conclude that the district court abused its discretion in deciding that the testimony of a legal expert was not "reasonably necessary."
Duckett contends that the admission into evidence, during the guilt phase of his trial, of a disturbing police-made videotape of the crime scene deprived him of a fundamentally fair trial. The OCCA addressed this evidentiary issue on direct review, concluding that the videotape — which pictured the bloody murder scene as well as the victim's body — was neither cumulative of other crime scene photographs nor more prejudicial than probative:
While the videotape is graphic, it is not so gruesome as to be considered prejudicial. The victim is in the background and his head is turned away so the major injuries inflicted upon the victim are not being constantly shown to the jury. The videotape does have probative value since no pictures were admitted that showed the deceased's head or shoulders, where the majority of the injuries were sustained. The videotape also corroborates the medical examiner's testimony and refutes [Duckett's] theory that the crime was committed without malice.
Duckett, 919 P.2d at 16. We may not provide habeas corpus relief on the basis of state court evidentiary rulings "unless they rendered the trial so fundamentally unfair that a denial of constitutional rights results." Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir.), cert. denied, 531 U.S. 1020, 121 S.Ct. 586, 148 L.Ed.2d 501 (2000). "[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements," when engaged in such an endeavor a federal court must "tread gingerly" and exercise "considerable self-restraint." United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir.1990). Acknowledging these standards, the district court determined that admission of the videotape "was not so unduly prejudicial as to render the proceedings against petitioner fundamentally unfair." (1 R. Doc. 62 at 62 (quotation omitted).)
Having ourselves reviewed the videotape and the record as a whole, we agree with the district court that Duckett's trial was not rendered fundamentally unfair by the videotape's introduction into evidence. We do not accept Duckett's argument that the only purpose the videotape could have served at trial was to prove the applicability of the "heinous, atrocious, or cruel" aggravating circumstance and that, because the videotape failed to prove that the victim consciously suffered, its probative value was nil. (Appellant's Br. Expanded COA at 4-5, 8-9.) To the contrary, the videotape was admitted during the guilt phase of the trial, and the OCCA, as noted above, identified several ways in which the videotape was probative of guilt-stage issues. We agree with the district court and the OCCA that the videotape was not so gruesome as to have prejudiced the jury to such an extent that Duckett's trial was rendered fundamentally unfair, and we therefore decline to grant habeas corpus relief to Duckett on this ground.8
After hearing evidence at the sentencing stage of Duckett's trial, the jury indicated on a special verdict form that it had unanimously found, beyond a reasonable doubt, the existence of five aggravating circumstances — that the murder was especially heinous, atrocious, or cruel; that Duckett was previously convicted of a felony involving the use or threatened use of force or violence against a person; that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; that the murder was committed while Duckett was serving a sentence of imprisonment; and that Duckett would probably commit acts of violence which would constitute a continuing threat to society. The jury also unanimously found that these aggravating circumstances outweighed the mitigation evidence that Duckett had presented at trial. In his petition for a writ of habeas corpus, Duckett alleged before the district court that the "avoid arrest" aggravating circumstance was unsupported by sufficient evidence and that it therefore should not have been presented to the jury. Although the court agreed, it concluded that Duckett was not entitled to habeas relief because the erroneous submission of this aggravating circumstance was harmless error that did not have a substantial and injurious effect or influence on the jury's verdict.
Duckett contends that the district court erroneously performed its harmless-error analysis with respect to the invalid aggravating circumstance, offering three rationales in support of his argument. He suggests first that the federal courts have no authority to perform a harmless-error analysis when the district court, rather than a state appellate court, has determined that an aggravating circumstance is invalid. Alternatively, he argues that a federal court must "reweigh" a defendant's mitigation evidence against the remaining valid aggravating circumstances when performing its harmless-error analysis. (Appellant's Br. at 39.) Finally, he contends that even if it is proper for the federal court to perform a harmless-error analysis itself without actually reweighing the mitigation and aggravation evidence, the district court nonetheless erred by failing to take into consideration the mitigation evidence that Duckett presented at trial. Because these three arguments are interrelated, we address them together.
The decision of a district court whether to apply a harmless-error analysis is a legal question which we review de novo. Because the district court's harmless-error analysis itself is a mixed question of law and fact, Hunt v. Oklahoma, 683 F.2d 1305, 1309 (10th Cir.1982), we review the court's conclusions of law de novo and its findings of fact, if any, for clear error, Walker, 228 F.3d at 1225.
