Full opinion text
MEMORANDUM OPINION VICKI MILES-LaGRANGE, Chief Judge. Petitioner, a state prisoner currently facing execution of a sentence of death, appears with counsel and petitions for a Writ of Habeas Corpus pursuant to 28 U.S.C.A. § 2254, challenging his sentence of death and his post-conviction mental retardation trial. Respondent has responded to Petitioner’s Amended Second Petition for a Writ of Habeas Corpus (hereinafter “Petition.”) Petitioner has replied to this response. The state court record of the post-conviction mental retardation trial has been supplied. 1. PROCEDURAL HISTORY This is Petitioner’s Amended Second Petition for Writ of Habeas Corpus. During his pending appeal with the Tenth Circuit Court of Appeals from the denial of habeas relief on his first Petition for Writ of Habeas Corpus, the United States Supreme Court issued its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), determining the execution of mentally retarded persons constitutes cruel and unusual punishment in violation of the Eighth Amendment. That same year, after Atkins, the Oklahoma Indigent Defense System filed in the Oklahoma Court of Criminal Appeals (“OCCA”) a second application for post-conviction relief alleging that Petitioner’s execution would violate Atkins. The Tenth Circuit stayed Petitioner’s appeal and placed it in abeyance to allow him to litigate his mental retardation claim in state court. The OCCA remanded Petitioner’s case to the Oklahoma County District Court for a jury trial on his mental retardation issue. The jury trial was conducted June 7-15, 2004, and the jury concluded that Petitioner was not mentally retarded. Petitioner and the State filed supplemental briefs with the OCCA. On December 7, 2005, the OCCA issued its opinion upholding the jury determination and denying relief. Hooks v. State, 126 P.3d 636 (Okla.Crim. App.2005). Soon thereafter, the Tenth Circuit entered an order extending the abeyance to allow Petitioner’s counsel to prepare and file a second or successive petition with this Court. On March 31, 2006, Petitioner filed his third application for post-conviction relief raising a claim of ineffective assistance of counsel regarding his mental retardation trial and a claim alleging the prosecutor failed to provide exculpatory evidence. The OCCA entered its order denying relief in an unpublished opinion. II. FACTUAL BACKGROUND Under 28 U.S.C. § 2254(e), when a federal district court addresses “an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). For the purposes of consideration of the present Amended Second Petition, the Court provides and relies upon various factual synopses throughout this Memorandum Opinion from the OCCA’s opinion summarizing the evidence presented at Petitioner’s mental retardation trial. Following review of the record, trial transcripts, and the admitted exhibits, the Court finds these summaries by the OCCA to be adequate and accurate, and therefore, adopts the factual summaries as its own unless otherwise stated. III. PETITIONER’S CLAIMS FOR RELIEF A. GENERAL CONSIDERATIONS: Exhaustion and the Procedural Bar Federal habeas corpus relief is 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). In every habeas case, the court must first consider exhaustion. Harris, 15 F.3d at 1554. “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). Generally, a habeas petition containing both exhausted and unexhausted claims is deemed a mixed petition requiring dismissal. Where it is clear, however, that a procedural bar would be applied by the state courts if the claim were now presented, the reviewing habeas court can examine the claim under a procedural bar analysis instead of requiring exhaustion. Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546 (citations omitted). Habeas relief may also be denied if a state disposed of an issue on an adequate and independent state procedural ground. Coleman 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.’ ” Id. (quoting Andrews v. Deland, 943 F.2d 1162, 1188 n. 40 (10th Cir.1991)); Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); see also. A state court’s application of a procedural bar will be excused where a petitioner can show either: 1) cause for the default and resulting prejudice; or 2) that a fundamental miscarriage of justice would occur if the claims were not addressed in the federal habeas proceeding. Coleman at 749-50, 111 S.Ct. 2546. B. THE STANDARD OF REVIEW Under the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”), in order to obtain federal habeas relief once a state court has adjudicated a particular claim on the merits, Petitioner must demonstrate that the adjudication: (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.A. § 2254(d)(l-2). The Supreme Court defined “contrary to” as a state court decision that is “substantially different from the relevant precedent of this Court.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring and delivering the opinion of the Court). 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] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 406, 120 S.Ct. 1495. The “unreasonable application” prong comes into play 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 ease” 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.” Id. at 407, 120 S.Ct. 1495. C. GROUNDS FOR RELIEF Ground 1: Constitutionality of Death Sentence. In his first ground for relief, Petitioner claims he suffers from mental retardation and that his sentence of death is unconstitutional pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). He specifically contends that he met the three definitional requirements of mental retardation, that the jury’s finding was contrary to the evidence presented at trial, that the OCCA’s determination was contrary to, or an unreasonable application of, clearly established federal law, and that the state court’s determination was an unreasonable determination of the facts in light of the evidence presented at his mental retardation trial. In Atkins, the Supreme Court imposed a prohibition against the execution of mentally retarded individuals, finding that in “[c]onstruing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” Id. at 321, 122 S.Ct. 2242 (citations omitted). Although the Supreme Court referenced clinical definitions of mental retardation set forth by the American Association on Mental Retardation and the American Psychiatric Association, Id. at 309 n. 3, 122 S.Ct. 2242, it did not enunciate or adopt a definite definition for mental retardation. Rather, it left to the states “the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id. at 317, 122 S.Ct. 2242 (citations omitted). Subsequent to the Supreme Court’s decision in Atkins, the OCCA promulgated a definition of mental retardation based on the clinical definition adopted by the American Association on Mental Retardation (AAMA): A person is “mentally retarded”: (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18); and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work. Murphy v. State, 54 P.3d 556, 567-68 (Okla.Crim.App.2002)(footnote omitted), overruled in part in Blonner v. State, 127 P.3d 1135, 1139 (Okla.Crim.App.2006). The state court held that it is the defendant’s burden to prove he or she is mentally retarded by a preponderance of the evidence. Id. at 568. It further held that “no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.” Id. (footnote omitted.) The OCCA subsequently held that a defendant is entitled to present his case to a jury and have it determine whether he is mentally retarded. Lambert v. State, 71 P.3d 30, 31-32 (Okla.Crim.App.2003)(setting forth procedures to be used in post-conviction determination of mental retardation on remand). In Petitioner’s trial, the jury was given the following instruction for determining whether Petitioner met the legal definition of mental retardation: INSTRUCTION NUMBER 17. You are advised that a person is “mentally retarded” if he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reaction of others. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative. In reaching your decision, you must determine: 1. Is the Defendant a person who is mentally retarded as defined in this instruction? 2. Was the mental retardation present and known before the Defendant was eighteen (18) years of age? 3. Does the Defendant have significant limitations in adaptive functions in at least two of the following skill areas: communication; self care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work? questions is no, you must so indicate on your verdict form. If you find by a preponderance of the evidence that the answer to each of these questions is yes, then you must so indicate on your verdict form. If you find the answer to any of the above Preponderance of the evidence means more probable than not. (O.R. at 180-81.) If Petitioner’s first ground for relief is a claim that Oklahoma’s definition of mental retardation or the procedures employed to determine if Petitioner is mentally retarded were contrary to, or an unreasonable application of, the Supreme Court’s decision in Atkins, then Petitioner’s claim must fail. Oklahoma’s definition closely parallels the Supreme Court’s reference to recognized associations’ definitions of mental retardation. The procedures set forth in Murphy and Lambert, and utilized in Petitioner’s trial, were narrowly tailored in response to the Supreme Court’s determination to leave to the states the task of developing appropriate ways to enforce the constitutional restriction announced in Atkins. Petitioner has not demonstrated Oklahoma’s definition or overall procedure for mental retardation trials in capital cases to be either contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. The Court, however, does not read Petitioner’s first ground for relief only as an overall challenge to either Oklahoma’s definition of mental retardation or to the procedures employed to protect Atkins’ constitutional restriction. Instead, the Court views Petitioner’s claim as one of sufficiency of the evidence — that is, that Petitioner presented sufficient evidence to prove by a preponderance of the evidence the three definitional prongs of mental retardation, and that both the jury and the OCCA unreasonably determined the facts in light of the evidence presented at trial. This claim was considered and rejected by the OCCA in its Opinions denying Petitioner’s second and third applications for post-conviction relief. The Court will consider Petitioner’s claim by individually addressing each portion of Oklahoma’s definition of mental retardation. 1. Sub-average Intellectual Ability. The first prong of Oklahoma’s definitional requirements of mental retardation is whether the defendant functions at a significantly sub-average intellectual level. Petitioner claims he meets this requirement through his sub-standard intelligence quotient (IQ) scores and through additional evidence presented of his sub-standard intellectual functioning. Petitioner’s claim was considered and denied by the OCCA in his second application for post-conviction relief: In addition to being a threshold requirement, evidence of IQ testing may be admitted to the jury to prove whether a defendant functions at a significantly sub-average intellectual level. Hooks presented evidence of IQ test results from first grade through the months immediately preceding the mental retardation proceeding. Those test scores ranged from 80 to 53. The first test, given when Hooks was in the first grade, had a full scale IQ of 80.[] Hooks was next tested in fifth grade and received a score of 70. The psychometrist’s notes state that Hooks’s attention and effort varied during the test, and he was generally indifferent during its administration. She did recommend him for educable mentally handicapped (special education) classes. In 1978, when he was sixteen, Hooks was injured when a tractor-trailer struck his car, and his father died in an unrelated accident six months later. Hooks’s mother applied for Social Security disability on his behalf as a result of the accident, and also sued the trucking company, claiming Hooks’s mental ability had been damaged in the accident. In 1978, after the accident, Dr. Tuoti tested Hooks with an IQ of 61, but suggested that Hooks did not cooperate during testing and his intellectual level might have been higher. In 1979, Dr. Phillips tested Hooks in connection with the lawsuit and obtained an IQ of 57; he noted that Hooks was moderately cooperative but gave up quickly on difficult tasks. Dr. John Call examined Hooks in 1980, in connection with the Social Security Claim. He determined that Hooks was mentally retarded and had catatonic schizophrenia, but did not produce an IQ score because he was unable to independently test Hooks.