Warner v. Workman (814 F. Supp. 2d 1188, 2011)

MEMORANDUM OPINION

ROBIN J. CAUTHRON, District Judge.

Petitioner, a state court prisoner currently incarcerated pending the execution of a judgment and sentence of death, has filed a Petition for a Writ of Habeas Corpus (hereinafter “Petition”). (Dkt. No. 24.) Petitioner, appearing with counsel, challenges the judgment and sentence entered against him in Oklahoma County District Court Case No. CF-97-5249. Respondent has responded to the Petition and Petitioner has replied to this response. (Dkt. Nos. 43, 49.) The state court record has been supplied.

I. PROCEDURAL HISTORY

Petitioner’s judgment and sentences are a result of his third trial for the rape and murder of Victim, an eleven-month-old female child. On appeal of Petitioner’s first trial, the Oklahoma Court of Criminal Appeals (“OCCA”) reversed his convictions and sentences and remanded for a new trial. Warner v. State, 2001 OK CR 11, ¶ 18, 29 P.3d 569, at 575. The OCCA concluded that the trial court erroneously failed to remove jurors for cause and abused its discretion in refusing to grant a continuance to permit trial counsel an additional day to secure a second stage mitigation witness. Id. ¶¶ 11, 16-17, 29 P.3d at 574-75. Petitioner’s second trial in March of 2003 ended in a mistrial. (Tr., March 2003 Trial, Vol. Ill, pp. 484-89.) Petitioner was retried in Oklahoma County District Court from June 16 through 26, 2003. The jury convicted Petitioner of first degree murder and first degree rape, and fixed his punishment at seventy-five years for the charge of rape. (VI O.R. at 1120.) Subsequently, the jury found two aggravating circumstances beyond a reasonable doubt and fixed his punishment at death. (Id. at 1121-22). Petitioner appealed and the OCCA remanded to the district court for an evidentiary hearing. Warner v. State, 2006 OK CR 40, ¶ 92, 144 P.3d 838, 873. In a published opinion, the OCCA denied relief, affirming Petitioner’s judgment and sentences. Id. ¶ 225, 144 P.3d at 896. The Supreme Court denied certiorari on May 14, 2007. Warner v. Oklahoma, 550 U.S. 942, 127 S.Ct. 2266, 167 L.Ed.2d 1104 (2007). The OCCA denied Petitioner’s Application for Post-Conviction Relief in an unpublished order dated December 19, 2006. Warner v. State, No. PCD-2003-897 (Okla.Crim.App. Dec. 19, 2006).

II. FACTUAL BACKGROUND

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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 Petition, the Court provides and relies upon the following synopsis from the OCCA’s opinion summarizing the evidence presented at Petitioner’s trial. Following a review of the record, trial transcripts, and the admitted exhibits, the Court finds the OCCA’s summary adequate and accurate. The Court therefore adopts the following summary as its own:

[Petitioner] was charged and convicted of the first degree rape and murder of 11 month old [Victim]. The victim and her mother, Shonda Waller, lived with [Petitioner] and his two children, six year old [CW] and five year old [VW]. Two year old [DW], [Petitioner’s] daughter from another relationship, stayed with them on occasion. On August 22, 1997, [Petitioner] left early that morning to pay a traffic fine at city court. He returned home at approximately 10:00 to 10:30 a.m. Ms. Waller prepared lunch for [Petitioner] and the older children and fed the victim baby food. At approximately noon, Ms. Waller left for the grocery store. All four children remained at home with [Petitioner], At the time Ms. Waller left, the victim was dressed in a jumpsuit. Ms. Waller returned home at approximately 2:00 to 2:30 p.m. She glanced in the master bedroom and saw the victim lying on the bed. The victim appeared to be sleeping. Ms. Waller noticed the victim was dressed only in her diaper. Later that afternoon, [Petitioner] and Ms. Waller decided to take all the children with them to run errands. Ms. Waller intended to get the victim ready but [Petitioner] stopped her and volunteered to retrieve the victim from the bedroom. [Petitioner] returned to the living room holding the victim and saying that she was not breathing. When [Petitioner] handed the victim to Ms. Waller, the victim was limp. Ms. Waller began screaming and told [Petitioner] to take them to the emergency room. [Petitioner] drove Ms. Waller and all the children to the emergency room. On the way, Ms. Waller gave the victim CPR.

They arrived at the hospital at approximately 3:40 p.m. Emergency personnel took the victim and continued resuscitation efforts. All efforts failed and the victim was pronounced dead at 4:07 p.m. Emergency charge nurse Robin Justice was cleaning the victim before Ms. Waller saw her when she noticed bright red blood around the victim’s rec-turn and tears to the rectum. Ms. Justice testified at trial that the injuries appeared to be fresh and recent. She called police and notified the attending physicians Drs. McCreight and Hill.