In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Supreme Court sanctioned the practice of a state appellate court's reweighing of aggravation and mitigation evidence after the state court's determination that an aggravating circumstance was improperly submitted to the jury. "Nothing in the Sixth Amendment," the Court explained, "indicates that a defendant's right to a jury trial would be infringed where [a state] appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence." Id. at 745, 110 S.Ct. 1441.9 In addition, the Court approved the practice of a state appellate court reviewing for harmlessness the submission to the jury of an invalid aggravating circumstance, stating that "it [is] open to the [state appellate court] to find that the error which occurred during the sentencing proceeding was harmless."10 Id. at 752, 110 S.Ct. 1441. Clemons therefore stands for the proposition that state appellate courts, rather than having to remand the sentencing determination to the jury when errors have occurred in a capital sentencing proceeding, may first engage in either a harmless-error or a reweighing analysis to determine whether such a remand is necessary.11 Contrary to Duckett's suggestion. Clemons does not mandate that any court — state or federal — engage in a reweighing process once it determines that an aggravating circumstance has been improperly submitted to a jury.
The duty of a federal habeas court when it finds constitutional trial error that was not addressed by the state court is clear. Pursuant to Brecht, a federal court may not afford a petitioner habeas relief before determining whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. at 623, 113 S.Ct. 1710 (quotation omitted). Although we have acknowledged a circuit split on the issue, we have specifically held that harmless-error analysis "is available to us on federal habeas review where the error involves the submission to the jury of an unconstitutionally vague aggravating circumstance." Davis v. Exec. Dir. Dep't of Corr., 100 F.3d 750, 768 n. 18 (10th Cir.1996).
Providing some guidance to the federal courts faced with deciding whether a trial error had substantial and injurious effect or influence in determining the jury's verdict, the Supreme Court has indicated that "where the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error," the error is not harmless. O'Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). We have similarly stated that our task is to "determine, in light of the entire record, whether [the error] so influenced the jury that we cannot conclude that it did not substantially affect the verdict, or whether we have grave doubt as to the harmlessness of the errors alleged." Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir.1995).
Applying the Brecht standard, we conclude that the improper submission to the jury of the "avoid arrest" aggravating circumstance in the present case was harmless error. As the district court noted, four aggravating circumstances were properly submitted to the jury and found to exist beyond a reasonable doubt, the "avoid arrest" aggravating circumstance was not "emphasized disproportionately" during closing argument, Davis, 100 F.3d at 773, and the prosecution did not "allude to any evidence or facts not already properly before the jury," id. Although the district court did not explicitly state that it took into consideration the weight of the mitigation evidence presented by Duckett in reaching its determination that the improper submission of the aggravating circumstance was harmless, the court did note that "in light of the entire record" it found the error to be harmless. (1 R. Doc. 62 at 51.) We, too, have reviewed this error in light of the entire record — including all of the mitigation evidence submitted by Duckett — and conclude, without doubt, that the jury would have reached the same sentencing decision.12
The district court's dismissal of Duckett's petition for a writ of habeas corpus is AFFIRMED.
Although "we owe deference to a state court'sresult, even if its reasoning is not expressly stated," Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999), with respect to this particular claim there is no "result" to which we can defer. Unlike in Aycox, where there was "no evidence ... that the state court did not consider and reach the merits of [petitioner's] claim," id., in the present case there is ample evidence that the OCCA, for whatever reason, failed to consider this individual claim altogether. Duckett raised over thirty propositions of error before the OCCA, and the court meticulously addressed each proposition individually except for this particular claim, which it did not resolve either individually or generically. Under these circumstances, we can only conclude that the OCCA did not render a decision on this claim. Unless we were prepared to state that deference is owed to a state court's failure to decide an issue, there is no result to which we can defer.
Our conclusion is not affected by the fact that the "avoid arrest" aggravating circumstance was found by the district court to have been erroneously submitted to the jury for lack of sufficient evidence
Because we conclude below that Macy's conduct does not make this the type of unusual case described in footnote nine and because the parties do not raise the issue, we do not address whether the "footnote-nine exception" to the harmless error standard ofBrecht would ease a petitioner's burden under the AEDPA standard of review when the conditions of footnote nine have been met. See Hale v. Gibson, 227 F.3d 1298, 1324 (10th Cir.2000) (holding that this court will apply the AEDPA standard of review where the state appellate court applied the correct constitutional standard, but that we will apply the Brecht harmless-error standard when the state appellate court applied an incorrect standard), cert. denied, 533 U.S. 957, 121 S.Ct. 2608, 150 L.Ed.2d 764 (2001).
