Brown v. Sirmons (415 F. Supp. 2d 1268, 2006)

OPINION AND ORDER

KERN, District Judge.

This matter comes before the Court on a Petition for Writ of Habeas Corpus (Dkt.# 12) filed by Oklahoma death row inmate Darwin Demond Brown, pursuant to 28 U.S.C. § 2254. Petitioner, who appears through counsel, challenges his conviction and sentencing in Tulsa County District Court Case No. CF-95-1024. Respondent Gary Gibson filed a response to the Petition denying its allegations (Dkt.# 14), and Petitioner filed a Reply (Dkt.# 17). For the reasons discussed below, the Court finds the Petition should be denied.

As a preliminary matter the Court notes that Marty Sirmons is now the Warden at Oklahoma State Penitentiary. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Court finds that Marty Sirmons is the proper substituted Respondent and the Court Clerk shall be directed to note such substitution on the record.

The Court has reviewed: (1) the Petition for Writ of Habeas Corpus, the Response to the Petition, and the Reply to the Response; (2) transcripts of the motion hearing held on October 30, 1996, motion hearing held on January 27, 1997, motion hearing held on January 30, 1997, motion hearing held on February 3, 1997, jury pool proceedings held on February 3, 1997 in front of Brown jury pool only, voir dire of Brown jury on February 6-7, 1997 (three volumes), motion hearing held on February 10, 1997, and hearing held in chambers on February 11, 1997, after opening statement in Wilson case; (3) transcript of the first stage of jury trial proceedings, held February 11-14, 1997 (five volumes); (4) transcript of the second stage of the jury trial proceedings held on February 18-20, 1997 (five volumes); (5) all documents and exhibits (photographs of certain items of physical evidence submitted in lieu of actual items) admitted in jury trial proceedings, including one audio tape of Darwin Brown’s statement to police and two video tape exhibits; (6) transcript of the sentencing proceedings held on April 9, 1997; (7) Original Record (O.R.) in Tulsa County Case No. CF-95-1024, Volumes I, II and III; and (8) all other records before the Oklahoma Court of Criminal Appeals which were transmitted to this Court and certified by the parties.

BACKGROUND

I. FACTUAL HISTORY

Petitioner and three other co-defendants were convicted for the February, 1995, brutal killing of QuikTrip employee, Richard K. Yost. Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts as found by the state court are presumed correct. In Petitioner’s state court direct appeal, the Oklahoma Court of Criminal Appeals adopted the following facts.

Brown’s codefendant Michael Wilson was employed at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Brown and the codefendants came into the store during the early morning hours of February 26 and waited for the most opportune time to accost Yost. The QuikTrip surveillance camera captured the events as they unfolded. The video of the events is quite telling.

Yost was cleaning the windows on the coolers with all of the defendants surrounding him. As Yost was walking near a passage-way to the back room, all four defendants attacked him and dragged him to the back room. One of the defendants, Billy Alverson, came back out and picked up some items that were knocked from the shelves. He also kept watch for customers. A few moments later, Alverson and Richard Harjo walked out the front door of the store. While they were going out, Yost was yelling and screaming for help, possibly thinking that a customer had entered the store. Alverson and Harjo re-entered the store with Harjo carrying a black aluminum baseball bat. He carried the bat to where Yost had been taken. The surveillance camera picked up the sounds of the bat striking Yost. Circumstantial evidence showed that the baseball bat struck the handcuffs on Yost’s wrists which Yost was holding above his head to ward off the blows. As the blows were being struck, Wilson walked from the back room, checked his hands, put on a QuikTrip jacket, got behind the counter and tried to move the safe. While Wilson was behind the counter, several customers came in. Wilson greeted them with a friendly greeting, sold them merchandise, then said “thank you, come again” or “have a nice day.”

All this time Wilson continued to try and pull the safe from underneath the counter. He took money from the cash drawer and pulled money out of the currency change machine. At some point after this, Wilson left the counter area and the video went blank as the video was taken from the recorder. Brown was never seen exiting the back room between the times Yost was dragged into the room until the video recorder was stopped. The defendants then loaded two safes into Wilson’s car using a dolly from QuikTrip.

Yost’s body was discovered by customer Larry Wiseman at about 6:00 a.m. Yost was laying on the floor in a pool of blood, milk and beer. Yost’s ankles were taped together with duct tape. One handcuff was found near Yost’s body. The other cuff was missing from the scene. Detectives learned that Wilson was at the store between the hours of 4:00 a.m. and 6:00 a.m.

Wilson failed to show up for work at the scheduled time of 3:00 p.m. on the same day. Officer Allen set up surveillance on Wilson’s house, and at about 4:00 p.m. he spotted Wilson get into a gray vehicle. The vehicle was stopped. All four defendants were taken into custody. A large number of five dollar bills was recovered from Harjo at the site of the stop. Later, at the police station, money was recovered from all of the defendants except Wilson.

Officers searched Alverson’s place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance videotape. A search was conducted of Wilson’s house but nothing of value was discovered. The next day Wilson’s mother called Officer Makinson to come to her house. Once there, the detectives found several items of evidence on the front porch, including the baseball bat, a bloody QuikTrip jacket with Yost’s name on it, Wilson’s Nike jacket matching the one worn in the store video and the other cuff of the set of handcuffs.

Brown v. Oklahoma, 989 P.2d 913, 919-20 (Okla.Crim.App.1998).

II. PROCEDURAL HISTORY

Petitioner, Darwin Edmond Brown, was convicted following a jury trial in the District Court of Tulsa County, Oklahoma, Case No. CF-95-1024, of Murder in the First Degree (malice aforethought and felony murder) and Robbery With a Dangerous Weapon. His trial was held jointly with co-defendant Michael Wilson’s trial, in front of separate juries. Petitioner was represented at trial by attorney Allen Smallwood. At the conclusion of the sentencing stage, Petitioner’s jury found three aggravating circumstances: (1) the murder was especially heinous, atrocious or cruel; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) Brown would constitute a continuing threat to society. Petitioner was, on April 9, 1997, sentenced to death on the murder conviction and sentenced to life imprisonment on the robbery conviction.