Dr. McCreight observed bright red blood staining the skin around the victim’s rectum and tears around the rectum. X-rays indicated two skull fractures, one of which was depressed, and two fractures to the left jaw. Dr. McCreight testified that the injuries were recent, consistent with a violent shaking and inconsistent with a fall from a bed to a carpeted floor. He also testified that upon sustaining such injuries, the victim would not be able to eat, drink or play. His diagnosis was sexual and physical abuse.

In conducting the subsequent autopsy, the medical examiner Dr. Choi, determined the cause of death to be multiple injuries to the victim’s head, chest, and abdomen. She determined the manner of death to be a homicide. Dr. Choi testified the victim suffered a crushing type injury to her head and internal injuries to her brain. The victim’s jaw and three ribs were fractured, her liver was lacerated, and her spleen and lungs were bruised. There were bruises on the victim’s chest the size of adult fingertips. She also observed retinal hemorrhages in the victim’s eyes, which she testified were consistent with the victim being violently shaken. Additionally, Dr. Choi observed six different tears around the victim’s rectum, which she testified were consistent with blunt force penetration. Dr. Choi also testified that upon receiving her injuries, the victim would not have been able to eat, drink or play.

Interviewed first at the hospital, [Petitioner] told officers he brought the victim, her mother, and the children to the emergency room. He said he had been in the master bedroom with the victim and two year old [DW]. He said [DW] gave the victim something to drink. After a while he left the room. When he returned to the bedroom between approximately 2:00 and 3:00 p.m., the victim was lying on the floor crying. He picked her up and noticed she had hit her head. He said she seemed to be dazed. He tried to comfort her and laid her on the bed to sleep. When he returned to get her at approximately 3:30 p.m., she was not breathing. Later, when [Petitioner] was arrested, he complained to officers that the knuckles on his right hand were sore.

In a subsequent search of [Petitioner’s] home, officers discovered a sexually explicit videotape in the VCR located in the master bedroom, and a jar of Vaseline and a bottle of aloe vera [gel] nearby.

At trial, [Petitioner’s] son [CW] testified [Petitioner] was the only adult with the children when Ms. Waller went to the store. He said that on the day the victim died, he saw [Petitioner] in the master bedroom shaking her. He said [Petitioner] was often angry with the victim because of her crying and general noisiness. [CW] admitted that he had previously testified the victim died because she was “beat up”.

In his defense, [Petitioner] presented eight witnesses. These included medical experts who testified that the victim would have immediately lost consciousness upon sustaining the head injury, her injuries were consistent with hitting her head on a wooden bed frame, and the injuries to her chest could have occurred during CPR. Defense witnesses also testified that [CW] had said he had lied when he said he saw [Petitioner] hit the victim, that Ms. Waller had originally said [Petitioner] drove her to the store and she waited for him to take her home, that [Petitioner] was left handed, and that he took good care of the victim.

During the second stage of trial, in addition to incorporating all evidence from the first stage, the State presented evidence showing that [Petitioner’s] four year old daughter [VW] had been physically abused by [Petitioner], that [Petitioner] physically punished [CW] and [VW] by whipping them with a belt or electrical cord, and that [Petitioner] had physically abused his ex-wife Vonricca Warner. In mitigation, [Petitioner] presented thirteen witnesses. The jury found the existence of the two alleged aggravating circumstances, “continuing threat” and “especially heinous, atrocious or cruel” and recommended the death penalty. The trial court sentenced accordingly.

Warner, 2006 OK CR 40, ¶¶ 2-10, 144 P.3d at 856-57. Additional relevant facts from the record are provided where necessary.

III. PETITIONER’S CLAIMS FOR RELIEF

A. GENERAL CONSIDERATIONS: Exhaustion and Procedural Bar

Federal habeas corpus relief is unavailable 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). 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. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir.2009). Under the AEDPA, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).

B. THE STANDARD OF REVIEW

Under the 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. § 2254(d)(l)-(2).

“A state-court decision is contrary to clearly established federal law if: (a) the state court applies a rule that contradicts the governing law set forth in Supreme Court cases; or (b) the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent.”