It is clear that Macy's conduct did not improve over time. As Judge Chapel noted lasted year inHooks v. State, the OCCA has
repeatedly condemned the Oklahoma County District Attorney's reliance on improper argument. In addition to our warnings, federal reviewing courts have also repeatedly condemned Mr. Macy and prosecutors from his office for their habitual misconduct in argument. This court has let this flagrant disregard of our rulings pass too long. The second stage argument here contained several comments the prosecutors knew to be error, included for the purpose of inflaming the jury's passions and encouraging a sentencing verdict based on passion or prejudice rather than the evidence.
P.3d 294, 314 n. 51 (Okla.Crim.App.2001) (citations omitted),cert. denied, ___ U.S. ___, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001).
After the conclusion of the trial, Duckett's appellate counsel learned of evidence indicating that as a child Duckett may have suffered an incident of sexual abuse by a cousin. As evidence of this abuse, counsel submitted a series of affidavits to the OCCA as part of Duckett's application for post-conviction relief
According to affidavits in the record, Duckett apparently smoked three to five marijuana cigarettes a day since age eleven, injected methamphetamine daily since his escape from prison, and abused cocaine and alcohol
We thus also conclude that Duckett's trial counsel was not ineffective for failing to request funds, pursuant toAke v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to hire a psychiatrist to evaluate Duckett's mental health and potentially testify at the sentencing phase of the trial.
Duckett makes a passing reference at the close of his brief to the hearsay nature of the audio portion of the videotape, which is narrated by both on- and off-screen police investigators discussing the evidence at the crime scene. The investigators comment on blood splatter and smears, discuss the position of the body, and on one occasion stage a reenactment of a portion of the crime. Duckett does not contend, however, that any of the unsworn statements were not also presented to the jury as sworn testimony at trial. Even assuming that it was error for the trial court to have allowed into evidence the audio portion of the videotape, we conclude, upon a review of the entire record, that Duckett has not demonstrated that the trial court's allegedly improper evidentiary ruling rendered his trial fundamentally unfair
The Court's discussion inClemons is premised on the assumption that the capital sentencing scheme is that of a "weighing state." In a weighing state, "after a jury has found a defendant guilty of capital murder and found the existence of at least one statutory aggravating factor, it must weigh the aggravating factor or factors against the mitigating evidence." Stringer v. Black, 503 U.S. 222, 229, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). Oklahoma, like Florida, is a "weighing state." Castro v. Ward, 138 F.3d 810, 816 (10th Cir. 1998).
The Court identified two ways in which the state court could properly find such error to be harmless — either by balancing the remaining valid aggravating circumstances against the mitigating circumstances and determining whether beyond a reasonable doubt the jury would have reached the same result, or by asking whether it was beyond a reasonable doubt that the jury would have found the presence of the invalidated aggravating circumstance if the improperly defined aggravating circumstance had been properly presented to the juryClemons, 494 U.S. at 754-55, 110 S.Ct. 1441.
We offer no opinion whether the Court's holding inClemons will survive in light of the recent decision in Ring v. Arizona, that "[c]apital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." ___ U.S. ___, ___, 122 S.Ct. 2428, 2432, 153 L.Ed.2d 556 (2002). After oral argument had taken place in the instant case, Duckett moved this court to abate the proceedings in order to allow him to exhaust a Ring claim in state court. The substance of Duckett's claim was not raised before the district court. Because we generally do not consider issues raised for the first time on appeal, Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720 (10th Cir.1993), we conclude that holding this matter in abeyance would be pointless. We therefore deny Duckett's motion.
Because under our harmless-error analysis we do not reweigh mitigation and aggravation evidence, it is unnecessary for us to provide Duckett with "notice and an opportunity to be heard" concerning the enduring validity of the "continuing threat to society" aggravating circumstance found by the jury. (Appellant's Br. at 41.) Contrary to Duckett's contention, by performing our harmless-error review we do not "sit as sentencer," and our determination that the constitutional trial error was harmless is not a "sentencing." (Id.) Though in some circumstances harmless-error review may superficially resemble the reweighing of mitigation and aggravation evidence, our role on habeas review is not that of factfinder. That Duckett was found by the jury to be a continuing threat to society is a factual determination that we as a habeas court will not reconsider.