[] During the mental retardation proceedings, both Hooks’s and the State’s expert witnesses agreed that these examinations might not reflect Hooks’s true intellectual ability, either because he did not cooperate with testing or due to the trauma of the accident and the loss of his father. Testimony also showed that in 1988, Dr. Phillip Murphy tested Hooks with an IQ of 80. Hooks has had three IQ tests since his trial and direct appeal in this capital case. In 1994, Hooks was evaluated by Dr. Gelbort who gave Hooks a neuropsychological evaluation which included an IQ score of 72. Dr. Gelbort was not specifically asked to examine Hooks for mental retardation and did not administer any adaptive functioning tests. While Dr. Gelbort did not, at that time, diagnose Hooks as mentally retarded, during testimony at the mental retardation proceeding he stated that, taking into account his testing and subsequent tests, he would now make that diagnosis. In 2002 Dr. Cowardin gave Hooks adaptive functioning tests and an IQ test with a score of 76, and diagnosed him with mild mental retardation. Hooks cooperated with both Dr. Gelbort and Dr. Cowardin during the testing process. In 2004 Dr. Hall evaluated Hooks and obtained an IQ of 58. She noted Hooks was not cooperative. The experts agreed this score probably did not reflect Hooks’s intellectual ability. The experts agreed this range of scores put Hooks in a “gray area”. The tests of 70 and below all reflected some degree of lack of cooperation on Hooks’s part, from variable attention span to refusal to respond. Two of them were obtained after Hooks suffered the trauma of an accident and his father’s death, which could have caused him to test lower than his actual intellectual level. The expert witnesses agreed that the most reliable scores were those obtained by Dr. Gelbort and Dr. Cowardin, with results of 72 and 76. Neither of these scores meets the “seventy or below” requirement in Murphy,[ ] although Dr. Gelbort’s results are within that range using the standard error of measurement (a five-point range on either side). Given the other testimony, it was not unreasonable for jurors to determine that the most reliable IQ evidence offered did not fall within the first prong of the Murphy definition, functioning at a significantly sub-average intellectual level. A rational trier of fact could have found that Hooks failed to meet this burden by a preponderance of the evidence. Hooks, 126 P.3d at 640-41. Soon thereafter, Petitioner filed with the OCCA his third application for post-conviction relief, raising issues of ineffective assistance of counsel stemming from the mental retardation proceedings and claims that the prosecutors failed to turn over exculpatory evidence to defense counsel. Petitioner supplemented his previous evidence with an I.Q. test performed on Petitioner in 2006 and subsequent to his second request for post-conviction relief. The latest test resulted in a score of 67. When considering this new evidence in the context of Petitioner’s ineffective assistance claim, the OCCA determined: Hooks claims counsel was ineffective in failing to have Hook’s IQ tested before the mental retardation trial. Hooks presented evidence of nine IQ tests, from first grade to the months before the mental retardation proceeding, with scores ranging from 53 to 80. In the latest test presented to the jury, conducted by Dr. Hall, a State’s expert, Hooks had an unreliable result of 53. Hooks had a history of not cooperating when taking IQ tests, some tests may have been irregularly administered, and some scores may have reflected health or emotional problems Hooks may have had at the time of those tests. The experts agreed that the most reliable test was administered in 1994, with a score of 72. The experts at Hook’s trial agreed that, given the 5-point standard error of measurement in the test scores, Hooks was in a gray area. While some experts noted Hook’s reliable score of 72 could have been slightly inflated[], nothing before this Court now or from the district court proceedings suggests that the score inflation would have been significantly outside the standard error of measurement. Counsel did not arrange for Hooks to be tested by a defense expert before the mental retardation proceedings. Counsel avers that this was due to a lack of time, and that a subsequent test showed a score of 67. Counsel fails to show that Hooks was prejudiced by this omission. Counsel relies on an affidavit by Dr. Hall. Dr. Hall had testified for the State that she believed Hooks functioned in the borderline range. After reviewing the most recent IQ test, Dr. Hall avers that she would now say Hooks falls within the mild mentally retarded to borderline range, based on the evidence that the two most apparently reliable scores, of 67 and 72, are within the upper end of the mild mentally retarded range and the lower end of the borderline range. Dr. Hall stated that it is “possible” Hooks meets the requirement of significantly subaverage intellectual functioning necessary for a finding of mental retardation for capital proceedings. Assuming that Hooks would have had the same test results as he did when tested after the mental retardation proceedings, we cannot say that counsel’s failure to have Hooks tested before those proceedings undermines our confidence in the outcome of the ease. Jurors were presented with a wide range of IQ scores, most of which placed him somewhere in the gray area between borderline functioning and mentally retarded. Jurors also considered other evidence showing Hook’s intellectual and adaptive functioning were above the deficits required for a finding of mental retardation. The new test results and Dr. Hall’s new opinion do not constitute such significant changes from the evidence presented that taken into account with the other evidence, jurors would have reached a different conclusion. As Hooks fails to show prejudice, we will not find counsel ineffective for this lapse. Hooks v. State, Opinion Denying Post-Conviction Relief, PCD-2006-350, pp. 8-10. In his argument in support of this sub-claim of significant sub-average intellectual functioning, Petitioner first argues he has met the requirement of an IQ of about 70 or below. He bases this argument on the testimony of his experts at the mental retardation trial, and the newly offered IQ test score of 67. With or without this new evidence, there does not appear to be much controversy that Petitioner is in a gray area between borderline functioning and mild mental retardation, considering the test scores and the 5 point standard of error measurement testified to by the experts and accepted by the OCCA. Respondent agrees that the OCCA acknowledged that the scores could be within the range demonstrating mental retardation using the standard error of measurement, but adds that it would not be unreasonable, given the other testimony regarding Petitioner’s functioning (operating a prostitution business, purchasing cars, operating a vehicle, leasing apartments, etc.), for the jury to determine his IQ to not fall within the Murphy range. To counter this assertion, Petitioner offers the following examples as additional evidence of his sub-average intellectual functioning: (1) he was born premature and failed to timely reach developmental milestones of childhood; (2) school records demonstrating below average functioning; (3) an award of social security disability benefits for mental retardation; (4) inability to maintain a job, relying on money sent from his mother to pay bills; (5) reliance on other inmates in prison to meet his everyday needs (asserting he is unable to communicate with his family in written form, obtain prison canteen items on his own, or effectively communicate with prison officials without the assistance of others); (6) opinion of a prison counselor who previously worked with Petitioner likening him to a child and