Fairchild, 579 F.3d at 1139 (internal quotation marks and citations omitted); see also 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 state court decision is an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495. Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.” Id. at 412, 120 S.Ct. 1495. “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

C. GROUNDS FOR RELIEF

1. Ground One: Jury Sequestration

In his first claim for relief, Petitioner argues the trial court committed constitutional error when it permitted the jury to separate on different occasions throughout second stage deliberations. (Pet. at 9-26.) Petitioner raised this claim on direct appeal and the OCCA remanded to the district court to conduct an evidentiary hearing pursuant to Rules 3.11(A) and 3.12(E) of the Rules of the Oklahoma Court of Criminal Appeals to determine:

1) whether there was a break in second stage jury deliberations and the jury was allowed to separate; 2) whether jurors were allowed to commingle with non-jurors during any point in the deliberations, and whether they were exposed to any outside influences; 3) whether the bailiff informed the jury that if they did not reach a verdict that evening, the jury would have to accompany the foreperson to her doctor’s appointment the next morning, and if such a statement was made whether the jury was coerced into reaching a verdict by the statement; 4) whether the defense had sufficiently raised the presumption of prejudice pursuant to 22 O.S.2001, § 857 and Mooney v. State, 1999 OK CR 34, ¶ 63, 990 P.2d 875, 892; and 5) whether defense counsel was aware of any break in the jury’s deliberations and whether defense counsel had the opportunity to raise a timely objection on the record but failed to do so.

Warner, 2006 OK CR 40, ¶ 93, 144 P.3d at 873.

During Petitioner’s trial, a member of the jury broke her foot and was unable to climb the stairs to the jury deliberation room. (Tr., Vol. V, p. 951.) Without objection, the trial judge converted the courtroom into a jury room suitable for deliberations. (Tr., Vol. VI, pp. 1249-50.) The jury began its second stage deliberations at 2:55 p.m. on June 25, 2003, and returned its verdict at 11:15 p.m. that evening. (Tr., Vol. VIII, pp. 1549, 1551.) Petitioner alleges that during this time period, the jury improperly separated for multiple bathroom and smoking breaks. In his motion for a new trial before the district court, Petitioner attached affidavits from members of the defense team that described jurors smoking and commingling with court staff and a witness for the State, Detective Mullenix. Jurors were also seen using telephones. According to the affidavits, the trial judge or his bailiff told the injured juror that if the jury was still deliberating the following morning, the entire jury would have to accompany the juror to her scheduled doctor’s appointment. (VI O.R. at 1155-60, 1163-65.) On direct appeal, the State filed a motion to supplement the record to which it attached affidavits from the prosecutor, the bailiff at trial, and multiple jurors. The OCCA considered the record on direct appeal inadequate to review the alleged error and remanded the matter to the district court for an evidentiary hearing.

On January 17th and 19th of 2006, district court received testimony. The OCCA summarized the evidence:

During [second stage deliberations], the jury did not stop to eat and did not require an overnight stay in a hotel. Recesses in deliberations were taken for jurors to use the restroom or to smoke. These recesses were infrequent and short in duration. The bailiff admonished the jury to make each recess short and the bailiff was able to monitor the movements of any juror to and from the restroom or to and from the smoking area (the usual jury deliberation room).

Testimony concerning whether the jurors were allowed to commingle with non-jurors during recesses was conflicting. Members of the defense team testified that jurors were smoking in the judge’s outer chambers while court staff, Detective Mullenix, and possibly others were present. However, each of the jurors testified their only contact was with court staff. Each juror also testified they did not have any communication or contact with Detective Mullenix. Testimony shows he either excused himself when jurors were about to enter a room he was in or he waited in the judge’s private office.

A recess was also taken for the jurors to move their cars due to the closing of the parking garage for the day. Testimony showed the jury was accompanied by the bailiff and deputies when moving their cars. According to the testimony this was a common occurrence for juries in Oklahoma County that deliberated into the evening. The record reflects that either defense counsel was informed when this occurred and did not object, or if not specifically notified, were well aware of [the] situation as the closing time of the parking garage was common knowledge in the courthouse.

Requests for recess or snacks were made by the jury knocking on the door to alert the bailiff to the existence of a note pushed underneath the door. When the bailiff responded, communication was made at the doorway. Snacks were provided to the jury either by the bailiff handing them off to the jury at the doorway or by the bailiff taking them into the room during a recess in deliberations.

Testimony concerning the use of telephones by jurors was conflicting. Two members of the defense team and the court reporter testified to seeing jurors use telephones during deliberations. However, each juror testified their cell phones were confiscated prior to deliberations and denied using a phone during deliberations or seeing any other juror use a phone.

The record is void of any objections by defense counsel to perceived improprieties surrounding the jury’s deliberation. It was not until after the verdict was received did defense counsel ask to make a record. At that time, counsel was told by the trial judge that due to the late hour, objections should be raised at the motion for new trial.