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How to Prevent Moving When Mounting
When Your Horse Walks Off When You're Trying to Mount
-a Horse Training article by Pat Parelli We've all seen the desperate rider who's halfway up into the saddle when the horse jogs off. The rider starts yelling and grasping for horn, saddle string, cantle, breast collar, pommel, mane – anything that he or she can reach. It may sound (and look) funny, but that can be a very dangerous situation. Getting your horse to stand while you mount is not difficult. A horse that's being mounted starts into motion when he gets off balance. So most of this "he won't stand" behavior is caused when people ask the horse to bear their weight during mounting (lopsided, mostly) when the horse is unbalanced. The horse shifts around to gain his balance, and then he just keeps moving. Mounting Problems Can Be Prevented 1. Ground Play Play with your horse until he gets left-brained, is listening to you, and wants to stand still. This means all Seven Games, including a lot of Friendly Game, which involves repetition: tossing the lead rope over his back, flopping the saddle pad off and on, lifting your foot toward the stirrup and back down (over and over until it ceases to bother your horse). Play the Seven Games before you saddle up; you'll find out what side of the corral he woke up on. 2. Positioning Position your horse so his feet are braced in readiness for you to get on. Cause the horse to spread his legs to best balance himself. This can be easily done by pushing and pulling on the saddle horn; rock the horn or pommel from side to side and actually try to unbalance your horse. You'll feel the horse spread his front legs and square up behind. He'll get into a position where he kinda says, "Hey, you can't knock me off balance." Make a little game of it until he just thinks that the way to prevent you from rocking him is to spread his legs and stand solid. Assess the Situation If you get up on the horse and he starts to walk off before you want him to, and if you're in a good, safe position, I want you to think of one of two things. You need to determine quickly if the horse is just sort of drifting off and sauntering away, or is he getting right-brained, tight, fast and furious. If the horse is getting fast and furious, get off and start again. Evidently you didn't do enough preparation on the ground (Seven Games, assessing the horse with the "Parelli pre-flight checklist"). Drifting If the horse is just drifting a little bit, there's a saying to keep in mind: "Lift to stop the drift." The lift I'm talking about is the rein in your left hand (if you're mounting from the left side). Whatever side you're mounting from, lift straight up on that rein – don't pull back, don't pull sideways, just lift the rein straight up. Just try to get in his way a little bit, and if you have to, just bend him a little and then stand there until he squares up. Instead of getting on, step down. Then put your foot in the stirrup and step up again.mount your horse three times on each side This is one of the tasks in our Level 1 program we recommend: mount three times on each side. This gives you the skills and physical and mental fitness to teach the horse to stand still. Both of you should practice this little drill together: down and up, down and up, down and up, stand halfway up, and when he stands still, reach over and rub him on the far shoulder to ask "permission" to get on. If he stands still, go ahead and get on (settle gently into the saddle and find your other stirrup without looking, if possible). Sit there for 30 seconds minimum (this is the hurry-up-and-wait stage). Be friendly. Smile. Don't go anywhere or you'll teach the horse the habit of moving as soon as you mount. Teach your horse to be still and polite by doing this every time you mount; it's a way to develop a good habit. Don't Forget the Dismount One last thing that gets horses good about being dismounted is this: every time you dismount, do the same three-times drill (up-down, up-down, up-down). He'll learn to stand still while you smoothly dismount. Visit Parelli Savvy Club for more educational articles and videos designed to inspire, empower and educate horse owners of all levels. |


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Demo & patch
Legal notice
Business terms
January 1st 07 The new Year already brings some news. A new Patch for Version 188.8.131.52 as well as an upgrade for earlier versions of Toilet Tycoon are available in the download section . The raise of the VAT in Germany will be compensated by Anvil-Soft, which means constant prices in our shop.
October 3rd 06 While Germany celebrates its reunification day, Anvil-Soft also celebrates the arrival on a new server. We want to thank all our customers for their patients during the movement of our pages.
June 19th 06 The new version of Toilet Tycoon (v188.8.131.52) is now available.A trial version can be found in our download section .
June 14th 06 Anvil-Soft signed a contract for the release of Toilet Tycoon into retail shops in Belgium and the Netherlands. Today Toilet Tycoon went to gold status.
November 30 05 A new wallpaper with Toilet Tycoon 2 motives is now available. Get it here.
November 17 05 Today we welcomed player No. 1000 at Toilet Tycoon Online! The lucky one received a free package with all games from Anvil-Soft.
May 26th 2005 From this day on we accept PayPal for payments at our Online-Shop.
May 24th 2005 On Thursday 2nd June 2005 Anvil-Soft invites everyone to our big Toilet Tycoon 2 chat . Ask all about the development you always wanted to know ! > Get to the chat!
May 24 2005 A promising fan project is going public alpha : Klomanager Online is waiting for you ideas and wishes. Note: its in german only so far.