believing him to be mentally retarded; and, (7) supplemental opinion of Petitioner’s expert Dr. Nancy Cowardin that new information from the prison counsel- or and affidavits of other inmates provides additional support for her earlier determination that Petitioner suffers significant deficits in the adaptive functioning areas of communication, health and safety, social skills, and functional academics. As determined by the OCCA, the new evidence does not constitute significant changes from the evidence presented to the jury at the mental retardation trial. Dr. Cowardin’s opinion was not changed. Rather, in her opinion, the new evidence “would have lent much credibility to the formal test data which I delineated at his 2004 trial.” (Pet., Attachment 26.) Although the OCCA determined that it was not unreasonable for the jurors to determine the most reliable IQ evidence did not fall within the first prong of the Murphy definition — a determination itself that Petitioner has not demonstrated to be unreasonable — it is also possible the jury did find the first prong met, but instead found that Petitioner failed to meet one of the other definitional prongs. 2. Manifestation Before Age 18. There appears to be no dispute regarding the second prong of the Murphy test that Petitioner’s condition manifested itself before he was eighteen: Hooks met the second Murphy requirement. Whether he was considered mentally retarded or “slow”, everyone agreed this condition had manifested itself before he turned eighteen. In fact, Hooks had been diagnosed with mild mental retardation during a stay at Eastern State Hospital, and was placed in educable mentally handicapped classes by fifth grade. However, standing alone, this is not enough to conclude that Hooks is mentally retarded for capital sentencing purposes. Hooks, 126 P.3d at 641. 3. Significant Limitations in Adaptive Functioning. The third prong of the Murphy definition of mental retardation involves the demonstration of significant limitations in adaptive functioning. The OCCA has explained adaptive functioning, significant limitations, and set forth both the defendant’s and the state’s required burden of proof in this area: The third prong, significant limitations in adaptive functioning, describes deficits common in mentally retarded people. These limitations may also be caused by other mental or social conditions. A defendant must show he has significant limitations in adaptive functioning, but is not required to show that mental retardation is the cause of his limitations in these skill areas. In order to counter such a claim, the State must present evidence negating those particular skill limitations. Unless a defendant’s evidence of particular limitations is specifically contradicted by evidence that he does not have those limitations, then the defendant’s burden is met no matter what evidence the State might offer that he has no deficits in other skill areas. In fact, the State need not present any evidence that a capital defendant can function in areas other than those in which a deficit is claimed. In capital mental retardation proceedings, the State’s first response must always be to counter the evidence presented by the defendant. Lambert v. State, 126 P.3d 646, 651 (Okla.Crim.App.2005)(footnotes omitted). Petitioner asserts that he has demonstrated significant deficits in four areas of adaptive functioning: communication, health and safety, self-direction, and functional academics. The OCCA considered Petitioner’s claim and determined that a rational trier of fact could have determined that Petitioner did not meet his burden of demonstrating the existence of these deficits: In large part Hooks relied on the same evidence to prove both the Murphy requirements of significantly subaverage intellectual level and significant deficits in adaptive functioning. Insofar as Hooks relied on his IQ tests to show subaverage intellectual functioning, the discussion above shows those results were inconclusive. Dr. Cowardin found Hooks had significant limitations in adaptive functioning in communication, functional academics, self-direction, and health and safety. The State presented evidence specifically countering these findings. Taken as a whole, the evidence showed Hooks had some difficulties communicating but could understand others, make himself understood, express his wishes, and understand those of other people. The category of functional academics includes both school progress and the ability to use acquired knowledge in life situations. While Hooks had very poor grades and was in some special education classes, he reads at least at a fourth grade level and reads for pleasure in prison, can shop for clothing, food, and leisure goods, has pawned items for cash, bought cars, and leased apartments, drives, and can follow road signs and instructions while driving. Dr. Cowardin found Hooks has some deficiency in self-direction because, according to her information, he has a history of unproductive use of his time. Other evidence showed that, before being incarcerated, he had worked as a laborer, accepted the responsibility to provide food and diapers for his children, and employed some women as prostitutes, requiring them to give him their earnings and a portion of their food stamps. Dr. Cowardin found deficits in health and safety because Hooks gave only one answer to each test question when two were called for. However, the answers Hooks gave were appropriate. In addition, as the trial court noted, “Hooks was meticulous in his personal grooming and housekeeping and required the women that lived in his home to conform to his standards.” Although circumstantial evidence suggested Hooks may have had help writing letters from prison, he did write detailed and cogent letters to his daughter which included fatherly advice, descriptions of prison, and expressions of his feelings for her. Taken as a whole, a rational trier of fact could have determined that this evidence did not show significant deficits in adaptive functioning or a significantly subaverage intellectual level. Hooks failed to meet his burden on this issue. Hooks, 126 P.3d at 641 (footnotes omitted). Petitioner submits additional information in the form of a revised opinion from Dr. Cowardin after review of two inmates’ affidavits who lived with Petitioner and information gathered by an investigator from a Department of Corrections counsel- or. He asserts Dr. Cowardin’s supplemental report and the additional information lends additional support for the deficits previously found and testified to by Dr. Cowardin. Respondent contends that Petitioner has failed to demonstrate that the OCCA’s determination was an unreasonable application of federal law or an unreasonable determination of the facts in light of the evidence presented, and that Petitioner is attempting to convince this Court to ignore the jury’s choice of which evidence to credit and instead credit the counter evidence to find Petitioner mentally retarded. Petitioner replies that Respondent fails to account for Petitioner’s most recent I.Q. test result of 67 and fails to account for evidence discovered after Petitioner’s trial. This evidence, however, was not considered by the OCCA in reference to Petitioner’s claim that he is in fact legally mentally retarded or that the jury’s verdict was incorrect or improper. Instead, the OCCA considered the new information in reference to Petitioner’s ineffective assistance of counsel claim. In addition to the facts and evidence set forth by the OCCA, additional evidence was presented that could have reasonably led a jury to believe that Petitioner did not meet all of the requirements of Murphy’s test for mental retardation. Eric Mullenix with the Oklahoma City Police Department testified regarding interviews with Petitioner during the investigation of the homicide. Detective Mullenix had no concerns during the course of the interview that Petitioner was mentally retarded or that he was unable to understand. (Tr., Vol. V., p. 162.) A portion of the interview was tape recorded and the transcript was read into evidence at the mental retardation trial. In the interview, Petitioner was able to give his wife’s and childrens’ names and birth dates. (Tr., Vol. V, pp. 165-66.) He talked in the interview about running errands, going to the store, having his muffler repaired, and giving a previous landlord the keys to an apartment so he could get his deposit returned. (Tr., Vol. V., p. 167. ) He explained about stress he experienced because of bills and expenses, and how he had pawned certain items of personal property to get money for diapers and groceries for his child. (Tr., Vol. V., p. 168. ) Petitioner stated in the interview that he did whatever he could, hustling on the street, and that he had tried to get a job with his common law wife’s mother but that she refused him because of his race. (Tr., Vol. V, pp. 168-69.) He described driving across the state to visit his mother (Tr., Vol. V, p. 169), and claimed to have been responsible for getting his wife free of her addiction to drugs. (Tr., Vol. V, p. 173.) Clara Hooks, Petitioner’s mother, testified that he wore nice clothes, kept them and himself clean, and was a very neat person. (Tr., Vol. II., pp. 214-15.) Testimony was also presented that he occasionally drove to Idabel to visit his mother. (Tr., Vol. III., p. 218.) In summary, the OCCA held: Hooks’s slow intelligence manifested itself before age eighteen. His IQ tests certainly suggest he has borderline intelligence but do not clearly meet the Murphy definition for mental retardation. In any case, all the definitional requirements must be met, and evidence countered Hooks’s claims of significant adaptive functioning deficits. Taken in the light most favorable to the prevailing party, a rational trier of fact could have found that Hooks provided insufficient evidence to show he was mentally retarded. Proposition I is denied. Hooks, 126 P.3d at 641. Petitioner presents this claim asserting that he has met the three definitional requirements of mental retardation, yet is still currently sentenced to death in violation of Atkins. Although Petitioner sets forth the evidence presented at trial and subsequent evidence presented and considered by the OCCA to support his claim, he never contends his claim is one of sufficiency of the evidence, nor does he set forth the relevant standard to demonstrate he sufficiently met these requirements. Normally, when reviewing whether the evidence supports a jury’s verdict and a state court’s determination, the proper standard for review is the one pronounced by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the Court set forth the familiar standard for review of habeas claims of insufficient evidence. The relevant question on habeas review is “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.” Id. at 319, 99 S.Ct. 2781. In the instant case, the OCCA determined that a rational trier of fact could have found that Petitioner failed to meet his burden of proof by a preponderance of the evidence. Hooks, 126 P.3d at 641. Petitioner has not demonstrated the OCCA’s determination to be contrary to, or an unreasonable of, clearly established law as determined by the Supreme Court. The state court followed the Supreme Court’s pronouncement in Atkins and established a procedure and definition consistent with that pronouncement. It also reviewed Petitioner’s claims in a manner not inconsistent with Jackson. Further, Petitioner has not demonstrated that the state court’s determination was an unreasonable one in light of the evidence presented. Accordingly, Petitioner’s first ground for relief is denied. Ground 2: Adequacy of State’s Procedure for Mental Retardation Trial. In his second ground for relief, Petitioner asserts a myriad of claims under an overall contention that the procedures employed by the state of Oklahoma to litigate his mental retardation claim were “woefully inadequate” (Pet. at 35) to protect his constitutional rights and are not entitled to deference by this Court. More specifically, Petitioner asserts: (1) that he presented sufficient evidence to demonstrate his mental retardation, and that the OCCA applied an unconstitutional standard of review; (2) that a potential juror was improperly removed for cause; (3) erroneous trial court rulings; (4) failure of the prosecution to reveal exculpatory information; (5) ineffective assistance of counsel; and (6) ineffective assistance of appellate counsel. Respondent responds generally that Petitioner is not entitled to relief as the OCCA’s resolution of these claims was neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it an unreasonable determination of the facts in light of the evidence presented. 1. Sufficiency of the Evidence. Similar to his claim in ground one, Petitioner contends that he presented sufficient evidence in state court to demonstrate his mental retardation, but that the OCCA applied an incorrect standard of review to his claim. Petitioner claims the OCCA applied the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reviewing the evidence in the light most favorable to the state. In Jackson, the Supreme Court set forth the standard for inquiry on review of a claim regarding sufficiency of the evidence to support a criminal conviction: “the relevant question is 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.” Id. at 319, 99 S.Ct. 2781 (emphasis original)(emphasis Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)). The Supreme Court stated that this standard gives full play to the jury’s responsibility to resolve conflicts in the testimony, weigh the evidence, and to draw reasonable inferences from the facts. Id. After summarizing its review of the evidence presented at Petitioner’s mental retardation