Full opinion text
OPINION AND ORDER TERENCE KERN, District Judge. This matter comes before the Court on remand from the Tenth Circuit Court of Appeals for further proceedings consistent with its July 25, 2005, opinion. See Richie v. Mullin, 417 F.3d 1117, 1125 (10th Cir.2005). By Order entered April 27, 2004 (Dkt. # 55), this Court adopted and affirmed the Report and Recommendation of the Magistrate Judge (Dkt. # 52), conditionally granting Petitioner’s petition for writ of habeas corpus. Respondent appealed (Dkt. # 56), and the Circuit Court reversed and remanded for further proceedings (Dkt. # 69). Accordingly, all remaining issues presented by death row inmate Lonnie Wright Richie, pursuant to 28 U.S.C. § 2254, are now before the Court. Petitioner, who appears through counsel, challenges his murder conviction and death sentence in Tulsa County District Court Case No. CF-91-3676. Nee Dkt. #6. Respondent, Marty Sirmons, has filed a response to the Petition denying its allegations (Dkt. # 7). Petitioner has replied (Dkt. # 8). This Court has reviewed: (1) the Petition for Writ of Habeas Corpus; (2) the Response to the Petition filed by the State of Oklahoma; (3) the Reply to the Response filed by the Petitioner; (4) all supplemental materials, arguments and authorities filed by Petitioner, together with responses by Respondent and replies by Petitioner; (5) transcripts of Preliminary Hearing proceedings (Volumes I — V); (6) transcripts of various pretrial hearings and proceedings held November 22, 1991, January 31, 1992, March 22, 1993, March 31, 1993, April 29, 1993, May 3, 1993, and September 20, 1993 (seven separate volumes); (7) transcript of the jury trial proceedings, Volumes I — III, held September 20-27,1993; (8) all documents and exhibits admitted in jury trial proceedings, with the exception of State’s ex. # 17 (handgun), and ex. #27 (ammunition); (9) transcript of the sentencing proceedings held on October 18, 1993; (10) Original Record in Tulsa County Case No CF-91-3676, Volumes I — TV; (11) all other records before the Oklahoma Court of Criminal Appeals which were transmitted to this Court; and (12) the records and transcripts from the evidentiary hearing held before Magistrate Sam Joyner in this habeas corpus matter. The Court has also taken into account the opinion and mandate of the Tenth Circuit Court of Appeals in Richie, 417 F.3d at 1117. For the reasons stated below, the Court finds that Petitioner is entitled to habeas corpus relief on his fifth ground. All other grounds for relief shall be denied. BACKGROUND I. Factual history On September 1, 1991, Tulsa police found the body of Mrs. Laura Launhardt in an abandoned house in rural Pawnee County. Petitioner and co-defendant Daniel Waller were charged with her murder, in addition to charges of kidnaping for extortion, robbery with a firearm and several counts of unauthorized use of a credit/debit card. The following evidence was presented during the guilt phase of Mr. Richie’s trial. On August 28, 1991, Mrs. Launhardt went to a K-Mart store in Tulsa, Oklahoma, to have a prescription filled and do some shopping. On the same day several witnesses observed Mr. Richie and Mr. Waller hanging around outside the K-Mart store. Later in the afternoon, Clyde Huffines, an oilfield pumper, was checking leases near Mannford, Oklahoma, when he noticed three people in the area near a van on one of the leases. One of the two men approached Huffines and stated that they had “come up here to relieve ourselves.” Huffines also noticed a woman standing in short weeds approximately 35 feet from him. The woman came up to Huffines and said that he had interrupted her from relieving herself and Huffines told her to “go ahead.” The woman then said something to Huffines in a much softer voice which he was unable to understand. She repeated the statement, but Huffines was again unable to understand her. The woman turned and walked away from Huffines. Huffines subsequently identified the man he had spoken to as Mr. Richie, and the woman as Mrs. Launhardt. Richie, Waller and Mrs. Launhardt ended up at an abandoned, storm-damaged house near Keystone Lake which was in close proximity to the above-mentioned oil lease. Once inside the abandoned house, Mrs. Launhardt’s wrists and ankles were bound and a long strap was tied around her neck and attached to a clothes rod in a walk-in closet. Richie and Waller left the abandoned house in Mrs. Launhardt’s van and proceeded to engage in a series of transactions utilizing the victim’s ATM card and other credit cards which had been stolen from her. That evening, Mrs. Launhardt’s husband reported her missing to the Tulsa Police. The officer who took the initial missing person report was not helpful, so Mr. Launhardt began his own investigation. Mr. Launhardt learned that his wife’s debit and credit cards had been used, so he again contacted the Tulsa Police. When Mr. Launhardt discovered that a Git-n-Go store in Muskogee, Oklahoma, had a video tape of one of the ATM transactions, he contacted the Muskogee Police. The Muskogee Police retrieved the tape. Mr. Launhardt reviewed it and saw two men on the tape using his wife’s ATM card. The Tulsa Police then became more actively involved, and eventually arrested Daniel Waller at a motel in Muskogee. Waller led the police to the house in Pawnee County where Mrs. Launhardt’s body was found. Richie was later apprehended in New Orleans, Louisiana, where Mrs. Launhardt’s van was also found. At trial the prosecution argued that Mrs. Laun-hardt was deliberately killed by Richie because he lifted her by her feet causing her strangulation death from the strap around her neck. Richie’s defense was that the victim was left alive in the abandoned house and died sometime later. II. Procedural history Petitioner, Lonnie Richie, a/k/a Lonnie Wright Richie, was convicted following a jury trial in the District Court of Tulsa County, Oklahoma, Case No. CF-91-3676, of one count of kidnaping for extortion, one count of robbery with a firearm, one count of unauthorized use of a debit card, one count of larceny of an automobile, and one count of murder in the first degree (malice aforethought and felony murder). At the conclusion of the sentencing stage of the trial, the jury found the existence of three aggravating circumstances: (1) continuing threat; (2) avoiding arrest or prosecution; and (3) murder was especially heinous, atrocious or cruel. The jury recommended a term of ninety-nine (99) years imprisonment for the kidnaping charge, sixty (60) years for the robbery with a firearm, twenty (20) years for the unauthorized use of a debit card, thirty (30) years for larceny of an automobile, and a death sentence as punishment for first degree murder. The trial court adopted the jury’s recommendations and sentenced Petitioner accordingly on October 18, 1993. See S. Tr. at 2. Petitioner filed a direct appeal of his conviction and sentence to the Oklahoma Court of Criminal Appeals (“OCCA”) in Case No. F-93-1095. Represented by attorney Cindy Brown, Petitioner raised fifteen (15) propositions of error on direct appeal: Proposition I: Mr. Richie was tried for murder in Tulsa County in derogation of his rights under Article II, Section 20, of the Oklahoma Constitution, which guarantees trial in the county in which the crime occurred, and in violation of his right to due process under the Fourteenth Amendment. Proposition II: The trial court erred in failing to instruct the jury that it was required to find the State had proven venue in Tulsa County by a preponderance of the evidence. Proposition III: Mr. Richie was denied a fair trial and due process of law under the Federal and State Constitutions because the information failed to sufficiently describe the first degree felony murder underlying felony of kidnaping, nor was the jury instructed on the crime charged; further the information did not adequately describe the charged crimes of kidnaping for extortion and robbery by firearm. This defect in the information deprived Mr. Richie of the ability to determine the nature of the charges against him and adequately defend himself in violation of State and Federal Constitutional due process principles. Proposition IV: The evidence was insufficient to sustain Mr. Richie’s convictions for the charged crimes under Federal and State Constitutional principles. Proposition V: The trial court’s failure to issue a second degree murder instruction violated Mr. Richie’s Sixth, Eighth and Fourteenth Amendment rights to a fair jury trial under the United States Constitution and Article 22, §§ 7, 9 and 20 of the Oklahoma Constitution, and his right to be free from the arbitrary imposition of the death penalty. Proposition VI: The flight instruction given in this case violated Mr. Richie’s fundamental presumption of innocence and denied him a fair and reliable trial, all in violation of the Fourteenth and Eighth Amendments to the United States Constitution and similar provisions of the Oklahoma Constitution. Proposition VII: The trial court committed reversible error violating Appellant’s Sixth Amendment right to confrontation and by not granting a new trial to Appellant when the State Medical Examiner made reference to the confession of the co-defendant during his testimony, thus improperly introducing a statement by a co-defendant inculpating Appellant. Proposition VIII: Prosecutorial misconduct in closing argument denied Appellant his constitutional right to a fair trial and to be free from the arbitrary imposition of the death penalty when references were made to double jeopardy and the jury’s responsibility to convict and then emphasized once again even though an objection to the comments was sustained. Proposition IX: The trial court abused its discretion by failing to remove Loyal Penix for cause, a prospective juror who was predisposed to give the death penalty, thereby requiring the defense to exercise a peremptory challenge to remove this juror, which resulted in an objectionable juror sitting in judgment of Appellant, thus denying him a fair trial by an impartial jury in violation of the Sixth and Fourteenth Amendments and corresponding provisions of the Oklahoma Constitution. Proposition X: The trial court abused its discretion by failing to excuse prospective juror Billy Wooten for cause when she asked to be excused because her husband was a career law enforcement officer, and prospective juror Karen Hoefling, whose personal fears caused her to identify with the victim, both of whom volunteered they were concerned they would be biased against the defendant. Their continued presence on the jury required the defense to exercise two of its peremptory challenges to remove these jurors, which resulted in objectionable jurors sitting in judgment of Appellant, thus denying him a fair trial by an impartial jury and freedom from the arbitrary imposition of the death penalty in violation of the Sixth, Eighth, and Fourteenth Amendments and corresponding provisions of the Oklahoma Constitution. Proposition XI: Admitting testimony from an unendorsed second stage witness for whom no prior adequate notice was given violated Appellant’s rights under the Sixth, Eighth, and Fourteenth Amendments, under Article II, § 20 of the Oklahoma Constitution, and under Title 21 O.S.1991, § 701.10. Proposition XII: Mr. Richie’s death sentence must be vacated because it is based in part on a jury finding of Oklahoma’s “continuing threat to society” aggravating circumstance, which is unconstitutionally vague and overly broad on its face and as construed by this court in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Proposition XIII: The trial court committed fundamental reversible error when it misinstructed the jury on the especially heinous, atrocious, or cruel aggravating circumstance. Proposition XIV: Mr. Richie’s death sentence should be vacated because the State presented insufficient evidence to support the jury’s finding of the aggravating circumstance that the murder was committed to avoid or prevent a lawful prosecution. Proposition XV: Errors in jury instructions given in the second stage of trial denied Appellant’s rights under the Eighth and Fourteenth Amendments to due process and a reliable sentencing proceeding. See Brief of Appellant, filed June 2, 1994, in OCCA Case No. F-93-1095. The OCCA reversed the felony murder conviction, but affirmed the remainder of Petitioner’s convictions and sentences. Richie v. Oklahoma, 908 P.2d 268, 275 (Okla.Crim.App.1996) (“[T]he jury’s finding of felony murder is invalid.”). The OCCA denied a rehearing on January 17, 1996. Id. The Petitioner then sought certiorari review from the United States Supreme Court. The request was denied on October 7, 1996. Richie v. Oklahoma, 519 U.S. 837, 117 S.Ct. 111, 136 L.Ed.2d 64 (1996). Petitioner also sought post-conviction relief in OCCA Case No. PC-97-1556. Represented by attorney, Kristi L. Christopher, Petitioner identified the following fifteen (15) propositions of error: Proposition I: Petitioner was deprived of effective trial counsel. Proposition II: Appellate counsel’s failure to raise critical and meritorious