April 7 2005 A new screenshot of Toilet Tycoon 2 is available: Click here . We have also updated our business terms .
March 31st 05 The english version of our website is online ! Have fun exploring the world of Anvil-Soft! Also a new design has been given to these pages.
Earth is threatened by hords of evil vegetable!! Your job is to turn down this menace and save mankind.
Toilet Tycoon is an unusual economic simulation in which you can proof your skills as a leader of the saniterian installations of a whole town!
more >
If you have any question concerning our products and offers feel free to write at:
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Depression: Dealing With Medicine Side Effects
What is an Actionset?
Side effects are a common problem for people who take antidepressants. If you are bothered by side effects, reading this information can help you learn more about how to cope with them.
eMedicineHealth Medical Reference from Healthwise This information does not replace the advice of a doctor. Healthwise disclaims any warranty or liability for your use of this information. Your use of this information means that you agree to the Terms of Use. How this information was developed to help you make better health decisions. To learn more visit Healthwise.org © 1995-2014 Healthwise, Incorporated. Healthwise, Healthwise for every health decision, and the Healthwise logo are trademarks of Healthwise, Incorporated. |
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Don't ask to ask, just ask | |
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Re: Why oh why is working with XML so bloomin' difficult in Perl?by hossman (Prior) |
on Jan 18, 2009 at 07:37 UTC ( #737123=note: print w/replies, xml ) | Need Help?? |
Your post suggests that you don't like dealing with XML via perl data structures (hashes of hashes and arrays etc...) but you also say "navigating them even with tools like XPath make you want to perform oral surgery on yourself" So what would your ideal API look like? If you describe how you want to go about inspecting/manipulating your data maybe people can suggest modules that accommodate. (Or perhaps an example of XML parsing in another language that you find less "bloomin' difficult".)
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Welcome to the world's leading forum on Multiple Sclerosis research, support, and knowledge. For over 10 years, This is MS has provided an unbiased community dedicated to Multiple Sclerosis patients, caregivers, and affected loved ones.
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Finally, a third doctor prescribed him Copaxone, which Walker says has kept him in remission - minimal symptoms and no progression of the disease - for the past 13 years.
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text: This thread is dedicated to the forerunners of audio (telephones too) and all things HiFi Western Electric their advances in tube audio amplification and the first transistor (bell labs) made what you and I are listening to right now possible. From their exalted amps, speaker designs to tubes like the 300b, I think many will agree they were way ahead of their time. Now for some pictures of Western Electric items from the past.


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Hana Hou! Home Media Kit Marketplace Current Issue >From Room to Table >Natural Scent >Meeting the Makers >A Home for the Kiwikiu >Friendly Isle Pharmacy >Vanilla Nonpareil >Hawaiian Haute >The Medicine Garden >Mac Nut Makeover >The Women in the High Tower >Land for the People >The Dave Tucciarone School of Music >Mixed Plates >Inside Kualii >Surf-bathing Failure >Around the Great Water Back Issues Events Privacy Policy Site Archive Crossword
"Andrew, a huge wave just broke! And there's another out the back, the peak just to the south from your current position," Nicole Macias shouts into her waterproof two-way radio. "It's massive!" From her vantage on a cliff in the town of Nazaré, Portugal, she has been tracking the sixty- to eighty-foot waves breaking off the point. These two waves are by far the biggest she's seen after four hours on the cliff—if not the biggest waves she's ever seen.
Andrew Cotton, a big-wave surfer from the United Kingdom, guns the Sea-Doo and pulls Hawai'i waterman Garrett McNamara to his feet, which are strapped into a brick-red tow board. Cotton manhandles the ski into a quick, swooping arc over the back of the wave and whips McNamara onto the open face.
At sixty mph, Garrett's more like a skipping stone than a surfer. Most other surfers would be racing for the shoulder of the wave — and hence the exit—but not G-Mac. He leans hard against the rope in the opposite direction, toward the apex of the giant peak. With the concentration of a Shaolin monk, he lets go at the precise moment to get the steepest drop, the longest ride and just maybe the biggest barrel of his life.
His board chatters down the dark green face. He feels his way to the bottom, relying on his instincts and his years of experience. After what seems like an eternal drop, he reaches the bottom and turns down the line. Looking over his shoulder, he sees the thick, feathering lip pitch and collapse like an avalanche. As the whitewater engulfs him, he has no idea that this wave will be later measured at more than ninety feet, making it not only the biggest wave he's ever surfed but the biggest wave anyone on record has ever surfed.