trial, the OCCA held, in part: “Taken in the light most favorable to the prevailing party, a rational trier of fact could have found that Hooks provided insufficient evidence to show he was mentally retarded. Proposition I is denied.” Hooks, 126 P.3d at 641. Petitioner claims this standard is inappropriate, as the burden is placed on him to prove his mental retardation, and the Jackson standard is only applicable in habeas review when the burden is on the state. Petitioner claims the proper standard of review is one in which the court reviews the evidence in the light most favorable to the party with the burden of proof. Petitioner fails to provide any authority for his asserted standard. Conversely, however, Respondent cites to Maynard v. Boone, 468 F.3d 665 (10th Cir.2006), a case regarding a challenge to the sufficiency of the evidence in a competency hearing, for the proposition that, as in Maynard, the Jackson standard is the proper standard of review, despite the burden of proof. Id. at 674 n. 6. In Maynard, the Tenth Circuit stated that “[u]nder AEDPA, a challenge to the sufficiency of the evidence must establish that no ‘rational trier of fact’ could have found Maynard competent by a preponderance of the evidence.” Id. at 674. The traditional standards for reviewing a sufficiency of the evidence claim do not precisely fit the situation here, where the Petitioner instead of the state has the burden to prove by a preponderance of the evidence that he is mentally retarded. The OCCA’s application of this standard to the evidence presented at trial resulted in its determination that a rational trier of fact could have found that Petitioner provided insufficient evidence to show that he was mentally retarded. Although viewed in the light most favorable to the state, this standard incorporates the burden of proof placed on Petitioner and, as in Jackson, respects the responsibilities and province of the jury. Similar results were reached in Maynard regarding competency and in other jurisdictions on habeas review of sufficiency of the evidence claims regarding an insanity defense. See Perez v. Cain, 529 F.3d 588, 594 (5th Cir.2008)(Louisiana law regarding legal insanity defense makes sanity a rebuttable presumption by defendant to prove by preponderance of evidence and question on review framed under the Jackson sufficiency standard). Petitioner has not demonstrated that the OCCA’s use of this standard to review his sufficiency of the evidence claim was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or that the OCCA’s factual determinations were unreasonable in light of the evidence presented at Petitioner’s trial. Petitioner next asserts the OCCA’s treatment of jury verdicts in Atkins cases was inconsistent and unequal in violation of his Eighth and Fourteenth Amendment rights. He claims that the OCCA was inconsistent in the approach it applied in his case when compared with other state cases in which it overturned jury determinations that no mental retardation had been proven. Respondent responds only that this issue is unexhausted in state court and is procedurally barred from habeas review. Petitioner replies that Respondent is incorrect, as he argued multiple times in his Third Application for Post Conviction Relief that the OCCA’s decision in his case was inconsistent with its actions and decisions in other capital mental retardation cases. (Reply at 12-13.) A determination of whether this issue is unexhausted is unnecessary, however, as the Court may more easily consider the claim and deny it on the merits. 28 U.S.C. § 2254(b)(2). In the first case cited by Petitioner, Pickens v. State, 126 P.3d 612 (Okla.Crim.App.2005), the OCCA utilized the Jackson standard, reviewing the evidence “in the light most favorable to the State to determine if any rational trier of fact could have reached the same conclusion”. Id. at 614. In its review under that standard, the OCCA found that the defendant had proven all three prongs of the Murphy standard, overruled the jury’s determination, and imposed a sentence of life without the possibility of parole. The evidence presented in Pickens, however, differs from the evidence presented to the jury in Petitioner’s ease in the area of significant limitations in adaptive functioning. In Pick-ens, evidence was presented of significant deficits in the area of self care (difficulties in dressing himself, poor physical appearance, and poor and improper grooming habits) and social judgment and planning ability (lack of socialization as child, lack of knowledge of basic physiology, inability to size up social situations, and evidence of a specific instance of self-inflicted burns from throwing gas on a fire after being warned against it). Id. at 615. The OCCA also imposed the same standard of review in Lambert v. State, 126 P.3d 646, 649 (Okla.Crim.App.2005), stating: This Court reviews the jury’s factual determination in the light most favorable to the State, to determine whether any rational trier of fact could have found that the defendant failed to meet his burden of proving mental retardation by a preponderance of the evidence. Id. at 649 (citing Myers v. State, 130 P.3d 262, 267 (Okla.Crim.App.2005)). As in Pickens, the OCCA found that the defendant had provided proof of significant limitations in adaptive functioning. The OCCA listed several facts proven at trial, including that he was often unclean, hungry and inappropriately dressed. He had laid in the street in traffic, ran under a moving train, cut and burned himself, and swallowed wire. He had poor printing, very poor spelling and lack of organized thought. He also had few friends, preferred the company of younger children, and was easily manipulated. All of these factors were agreed to by the State at trial, but alternative explanations were offered. The OCCA held that by accepting Lambert’s assertions in these areas, the State had failed to contradict his claims. Id. at 652-53. Finding that Lambert had proven all three of the Murphy prongs by a preponderance of the evidence, Id. at 653, the OCCA modified his death sentences to two sentences of life without the possibility of parole. Id. at 659. Petitioner’s other cited case, Salazar v. State, 126 P.3d 625 (Okla.Crim.App.2005), differs in the predominant claims made and its analysis of the issues. Although the jury’s determination that mental retardation was not demonstrated was overturned by the OCCA, Salazar was determined on the issue of ineffective assistance of counsel, and not a review of the sufficiency of evidence presented to the jury in support of the Murphy standard for mental retardation. The OCCA’s determination in these cases and in Petitioner’s case was based on individual review and consideration of the evidence presented in each case. Although the OCCA’s determinations in the cases offered by Petitioner overturned the jury’s verdict and granted relief in the form of vacating the sentences of death, it has also applied the same standard of review and consideration and upheld jury verdicts on the failure to prove mental retardation in several cases. See Myers v. State, 130 P.3d 262 (Okla.Crim.App.2005); Ochoa v. State, 136 P.3d 661 (Okla.Crim. App.2006); Howell v. State, 138 P.3d 549 (Okla.Crim.App.2006). Petitioner has failed to demonstrate the OCCA’s determination in his case was inconsistent with and unequal to its determination in other similar cases sufficient to rise to a violation of his Eighth and Fourteenth Amendment rights. Petitioner lastly claims that regardless of the standard applied, he presented sufficient evidence to establish he was mentally retarded, and that the jury’s determination does not comport with the evidence presented at trial. As discussed in consideration of Petitioner’s first ground for relief, supra, the OCCA carefully and thoroughly considered the evidence presented, along with new evidence proffered by Petitioner, and determined that a rational trier of fact could have found that Petitioner presented insufficient evidence to show that he was mentally retarded. Petitioner has not demonstrated the OCCA’s determination was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or an unreasonable determination of the facts in light of the evidence presented. 2. Removal of Potential Juror for Cause. Petitioner next claims the trial court erred in sustaining the state’s request to remove potential juror Donna Paddock for cause, and that the OCCA’s determination of this claim was contrary to, or an unreasonable application of, clearly established federal law. Petitioner claims that the jury, or at least Ms. Paddock, should have been instructed on the legal definition of mental retardation during voir dire to determine if she or other potential jurors could follow that definition, and that failure by the trial court to do so denied him a fair trial in violation of Atkins. During voir dire, it was determined that Ms. Paddock had both a bachelor’s degree and a master’s degree in counseling. (Tr., Vol. I, p. 105.) As a counselor, she had seen mentally retarded clients. (Tr., Vol. I, p. 124.) When later asked if there was a conflict between what she had learned in her profession and what the law defined as mental retardation, she did not believe she would be able to set aside what she knew. (Tr., Vol. I, p. 159.) At a side bar and out of the hearing of the prospective jurors, the prosecutor moved-over objection from Petitioner’s counsel — to strike Ms. Paddock for cause on the ground that she would not be able to follow the law. (Tr., Vol. I, p. 160.) The trial court questioned Ms. Paddock at the bench, out of the hearing of the prospective jurors: THE COURT: Ms. Paddock, at the conclusion of this trial I’m going to present the entire jury with a set of instructions. PROSPECTIVE JUROR PADDOCK: Uh-huh. THE COURT: The jury instructions are all of the law under the law— PROSPECTIVE JUROR PADDOCK: Right. THE COURT: — that you are to weigh the evidence. PROSPECTIVE JUROR PADDOCK: Right. THE COURT: And to determine whether the defendant has met his burden of proof through his attorneys. Now I understand that you have a background, that you have indicated to us. And I don’t know what your definition is of mental retardation, but under the law— PROSPECTIVE JUROR PADDOCK: Uh-huh. THE COURT: — there is a specific definition and you are to decide by a preponderance of the evidence whether the defendant has proved under the law that definition that I’ll provide you in the jury instructions. PROSPECTIVE JUROR PADDOCK: Uh-huh. THE COURT: Can you follow that definition? PROSPECTIVE JUROR PADDOCK: It’s going to depend on how close it is to the definition I know clinically. Because I don’t know the definition by the law. THE COURT: Okay. PROSPECTIVE JUROR PADDOCK: And so if they’re not the same, I would tend to lean toward what I’ve been taught clinically, because that’s what’s— that’s what I practice. That’s what I do. That’s what’s inbred, so to speak. And so if there was a difference, I would have a major conflict, because I would lean toward the clinical definition versus the legal because that’s where I come from. THE COURT: Okay. And do you understand there may be a clinical definition and there may be a legal definition and they may or may not conflict? PROSPECTIVE JUROR PADDOCK: That is right. THE COURT: But your duty, as a juror— PROSPECTIVE JUROR PADDOCK: Yes. THE COURT: — would be to follow the legal definition in this case. If I give you that definition in the jury instructions, can you follow that definition? PROSPECTIVE JUROR PADDOCK: If they’re not the same, no. THE COURT: Okay. (Tr., Vol. I, pp. 161-63.) Defense counsel continued to object to excusing Ms. Paddock for cause, and requested that the jury, or at least Ms. Paddock, be told the legal definition of mental retardation. Counsel argued that because she had been given the impression that the definitions differed, it was unfair to Petitioner to excuse her when, if she was informed, she might answer that she could follow the instructions. The trial court determined there was no precedent for instructing the prospective jurors in order to determine if they would follow the law, and that Ms. Paddock did not respond to the court that she would unequivocally follow the law as set forth in the instructions. Following argument from counsel, the trial court excused Ms. Paddock for cause. (TV., Vol. I, pp. 165-67.) The OCCA cited to the standard set forth in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and denied Petitioner’s claim: In Proposition VII Hooks complains that the trial court erred in removing a potential juror for cause. The Murphy definition of mental retardation for capital punishment purposes is substantially similar to the accepted clinical definitions of mental retardation. However, it differs slightly in requiring proof of significant limitations in adaptive functioning in nine, rather than ten, areas (omitting the category of “leisure”). Juror Paddock had professional experience with mental retardation. She was asked whether, if the state and clinical definitions differed, she could follow the laws and apply the definition given by the trial court. She replied that she could not if the differences were significant, and was excused for cause over Hooks’s objection. The decision to excuse a juror for cause is within the trial court’s discretion. A juror must agree to follow the law; any other response would prevent or substantially impair performance of her duties in accordance with her instructions and oath. While in fact the differences between the state and clinical definition are so small there is little likelihood of conflict, that is not the issue. In order to be qualified as a juror, Juror Paddock had to agree to follow the law, whatever it was. She could not do this. The