Petitioner filed a direct appeal of his convictions and sentences to the Oklahoma Court of Criminal Appeals (“OCCA”) in case No. F-97-493. The OCCA rejected Petitioner’s alleged errors by affirming the conviction and sentence on the murder count. The judgment and sentence for robbery with a dangerous weapon was reversed and remanded to the district court for dismissal. The OCCA denied a rehearing on February 22, 1999. Brown, 989 P.2d at 913. Petitioner did not seek certiorari review from the United States Supreme Court.

Petitioner sought post-conviction relief from the Oklahoma Court of Criminal Appeals in case No. PC-98-1251, but all requested relief was denied on November 9, 1999, in an unpublished opinion. (Dkt.# 12, Exh. B) (Opinion Denying PosW Conviction Relief).

Petitioner initiated the instant habeas corpus proceedings on February 2, 2000. He claims constitutional violations arising from the trial court’s unauthorized use of dual juries, a warrantless arrest without probable cause, the trial court’s refusal to instruct on second degree murder, errors in the trial court’s dismissal of certain veniremen for cause, prosecutorial misconduct, insufficient evidence to support the heinous, atrocious and cruel aggravator, unconstitutional application of continuing threat and “avoid arrest” aggravators, improper victim impact evidence, and cumulative errors.

GENERAL CONSIDERATIONS

I. EXHAUSTION

Federal habeas corpus relief is generally not available to a state prisoner unless all state court remedies have been exhausted prior to the filing of the petition. 28 U.S.C. § 2254(b). Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir.1994). See also Wainwright v. Sykes, 433 U.S. 72, 80-81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (reviewing history of exhaustion requirement). In every habeas case, the court must first consider exhaustion. Harris, 15 F.3d at 1554. “[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court has long held that a federal habeas petitioner’s claims should be dismissed if the petitioner has not exhausted available state remedies as to any of his federal claims. Id. citing Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); and 28 U.S.C. § 2254(b) (codifying the rule).

The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. Therefore, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). State courts must have the rightful opportunity to adjudicate federal rights. The “[pjrinciples of exhaustion are premised upon recognition by Congress and the Court that state judiciaries have the duty and competence to vindicate rights secured by the Constitution in state criminal proceedings.” Williams v. Taylor, 529 U.S. 420, 436-37, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). This Court will address the exhaustion issue as it arises in each claim.

II. PROCEDURAL BAR

The Supreme Court has also considered the effect of state procedural default on federal habeas review, giving strong deference to the important interests served by state procedural rules. See, e.g., Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Habeas relief may be denied if a state disposed of an issue on an adequate and independent state procedural ground. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. See also Romero v. Tansy, 46 F.3d 1024, 1028 (10th Cir.1995); Brecheen v. Reynolds, 41 F.3d 1343, 1353 (10th Cir.1994).

A state court’s finding of procedural default is deemed “independent” if it is separate and distinct from federal law. Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Duvall v. Reynolds, 139 F.3d 768 (10th Cir.1998). If the state court finding is applied “evenhandedly to all similar claims,” it will be considered “adequate.” Maes v. Thomas, 46 F.3d 979, 986 (10th Cir.1995) (citing Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982)).

To overcome a procedural default, a habeas petitioner must demonstrate either: (1) good cause for failure to follow the rule of procedure and actual resulting prejudice; or (2) that a fundamental miscarriage of justice would occur if the merits of the claims were not addressed in the federal habeas proceeding. Coleman, 501 U.S. at 749-50, 111 S.Ct. 2546; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

III. STANDARD OF REVIEW — AED-PA

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or “the Act”) specifically delineates the circumstances under which a federal court may grant habeas relief. Title 28, Section 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision 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.

Under § 2254(d), this Court may grant a writ of habeas corpus only if the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law, decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts, or unreasonably applied the governing legal principle to the facts of Petitioner’s case. Terry Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 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.” Id. at 411, 120 S.Ct. 1495.

Petitioner’s habeas proceedings in the instant matter commenced well after the effective date of AEDPA. Although the crime for which Petitioner was convicted predates the law’s enactment, the provisions of the Act govern pursuant to Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Accordingly, this Court finds that the AEDPA is applicable and will apply it herein.

PETITIONER’S CLAIMS FOR RELIEF

I. Dual Juries

Petitioner alleges in his first claim for relief that the use of dual juries in his trial violated his Eighth and Fourteenth Amendment rights because it was unauthorized under state law and constituted structural error in the trial process itself. This claim has been exhausted for federal habeas review purposes.

During Petitioner’s trial, “dual” juries were empaneled to try Petitioner and his co-defendant, Michael Wilson, simultaneously. Relying heavily on language from a Ninth Circuit panel decision which was subsequently reversed, Petitioner asserts that because the use of dual juries is not specifically authorized under Oklahoma law it was a violation of his due process rights and constituted a structural error in his trial proceedings. (Dkt. # 12 at 25-36). Additionally, Petitioner claims that the use of a dual jury system prejudiced his defense because it stifled cross-examination and created a conflict of interest for his attorney. (Dkt. # 12 at 36). Respondent asserts that the use of dual juries is not structural error, and Petitioner has failed to demonstrate any prejudice from use of the dual juries at his trial. (Dkt. # 14 at 19).

A. Use of Dual Jury is not structural error

In rejecting this claim on direct appeal, the OCCA found the dual jury process used in Petitioner’s trial was constitutional.

We now have before us Brown’s claim that the dual jury system is not authorized under Oklahoma law and the procedure violates a defendant’s constitutional rights. We previously ruled, in an “Extraordinary Writ” action by Brown, that the trial court has the discretion to implement a dual jury procedure because Oklahoma law does not prohibit such a procedure. Under the theory of collateral estoppel (issue preclusion) “once a court has decided an issue of fact or law necessary to its judgment, that issue may not be re-litigated between the same parties or their privies in a suit on a different cause of action.” Wilson v. Kane, 1993 OK 65, n. 23, 852 P.2d 717, 727, n. 23. Therefore, the principle of collateral estoppel prevents Brown from raising the issue of whether the dual jury procedure is authorized in Oklahoma. However, Brown’s arguments regarding the dual jury procedure’s effect on his rights are properly before us. We first note that jurisdictions which have approved the use of a dual jury system or a multiple jury process require a defendant to show actual prejudice from the use of this novel approach to multiple defendant trials. We find this approach comports with Oklahoma law. The use of the multiple jury process is constitutional, and a conviction had with the use of the multiple jury system will be upheld absent a showing of specific prejudice.

Brown, 989 P.2d at 921 (footnotes omitted). Petitioner argues that the OCCA erred because the unauthorized use of a dual jury procedure violates constitutional due process, constitutes structural error, and requires reversal without a showing of specific prejudice. (Dkt. # 12 at 25).

A constitutional error is either structural or it is not. Neder v. U.S., 527 U.S. 1, 14, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). However, it is necessary to find constitutional error before categorizing it as structural or not. Federal courts that have considered challenges to the use of dual juries have, without exception, concluded that the procedure is not per se violative of constitutional protections. See e.g., Lambright v. Stewart, 191 F.3d 1181, 1186 (9th Cir.1999) (finding no violation of due process or any other trial right in the use of dual juries in a capital case); Smith v. DeRobertis, 758 F.2d 1151 (7th Cir.1985), cert. denied, 474 U.S. 838, 106 S.Ct. 118, 88 L.Ed.2d 96 (1985) (holding that the use of dual juries is not a per se violation of due process and that a criminal defendant must show some specific, undue prejudice to be entitled to relief); Padilla v. Dorsey, 221 F.3d 1352, 2000 WL 1089502 (10th Cir.2000) (unpublished table decision), cert. denied, 531 U.S. 1116, 121 S.Ct. 866, 148 L.Ed.2d 778 (2001) (denying a certificate of appealability and finding that the habeas petitioner had failed to make a substantial showing of the denial of a constitutional right on his claims, including his claim that he was prejudiced as a result of dual juries in a single trial). See also United States v. Lewis, 716 F.2d 16, 19 (D.C.Cir.1983); United States v. Hayes, 676 F.2d 1359, 1366 (11th Cir.1982). Furthermore, the partial or total severance of co-defendants’ trials lies within the discretion of the trial court. See Fowler v. Ward, 200 F.3d 1302, 1308 (10th Cir.2000), overruling on other grounds recognized, Moore v. Marr, 254 F.3d 1235, 1240 (10th Cir.2001).

The trial court did not abuse its discretion in this case by empaneling dual juries, and the OCCA’s decision was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). In arguing that the dual jury procedure is a structural error rather than a harmless error, Petitioner presumes that the procedure is a constitutional error and seeks to categorize it as structural. This Court finds that, although use of the dual jury procedure may be innovative and novel, utilization of the procedure is not constitutional error, structural or otherwise. Petitioner has failed to demonstrate that the use of dual juries is constitutionally impermissible and he shall not be entitled to habeas relief on this issue.

B. Prejudice

Having found that the procedure to seat two juries and simultaneously try both Petitioner and one of his eo-defendants is not a per se violation of Petitioner’s constitutional rights, the Court now turns to Petitioner’s claims that the dual jury process prejudiced the presentation of his case. Petitioner asserts that the implementation of the dual jury mechanism prejudiced his defense by “stifling cross examination and creating a conflict of interest in [his] counsel’s representation” at trial. (Dkt. # 12 at 36). Respondent notes that Petitioner points to no specific instances during trial when Petitioner’s attorney’s cross examination techniques were stifled. Nor has Petitioner made any specific references to support the claim that his attorney was hampered by a perceived conflict of interest.

The OCCA found that Petitioner’s claims of prejudice did not warrant relief. Concerning the issue of cross-examination, the OCCA found that Brown was protected from prejudice:

Brown claims that the dual jury system violates his right to free, unfettered cross-examination because it has a chilling effect on effective cross-examination. He claims that this problem was magnified when the trial court instructed defense counsel that it is the responsibility of attorneys for the State and defense to advise the Court of testimony which would make it necessary to have the juries separated. The trial court told the attorneys that they would have to work a little harder and that the trial court did not anticipate that any of the attorneys would purposely taint the proceedings in front of the jury.

See Brown, 989 P.2d at 921.

Addressing Petitioner’s conflict of interest concerns, the OCCA stated:

Brown claims that the dual jury system creates a conflict of interest for defense counsel because he must not only represent his client, but must also strive to protect the codefendant during his presentation of witnesses or cross-examination when both juries are present. Brown cites Holloway v. Arkansas, 435 U.S. 475, 488-91, 98 S.Ct. 1173, 1180-82, 55 L.Ed.2d 426 (1978), for the proposition that when a conflict of interest is present, prejudice is presumed.

In Holloway, counsel was required to represent three different codefendants who had conflicting interests .... The Court in Holloway determined that when trial counsel, as an officer of the court, claims that a possible conflict of interest will occur because of joint representation, the failure to take adequate steps to resolve the conflict constitutes reversible error. Holloway, 435 U.S. at 486-87, 98 S.Ct. at 1179-80.

In this case, each defendant had separate counsel. Therefore, counsel was not faced with the problems occurring in Holloway. The only obligation Brown’s counsel had to the codefendant was to inform the judge when his questions would lead to answers which would not be admissible in the trial of the codefendant. If objectionable questions and answers were presented, it was the responsibility of the codefendant’s attorney to raise an objection.

Id. at 922. The OCCA noted that Petitioner did not identify any specific instances where his counsel was acting under an actual conflict of interest, and found no error. Id.