issues on direct appeal violated Mr. Richie’s right to the effective assistance of counsel. Proposition III: This court erred in upholding Mr. Richie’s first-degree malice aforethought murder conviction in light of the fundamental errors created by the reversal of the felony-murder due to jurisdictional problems. Proposition TV: Mr. Richie was denied his right to due process to not stand trial when e was incompetent by the failure of the trial court to appoint an expert to assist the defense in determining Mr. Richie’s competence, and trial counsel’s ineffectiveness for failing to investigate and raise the issue of Mr. Richie’s incompetency at trial especially considering that Mr. Richie is actually incompetent. Proposition V: Mr. Richie’s due process rights under the 5th and 14th Amendments to the United States Constitution were violated when the prosecutor failed to disclose exculpatory evidence to the defense. Proposition VI: As a result of juror bias, Mr. Richie was denied his right to a trial and sentencing by an impartial jury in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Proposition VII: Misrepresentations by members of the jury that would have supported a reason to challenge those jurors for cause denied Mr. Richie a trial before an impartial jury as required by the Sixth, Eighth, and Fourteenth Amendments. Proposition VIII: The erroneous heinous, atrocious, and cruel instruction given by the trial court could not have been harmless in light of the trial court’s specific factual findings on the nonexistence of physical abuse or torture. Proposition IX: Mr. Richie’s fundamental right to a presumption of innocence was violated because of the unwarranted, excessive security measures taken by the trial court. Proposition X: The jury was not properly instructed regarding life without parole, and as a result, Mr. Richie was denied due process of law and a reliable sentencing proceeding in violation of the Eighth and Fourteenth Amendments. Proposition XI: Collateral information provided further support for claims that the trial court committed reversible error for violating Mr. Richie’s Sixth Amendment [right] to confrontation and by not granting a new trial to Mr. Richie when the State’s Medical Examiner made reference to the confession of the co-defendant during his testimony, thus improperly introducing a statement by the co-defendant which inculpated Mr. Richie. Proposition XII: This court erred in finding that the evidence effectively precluded every reasonable hypothesis except that of guilt with respect to Mr. Richie’s conviction for robbery with a firearm. Proposition XIII: This court erred in failing to consider that the reason the trial court refused to issue a second-degree murder instruction was because of the felony murder part of the charge and not because the evidence was insufficient for the instruction. Proposition XIV: The trial court did not have jurisdiction to try Mr. Richie as he had not been properly bound over for the offenses. Proposition XV: The cumulative effect of the errors created at trial and on appeal created error of constitutional dimensions, and deprived Mr. Richie of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. The OCCA denied all requested relief. Richie v. State of Oklahoma, 957 P.2d 1192 (Okla.Crim.App.1998). Petitioner filed the instant petition for writ of habeas corpus on February 10, 1999 (Dkt. # 6). In his petition, Petitioner raises the following twenty-one (21) grounds of error: Ground 1: Several jurors in Mr. Richie’s case harbored biases that would have caused them to be stricken for cause; they hid those biases by giving dishonest answers on voir dire. Ground 2: The State failed to disclose or the defense failed to obtain and present evidence Mrs. Launhardt was left alive by the defendants, then expired through accident or misfortune. Ground 3: Trial counsel failed to investigate and present expert evidence Mrs. Launhardt’s death was unintentional. Ground 4: The Medical Examiner essentially introduced the co-defendant’s formal statement as to the manner of death, without medical foundation and without the opportunity for Mr. Richie to confront the co-defendant. Ground 5: Mr. Richie was deprived of a constitutionally required lesser included offense instruction. Ground 6: Trial counsel failed to investigate and to develop mental state evidence to support an intoxication defense and otherwise negate intent. Ground 7: The evidence was insufficient to support a conviction for malice murder. Ground 8: The evidence presented by the State of Oklahoma was insufficient to sustain Mr. Richie’s convictions for the charge of kidnaping for extortion and robbery by firearm. Ground 9: Mr. Richie’s trial in a county where no crime was committed violates the Fourteenth Amendment. Ground 10: Mr. Richie’s trial counsel was ineffective. Ground 11: Oklahoma’s refusal to apply the rule in Mitchell v. State to Mr. Richie violated his constitutional rights under the Sixth, Eighth and Fourteenth Amendments. Ground 12: Mr. Richie was unconstitutionally deprived of the right to have his conviction for first degree murder reversed for infirmities in the information and instructions. Ground 13: Mr. Richie is entitled to habeas corpus relief because his death sentence is grounded on a flawed determination he is guilty of murdering the decedent to avoid lawful arrest or prosecution. Ground 14: The jury was misinstructed on the “heinous, atrocious, or cruel” aggravating circumstance and there was insufficient evidence to support the aggravator. Ground 15: The district court erred in not granting habeas relief based on the unconstitutionality of the “continuing threat” aggravator. Ground 16: Mr. Richie’s death sentence is constitutionally infirm because his sentencing jury was not informed of the meaning and significance of the life without parole sentencing option, an error his appellate lawyer did nothing to correct. Ground 17: An erroneous instruction offered the jury an unauthorized and unconstitutional path to a death sentence. Ground 18: Fundamental error in other sentencing instructions deprived Mr. Richie of his constitutional rights to an individualized sentencing proceeding, to be free from the arbitrary imposition of the death penalty, and to a meaningful review of his death sentence. Ground 19: Introduction of victim impact evidence in this case violated the Constitution. Ground 20: Appellate counsel failed to present critical arguments in Mr. Richie’s direct appeal. Ground 21: Mr. Richie is insane or may become insane and may not be executed. A