... Testimony at the evidentiary hearing shows the foreperson sought medical advice for her broken foot and had to reschedule a doctor’s appointment on one occasion due to the length of the trial. She subsequently became concerned that deliberations might require rescheduling a second doctor’s appointment and inquired of the bailiff what might be done about it. The bailiff responded that the foreperson should not worry about the appointment because if necessary all the jurors could go with her to the doctor’s appointment. The comment was made by the bailiff in jest. She did not take any steps to arrange transportation of the entire jury panel to the doctor’s appointment the next day. Further, not all of the jurors heard the comment. Of those who did hear it, they understood it was made in jest and laughed at it. Every juror familiar with the comment testified it did not affect their deliberations or verdict.

Warner, 2006 OK CR 40, ¶¶ 99-104, 106, 144 P.3d at 874-75. The OCCA’s factual determination is afforded a presumption of correctness which Petitioner has failed to rebut. 28 U.S.C. § 2254(e)(1).

Neither Petitioner’s brief nor the Court’s research has located clearly established federal law that affords a defendant a right to jury sequestration under the Constitution. See, e.g., Powell v. Spalding, 679 F.2d 163, 166 n. 3 (9th Cir.1982) (noting there is no constitutional right to sequestration); Young v. Alabama, 443 F.2d 854, 856 (5th Cir.1971) (same). Oklahoma law, 22 Okla. Stat. § 857, requires “that the jury not be allowed to ‘separate’ between hearing the charge and returning a verdict.” Warner, 2006 OK CR 40 ¶ 98, 144 P.3d at 874 (quoting Bayliss v. State, 1990 OK CR 51, ¶ 4, 795 P.2d 1079, 1080). “If after deliberations have begun the jury is allowed to separate and commingle with people outside the jury panel, prejudice to the defendant is presumed.” Mooney v. State, 1999 OK CR 34, ¶ 63, 990 P.2d 875, 892. In Petitioner’s case, the OCCA determined that the jury’s breaks did not constitute “separation” under Oklahoma law because “the recesses were so infrequent and short in duration.” Warner, 2006 OK CR 40, ¶ 105, 144 P.3d at 875. Given that there was conflicting evidence of jurors interacting with third parties, the OCCA concluded, “even assuming there was commingling with non-jurors, the State adequately rebutted any presumption of prejudice as the testimony showed the jury was not exposed to any outside or prejudicial influences during deliberations.” Id. In addition, the bailiffs comment to the juror foreperson regarding her doctor’s appointment was “ ‘a quintessential “housekeeping” matter’ ” and did not “constitute prejudicial or unauthorized communications.” Id. ¶ 108, 144 P.3d at 876. In sum, the OCCA found “no statutory or constitutional violations.” Id. ¶ 109, 144 P.3d at 876.

To the extent Petitioner claims the OCCA incorrectly applied state law, the Court denies the claim because it is not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (internal quotation marks and citation omitted). Entitlement to habeas relief for eiTors of state law requires a petitioner to show that the violation of state law resulted in a deprivation of due process. “[T]he deprivation occasioned by the state’s failure to follow its own law must be ‘arbitrary in the constitutional sense’; that is, it must shock the judicial conscience.” Aycox v. Lytle, 196 F.3d 1174, 1180 (10th Cir.1999); see also Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).

The Court concludes that the OCCA’s determination is not arbitrary in the constitutional sense. The OCCA ordered an evidentiary hearing to further explore Petitioner’s allegations that his statutory right to a sequestered jury was sufficiently honored. As a result of the hearing, the OCCA concluded any breaks in the deliberations did not constitute a violation of 22 Okla. Stat. § 857. Each juror testified that his or her verdict was not affected by the breaks, or the bailiffs comment about the doctor’s appointment of the foreperson. The OCCA’s determination is not an arbitrary deprivation of a liberty interest necessary for a due process violation under state law claims on habeas review.

Accordingly, Petitioner’s first ground for relief is denied.

2. Ground Two: Life Without Parole Jury Instructions

In his second claim for relief, Petitioner argues that the failure to instruct the jury on the meaning of life without parole deprived him of his constitutional rights under the Sixth, Eighth, and Fourteenth Amendments. (Pet. at 26-29.) The trial court denied Petitioner’s pretrial motions to instruct the jury on the meaning of life without parole. (Tr., Motions Hearing, 3/5/2003, pp. 4, 24.) During second stage deliberations, the jury submitted a written question which asked, “Is there ANY WAY or chance for Charles to get out of prison if he is sentenced to life without parole? EVER?” (Second Stage Question from the Jury no. 1). The trial judge denied Petitioner’s request to instruct the jury that the sentences “mean what they say” and responded to the question with, “You have all of the law and evidence necessary to reach a verdict.” (Tr., Vol. VIII, pp. 1549-51; Second Stage Question from the Jury no. 1). On appeal, the OCCA found no error and denied relief. Warner, 2006 OK CR 40, ¶¶ 158-61, 144 P.3d at 885-86. Petitioner argues the OCCA’s determination is contrary to, or an unreasonable application of, clearly established law as determined by the Supreme Court of the United States.

In Simmons v. South Carolina, 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), a plurality of the Court held that if a “defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” See also Shafer v. South Carolina, 532 U.S. 36, 51, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (holding Simmons applies to South Carolina’s new capital sentencing scheme); Kelly v. South Carolina, 534 U.S. 246, 248, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (again applying Simmons to South Carolina’s sentencing scheme). In Simmons, the jury was faced with the sentencing decision between life imprisonment or death, unaware that Simmons was legally ineligible for parole. Simmons, 512 U.S. at 158-60, 114 S.Ct. 2187. The prosecution argued Simmons was a future danger and that such dangerousness should be considered in arriving at a sentencing decision. Id. at 157, 114 S.Ct. 2187. After an inquiry from the jury asking whether a sentence of life imprisonment includes the possibility of parole, the trial judge instructed the jury not to consider parole or parole eligibility in making its decision. Id. at 160, 114 S.Ct. 2187. On writ of certiorari, the Court held that raising the issue of a petitioner’s future dangerousness without informing the jury of his parole ineligibility has “the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration” and amounts to a due process violation. Id. at 161-62, 114 S.Ct. 2187; see also Mayes v. Gibson, 210 F.3d 1284, 1294 (10th Cir.2000). The Court noted, “We express no opinion on the question whether the result we reach today is also compelled by the Eighth Amendment.” Simmons, 512 U.S. at 162 n. 4, 114 S.Ct. 2187.

Oklahoma’s sentencing scheme provides that a jury, after finding an aggravating factor beyond a reasonable doubt and upon consideration of mitigating evidence, must decide between the three sentencing options of life, life without parole, and death. 21 Okla. Stat. §§ 701.9, 701.10; Instruction No. 4-76, OUJI-CR (2d). The Tenth Circuit has held that this scheme satisfies the “false choice” concern in Simmons. See Mayes, 210 F.3d at 1294 (“We believe this three-way choice fulfills the Simmons requirement that a jury be notified if the defendant is parole ineligible.”); see also Hamilton v. Mullin, 436 F.3d 1181, 1190—92 (10th Cir.2006) (applying Simmons); Mollett v. Mullin, 348 F.3d 902, 909-23 (10th Cir.2003) (applying Simmons to Oklahoma’s sentencing scheme); Johnson v. Gibson, 254 F.3d 1155, 1165 (10th Cir.2001) (holding Oklahoma’s instructions on the three sentencing options satisfies Simmons ).

To succeed in a due process claim under Simmons, a petitioner must establish four requirements:

(1) the prosecution seeks the death penalty; (2) the prosecution places the defendant’s “future dangerousness ... at issue,” (3) the jury asks for clarification of the meaning of “life imprisonment,” or a synonymous statutory term, and (4) the judge’s response threatens to cause “a jury’s misunderstanding so the jury will ... perceive a ‘false choice’ of incarceration when future dangerousness is at issue.”

Mollett, 348 F.3d at 914 (internal citations omitted). See also Hamilton, 436 F.3d at 1191 (applying Mollett’s four requirements).

In the present case, Petitioner meets the first three of the Simmons requirements. The prosecution sought the continuing threat aggravating circumstance in Petitioner’s capital trial and the jury asked for clarification on the meaning of life without parole. Importantly, the trial judge’s response referred the jury back to its instructions. This response did not threaten to create a misunderstanding within the jury such that it would perceive a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. Welch v. Workman, 639 F.3d 980, 1005 (10th Cir.2011) (“[I]f the trial court simply directs the jury to review the instructions again, the defendant’s due process rights are not violated.”), pet. for cert. filed, No. 11-5284 (July 11, 2011). As a result, Petitioner’s alleged due process violation fails.

Respondent argues Petitioner’s claim as it relates to the Eighth Amendment was not properly presented to the state court and is therefore unexhausted. (Resp. at 31-32.) According to Respondent, all of the cases cited by Petitioner in support of his claim addressed only whether the Due Process Clause was violated. