Murphy v. Sirmons (497 F. Supp. 2d 1257, 2007)

OPINION AND ORDER

WHITE, District Judge.

Petitioner Patrick Dwayne Murphy was convicted following a jury trial in the District Court of McIntosh County, Case No. CF-1999-164A, of First Degree Murder in violation of 21 O.S. Supp.1996, § 701.7(A). In accordance with the jury’s verdict, Petitioner was on May 18, 2000 sentenced to death. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed his conviction and death sentence. Murphy v. State, 47 P.3d 876 (Okla.Crim.App.2002), cert. denied, 538 U.S. 985, 123 S.Ct. 1795, 155 L.Ed.2d 678 (2003).

On February 7, 2002, Petitioner filed an Application for Post-Conviction Relief in Oklahoma Court of Criminal Appeals Case No. PCD-2001-1197. On September 4, 2002, the Court granted relief on the sole issue of Petitioner’s claim of mental retardation and remanded the case for an evi-dentiary hearing. Murphy v. State, 54 P.3d 556 (Okla.Crim.App.2002). The trial court held an evidentiary hearing and concluded that insufficient evidence existed to create a fact question on the issue of Petitioner’s claim of mental retardation. See, Findings filed on November 6, 2002, in the District Court of McIntosh County, Case No. CF-1999-164A. Thereafter, the Oklahoma Court of Criminal Appeals denied Petitioner’s application for post-conviction relief and again affirmed Petitioner’s sentence. Murphy v. State, 66 P.3d 456 (Okla.Crim.App.2003).

On March 29, 2004, Petitioner filed a second Application for Posi>-Conviction Relief with the Oklahoma Court of Criminal Appeals raising three grounds for relief, to-wit: 1) the State of Oklahoma lacked jurisdiction to try him because the crime occurred in Indian country; 2) his mental retardation claim had been treated differently than all subsequent mental retardation claims, thereby depriving him of equal protection, and a deprivation of rights guaranteed by the Fifth, Eighth and Fourteenth Amendments; and 3) Oklahoma’s protocol and procedures dealing with execution by lethal injection violated the United States Constitution against cruel and unusual punishment. On December 7, 2005, the Oklahoma Court of Criminal Appeals denied relief on issues one and three and remanded the issue of mental retardation to the district court in McIntosh County for a jury trial. Murphy v. State, 124 P.3d 1198 (Okla.Crim.App.2005). Petitioner now seeks relief from his death sentence pursuant to 28 U.S.C. § 2254.

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

I. RECORDS REVIEWED

This Court has reviewed (1) the First Amended Petition for Writ of Habeas Corpus filed on September 10, 2004; (2) the Second Amended Petition for Writ of Ha-beas Corpus filed on December 28, 2005; (3) the Combined Response to the First Amended and Second Amended Petitions for Writ of Habeas Corpus filed on April 6, 2007; (4) the Reply filed on May 10, 2007; (5) transcript of Preliminary Hearing held on December 1, 1999 and December 10, 1999, Volumes I and II, respectively; (6) transcript of Motion proceedings held on February 24, 2000; (7) transcript of Motions proceedings held on March 30, 2000; (8) transcript of Motions hearing held on April 6, 2000; (9) transcript of Jury Trial held on April 10, 11, 12, and 13, 2000, Volumes I, II, III, IV, IVA, and V; (10) transcript of Sentencing Proceedings held on May 18, 2000; (11) transcript of Evi-dentiary Hearing proceedings held on November 18, 2004, Volumes I and II, including exhibits attached thereto; and (12) all other records before the Oklahoma Court of Criminal Appeals which were transmitted to this Court. Although not listed specifically, this Court has reviewed all items filed in this case, with the exception of the transcript of proceedings held on October 29, 2002, including exhibits attached thereto and the transcript of the deposition of Faust Bianco, Jr., Ph.D., taken on October 25, 2002, including exhibits attached thereto. See Inventory of State Court Record, Dkt. No. 21, filed on July 16, 2004 and Inventory of State Court Record, Dkt. No. 52, filed on November 16, 2006.

As a result, this court finds that the records, pleadings and transcripts of the state proceedings provide all the factual and legal authority necessary to resolve the matters in the petition and, therefore, an evidentiary hearing is unnecessary. Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (Sumner I); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (m2)(Sumner II).

II. STATEMENT OF THE FACTS

Historical facts found by the state court are presumed correct, unless the petitioner rebuts the same by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Since Petitioner has failed to rebut the facts, as set forth by the Oklahoma Court of Criminal Appeals, this Court hereby adopts the factual findings made by the Oklahoma appellate court.

In August of 1999, [Petitioner] was living with Patsy Jacobs, his alleged “common-law” wife. Ms. Jacobs had previously lived for three years with George Jacobs, the victim in this case, and had a child by him. [Petitioner] and Patsy had an argument about Jacobs a couple of days before Jacobs was murdered. [Petitioner] told Patsy that he was going to get Jacobs and his family one by one.

On August 28, 1999, George Jacobs and his cousin Mark Sumka spent most of the day drinking and driving around Okmulgee, Okfuskee, and McIntosh counties. They reportedly drank two bottles of whiskey and numerous beers that day. At 9:30 p.m., they were headed to a Henryetta bar in Jacobs’s Dodge Sedan. Jacobs was passed out in the back seat, and Sumka was driving. (Jacobs’s post mortem blood alcohol level would later be determined to be .23)

Sumka and Jacobs passed [Petitioner] as he was driving in the opposite direction. Both cars stopped, and [Petitioner] backed up. [Petitioner] told Sumka to kill the car and get out. Meanwhile, two occupants of [Petitioner’s] car, Billy Long and Kevin King, exited the car. Alarmed, Sumka drove away.

[Petitioner] and his companions pursued Sumka in [Petitioner’s] car. [Petitioner] was eventually able to force Sumka to stop. At that point, someone from [Petitioner’s] car arrived at Sum-ka’s car and began hitting Jacobs.

Sumka got out of his car, but was stopped by [Petitioner] who said he was going to do to Jacobs what they had done to him. Sumka could hear the other two men hitting Jacobs. Sumka told [Petitioner] “that was enough, you know, he’s passed out.” [Petitioner] went over to Jacobs, while Long came over and hit Sumka in the nose. Sumka then saw King drag Jacobs out of a ditch.

Sumka fled momentarily, about one hundred yards from the assault. After five minutes, he decided to return. Upon his arrival, [Petitioner] and his two cohorts told Sumka if he said anything they would kill him and his family. King then smacked Sumka in the jaw. [Petitioner] reportedly instructed King and Long not to hit Sumka again.

Sumka testified that [Petitioner] then took a folding knife he was holding and tossed it into the woods. (The police later recovered this knife.)

Sumka ran over to where Jacobs was laying in a ditch. Jacobs was “barely breathing.” Anderson Fields then drove up in another car and asked what was wrong with the guy in the ditch. (He also noticed a fleshy object and blood in the road.) The men told him Jacobs was drunk. They began approaching Fields’s car, but he drove away. Fields then phoned the police and drove back to the scene. Everyone was gone. Jacobs lay in the ditch and was barely breathing. Fields found a slash across Jacobs’s stomach and chest. His throat had been cut, his face was bloody, and his genitals had been cut off.

Upon [Petitioner’s] instructions, Sum-ka had left the scene with [Petitioner], Long, and King. During the car ride, [Petitioner] told Sumka they had cut Jacobs’s throat and chest and had cut off his privates. King told Sumka they had stuffed Jacobs’s genitals into Jacobs’s mouth. [Petitioner] then told everyone to take off their clothes because he was going to burn them.

The group later went to the home of Mark Taylor, [Petitioner’s] cousin. [Petitioner] told Taylor he had killed Jacobs. [Petitioner] said he had cut Jacobs’s stomach and throat, had “cut his dick and his nuts off,” had shoved his genitalia into his mouth, and had tried to stomp on the victim’s head like a pancake.

The group then traveled to King’s house, where Jacobs’s son George, Jr. was staying. [Petitioner] said he was going to do the same thing to Jacobs’s son. But King’s mother came out of the house and thwarted this plan. King went inside, and the rest of the group left. [Petitioner] then burned the bag of incriminating clothes.

When [Petitioner] arrived home that night, he told Patsy Jacobs that George Jacobs had been killed and that he had sliced his throat and stomach. Patsy testified [Petitioner] also said he had cut off Jacobs’s genitals so “he won’t fuck anyone anymore,” including her.

When [Petitioner] was arrested, he admitted kicking Jacobs in the ribs and testicles and cutting his penis. He also admitted hearing Jacobs groan during the attack. He said Jacobs was left alive in a ditch; He was breathing and saying, “Oh.”

A state criminalist testified that, after the victim’s penis was severed, he was dragged to the side of the road, where his neck and chest were cut. Bloodstains on Jacobs’s shoes indicate he had been in an upright position for part of the attack. The medical examiner described the cause of death as blood loss from the various cutting wounds, primarily the genital and neck wounds. Death was not immediate. Jacobs bled to death in somewhere between four to twelve minutes, perhaps even longer. He described the multiple lacerations and fractures the victim suffered to his face, neck, chest, and abdomen.

Murphy v. State, 47 P.3d 876, 879-880 (Okla.Crim.App.2002).

Additional facts will be discussed as they become relevant.

III. PETITIONER’S CLAIMS FOR RELIEF

Petitioner’s Second Amended Petition (Dkt. No. 54) incorporates by reference his First Amended Petition (Dkt. No. 33) and his Amended Reply to the State of Oklahoma’s Response to Petition for A Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (Dkt. No. 34), both of which were filed herein on September 10, 2004. In his First Amended Petition, Petitioner raised eight (8) grounds for relief. Two (2) additional grounds were added in Petitioner’s Second Amended Petition. Respondent, at the direction of the Court, filed a Combined Response to Petitioner’s First and Second Amended Petition on April 6, 2007 (Dkt. No. 56). Petitioner filed a Reply on May 10, 2007 (Dkt. No. 65).

Petitioner’s alleged errors can be summarized as follows: (1) ineffective assistance of counsel during the second stage of trial; (2)(a) the evidence was insufficient to support Oklahoma’s “heinous, atrocious, or cruel” aggravator; (b) the jury instructions regarding this aggravating circumstance were inadequate; and (c) this ag-gravator is unconstitutionally vague and overbroad; (3) Oklahoma’s “continuing threat” aggravating circumstance is unconstitutionally vague and overbroad; (4) failure to require the jury to find the aggravating factors outweighed the mitigating factors beyond a reasonable doubt violated Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights; (5) the victim impact evidence violated Petitioner’s constitutional rights to a fundamentally fair sentencing proceeding as guaranteed by the Fifth, Eighth and Fourteenth Amendments; (6) failure to define life without parole denied Petitioner due process of law and the right to a fundamentally fair sentencing proceeding in violation of his Fifth, Eighth and Fourteenth Amendment rights; (7) the trial court erred in admitting Petitioner’s post-arrest statement thereby violating Petitioner’s right to due process of law as guaranteed by the Fifth and Fourteenth Amendments; (8) the cumulative errors in Petitioner’s case warrant habeas relief; (9) the state court proceedings were void ab initio because the state court lacked jurisdiction over the crime; and (10) Oklahoma’s lethal injection protocol and procedures violate the Eighth Amendment.

IV. STANDARD OF REVIEW

Since Petitioner filed his original petition in May, 2002, this case is governed by the statute as amended by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 326-327, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). Pursuant to the AEDPA, this Court is precluded from granting habeas relief on any claim adjudicated on the merits by a 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).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Court defined “contrary to” as a state-court decision that is “substantially different from the relevant precedent of this Court.” Id., at 405, 120 S.Ct. at 1519. A decision can be “contrary to” Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court case law or “if the state court confronts a set of facts that are materially indistinguishable from” a decision of the Supreme Court, but nonetheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002), citing Williams v. Taylor, 529 U.S. at 405-406, 120 S.Ct. 1495. Whereas, the “unreasonable application” provision is implicated when “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. at 407, 120 S.Ct. 1495. “The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Finally, the Supreme Court has made it clear that a state court is not required to cite Supreme Court caselaw, or even be aware of it, “so long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent].” Early, 537 U.S. at 8, 123 S.Ct. 362.

V. PETITIONER’S ALLEGED ERRORS

1. Ineffective Assistance of Counsel

Petitioner first claims his trial lawyer failed to investigate, prepare, and present to the jury readily available and compelling mitigating evidence which, if presented, would likely have led to a different sentencing outcome thereby depriving Petitioner of his Sixth, Eighth and Fourteenth Amendment rights. Petitioner first raised this claim in his state court application for post-conviction relief. The Oklahoma Court of Criminal Appeals denied relief, holding Petitioner was not deprived reasonably competent assistance of counsel under prevailing professional norms. Murphy v. State, 54 P.3d 556, 565 (Okla.Crim.App.2002). Furthermore, the state appellate court, after viewing affidavits and evidentiary materials submitted in the post-conviction proceeding, said, in accordance with Williams v. Taylor, supra, there was no “reasonable probability that the result of the sentencing proceeding would have been different” if competent counsel had presented the additional mitigating evidence now identified by Petitioner and explained its significance. Id. Respondent asserts nothing presented by Petitioner establishes that the Oklahoma Court of Criminal Appeals decision denying relief on this issue was either contrary to or an unreasonable application of federal law.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the legal standards which apply to claims of ineffective assistance of counsel in a criminal proceeding. First, the Court indicated that the defendant must establish that the representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms. In order to establish that counsel’s performance was deficient, Petitioner must establish counsel made errors so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Second, the defendant must establish that the deficient performance prejudiced the defense. Id. Failure to establish either prong of the Strickland standard will result in a denial of Petitioner’s Sixth Amendment claims. Id. at 696,104 S.Ct. 2052.

While ensuring that criminal defendants receive a fair trial, considerable judicial restraint must be exercised. As the Supreme Court cautioned in Strickland,

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. at 689, 104 S.Ct. 2052. (citations omitted).

In deciding whether counsel was ineffective, a court must judge the reasonableness of the challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A defendant attacking an attorney’s assistance must identify the particular acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment and then the court must determine, in light of all of the circumstances, whether the identified acts were outside the wide range of professionally competent assistance. Id. at 690,104 S.Ct. 2052. Courts are free to address the performance and prejudice components in any order and need not address both where a defendant fails to make a sufficient showing of one. Id. at 697, 104 S.Ct. 2052.

While the failure to present available mitigating evidence is not per se ineffective assistance of counsel, reviewing courts must evaluate the reasons for counsel’s failure to present mitigating evidence and then decide whether the failure, if due to an attorney’s deficient performance, prejudiced the defendant. Hale v. Gibson, 227 F.3d 1298, 1314 (10th Cir.2000) (quoting Brecheen v. Reynolds, 41 F.3d 1343, 1365-1368 (10th Cir.1994)). One of counsel’s basic obligations is to make the adversarial testing process work. Since this testing process generally cannot function properly unless defense counsel has done some investigation into the prosecution’s case and into various defense strategies, the Supreme Court has indicated a defense attorney “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. See also, Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir.1999). A reasonable investigation includes an investigation of the defendant’s background for possible mitigating evidence. Brecheen, 41 F.3d at 1366. In a capital case, this duty is strictly observed. Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir.1997).

In deciding whether Petitioner’s trial counsel rendered effective assistance with respect to the second stage of the proceedings, the Oklahoma Court of Criminal Appeals appears to have correctly applied Supreme Court precedent to the facts of this case, focusing on the prejudice prong of Strickland. Specifically, the Court said:

.... we must review the mitigating evidence presented in Petitioner’s trial, compare it to the mitigation evidence presented in the post-conviction record, and decide if the post-conviction evidence raises “a reasonable probability that the result of the sentencing proceeding would have been different” if competent counsel had presented and explained the significance of all the available evidence.

Murphy v. State, 54 P.3d 556, 562 (Okla.Crim.App.2002) (citation omitted). The state court then undertook a thorough review of the mitigating evidence submitted in both stages of the trial and the jury instruction which told the jurors to consider a list of mitigating evidence which had been presented at trial. Next, the state court enumerated the additional “mitigating” evidence which was contained in the post-conviction affidavits. The state court then found that “the post-conviction affidavits and evidentiary materials do not demonstrate a failure by Petitioner’s trial counsel to present mitigating evidence of a constitutionally deficient magnitude, as that in Williams. ” Id. at 564. Ultimately, the state court found Petitioner had failed to establish prejudice as a result of counsel’s performance. Id.

Petitioner argues, however, that the Oklahoma Court of Criminal Appeals decision regarding ineffective assistance of counsel was wrong because “counsel cannot ‘strategically’ decide to not use infer-mation he did not investigate and develop.” First Amended Pet., at pp. 18-19. While that critique may be logical syllogistically, contrary to Petitioner’s assertions, the affidavit submitted by trial counsel, James Bowen, makes it clear that counsel actively pursued mitigation evidence and after completing a thorough investigation of Petitioner’s background, he developed a reasonable trial strategy. See, State Post-Conviction Exhibit 14. In fact, counsel’s affidavit indicates, prior to trial, counsel personally had several interviews with not only Petitioner’s mother and Petitioner in preparation for trial, but also other family members and witnesses. Id. at ¶¶ 8 and 9. Although post-conviction counsel was able to obtain affidavits from the defendant’s mother and another family member which established abuse of alcohol by Petitioner’s mother while she was pregnant with Petitioner, despite numerous conversations with Petitioner’s mother prior to trial, Petitioner’s mother was not as forthcoming with trial counsel as she was with post-conviction counsel. Rather, Ms. Murphy “always maintained that her use of alcohol was minimal [while she was pregnant with Petitioner.]” Id. at ¶ 9. Trial counsel also spoke with other family members and witnesses, but “none ever contradicted Ms. Murphy’s assertions.” Id. Further, Petitioner acknowledged to Dr. Sharp that although “both of his parents consumed alcohol, it was his perception that his mother did not having (sic) a drinking problem, but that his father was most probably alcoholic.” See, Defendant’s Jury Trial Exhibit 4. Nonetheless, after Petitioner was evaluated by Dr. Jeanne Russell, counsel pursued this issue further by discussing the “absence of any visible characteristics of Fetal Alcohol Syndrome” with Dr. Russell. Id. If counsel had known this information prior to trial, he may have been ineffective for failing to develop and present it to the jury. Nevertheless, counsel cannot be deemed ineffective where potential witnesses, including family members, change their stories after trial. Further, based upon the active investigation counsel conducted, he developed a trial mitigation strategy which entailed presenting to the jury that Petitioner “was a low risk [for] future violence, that he was chemically dependent, and mentally retarded.” See, State Post-Conviction Exhibit 14 at ¶ 10. Further, counsel indicates he attempted “to focus on Petitioner’s mental retardation and not present evidence that would possibly contradict, or call into question the fact that he was mentally retarded.” Id. at ¶ 11. Moreover, as recognized by the Oklahoma Court of Criminal Appeals, the postconviction affidavits conflict with each other and with the testimony at trial; they contain information which would have been as aggravating as it was mitigating; and they contain unreliable hearsay statements which would not have been admissible at trial. See, Murphy v. State, 54 P.3d 556, 565 (Okla.Crim.App.2002). The affidavits certainly would have cast doubt upon evidence portraying Petitioner as mentally retarded. Consequently, failure to introduce this testimony cannot be deemed unreasonable trial strategy.

Petitioner also complains counsel was ineffective in failing to use his low IQ score advantageously, in further developing evidence that Petitioner had organic brain damage, and emphasizing Petitioner was unlike most criminals because he was not psychopathic. Despite Petitioner’s assertions, evidence was presented to the jury to show Petitioner had tested in the mildly retarded range, that he potentially had organic brain damage from various head injuries as well as the amounts of alcohol he regularly consumed, and that he was not a psychopath.

Next, Petitioner argues, because counsel tried several death penalty cases in a relatively short period of time, he failed to allocate a reasonable amount of time to investigate Petitioner’s life history. In support of this eonclusory allegation, Petitioner cites two things. First, Petitioner asserts the ABA Guidelines mandated counsel spend 1800 hours on this case and since counsel tried four death penalty cases within a space of ten calendar months, he could not have allocated a reasonable amount of time to investigate Petitioner’s life. The ABA Guidelines cited by Petitioner, however, were not adopted until February 2003, or approximately three years after Petitioner’s trial. Further, the ABA Guidelines make it clear that many things other than the number of cases assigned to an attorney would have to be considered in ascertaining a reasonable workload for a given attorney.

Second, Petitioner asserts that trial counsel not only ignored his obligation to allot a reasonable amount of time to Petitioner’s case, counsel “did virtually nothing with the time he had.” To support this assertion, Petitioner inserts a footnote in his First Amended Petition which states, in part: “Trial counsel failed to investigate the scene of the crime” and counsel “did not view the scene of the crime.” First Amended Petition at p. 27, footnote 7. No affidavit has ever been submitted to this Court or to the Oklahoma Court of Criminal Appeals to support Petitioner’s bald assertions. Additionally, whether or not counsel properly investigated the scene of the crime has absolutely no bearing on Petitioner’s assertion that counsel was ineffective in investigating and/or uncovering potentially mitigating evidence. Here, counsel submitted an affidavit detailing actions he took during his investigation of potentially mitigating evidence in this particular case. Petitioner has never raised an ineffective assistance of counsel claim as it relates to the first stage of trial. Nonetheless, all of these attacks on the Oklahoma Court of Criminal Appeals decision are misplaced. The state court did not rest its decision on the first prong of Strickland, whether or not counsel was ineffective; but chose instead to focus on the second prong, whether Petitioner was prejudiced by counsel’s actions.

Petitioner asserts counsel’s failure to properly investigate prejudiced him because he did not have “a good life and raising” as argued by the prosecutor during second stage closing arguments and counsel did not put on evidence to counter these arguments. Despite Petitioner’s assertions, the jury heard evidence that Petitioner’s childhood was not “good.” Specifically, Ms. Murphy testified that Petitioner’s father was not around and because of his mixed-race heritage, Petitioner had to endure cruel teasing from extended family members. Despite these shortcomings, both Petitioner and his mother testified he was a good child who could be proud of his accomplishments. J.T. Tr., Vol. V, at pp. 1318-1340. See also, Second Stage Jury Instruction No. 13, O.R. 413 (enumerates an exhaustive list of evidence which might be considered mitigating).

Furthermore, in assessing prejudice during the second stage, a court should “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003). This Court does not believe that the additional evidence regarding Petitioner’s non-idyllic childhood would have outweighed the aggravating circumstances found by the jury of continuing threat and the especially heinous, atrocious and cruel nature of the murder. This is particularly true where, as in this case, (1) significant evidence from an expert was introduced to establish that Petitioner would not be a continuing threat to society were he locked up in a secure facility and prevented from consuming alcohol; and (2) the jury found the crime was especially heinous, atrocious or cruel, based in part, upon Petitioner’s own admissions regarding slitting the victim’s throat, cutting his stomach, cutting off of his genitalia and then leaving the victim out on a dark road to bleed to death.

To the extent the Oklahoma Court of Criminal Appeals viewed not only the evidence submitted at trial, but also the evidence which could have been submitted, before deciding that Petitioner was not prejudiced by counsel’s actions (i.e., there is not “a reasonable probability that the result of the sentencing proceeding would have been different,” Murphy v. State, 54 P.3d 556, 565 (Okla.Crim.App.2002)), this Court finds, based upon the record herein, that the Oklahoma court’s decision regarding prejudice was not an unreasonable application of Supreme Court precedent to the facts of this case. Accordingly, Petitioner’s claim for relief based on ineffective assistance of counsel is denied.

2. Heinous, Atrocious, or Cruel Aggra-vator

In his second ground for relief, Petitioner argues the evidence was insufficient to support Oklahoma’s “especially heinous, atrocious, or cruel” aggravating circumstance and that the jury instructions surrounding this aggravating circumstance were so deficient that they violated Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights. Respondent asserts the aggravator is not unconstitutionally infirm and the Oklahoma court’s determination that the jury instructions accurately stated the applicable law is not contrary to, nor an unreasonable application of, clearly established federal law.

A. Sufficiency of the Evidence

The United States Supreme Court held, in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), in a federal habeas proceeding challenging the sufficiency of the evidence in a state trial, that a reviewing court must decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Further, the Court indicated following conviction, a judicial review of the “evidence is to be considered in the light most favorable to the prosecution.” Id. In Lewis v. Jeffers, 497 U.S. 764, 782, 110 S.Ct. 3092, 3103, 111 L.Ed.2d 606 (1990), the Court said the principles enunciated in Jackson apply with equal force to federal habeas review of a state court’s finding of aggravating circumstances.

Although aggravating circumstances are not “elements of any offense,” see Wal ton, Id., 497 U.S., at 648-649, 110 S.Ct., at 3054-3055, the standard of federal review for determining whether a state court has violated the Fourteenth Amendment’s guarantee against wholly arbitrary deprivations of liberty is equally applicable in safeguarding the Eighth Amendment’s bedrock guarantee against the arbitrary or capricious imposition of the death penalty. Like findings of fact, state court findings of aggravating circumstances often require a sentencer to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, supra, 443 U.S., at 319, 99 S.Ct., at 2789.

Lewis v. Jeffers, 497 U.S. at 782, 110 S.Ct. 3092.

As previously indicated, determinations of factual issues by a state court are presumed correct. 28 U.S.C. § 2254(e)(1). “A state court’s finding of an aggravating circumstance in a particular case ... is arbitrary or capricious if and only if no reasonable sentencer could have so concluded.” Id. at 783, 110 S.Ct. 3092.

Petitioner first raised this issue during his direct appeal. In rejecting the claim on the merits, the Oklahoma Court of Criminal Appeals found:

The crux of [Petitioner’s] argument, ..., is that the evidence of torture was insufficient because there was “nothing, absolutely nothing, in the record to show that (Jacobs) was consciously aware of the injury being inflicted.” (citation omitted).

We disagree. [Petitioner] told the police Jacobs was groaning during the attack, and that he was still alive, breathing, and saying “oh” when they left him bleeding by the side of the road. The process of bleeding to death took as little as four minutes, possibly more than twelve. There was testimony that his severed genitals were placed in his mouth at one point, and, if true, the victim may still have been alive after this point, for the genitals were found at a distance from the body. There was also testimony that Jacobs had been in an upright position at one point, for blood was found on the top of his shoes. The medical examiner testified that, although the victim had a blood alcohol content of .23, a normal person would be impaired, but still able to function, at this level.

. Accordingly, we find the evidence admitted at trial, when viewed in a light most favorable to the State, was sufficient to find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel, (citation omitted)

Murphy v. State, 47 P.3d 876, 883 (Okla.Crim.App.2002).

Under Oklahoma law, before a jury can find that a murder was especially heinous, atrocious or cruel there must be proof that death was preceded by torture or serious physical abuse. Turrentine v. State, 965 P.2d 955, 976 (Okla.Crim.App. 1998). See also, Okla. Stat. tit. 21, § 701.12(4) (1999). Two kinds of cases have been identified by the Oklahoma Court of Criminal Appeals in which “torture or serious physical abuse” will be found: “those characterized by” the infliction of “great physical anguish” and those characterized by the infliction of “extreme mental cruelty.” Thomas v. Gibson, 218 F.3d 1213, 1226 (10th Cir.2000) (citing Cheney v. State, 909 P.2d 74, 80 (Okla.Crim.App.1995)). In Spears v. State, 900 P.2d 431, 443 (Okla.Crim.App.1995), the court held “[t]o support a finding of serious physical abuse, the State must show the victim endured conscious physical suffering prior to death.” (emphasis in original) See also, Cheney v. State, 909 P.2d 74, 81 (Okla.Crim.App.1995) (Footnote 20 contains a summary of Oklahoma cases requiring conscious suffering to support evidence of heinous, atrocious or cruel aggravating circumstance).

Petitioner asserts there was no evidence to prove beyond a reasonable doubt that the victim was conscious at the time of the murder. Petitioner then recounts only evidence favorable to his assertion. While it is true the victim did not have any defensive wounds, unlike the facts in Thomas, the evidence clearly established the victim was groaning during the attack as Petitioner admitted “telling Agent Jones he was alive when we left, breathing, he was saying ‘Oh.’ ” Furthermore, the medical examiner indicated, even with a .23 blood alcohol content, a person would still possess the ability to speak, to function (although impaired), and to feel pain. Although the medical examiner did not note any defensive wounds, he was unable to say whether or not the victim was unconscious at any particular point in time during the attack, other than saying he would have lapsed into unconsciousness immediately before death. The jury also heard evidence that blood spatter indicated the victim would have been, at least partially, upright during part of the attack and there were blood stains on the top of the victim’s shoes. To the extent the medical examiner indicated the process of bleeding to death took at least four to five minutes and Petitioner admitted the victim was saying “oh,” this Court finds the determination by the Oklahoma Court of Criminal Appeals that there was sufficient evidence for a jury to determine beyond a reasonable doubt that the victim was conscious during at least part of the attack is not an unreasonable determination of the facts in light of all the evidence heard by the jury. In this Court’s opinion, the evidence viewed in the light most favorable to the prosecution overwhelmingly establishes the victim endured conscious physical suffering prior to death sufficient to support the jury’s finding that this murder was “heinous, atrocious or cruel.” Accordingly, Petitioner has failed to establish, pursuant to 28 U.S.C. § 2254(d)(2), that he is entitled to relief on this issue.

B. Jury Instructions

Next, Petitioner argues the jury instructions were insufficient on the heinous, atrocious or cruel aggravator because they were not particularized to Petitioner’s individual conduct. As a general rule, improper jury instructions do not form the basis for federal habeas corpus relief. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). In attempting to set aside a state conviction based on erroneous jury instructions, a habeas petitioner has a heavy burden. Such errors are ordinarily not reviewable in a federal habeas proceeding, “unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law.” Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir.1997) (citing Long v. Smith, 663 F.2d 18, 23 (6th Cir.1981)).

“The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977) (footnote omitted). The question in this proceeding is not whether the instruction is “undesirable, erroneous, or even ‘universally condemned,’ ” but whether the instruction so infected the trial that the resulting conviction violates due process. Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” Id. at 155, 97 S.Ct. at 1737.

Maes v. Thomas, 46 F.3d 979, 983 (10th Cir.1995).

First, Petitioner asserts the jury should have been instructed not only whether the “murder” was heinous, atrocious, or cruel but whether Petitioner’s individual conduct resulted in a death that was heinous, atrocious, or cruel. Petitioner seems to be arguing that he was not personally tied to the pre-death torture or serious physical abuse and, therefore, this aggravating circumstance could not be applied to any of his conduct. Based upon the evidence at trial, however, this argument is absurd. Petitioner admitted and bragged to at least three different people about amputating the victim’s genitalia, as well as cutting the victim’s throat and abdomen and stomping on his head. Further, Petitioner told his cousin after he had cut the victim’s “dick and nuts off,” that he shoved them in the victim’s mouth. Such admissions individually tied Petitioner to the conduct supporting this aggravating circumstance.

Next, Petitioner complains the jury instructions were inadequate because they did not instruct the jury that they had to find the victim had consciously suffered before finding the aggravator applied to the facts of his case. Petitioner’s jury was instructed that “the term ‘heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked and vile; ‘cruel’ means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.” O.R. 404. See also, Oklahoma Uniform Jury Instruction 4-73. The jury was further instructed, “[t]he phrase ‘especially heinous, atrocious, or cruel’ is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.” O.R. 404. The Tenth Circuit Court of Appeals has consistently rejected challenges that this aggravator is unconstitutionally vague and upheld the use of Oklahoma’s uniform jury instruction limiting this aggravator to those crimes where the death of the victim was preceded by torture or serious physical abuse of the victim. See Workman v. Mullin, 342 F.3d 1100, 1115-1116 (10th Cir.2003) and cases cited therein. The instructions given in Petitioner’s case clearly advised the jury that they could not find this aggravating circumstance unless they first determined the victim was tortured or physically abused such that a high degree of pain was inflicted upon him. See O.R. 404.

Finally, Petitioner asserts the Oklahoma Court of Criminal Appeals unreasonably applied federal law because Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the jury to find the victim “consciously suffered” beyond a reasonable doubt. The necessary finding by the jury, however, was that “the death of the victim was preceded by torture of the victim or serious physical abuse.” A finding by the jury of either of these two elements beyond a reasonable doubt was sufficient to support this aggravating circumstance. See, Turrentine v. State, 965 P.2d 955, 975 (Okla.Crim.App.1998). Since the jury necessarily found one or both of these elements prior to finding the aggravator applicable to Petitioner, Petitioner’s claim that the Oklahoma Court of Criminal Appeals decision upholding the jury’s sentence was contrary to, or an unreasonable application of, clearly established federal law lacks merit. Furthermore, to the extent Petitioner argues he was deprived of his Fourteenth Amendment rights, this Court finds that because Petitioner’s jury was properly instructed regarding this aggravating circumstance, Petitioner was not deprived of any constitutional rights. Therefore, Petitioner’s claim for relief is denied.

3. Continuing Threat Aggravator

While acknowledging that the Tenth Circuit has repeatedly found Oklahoma’s “continuing threat” aggravating circumstance constitutional, Petitioner nonetheless argues, in essence, that this aggravating factor is always unconstitutional because it is so vague and broad that it is a “standardless catchall” and it was unconstitutionally applied to his case in violation of his Sixth, Eighth, and Fourteenth Amendment rights. Further, Petitioner asserts the Oklahoma Court of Criminal Appeals’ interpretation of Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) is unreasonable as applied to this case. Respondent counters that the Oklahoma Court’s rejection of Petitioner’s claims was neither contrary to nor an unreasonable application of clearly established federal law. Thus, Respondent urges this Court, pursuant to 28 U.S.C. § 2254(d)(1), to defer to the Oklahoma Court’s decision.

In Jurek, the Court upheld the use of the language “continuing threat to society” where the jury was allowed to consider any mitigating circumstances offered by the defendant. See also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). “The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990). Notwithstanding the severity of the crime or a defendant’s potential to commit similar crimes in the future, “... sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, ...” Abdul-Kabir v. Quarterman, — U.S. -, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007). See also, Brewer v. Quarterman, — U.S. -, 127 S.Ct. 1706, 167 L.Ed.2d 622 (2007) and Smith v. Texas, — U.S. -, 127 S.Ct. 1686, 167 L.Ed.2d 632 (2007).

While Oklahoma’s capital-sentencing system differs in some major aspects from the one upheld in Jurek, the use of the “continuing threat” language as an ag-gravator which would limit those upon whom the death penalty may be imposed is quite similar. First, an Oklahoma jury must find that the aggravating circumstances outweigh the mitigating circumstances before it is authorized to consider the death penalty. Okla. Stat. tit. 21, § 701.11. In order to convince a jury that the death penalty should not be imposed, a defendant has the right to present “any relevant evidence ... bearing on his character, prior record or the circumstances of the offense.” Chaney v. State, 612 P.2d 269, 279-280 (Okla.Crim.App.1980) (construing OKLA. Stat. tit. 21, § 701.10 which governs sentencing proceedings in a first degree murder case). The jury, in this case, was so instructed. As a result, this Court finds Petitioner’s jury received sufficient guidance to enable it to make an informed decision regarding whether or not the death penalty was the appropriate punishment. The Oklahoma Court of Criminal Appeals’ decision rejecting each of Petitioner’s claims is neither contrary to, nor an unreasonable application of Ju-rek to the facts of this case.

Furthermore, the Tenth Circuit Court of Appeals has consistently held the continuing threat factor used in Oklahoma’s statutory sentencing scheme is constitutional. Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th Cir.1997), cert. denied, 525 U.S. 852, 119 S.Ct. 128, 142 L.Ed.2d 103 (1998). See also, Ross v. Ward, 165 F.3d 793, 800 (10th Cir.1999) (citing Castro v. Ward, 138 F.3d 810, 816 (10th Cir.), cert. denied, 525 U.S. 971, 119 S.Ct. 422, 142 L.Ed.2d 343 (1998) and Nguyen) and Fowler v. Ward, 200 F.3d 1302, 1313 (10th Cir.2000), cert. denied, 531 U.S. 932, 121 S.Ct. 317, 148 L.Ed.2d 254 (2000). Since Petitioner has cited no new authority or compelling arguments, this Court finds this claim is unpersuasive. Accordingly, it is denied.

4. Jury Instructions Re: Balancing Aggravating and Mitigating Factors

Issues regarding whether a jury was properly instructed are questions of law. United States v. Voss, 82 F.3d 1521 (10th Cir.1996). Accordingly, in order to grant relief on this issue, the decision of the Oklahoma Court of Criminal Appeals must be “contrary to ... clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

Petitioner admits the jury was properly instructed that, in the event they found the aggravating factors outweighed the mitigating circumstances, they could consider the sentence of death. Petitioner argues, however, that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), required the jury to also be instructed that aggravating factors must outweigh mitigating factors beyond a reasonable doubt. Since the jury was not so instructed, Petitioner asserts his Sixth, Eighth and Fourteenth Amendment due process rights were violated. In considering this claim during post-conviction proceedings, the Oklahoma Court of Criminal Appeals held:

On numerous occasions, prior to Ap-prendi, when criminal defendants have presented similar arguments to the one Petitioner raises here, this Court has stated its firm position that “specific standards for balancing aggravating and mitigating circumstances are not required” under Oklahoma’s capital sentencing scheme, (citations omitted) Our position on this point has not changed as a result of the Apprendi decision, for the reasons set forth below. First, Apprendi was a five to four, non-capital decision that resulted in five separate opinions from the Supreme Court justices on distinguishable facts. Second, Apprendi’s language does not, in our opinion, extend so broadly as to require a jury to find aggravating circumstances which have already been found by a jury to exist beyond a reasonable doubt, outweighed the mitigating circumstances beyond a reasonable doubt. Third, the United States Supreme Court’s recent decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), while apparently extending Ap-prendi’s holding to capital sentencing schemes, sheds no further light on the precise issue here, (footnote omitted) Fourth, under Oklahoma’s capital sentencing scheme, jurors are required to unanimously find statutory aggravating circumstances exist beyond a reasonable doubt, before the death penalty can be considered. At that point, the death penalty is in fact the maximum penalty, and the jury is simply deciding which of the three available punishments is proper, so long as aggravating circumstances outweigh mitigating circumstances.

Murphy v. State, 54 P.3d 556, 566 (Okla.Crim.App.2002).

In Kansas v. Marsh, — U.S. -, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), the Supreme Court indicated as long as the state is required to prove aggravating circumstances beyond a reasonable doubt before a defendant is considered death-eligible, the “State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighted.” Accordingly, Petitioner has failed to establish that the Oklahoma Court’s adjudication of this claim was contrary to or an unreasonable application of relevant Supreme Court precedent. Petitioner is, therefore, not entitled to habeas relief on this issue.

5. Victim Impact Evidence

In his fifth ground for relief, Petitioner asserts the victim impact evidence which explicitly called for his execution exceeded what is constitutionally permissible and violated his rights to a fundamentally fair sentencing proceeding as guaranteed by the Fifth, Eighth and Fourteenth Amendments. Petitioner raised this issue during direct appeal, and the Oklahoma Court of Criminal Appeals adjudicated the issue on the merits. Although Petitioner objected to specific comments contained within the victim impact statements immediately before the second stage proceedings began, he did not reurge his objections when the statements were actually read in court. As a result, the Oklahoma Court of Criminal Appeals held Petitioner had waived all but plain error. Murphy v. State, 47 P.3d 876, 885 (Okla.Crim.App.2002). Petitioner now asserts the Oklahoma Court of Criminal Appeals’ “finding that trial counsel did not make a ‘contemporaneous’ objection strains credulity and is clearly unreasonable.” First Amended Pet., at p. 70. Thus, Petitioner claims this Court is “free to depart from the OCCA’s factual analysis of the claim.” Id.

It is well-settled, however, that the contemporaneous objection rule is an independent and adequate state procedural ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Where a state court declines to address a claim based upon a state procedural requirement, the state court judgment is considered to rest on independent and adequate state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729-730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991), citing Wainwright v. Sykes, supra. Therefore, Respondent asserts the Oklahoma court’s determination that Petitioner’s failure to follow the state’s contemporaneous objection rule waived review for all but plain error does not give this Court the right to review de novo Petitioner’s victim impact claims.

Even though the Oklahoma Court of Appeals held Petitioner had waived all but plain error, it nonetheless considered all of the alleged errors in the victim impact statements in light of the principles enunciated in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). As a result, the issue before this Court is whether the decision of the Oklahoma Court of Criminal Appeals was contrary to, or an unreasonable application of clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1).

The issue of victim impact evidence has been squarely addressed by the Supreme Court on several occasions. First, in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Court in a 5-to-4 decision held that the Eighth Amendment prohibits a jury from considering a victim impact statement at the sentencing phase of a capital trial. The Court made clear that the admissibility of victim impact evidence was not to be determined on a case-by-case basis, but that such evidence was per se inadmissible in the sentencing phase of a capital case except to the extent that it “relate[d] directly to the circumstances of the crime.” Thereafter, in South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), the Court extended Booth to include prosecutorial statements to the sentencing jury regarding the personal qualities of the victim.

Later, in Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991), the Court overruled Booth and Gathers holding:

if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not -the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

See also, Jones v. United States, 527 U.S. 373, 395, 119 S.Ct. 2090, 2105, 144 L.Ed.2d 370 (1999)(Eighth Amendment allows a capital sentencing jury to consider evidence of victim’s personal characteristics and the emotional impact of the murder on the victim’s family.) If, however, the evidence introduced is “so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne, 501 U.S. at 825, 111 S.Ct. 2597 (citing Darden v. Wainwright, 477 U.S. 168, 179-183, 106 S.Ct. 2464, 2470-2473, 91 L.Ed.2d 144 (1986)). As stated in Darden, the question a reviewing court must consider is whether the evidence introduced “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)).

The Oklahoma Court of Criminal Appeals decision specifically discussed these relevant Supreme Court decisions holding:

[Petitioner] claims the victim impact evidence admitted in his trial exceed (sic) what is constitutionally permissible, i.e., it “characterized the offense, the perpetrator, and recommended the punishment”, and thus deprived him of a fair trial and due process under the United States Constitution and the Supreme Court decisions in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) and Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). He claims Oklahoma’s governing statute, 22 O.S.Supp. 1998, § 984(1) and this Court’s interpretation thereof are unconstitutional. He also claims the statements were far more prejudicial than probative and that they contained hearsay and conjecture components.

[Petitioner] specifically complains of the following from the written, but brief, victim impact statements that were read to jurors. First, the victim’s brother Rueban stated he could not understand why [Petitioner] would want to kill his brother and that [Petitioner] “should get the death penalty for taking an innocent life. I pray that he will not ever get out of jail and do bragging.” Second, the victim’s brother Frank stated, “I believe in the Bible. I believe an eye for any (sic) eye and that they should be put to death.” Third, the victim’s sister Irene’s statement commented on her anger at the “way (George) was murdered” and took the position that her brother “had a right to be here and alive today.” Irene also stated, “I hope you see that no one in the world should ever be free who committed such a crime.” Fourth, the victim’s sister Nadine stated, “I just hope and pray that these killers get the most severe punishment. There is no mercy for them.” [Petitioner] claims these statements amounted to super-ag-gravators.

[Petitioner] did not object to the statements when they were read in court, thus waiving all but plain error. Miller v. State, 2001 OK CR 17, ¶36, 29 P.3d 1077, 1085. We find no plain error occurred.

In at least three decisions, this Court has taken the position that Payne appears to have overruled Booth with respect to the issue of whether or not victim impact statements could include characterizations of the defendant, the crime, and opinions in regard to sentencing. See, e.g., Turrentine v. State, 1998 OK CR 33, ¶ 94, 965 P.2d 955, 980, cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998) (finding characterizations and opinions about the crime, the defendant, and the appropriate punishment no longer barred by Supreme Court); Ledbetter v. State, 1997 OK CR 5, ¶ 27, 933 P.2d 880, 890-91 (Booth’s Eighth Amendment prohibition against such evidence has been apparently overruled by Payne); Conover v. State, 1997 OK CR 6, ¶ 60, 933 P.2d 904, 920 (Payne “implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence.”).

We note here, however, that in footnote two of Payne’s majority opinion and in Justice O’Connor’s concurring opinion, the Supreme Court left open the question about admissibility of victim impact evidence regarding characterizations and opinions about the crime, the defendant, and the appropriate sentence because no such evidence was presented in that case. Payne, 501 U.S. at 830, 833, 111 S.Ct. at 2611-13.

Nevertheless, we note the Supreme Court has denied certiorari in Turren-tine, and since that time, we have continued to approve of such evidence in other capital cases. See Young v. State, 2000 OK CR 17, ¶ 83, 12 P.3d 20, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001) (“victim impact witness’ opinion as to the appropriateness of the death penalty is admissible, but is limited to the simple statement of the recommended sentenc