response was filed on March 4, 1999 (Dkt. # 7), followed by Petitioner’s reply on May 26, 1999 (Dkt. # 8). Petitioner filed a notice of supplemental authority (Dkt. # 9) on April 27, 2000, and again on July 81, 2000. (Dkt. # 10). Respondent filed his response to supplemental authority on August 9, 2000 (Dkt. # 12). Petitioner’s reply was filed August 24, 2000 (Dkt. # 13). By Order filed January 21, 2003, this Court granted Petitioner’s request for an evidentiary hearing on the issues raised in the second, third, sixth and tenth grounds for relief (Dkt. # 15 at 11). Following an evidentiary hearing, Magistrate Judge Sam A. Joyner recommended that the District Court grant a conditional writ of ha-beas corpus on the ground that Petitioner’s trial counsel was ineffective for failing to properly cross-examine Dr. Hemphill (Dkt. # 52). This Court adopted and affirmed the Report and Recommendation of the Magistrate Judge on April 26, 2004 (Dkt. # 55). The remaining issues were not addressed in this Court’s April 26th Order. Accordingly, the only issue presented to, and ruled upon by, the Tenth Circuit Court of Appeals in Respondent’s appeal was whether defense counsel rendered ineffective assistance of counsel in cross-examining Dr. Hemphill. Richie, 417 F.3d at 1118. As noted above, the Circuit Court reversed the conditional grant of habeas corpus relief and remanded for further proceedings. Id. at 1125. Following remand from the Tenth Circuit, Petitioner filed additional notices of supplemental authorities (Dkt. # s 74, 76). Respondent filed responses (Dkt. # s 75, 77), and Petitioner filed a combined reply (Dkt. # 78). This Court will address each of Petitioner’s grounds for relief, except the previously decided claim of ineffective assistance of trial counsel for failing to adequately cross-examine Dr. Hemphill. 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. at 731, 111 S.Ct. 2546 (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); 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). Unless otherwise specifically addressed in this opinion, the exhaustion requirement for each proposition is satisfied. 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); Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). 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, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Duvall v. Reynolds, 139 F.3d 768, 796-97 (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). This Court will address procedural bar issues as they arise in the analysis of Petitioner’s claims. III. Standard of review — AEDPA The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or “the Act”) made significant changes to federal habeas corpus law, specifically delineating 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. 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. It is not necessary, however, that the state court cite to controlling Supreme Court precedent, so long as neither the reasoning nor the result of the state court decision contradicts Supreme Court law. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Petitioner’s habeas proceedings in the instant matter commenced on January 20, 1999 (Dkt. # 1), well after the effective date of AEDPA. Although the crimes for which Petitioner was convicted predate 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). The Court finds that the AEDPA is applicable, and will apply it herein to the extent Petitioner’s claims are cognizable in a federal habeas corpus proceeding. GROUNDS FOR RELIEF The Court now turns to Petitioner’s specific grounds for requesting habeas corpus relief. I. Concealed juror bias (ground 1) Petitioner alleges in his first ground for relief that he was denied a fair trial before an impartial jury because several jurors in his case harbored biases that would have caused them to be stricken for cause. He further claims such jurors hid their biases by giving dishonest answers during voir dire. To support his claim, Petitioner relies upon juror interviews conducted in November and December of 1996. Petitioner first contends that, despite a jury instruction which forbid the jury from inferring guilt from the fact the Petitioner did not testify at his trial, several jurors believed he should, and would, have taken the stand if he were innocent. Petitioner also claims that post-conviction juror interviews conducted in 1996 reveal that several jurors believed “the death penalty should be automatic for first degree murder.” See Dkt. # 6 at 16. According to Petitioner, these alleged biases were concealed by the jurors during voir dire. Had the jurors been honest, Petitioner asserts, they would have been removed for cause from the jury selection pool. He argues that he was deprived of his constitutional right to a fair trial as a result of juror bias which was not revealed during voir dire. Respondent counters with two arguments. First, he contends that the issue is not cognizable in federal habeas court because the issue is a matter of state law and the OCCA’s ruling was based on independent and adequate state law grounds. Alternatively, he argues that the OCCA’s decision is “in harmony” with Supreme Court case law. This issue was first raised by Petitioner in post-conviction proceedings when he alleged that misrepresentations by jurors denied him a trial before an impartial jury as required by the Sixth, Eighth, and Fourteenth Amendments. Denying relief on the merit s, the OCCA held that Petitioner’s claim was specifically prohibited by Oklahoma statutory law: Richie’s claim is specifically prohibited by 12 O.S.1991, § 2606(B) which states in pertinent part: Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify as to any matter or statement occurring during the course of the jury’s deliberations or as to the effect of anything upon his or another juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes during deliberations. [emphasis added] See also Hall v. State, 1988 OK CR 174, 762 P.2d 264, 266-67; Weatherly v. State, 1987 OK CR 28, 738 P.2d 1331, 1334-35; Wacoche v. State, 1982 OK CR 55, 644 P.2d 568, 572-73. Therefore, this allegation of error is denied. Richie v. Oklahoma, 957 P.2d 1192, 1197-98 (Okla.Crim.App.1998). Finding the claim lacked merit because it was prohibited by state law, the OCCA conducted no analysis of Petitioner’s federal constitutional claim. Nonetheless, the OCCA’s decision was an adjudication on the merits. Contrary to Respondent’s position, the issue is properly before this Court. Because the OCCA undertook its analysis of Petitioner’s claim entirely under state law without addressing the merits of Petitioner’s federal claim, this Court will address the claim de novo and AEDPA deference does not apply. Brown v. Sirmons, 515 F.3d 1072, 1087 (10th Cir.2008) (citing Harris v. Popped, 411 F.3d 1189, 1196 (10th Cir.2005)). Under the Sixth Amendment to the Constitution, a defendant has a right to trial by an impartial jury. One “touchstone of a fair trial is an impartial trier of fact-a jury capable and willing to decide the case solely on the evidence before it.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Petitioner maintains that, according to the test set forth in McDonough, his constitutional right to an impartial jury was violated. The McDonough Court articulated the standard as follows: We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. Id. at 556, 104 S.Ct. 845. Emphasizing the practical necessities of judicial management and recognizing that perfection is not generally achievable in a trial, the Supreme Court explained, “The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” Id. The Tenth Circuit Court of Appeals has held that the Mc-Donough test “is not satisfied by showing that a juror provided a mistaken, though honest answer, but rather ‘is directed at intentionally incorrect answers.’ ” United States v. Cerrato-Reyes, 176 F.3d 1253, 1259 (10th Cir.1999) (quoting Gonzales v. Thomas, 99 F.3d 978, 983 (10th Cir.1996)). Petitioner relies upon affidavits acquired three years after his jury trial to support his proposition that jurors “failed to answer honestly” material questions on voir dire. Petitioner cites to the Affidavit of Kimberly D. Heinz, an attorney/investigator employed by the Oklahoma Indigent Defense System (“OIDS”), who conducted interviews of several jurors in November and December of 1996. See Petitioner’s Application for PosNConviction Relief, Addendum Vol. 2, App., Ex. 6. Ms. Heinz’ affidavit is clearly inadmissible hearsay as it contains no direct evidence supporting Petitioner’s claim. The affidavit is a recitation of various interviews with jurors from Petitioner’s trial. Even assuming the Court could consider the affidavit of the investigator, it simply represents “brief, conelusory perceptions and opinions of [the referenced] jurors, which do not reflect any misrepresentation by themselves or other jurors during voir dire.” Sallahdin v. Gibson, 275 F.3d 1211, 1223 (10th Cir.2002) (citing United States v. McVeigh, 118 F.Supp.2d 1137, 1153 (D.Colo.2000) (“statements made by trial jurors after they experienced the entire trial and sentence hearing and after deliberating on the verdicts are not reasonably probative .. .”)). None of the referenced jury interviews detailed in Ms. Heinz’ affidavit support Petitioner’s assertion that the jurors were intentionally dishonest in their answers to voir dire questions. Petitioner also proffers the 1996 affidavit of juror Michelle Lynn Leek. See Petitioner’s Application for Post^Convietion Relief, Addendum Vol. 2, App., Ex. 31. Again, this affidavit does not reflect misrepresentation on juror Leek’s part during voir dire. It merely expresses her perceptions and opinions of the trial and other jurors. Petitioner’s rebanee on this affidavit is unavailing. Petitioner urges this Court to find that multiple jurors were biased against him because he did not testify, and they harbored a concealed belief that the death penalty was the only appropriate punishment for first degree murder. However, the record is devoid of any improper conduct by the jurors. As noted by Petitioner, all the jurors on the panel indicated during voir dire that they believed and understood that Petitioner had a right not to testify (Dkt. # 6 at 18). Additionally, Petitioner acknowledges that all jurors stated during voir dire that they would consider all punishments available and would consider mitigation evidence before deciding upon a punishment (Id. at 21). He now concludes that, because he was found guilty and given a death sentence, the jurors lied during voir dire and concealed their biases. As explained by the OCCA, it is well settled under Oklahoma state evidentiary rules that individual jurors generally cannot impeach the jury’s verdict. See Okla. Stat. tit. 12, § 2606(B). Although evidence concerning external influences on a jury may be admissible, a juror “may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict.” Id. Nor may a juror’s affidavit concerning internal jury deliberations be considered for the purposes of inquiring into the validity of a verdict. Id. A similar federal rule “is grounded in the common-law rule against admission of jury testimony to impeach a verdict.” Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (citing Fed.R.Evid. 606(b) identical to language in Okla. Stat. tit. 12, § 2606(B)). As the Supreme Court once said, if such a practice were allowed, [A]ll verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference. McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). Absent any showing on the record of either actual or implied juror bias, Petitioner has failed to demonstrate constitutional violations by his jury. Having failed to satisfy the first prong of the McDonough test to demonstrate that a juror was dishonest during voir dire, and having failed to show actual or implied juror bias in any manner, this Court finds that Petitioner’s constitutional rights to a fair trial by an impartial jury have not been violated as alleged in his ground one claim. Habeas relief shall be denied on this proposition. II. Exculpatory evidence (ground 2) In his second proposition, Petitioner claims that certain exculpatory information was withheld by the State in violation of his due process rights. Specifically, he alleges that the prosecution wrongly withheld evidence concerning: (1) a statement by co-defendant Waller; (2) the coercive tactics used during Waller’s interrogation leading to his formal statement; and (3) doubts that the police expressed to the medical examiner regarding the credibility of Waller’s statement. Alternatively, he claims that his trial counsel was ineffective for failing to discover the alleged beneficial evidence and placing it before a jury. Petitioner requests habeas relief for these occurrences by rebanee primarily upon the doctrines enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This Court granted Petitioner an eviden-tiary hearing on his ground two claims, in addition to grounds three, six and ten (Dkt. # 15). Following the evidentiary hearing, the Magistrate Judge issued his Report and Recommendation (Dkt. # 52), concluding that Petitioner’s trial counsel failed to provide constitutionally effective assistance as alleged in ground three. Recommending that the District Court grant Petitioner’s request for a writ of habeas corpus on ground three, the Magistrate Judge did not address the other issues presented by Petitioner (id. at 26), including the ground two claims. Accordingly, the ground two claims were not addressed in this Court’s Order adopting the Report and Recommendation (Dkt. #55). They shall be analyzed at this time. The issues set forth in ground two were first raised in Petitioner’s application for post-conviction relief. Respondent contends that the claims were procedurally defaulted in state court. Petitioner replies that the OCCA’s procedural ruling was based upon restrictions found in Oklahoma’s new post-conviction law which was not in effect at the time of Petitioner’s direct appeal. Relying upon Walker v. Attorney General of Oklahoma, 167 F.3d 1339, 1345 (10th Cir.1999), Petitioner asserts that the procedural bar is inapplicable. The doctrine of procedural default generally prohibits a federal court from considering a specific habeas claim where the state’s highest court clearly denied the claim on procedural grounds. Gray v. Netherlands 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (Petitioner’s failure to raise Brady claim in state court implicates the requirements in habeas of procedural default). Only upon a showing of “cause” and “prejudice” is a federal court permitted to entertain a defaulted claim. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Brecheen v. Reynolds, 41 F.3d 1343, 1353 (10th Cir.1994). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded ... efforts to comply with the State’s procedural rule.” Murray, 477 U.S. at 488, 106 S.Ct. 2639. Examples of such external factors include the discovery of new evidence, a change in the law, and interference by state officials. Id. As for prejudice, a petitioner must show “not merely that the errors of the trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). As an alternative to showing “cause and prejudice,” a petitioner may attempt to show that dismissal of his instant claim on the ground of procedural default will result in a “fundamental miscarriage of justice.” Such a showing, however, is very difficult to make as it requires a petitioner to demonstrate that he is “actually innocent” of the crime for which he was convicted. See Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). As stated previously, the OCCA denied this claim on procedural grounds finding in its postconviction decision: In his fifth proposition, Richie claims the prosecution failed to disclose exculpatory material to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Richie specifically contends the State failed to provide trial counsel with Mr. Waller’s initial statement in which he informed the police he was the last person to see Mrs. Launhardt alive. He further maintains the State failed to reveal that the police had “brutalized” Mr. Waller into “confessing” that Richie killed Mrs. Launhardt. Under the revised post-conviction procedure act, Richie must show this claim was not and could not have been raised on direct appeal and that it supports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. 22 O.Supp.1995, § 1089(C)(1) & (2). We have carefully reviewed this allegation, but are unable to conclude this claim could not have been raised on direct appeal. Mr. Waller’s statement either was known or could have been obtained prior to Richie’s direct appeal being filed. Moreover, we are unable to conclude this claim would have changed the outcome of the trial or that it supports the conclusion that Richie is factually innocent. Accordingly, this proposition is waived. Richie v. Oklahoma, 957 P.2d 1192, 1195 (Okla.Crim.App.1998). Although Petitioner initiated his direct appeal in 1993, the state court relied upon the 1995 amended version of Oklahoma’s procedural default statute. Citing Walker v. Attorney General of Oklahoma, 167 F.3d 1339, 1344 (10th Cir.1999), Petitioner claims no federal procedural bar can arise from the OCCA’s decision (Dkt. # 8 at 8). In Walker, the Tenth Circuit Court of Appeals held that the state court’s application of the 1995 amendments to an alleged default that occurred before those amendments were enacted would not bar federal review of the claim. However, the Circuit Court has subsequently explained that the Walker decision is limited, and only “governs claims based on changes in law which would have sufficed to excuse default under the statutory scheme in effect when the procedural omission occurred, but which are barred by application of the new procedural statute.” Smith v. Mullin, 379 F.3d 919, 926 n. 3 (10th Cir.2004). “[I]f claims omitted on direct state appeal would have been barred on state post-conviction anyway, even under Oklahoma’s pre-1995 law (for example, if they rested on authority established at the time of direct appeal),” Walker cannot be applied to excuse Petitioner’s default. Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1201-02 (10th Cir.2003)). In Petitioner’s case, the post-conviction act in effect at the time of Petitioner’s direct appeal, 22 O.S.1991, § 1086, presents an adequate basis to bar federal review of his Brady claim. The Tenth Circuit has found § 1086 to be an “adequate, as well as independent, state ground” which would bar federal habeas review. Steele v. Young, 11 F.3d 1518, 1521 (10th Cir.1993). Based upon this Court’s understanding of Oklahoma’s prior post-conviction act and § 1086, the Court finds that Petitioner’s Brady claim is procedurally barred. Hale v. Gibson, 227 F.3d 1298, 1330 (10th Cir.2000) (Oklahoma’s Post-Conviction Procedure Act “is an adequate state bar to Brady claims raised on postconviction review that could have been raised on direct appeal.”). Petitioner alternatively claims in ground two of this habeas proceeding that his trial counsel was ineffective for failing to discover the alleged beneficial evidence and placing it before the jury. See Dkt. # 6 at 22. Respondent responds that, “Petitioner has failed to provide specific argument which shows that counsel’s performance was professionally unreasonable.” See Dkt. # 7 at 16-17. However, Respondent has not advised the Court that this portion of Petitioner’s ground two claim may be unex-hausted, and the Court has been unable to find where Petitioner raised this ineffective assistance of counsel claim before the state court. Petitioner makes no mention of the exhaustion status of the ineffective assistance of counsel portion of his ground two claim. Respondent refers only to Petitioner’s Brady claim when he advises that Petitioner’s ground two claim is exhausted for purposes of habeas corpus review (Dkt. # 7 at 11). Nonetheless, the Court finds that Petitioner has never “fairly presented” to the OCCA that portion of his ground two claim in which he asserts that his trial counsel was ineffective for failing to discover evidence of Waller’s early statements, police coercion in obtaining Waller’s official statement, and police doubts about the State’s theory. Although the Court could require Petitioner to return to state court to raise the claim in a second post-conviction application, the OCCA routinely applies a procedural bar to such claims unless the petitioner provides “sufficient reason” for his failure to raise the claim in an earlier proceeding. Okla. Stat. tit. 22, § 1086; Moore v. State, 889 P.2d 1253 (Okla.Crim.App.1995). Because this claim would be subject to a procedural bar in the state courts, the Court finds it would be futile to require Petitioner to exhaust this claim. See Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (the futility exception is a narrow one, and is supportable “only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief’); see also Coleman, 501 U.S. at 722, 111 S.Ct. 2546; Steele, 11 F.3d at 1524. Accordingly, because exhaustion would be futile, the portion of Petitioner’s ground two claim relating to ineffective assistance of trial counsel is not barred by the exhaustion requirement. However, under the procedural default doctrine, this Court may not consider Petitioner’s ground two ineffective assistance of trial counsel claim unless he is able to show cause and prejudice for the procedural default, or demonstrate that a fundamental miscarriage of justice would result if his claim is not considered. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. As stated earlier, the “cause” standard requires Petitioner to “show that some objective factor external to the defense impeded ... efforts to comply with the state procedural rules.” Murray, 477 U.S. at 488, 106 S.Ct. 2639. He must also show “ ‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Alternatively, the “fundamental miscarriage of justice” exception requires Petitioner to demonstrate that he is “actually innocent” of the crime of which he was convicted. McCleskey v. Zant, 499 U.S. 467, 495, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Petitioner does not attempt to show cause and prejudice for his failure to present this issue to the state courts. Nor does he argue that a fundamental miscarriage of justice would occur if his claim is not considered. Therefore, because Petitioner has not demonstrated “cause and prejudice” or that a “fundamental miscarriage of justice” will result, the Court concludes that it is procedurally barred from considering Petitioner’s Ground Two claim on the merit s, insofar as the allegations relate to ineffective assistance of trial counsel. Coleman, 501 U.S. at 724, 111 S.Ct. 2546. III. Ineffective assistance of trial counsel (ground 3) In his third ground for habeas corpus relief, Petitioner alleges that his trial counsel was constitutionally ineffective under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). More specifically, Petitioner asserts that his trial counsel: (1) failed to obtain a defense expert to support the theory that Mrs. Launhardt died of a cardiac arrhythmia rather than choking through manual strangulation; and (2) failed to adequately cross-examine the medical examiner, Dr. Hemphill, regarding the manner of death. Because the second part of this ground has been definitively ruled upon by the Tenth Circuit Court of Appeals, see Richie, 417 F.3d at 1117, the only ground three issue remaining for consideration is whether trial counsel was ineffective for failing to obtain a forensic expert to demonstrate this was not a deliberate ligature strangulation death. Respondent argues that Petitioner’s ground three claims of ineffective assistance of trial counsel are procedurally barred. Petitioner urges this Court to review such claims on the merit s. Petitioner first raised his claims of ineffective assistance of trial counsel in his application for post-conviction relief. The OCCA denied relief, citing Walker v. State, 933 P.2d 327, 332 (Okla.Crim.App.1997) (denied review of ineffective assistance of counsel claim on the merits because the facts generating those claims were available to Walker’s direct appeal attorney and thus either were or could have been used in his direct appeal). The OCCA found that Petitioner’s ineffective assistance of trial counsel claims were barred because they “do not turn on facts and information unavailable at the time of his direct appeal.” Richie, 957 P.2d at 1197. The state court’s procedural bar as applied to the ineffective assistance of counsel claims was an “independent” state ground because “it was the exclusive basis for the state court’s holding.” Maes, 46 F.3d at 985. The question of whether the state procedural bar is “adequate” is more difficult when applied to an ineffective assistance of counsel issue. When the underlying claim is ineffective assistance of counsel, the Tenth Circuit Court of Appeals has recognized that countervailing concerns justify an exception to the general rule of procedural default. Brecheen v. Reynolds, 41 F.3d 1343, 1363 (10th Cir.1994) (citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). The unique concerns are “dictated by the interplay of two factors: the need for additional fact-finding, along with the need to permit the petitioner to consult with separate counsel on appeal in order to obtain an objective assessment as to trial counsel’s performance.” Id. at 1364 (citing Osborn v. Shillinger, 861 F.2d 612, 623 (10th Cir.1988)). The Tenth Circuit explicitly narrowed the circumstances requiring imposition of a procedural bar on ineffective assistance of counsel claims first raised collaterally in English v. Cody, 146 F.3d 1257 (10th Cir.1998). In English, the circuit court concluded that: Kimmelman, Osborn, and Brecheen indicate that the Oklahoma bar will apply in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone. All other ineffectiveness claims are procedurally barred only if Oklahoma’s special appellate remand rule for ineffectiveness claims is adequately and evenhandedly applied. Id. at 1264 (citation omitted). After reviewing the record in the instant case in light of the factors identified in English, the Court concludes the OCCA’s finding of a procedural bar is not adequate to preclude federal habeas review because the claim cannot be resolved upon the trial record alone. As a result, the Court will evaluate the merits of Petitioner’s claim under the now familiar two-pronged Strickland standard. The Strickland test requires a showing of both deficient performance by counsel and prejudice to Petitioner as a result of the deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To satisfy the deficient performance prong of the test, Petitioner must overcome a strong presumption that counsel’s conduct fell within the “wide range of reasonable professional assistance [that] ... might be considered sound trial strategy.” Brecheen, 41 F.3d at 1365 (citations omitted); see also Barkell v. Crouse, 468 F.3d 684, 689 (10th Cir.2006). “A claim of ineffective assistance must be reviewed from the perspective of counsel at the time and therefore may not be predicated on the distorting effects of hindsight.” Brecheen, 41 F.3d at 1365 (citations omitted). “[D]e-cisions alleged to be deficient must not be viewed in a vacuum; the court must assess such actions from the vantage point of counsel at the time of their making and with all relevant facts in mind.” Rickie, 417 F.3d at 1120. Finally, the focus of the first prong is “not what is prudent or appropriate, but only what is constitutionally compelled.” Id. To establish the prejudice prong of the test, Petitioner must show that the allegedly deficient performance prejudiced the defense; namely, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Petitioner has the burden of demonstrating prejudice. Id. at 696, 104 S.Ct. 2052. Failure to establish either prong of the Strickland standard will result in denial of relief. Id.; Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir.1995). With regard to Petitioner’s claim that he received ineffective assistance from his trial counsel because counsel failed to procure a defense expert whose opinions would have contradicted the manner of death propounded under the state’s theory, the Court finds counsel was not constitutionally ineffective. Because Petitioner was granted an evidentiary hearing on this ineffectiveness claim, the Court has reviewed additional evidence proffered by Petitioner in the hearing and has conducted an independent analysis of Petitioner’s allegations. Dr. Peter H. Proctor, testified at the evidentiary hearing that, in his opinion, Mrs. Launhardt “died of cardiac arrest secondary to vasovagal reflex which is, in turn, secondary to a ligature around her neck.” Ev. Hr’g Tr. at 150. He explained that a vasovagal reflex death differs from an asphyxial death such as the one described by Dr. Hemphill (Id. at 155). The classic signs of an asphyxial death, such as ligature strangulation, are conjunctival pe-techiae or conjunctival hemorrhages, and skin petechiae. (Id. at 158). No mention was made of petechiae or hemorrhages in Dr. Hemphill’s autopsy report, nor did Dr. Proctor see such signs in the photographs of the victim (Id. at 158-59). Dr. Proctor also testified that a vasovagal reflex death could occur without much pressure on the neck and would be consistent with just having something tied around the victim’s neck and her moving around a little bit (Id. at 151). In Dr. Proctor’s opinion, Mrs. Launhardt’s death was not an asphyxial death. Petitioner argues that his trial counsel’s failure to investigate and present this “compelling evidence” in support of the defense’s left-alive theory constituted ineffective assistance of counsel in violation of the Sixth Amendment (Dkt. # 45 at 4-5). Petitioner’s counsel, Melody Brannon, also testified at the evidentiary hearing. She explained that at the time of trial, she did not find it necessary to call another expert to testify because she believed that the state’s witness, Dr. Hemphill, supported the defense theory that Mrs. Laun-hardt was left alive. See Ev. Hr’g Tr. 29-30. Ms. Brannon testified as follows: To my memory, essentially when the government’s own expert witness, which is what I consider a medical examiner, was testifying in our favor, I didn’t see a need to call in an opposing expert witness. Id. at 30. Petitioner acknowledges that, “Ms. Brannon premised her defense on the notion the medical examiner, Dr. Hemp-hill, was a defense witness, would testify in support of the theory the victim was left alive, and would testify unfavorably about the State’s theory of a deliberate killing.” See Dkt. # 45 at 3. In hindsight, it can certainly be argued that Dr. Proctor’s testimony may have had a significant impact on the jury’s decision. However, Ms. Brannon’s decision not to call an expert “must be reviewed from the perspective of counsel at the time.” Brecheen, 41 F.3d at 1365. In order for counsel’s performance to be constitutionally ineffective, her decision to forego calling an expert witness such as Dr. Proctor, must have been completely unreasonable and “outside the wide range of professionally competent assistance.” Barkell, 468 F.3d at 689. Based upon counsel’s own testimony, and Petitioner’s recognition of the rationale behind her decision, this Court cannot find that Ms. Brannon’s decision was not sound trial strategy. In order to be constitutionally ineffective, a “strategic decision must have been completely unreasonable, not merely wrong.” Romano v. Gibson, 278 F.3d 1145, 1153 (10th Cir.2002). Counsel believed that Dr. Hemphill would provide the expert testimony she needed to present to the jury. From her vantage point at the time, this belief was not unreasonable. Thus, Petitioner has failed to demonstrate that counsel’s performance was constitutionally deficient under the Strickland guidelines. Having found that trial counsel’s performance was not constitutionally deficient, it is not necessary to address the prejudice prong of the Strickland test. Bryan v. Mullin, 335 F.3d 1207, 1216 (10th Cir.2003). Petitioner is not entitled to habeas corpus relief on his ground three claim. IV. Right to confront witness (ground 4) Petitioner alleges, in his fourth ground for relief, that inadmissible statements of co-defendant Waller were presented through the testimony of expert witness, Dr. Hemphill, thereby depriving Petitioner of his Sixth Amendment right of confrontation. Petitioner also contends that his due process rights were violated when Dr. Hemphill was allowed to base his expert opinion as a medical examiner on the inadmissible statements of Mr. Waller. The Sixth Amendment claim was rejected by the OCCA on direct appeal: In his seventh proposition of error,