trial court did not abuse its discretion in excusing her for cause. Proposition VII is denied. Hooks, 126 P.3d at 645 (footnotes omitted). In Wainwright, the Supreme Court set forth the standard for determining whether a juror may be excluded for cause because of his or her views on capital punishment. The proper standard is whether those views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright, 469 U.S. 412, 424, 105 S.Ct. 844 (1985). On habeas review, this Court is required to accord findings of the state courts on factual issues a presumption of correctness. Id. at 426, 105 S.Ct. 844; 28 U.S.C. § 2254(d); see also Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). A juror’s bias does not need to be proven with unmistakable clarity, Wainwright, 469 U.S. at 424, 105 S.Ct. 844, and in situations where the record lacks clarity, “deference must be paid to the trial judge who sees and hears the jurors”. Id. at 426, 105 S.Ct. 844. Although the issue involved in Petitioner’s trial pertained to mental retardation, and not a juror’s views on the death penalty, the standards and rationales set forth by the Supreme Court in the above cases are equally applicable. The trial court carefully and thoroughly questioned Ms. Patton to determine whether she could follow the law as would be set forth in the instructions and determined that she had stated she could not. (Tr., Vol. I, p. 165.) Petitioner has offered no authority for his contention that Ms. Patton should have been instructed on the law at that time, or that the trial court should have determined her understanding of the clinical definition of mental retardation and compared it to its legal definition. Petitioner has failed to demonstrate by clear and convincing evidence that the trial court’s factual finding was incorrect, and has failed to demonstrate that the OCCA’s determination was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. 3. Trial Court Rulings. Petitioner next claims the trial court made several erroneous rulings which contributed to a finding that he was not mentally retarded. Petitioner claims these rulings denied him a fair trial on the issue of mental retardation in violation of Atkins, and that the trial court’s failure to follow Oklahoma law is a violation of his Fourteenth Amendment Due Process rights under Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). Respondent responds that Petitioner’s claims must be denied because the OCCA’s affirmations of the trial court’s rulings are neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. a. Failure to allow impeachment and cross-examination of State’s Witness. Petitioner first claims that when the trial court sustained the state’s objections to attempts to impeach Shanna Dinh’s testimony on cross-examination, it denied him a fair trial and due process of law in violation of Atkins. Petitioner presented this claim to the OCCA, which it addressed on the merits and denied relief: Hooks claims in Proposition IV that the trial court erred in limiting his cross-examination of State’s witness Dinh. Admission of evidence is within the trial court’s discretion, and will be disturbed only on a showing of prejudice. The extent of cross-examination is within the discretion of the trial court. Cross-examination may be limited to the subject matter of the direct examination and encompass questions of witness accuracy, memory, veracity, or credibility. Ms. Dinh had lived with Hooks and worked for him as a prostitute when she was a teenager, beginning at age thirteen. She testified about her observations of Hooks during the time she knew him, including his ability to lease apartments, buy cars, and oversee the actions of several women and girls. When defense counsel attempted to cross-examine Dinh by asking where her parents were when she met Hooks, the State objected and the trial court ruled that her parents’ location had no bearing on Dinh’s credibility. Hooks has not shown otherwise, and this ruling was not an abuse of discretion. Dinh testified that she lived with Hooks for most of her teenage years, spending a few months in foster care when she had a baby. Hooks wanted to cross-examine on this issue to show that Dinh had previously stated she lived with Hooks for only a few months, and that she was in foster care for several years. The trial court allowed counsel to ask Dinh how long she had been in foster care but refused to allow counsel to impeach Dinh with unsworn hearsay statements. The trial court noted that, however long Dinh had actually lived with Hooks, her testimony had been limited to her observations of his mental abilities and there was no dispute that she did have the opportunity to observe Hooks for some time. This decision was not error. Hooks also wanted to impeach Dinh with statements contradicting her prior testimony regarding other women Hooks knew at the time. While counsel was allowed to question Dinh about her previous statements, the trial court refused to allow counsel to impeach Dinh with prior testimony which involved people and issues other than Hooks and factors bearing on mental retardation. The court found that any discrepancies in the prior testimony might bear on Dinh’s credibility, but the entire line of questioning was wholly irrelevant to the issue of mental retardation. This decision was not an abuse of discretion. Dinh’s evidence that Hooks ran a prostitution ring was limited to the ways in which this demonstrated his mental abilities, and the trial court limited cross-examination to that issue as well. While Dinh may not have accurately testified about the length of time she spent with Hooks, Hooks offers no evidence to suggest that her testimony regarding her observations during the time she did spend with him were inaccurate. [] Proposition IV is denied. Hooks, 126 P.3d at 642-43 (footnotes omitted). Petitioner asserts here, as he did in state court, that it was a violation of his right to confrontation to not be allowed to impeach Ms. Dinh on cross-examination with prior inconsistent statements regarding her living arrangements with Petitioner and with her prior statements regarding whether Shalimein Blaine was a prostitute for Petitioner. The confrontation clause of the sixth amendment guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir.1988) (quoting Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)). The right of confrontation means more than being allowed to confront the witness physically. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1434, 89 L.Ed.2d 674 (1986) (citing Davis, 415 U.S. at 308, 94 S.Ct. at 1105). The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. Davis, 415 U.S. at 315, 94 S.Ct. at 1109. There are limits to the right to cross-examination which the confrontation clause guarantees, however. United, States v. Risnes, 912 F.2d 957, 959 (8th Cir.1990). “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435.