The record reflects that the trial court judge entered a Final Amended Trial Schedule establishing the dual jury procedure to be used in Petitioner’s conjoint trial with his co-defendant. See O.R. Yol. Ill at 497-501. The record also demonstrates that the trial judge was aware of the potential for error inherent in the procedure and meticulously explained the process to Petitioner’s jury, instructing them that:

There are a few things that I need to explain to the 14 of you before we leave. And they’re important matters, so I know that you’re tired, but I ask you to pay close attention, please. It has to do with the type of trial that is going to be conducted, the multiple jury process that all of you will be a part of, beginning on Monday.

It is the belief of this Court that conducting these jury trials in this manner, the multiple jury process where we try these trials two at a time with two different defendants and two different juries, is an efficient way for us to take care of this case, that it is efficient, it conserves judicial resources, and it also lessens the adverse impact in this case on the family of the victim and the family of the defendants that are involved in this case.

It’s important for you to know that during much of this jury trial or these two jury trials, both of the defendants and their attorneys will be present in the courtroom. It is also important that you know that you are not to draw any inference from the fact that both defendants are present and seated at the same counsel table.

It’s also important for you to know that when testimony is being put on in this case, you will hear evidence about Mr. Wilson, who is the other defendant. I would represent to you that if we did these cases one at a time, because there are four different defendants charged in this — these two charges, in this particular incident, that you will not — that you would, if we tried these one at a time, not only hear evidence about Mr. Wilson, but you would hear evidence about Mr. Harjo and Mr. Alverson also. So you understand that you’ll hear evidence about Mr. Brown, about Mr. Wilson, about Mr. Alverson, and about Mr. Harjo. And it’s important that when you’re listening to that evidence, that you listen to the evidence as a whole, but also that you remember what evidence is applicable to Mr. Brown.

It’s also important for you to know, as I probably mentioned to you on Monday, that there will be times when one jury, for instance, the 14 of you will be present in the courtroom, and Mr. Wilson’s jury will be excused from the courtroom, and you will hear evidence at that time that is only applicable to Mr. Brown.... [B]ut there will be times when the Wilson jury will actually be in this courtroom and all of you will be excused from the courtroom.

As a matter of law, I must instruct you that at times when you are outside of the courtroom, you are not to speculate or try and make any guess as to what is going on in the courtroom when Mr. Wilson’s jury, Mr. Wilson and his attorneys are present.

Again, you must listen to all the testimony that is submitted to you and all the exhibits that are submitted to you while this Court is in session, but it’s important that you sort through that evidence, and you remember and use in your deliberations only the evidence that is applicable to Mr. Brown.

(Tr. Trans. Vol. 3 of voir dire proceedings of Defendant Brown at 691-97). The OCCA concluded that Brown was sheltered from prejudice because the trial court’s lengthy instructions to the jury adequately informed them of their duty in the event they were removed from the courtroom while evidence was presented to the other jury. Brown, 989 P.2d at 921-22.

In the petition filed in this case, Petitioner makes only a general assertion that the cross-examination of prosecution witnesses by his counsel was tempered and a general allegation of conflict of interest. Petitioner offers no specific citations to testimony or the record supporting his allegations.

After reviewing the entire trial transcript, the Court finds Petitioner’s prejudice challenge based on the dual jury procedure utilized at his trial is without merit. The Court has found no evidence of confusion or impropriety in the dual jury proceedings. Petitioner has failed to demonstrate a specific and undue prejudice to his defense from the procedure. See Smith v. DeRobertis, 758 F.2d 1151, 1152 (7th Cir.1985). In light of the evidence of guilt presented by the prosecution, the Court also finds Petitioner was not prejudiced by any perceived “chilling effect” on cross-examination of the State’s witnesses. Additionally, the implementation of the dual jury procedure did not create a conflict of interest for his attorney such as the one described in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In summary, after reviewing the record from Petitioner’s trial, the Court concludes that Petitioner was not prejudiced by the dual jury procedure utilized at his trial. Accordingly, the Court finds Petitioner has failed to demonstrate how the OCCA’s decision was contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Petitioner is not entitled to habeas relief on this issue.

II. Admissibility of evidence

In his second claim for relief, Petitioner argues that his arrest on February 26, 1995, was illegal and that the introduction of evidence obtained as the result of his arrest violated the Fourth, Eighth and Fourteenth Amendments. The claim is exhausted because it was raised in Petitioner’s state court proceedings. In response to the petition, Respondent argues that Petitioner’s request for habeas relief on this issue is foreclosed by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Petitioner replies that Stone does not bar review of his claim by this Court.

A. Fourth Amendment

As an initial matter, the Court notes that Petitioner seeks a ruling from this Court that Stone is not applicable to capital cases. (Dkt. # 17 at 5). Although Stone may not have been a capital case itself, the Tenth Circuit has applied Stone to capital cases. See, e.g., Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir.1999); Cannon v. Gibson, 259 F.3d 1253, 1261-64 (10th Cir.2001). Petitioner’s request for a ruling that Stone does not apply in capital cases shall be denied.

Additionally, the Court need not belabor its discussion of the merits of Petitioner’s request for habeas corpus relief on this issue because the state courts granted Petitioner a full and fair opportunity to litigate his claim premised on the Fourth Amendment. In Stone, 428 U.S. at 494, 96 S.Ct. 3037, the Supreme Court stated that where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at trial. The Tenth Circuit has reiterated that a federal habeas corpus court need not address a Fourth Amendment question as long as the state court has given the petitioner a full and fair opportunity for a hearing on the issue. Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir.1999); Miranda v. Cooper, 967 F.2d 392, 400-01 (10th Cir.1992); Gamble v. State, 583 F.2d 1161, 1165 (10th Cir.1978). Thus, the threshold question for this Court is whether Petitioner was provided with an opportunity for full and fair litigation of his Fourth Amendment claim. Id. at 1164. If the state court failed to “extend an opportunity for full and fair consideration of Fourth Amendment claims” this Court must conduct an evidentiary hearing, unless the facts are not in dispute. Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir.1992).

In Gamble, the Tenth Circuit noted that “[a]lthough Stone announced a verbal standard, it failed to clothe the words ‘opportunity for full and fair litigation’ with any precise meaning.” Gamble, 583 F.2d at 1164. As a result, the Tenth Circuit constructed a definition for that phrase:

“Opportunity for full and fair consideration” includes, but is not limited to, the procedural opportunity to raise or otherwise present a Fourth Amendment claim. It also includes the full and fair evidentiary hearing contemplated by Townsend. Furthermore, it contemplates recognition and at least colorable application of the correct Fourth Amendment constitutional standards. Thus, a federal court is not precluded from considering Fourth Amendment claims in habeas corpus proceedings where the state court wilfully refuses to apply the correct and controlling constitutional standards. Deference to state court consideration of Fourth Amendment claims does not require federal blindness to a state court’s wilful refusal to apply the appropriate constitutional standard.

Gamble, 583 F.2d at 1165. The definition was further explained the next year in Sanders v. Oliver, 611 F.2d 804 (10th Cir.1979). In Sanders, the Tenth Circuit held that, “ ‘Opportunity’ includes procedural opportunity to raise a claim, and it includes a full and fair hearing.” Id. at 808.

In this case, the record demonstrates that Petitioner was afforded the opportunity in the state courts to fully, fairly, and adequately challenge the admissibility of the evidence in question. On February 21, 1996, Petitioner filed a motion to suppress confession as fruit of an unlawful arrest. (O.R. Vol. I at 122). The trial court heard arguments on Petitioner’s motion during pretrial hearing proceedings (see Trans, of Hr’g held October 30, 1996 at 92-163). After hearing the evidence and considering counsel’s arguments, the trial court judge

denied the motion. (Id. at 162-63). Petitioner then raised his Fourth Amendment claims on direct appeal (see Brief of Appellant in OCCA Case No. F-97-493 at 7-29). The OCCA thoroughly considered the facts underlying Petitioner’s claim, determined that there was constitutional error, but found that the error was harmless. Brown, 989 P.2d at 934-35.

Based on the record, the Court concludes that Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim in the state courts. As a result, this Court is precluded from considering the Fourth Amendment issues raised in Petitioner’s application for a writ of habeas corpus based on Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also Gamble v. State, 583 F.2d 1161, 1165 (10th Cir.1978) (opportunity for full and fair litigation in state court under Stone v. Powell includes opportunity to raise Fourth Amendment claim, full and fair evidentiary hearing, and recognition and application of correct Fourth Amendment standards). This Court is convinced that the state provided, and Petitioner received, an opportunity to litigate his Fourth Amendment claims fully and fairly. For that reason, Petitioner is not entitled to habeas corpus relief on his second claim insofar as he argues a violation of his constitutional rights under the Fourth Amendment.

B. Eighth and Fourteenth Amendments

Petitioner’s summary statement preceding the' substantive argument supporting his second claim states that the “introduction of evidence obtained as the result of Brown’s warrantless arrest made without probable cause violated the Fourth, Eighth and Fourteenth Amendments to the United States Constitution.” Petitioner, however, fails to present any factual or legal argument to support the vague and conclusory reference to violations of the Eighth and Fourteenth Amendments in this second ground. Neither are implicated here as his claims of improper admission of evidence as a result of his arrest are properly considered under the Fourth Amendment. The Court will not assume the role of advocate, and finds that Petitioner has not demonstrated that he is entitled to habeas corpus relief on this portion of his second claim.

III. Jury Instructions on Lesser Included Offenses

Petitioner next claims that the trial court committed constitutional error in denying Brown’s requested jury instructions on murder in the second degree by imminently dangerous conduct (O.R. Vol. Ill at 394) and murder in the second degree by felony murder (O.R. Vol. Ill at 395-96). Petitioner contends that his Eighth and Fourteenth Amendment rights were violated as a result of the error.

Respondent asserts Petitioner has only exhausted the claim pertaining to the failure to instruct on second degree felony murder. Respondent alleges that the issue relating to a jury instruction on second degree murder by imminently dangerous conduct was never presented to the state court for review and is, therefore, unexhausted. However, because this issue would be barred if Petitioner tried to bring a second post-conviction proceeding, Respondent submits Petitioner is now procedurally barred from raising such issue in state court. Therefore, Respondent urges this Court to find the claim relating to an instruction on second degree murder by imminently dangerous conduct procedurally barred from federal habeas review. Petitioner replies that this issue was presented to the OCCA on direct appeal in his Proposition IX, but the OCCA failed to address the claim in its ruling.

A. Exhaustion

Respondent asserts that the portion of Petitioner’s Claim Three relating to the failure of the trial court to give an instruction on second degree murder by imminently dangerous conduct was not raised in state court below and is unexhausted. After reviewing the petition, response, reply, and the record provided by Petitioner and Respondent, the Court does not agree with Respondent’s position. On direct appeal, Petitioner claimed that the trial court committed reversible error in refusing his request that the jury be instructed on the offense of second degree murder. See Proposition IX, Brief of Appellant, OCCA Case No. F-97-493 at 58-60. In the first sentence of Proposition IX of his direct appeal brief, Petitioner referred to all requested second degree murder instructions found at O.R. 394-398. Id. at 58. The second degree murder instruction found at O.R. 394 specifically outlined the elements of murder in the second degree by imminently dangerous conduct. However, Petitioner’s substantive argument in Proposition IX of his state appellate brief focused primarily on the second degree felony murder instructions. The OCCA addressed only the second degree felony murder instructions in rejecting Petitioner’s Proposition IX on the merits, stating:

In proposition nine, Brown argues that the trial court erred in refusing to instruct on the lesser included offense of second degree felony murder. Brown claims that there was evidence supporting the view that the murders occurred during the course of robbery by force and fear, a lesser included offense of robbery with a dangerous weapon. We do not agree.

“Robbery, the predicate felony in second degree felony murder, cannot be accomplished with a dangerous weapon. If it is, the offenses are Robbery with a Dangerous Weapon and first degree felony murder.” Foster v. State, 1986 OK CR 19, ¶ 31, 714 P.2d 1031, 1039. In this case, the evidence clearly showed that the victim was beaten to death with a baseball bat, a dangerous weapon which was used to complete the robbery. Where there is no evidence to support a lesser included offense the court has no right to ask the jury to consider the issue. Boyd, v. State, 1992 OK CR 40, ¶ 9, 839 P.2d 1363, 1367-68. There was no evidence other than the evidence that a dangerous weapon was used to commit the robbery. Accordingly, we find no error.

Brown, 989 P.2d at 930. Despite the failure of the OCCA to address the trial court’s denial of a requested second degree murder by imminently dangerous conduct instruction, this Court finds that the issue was fairly presented to the state court for review and the exhaustion requirement is satisfied. Petitioner’s allegations in Proposition IX were sufficient to fairly present the substance of his claim to the state court. See e.g. Engberg v. Wyoming, 265 F.3d 1109, 1114-16 (10th Cir.2001) (habeas petitioner had exhausted his claim when he had presented “essential substance” of the issue in state court claim). Fair presentation of a claim to the state courts means that the substance of the claim must be raised there.

The state appellate court was presented, but did not analyze or articulate its reasons for denying Petitioner’s claim insofar as it concerns the second degree murder by imminently dangerous conduct instruction. Therefore, this Court will conduct an independent review of the record and applicable federal law to ascertain whether the state court’s denial of relief on this issue was “contrary to, or involved an unreasonable application of, clearly established federal law” under AEDPA. See 28 U.S.C. § 2254(d); Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir.1999) (OCCA’s decision still entitled to deference under § 2254(d) even though federal court must conduct an independent review and articulate an appropriate rationale for OCCA’s decision).

B. Lack of Second Degree Felony Murder Instruction

Jury instructions on lesser included offenses need only be given where evidence exists to support such instruction. See Stouffer v. Reynolds, 168 F.3d 1155, 1170 (10th Cir.1999); Bryson v. State, 876 P.2d 240, 255 (Okla.Crim.App.1994). In Duvall v. Reynolds, the Tenth Circuit examined this same issue:

In Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.3d 392 (1980), the Supreme Court held that in a capital case, due process requires that a jury be given the option of convicting a defendant on a lesser included noncapital offense if the evidence would support conviction on that offense.

A state, however, is not required to “create a noncapital murder offense for every set of facts under which murder may be committed.” Hatch v. State, 58 F.3d 1447, 1454 (10th Cir.1995). A trial court must instruct the jury on a noncapital offense as defined by state law only if the evidence would have supported such a verdict. Beck, 447 U.S. at 627, 100 S.Ct. at 2384.

Duvall v. Reynolds, 139 F.3d 768, 786 (10th Cir.1998).

As previously noted, the state appellate court failed to find the evidence at Petitioner’s trial warranted a second degree felony murder instruction because “robbery, the predicate felony in second degree felony murder, cannot be accomplished with a dangerous weapon.” Brown, 989 P.2d at 930. The Tenth Circuit has confirmed that, “[0]nce the state has established that a defendant used a dangerous weapon in the course of a robbery that results in death, the offense of second degree murder is no longer an option under Oklahoma law.” Fowler v. Ward, 200 F.3d 1302, 1309 (10th Cir.2000) (citing Hatch v. Oklahoma, 58 F.3d 1447, 1454 (10th Cir.1995)), partial overruling on other grounds recognized in Moore v. Marr, 254 F.3d 1235 (10th Cir.2001). Petitioner argues that the robbery was committed through force and fear, rather than with a dangerous weapon, because the dangerous weapon, a baseball bat, was not used “to effectuate the robbery.” (Dkt. # 12 at 53). While the Court agrees with Petitioner that the evidence shows the baseball bat was not used initially to subdue the victim, the Court cannot agree with Petitioner’s argument that the bat was not used in the course of the robbery. Petitioner strains to separate the robbery from the murder by saying the robbery was committed through force and fear, but the murder was committed with a dangerous weapon. As the OCCA noted, “[T]he evidence clearly showed that the victim was beaten to death with a baseball bat, a dangerous weapon which was used to complete the robbery.” Brown, 989 P.2d at 930. The facts support the OCCA’s conclusion that the victim was murdered during the course of a robbery with a dangerous weapon at the QuikTrip. The Court must afford this factual finding a presumption of correctness under 28 U.S.C. § 2254(e)(1), which requires that a state court’s factual findings can only be rebutted by “clear and convincing evidence.” Petitioner has failed to meet this burden.

Accordingly, the trial court’s refusal to give the instruction does not warrant habeas relief. This Court cannot find that the state appellate court’s decision, insofar as it addressed the second degree felony murder instruction, was contrary to federal law, as established by the Supreme Court, or constituted an unreasonable application of the facts to that law. Relief is therefore denied.

C. Lack of Instruction on Murder in the Second Degree by Imminently Dangerous Conduct

In support of his claim that the trial court erred in refusing to allow an instruction on murder in the second degree by imminently dangerous conduct, Petitioner cites Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) wherein the Supreme Court held that due process is violated by the imposition of the death penalty upon conviction by a state court jury which was not permitted to consider a verdict of guilty on a lesser included offense. Under Beck, a capital defendant is constitutionally entitled to instructions on offenses that state law recognizes as lesser included offenses of the charged crime, but only when such instructions are supported by the evidence. See Hopper v. Evans, 456 U.S. 605, 610, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); see also Hopkins v. Reeves, 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998); Hatch v. Oklahoma, 58 F.3d 1447, 1453-54 (10th Cir.1995).

Under Oklahoma law a person commits second degree murder by imminently dangerous conduct if the homicide is “perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without a premeditated design to effect death.” Okla. Stat. tit. 21, § 701.8(1). The OCCA has provided a specific definition of “depraved mind” in Palmer v. State, 871 P.2d 429, 431 (Okla.Crim.App.1994): “A person evinces a depraved mind when he engages in imminently dangerous conduct with contemptuous and reckless disregard of, and in total indifference to, the life and safety of another.” Further, “[a] design to effect death is inferred from the fact of killing unless the circumstances raise a reasonable doubt whether such design existed.” Hammon v. State, 898 P.2d 1287, 1308 (Okla.Crim.App.1995). The evidence in this case does not support the lack of a premeditated design. Rather, the evidence established that the perpetrators planned the crime weeks in advance. See February 12, 1997,Tr. Trans, at 137. In the early morning hours of February 26, 1995, the four waited inside the QuikTrip chatting with Mr. Yost and waiting for an opportune time to surround and subdue him. After forcing him into the back cooler of the store they taped his legs with duct tape and handcuffed him. Codefendant Harjo went outside and returned with a baseball bat. Petitioner remained in the cooler with the victim. Yost was then beaten to death with the baseball bat. The evidence establishes that the murder was intentional and premeditated. Although the evidence also indicates that it was one of Petitioner’s co-defendants who actually wielded the bat, there is no evidence to indicate that Petitioner was acting other than in a voluntary and intentional manner himself when he participated in attacking the victim and stayed in the back room during and after the murder to be certain no one else entered the room. The evidence does not suggest anything other than a premeditated design to kill the victim, and Petitioner was not entitled to a jury instruction on second degree murder. See Bryson v. Ward, 187 F.3d 1193, 1208 (10th Cir.1999). Habeas relief will not be granted on this issue.

IV. Jury Selection

Petitioner’s Fourth claim attacks the constitutionality of the trial court’s voir dire process. Petitioner argues his Sixth, Eighth and Fourteenth Amendment rights were violated when six prospective jurors were improperly excused for cause because they held conscientious objections to the death penalty and his trial counsel was not allowed to rehabilitate them. This claim was presented to the OCCA and rejected on its merits. Brown, 989 P.2d at 923. In considering Petitioner’s objections to the exclusion of the six veniremen, the OCCA stated:

We have held:

[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law. Allen v. State, 1994 OK CR 13, 23, 871 P.2d 79, 90-91 (citations omitted). The potential jurors Brown complains were improperly removed clearly stated that they would not consider the death penalty or would automatically vote against the death penalty. Although the trial court’s voir dire was not a model of perfection, the jurors were properly removed.

Id. Respondent asserts that the OCCA’s decision was not an unreasonable application of clearly established federal law.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held a sentence of death cannot be upheld if the jury that imposed or recommended it was chosen by excluding for cause all veniremen who voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. In Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Court held that “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” In Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court held the Adams standard was the appropriate standard for dealing with issues regarding allegations of improper exclusion of jurors in violation of Witherspoon. Additionally, a trial judge’s decision regarding a potential juror’s bias is a factual finding entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1) and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” Davis v. Executive Dir. of Dept. of Corr., 100 F.3d 750, 777 (10th Cir.1996). See also Castro v. Ward, 138 F.3d 810, 824 (10th Cir.1998); Cannon v. Gibson, 259 F.3d 1253, 1279 (10th Cir.2001). Since issues of credibility and demeanor are critical to a judge’s decision, review of such decisions is “quite deferential.” Davis, 100 F.3d at 777; see also United States v. Tipton, 90 F.3d 861, 880 (4th Cir.1996). “Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court to make credibility determinations.” MillerEl v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

This Court finds the six prospective jurors were not improperly questioned and excused. Rather, the Court finds ample support for the trial court’s decision that the views of these six potential jurors were so strong that they would not be able to perform their duties as jurors in accordance with the instructions and their oath. See Wainwright v. Witt, 469 U.S. 412, 483, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). Thus, each of the prospective jurors was properly excused for cause.

A. Challenge to Prospective Juror Monroe

The first prospective juror excused for cause was Mr. Monroe. Petitioner argues that Mr. Monroe was not properly questioned and his trial counsel was denied the opportunity to question Mr. Monroe about the death penalty. The relevant part of the trial court’s inquiry of Mr. Monroe follows:

THE COURT: Mr. Monroe, are you opposed to or in favor of the death penalty?

MR. MONROE: I am opposed to the death penalty.

THE COURT: All right. Would your opposition to the death penalty prevent or substantially impair your ability to find the defendant guilty if the law and the evidence so warrants, because the death penalty could be imposed?

MR. MONROE: No.

THE COURT: All right. If this case should reach the penalty phase, would you automatically vote against the death penalty, regardless of the evidence and the law, that is presented to you while this Court is in session?

MR. MONROE: Yes, I would, sir.

(Transcript of Voir Dire Proceedings, Vol. II, at 471-72). Without further questioning, Mr. Monroe was excused for cause after defense counsel’s request to voir dire the witness was overruled. Id. at 472.

The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is the one enunciated in Adams: whether the jurors views “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams, 448 U.S. at 45, 100 S.Ct. 2521. However, “[rjelevant voir dire questions addressed to this issue need not be framed exclusively in the language of the controlling appellate opinion.” Wainwright, 469 U.S. at 433-34, 105 S.Ct. 844. Upon review, the question is not whether this Court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record. Id. at 434, 105 S.Ct. 844.

A review of the record persuades this Court to find Mr. Monroe was properly excused for cause. The trial judge was face to face with Mr. Monroe and a trial judge’s “power of observation often proves the most accurate method of ascertaining the truth.” Wainwright, 469 U.S. at 434, 105 S.Ct. 844. Since Petitioner offers no evidence to rebut the factual determination of the trial court regarding Mr. Monroe’s bias against the imposition of the death penalty, the Court cannot grant habeas relief for the dismissal of Mr. Monroe.

B. Challenge to Prospective Juror Borens

Even though Ms. Borens was questioned more thoroughly than Mr. Monroe, Petitioner believes she was improperly excused for cause. Petitioner argues that the answers given by Ms. Borens were equivocal toward capital punishment. As summarized by the OCCA:

Juror Borens first stated that she was opposed to the death penalty but would not automatically vote against it. On further voir dire from the State and the trial court, Borens was asked if she would consider the death penalty. She stated -that she would not consider the death penalty.

Brown, 989 P.2d at 923.

Although the relevant standard is whether the juror’s views would cause them to disregard their oaths and the trial court’s instructions, this standard “does not require that a juror’s bias be proved with unmistakable clarity.” Wainwright at 424, 105 S.Ct. 844. As stated above, relevant voir dire questions and answers concerning possible juror bias about capital sentencing “need not be framed exclusively in the language of the controlling appellate opinion.” Id. at 433-34, 105 S.Ct. 844. In addition to the answers given by Ms. Borens, the trial judge was aided by his assessment of the demeanor of the potential juror. Once again, Petitioner cites no evidence to rebut the presumption of correctness afforded to the trial court’s decision that Ms. Borens would not be able to lawfully perform her function as an impartial juror in all phases of the case. Her excusal for cause did not constitute a violation of Petitioner’s constitutional rights.

C. Challenge to Potential Juror Sicks

Juror Sicks also advised the trial court that she was opposed to the death penalty. (Transcript of Voir Dire Proceedings, Vol. II at 540). Upon further inquiry, Ms. Sicks explained her position as follows:

THE COURT: If this case should reach the penalty phase, would you automatically vote against the death penalty, regardless of the evidence and the law that is presented to you?

MS. SICKS: I would have to vote not in favor of the death penalty.

THE COURT: Okay. You mean to tell me are you saying by that that you would not consider all three of the penalty options, or you would consider all three of the penalty options?

MS. SICKS: I do not think I could consider the death penalty.

THE COURT: No matter what?

MS. SICKS: It’s a big burden to bear, being responsible for somebody else’s life.

THE COURT: Yes, ma'am, I understand. Are you telling me that in no circumstances could you impose the death penalty?

MS. SICKS: I’m saying it would be very, very hard. I don’t know that I could morally do that.

THE COURT: Okay. I know it would be hard. It would be hard for the other 11 people that are seated in the box with you.

MS. SICKS: I understand.

THE COURT: Are you telling me that under no circumstances could you impose the death penalty? If this became if we came to the sentencing stage you would have three options. Are you telling me you would not consider the third option?

MS. SICKS: I would not consider it.

Id. at 541^42. Ms. Sicks was subsequently dismissed for cause. Again, this Court defers to the factual determination by the trial judge that Ms. Sicks would not be able to perform her duties as an impartial juror when considering punishment options in the second stage of the trial. The record supports the trial judge’s conclusion that Ms. Sicks did not believe in and would not impose the death penalty. Petitioner has not rebutted the trial court’s finding by clear and convincing evidence. Accordingly, Petitioner is not entitled to habeas corpus relief regarding the excusal of Ms. Sicks.

D. Challenge to Potential Jurors Akers, LaPage and Ross

Petitioner also claims that potential jurors Akers, LaPage and Ross were improperly dismissed by the trial judge for cause after limited questioning regarding their views on the death penalty. Each was asked by the trial court if they would automatically vote against the death penalty regardless of the evidence and the law that was presented to them, and each responded that they would. See Transcript of Voir Dire Proceedings, Vol. II, at 584 and 588, and Vol. III at 611. The OCCA found that the manner in which the trial court conducted voir dire was not error and the jurors were properly removed. Brown, 989 P.2d at 923. Additionally, in response to Petitioner’s complaint that his trial attorney was not given the opportunity to ask questions of the jurors to rehabilitate them, the OCCA found that the trial court is not required to allow the parties to rehabilitate potential jurors. Id.

This Court agrees with the OCCA and finds that its decision was not contrary to or an unreasonable application of federal law as determined by the Supreme Court. Potential jurors Akers, LaPage and Ross each stated unequivocally that they would vote against the death penalty regardless of the evidence and the law presented. The trial judge observed their demeanor and determined they should be removed from the venire panel for cause. Petitioner offers no evidence to rebut the determination of the trial court that the views of each of these potential jurors would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Adams, 448 U.S. at 45, 100 S.Ct. 2521.

E. Conclusion

Petitioner has failed to rebut the presumption that the trial court was correct in finding that all six jurors views in opposition to the death penalty would have prevented or substantially impaired the performance of their duties as jurors. The OCCA’s determination that the trial judge did not commit error in dismissing the six potential jurors because their answers clearly indicated that they would not consider imposing the death penalty regardless of the evidence and instructions was not contrary to or an unreasonable application of federal law as determined by the Supreme Court. Petitioner is not entitled to habeas relief on his fourth claim of alleged improper jury selection.

V. Prosecutorial Misconduct and Gruesome Photographs

In his fifth proposition of error, Petitioner asserts that prosecutorial misconduct, including improper comments and the introduction of gruesome photographs, deprived Petitioner of his right to a fundamentally fair trial in violation of the Eighth and Fourteenth Amendments. He also claims that his Sixth Amendment rights to an impartial jury were violated by prosecutorial comments made during closing arguments. Respondent maintains that this claim was raised on direct appeal where the OCCA considered the prosecutorial misconduct claims of the Petitioner and determined that Petitioner was not denied a fair trial or due process. The OCCA found none of the alleged instances of misconduct, either individually or collectively, warranted relief. Brown, 989 P.2d at 933-35. Respondent urges that Petitioner has not met his burden of proof on this issue and is not entitled to habeas relief under § 2254(d).

Sixty-eight instances of alleged prosecutorial misconduct during both stages of trial were present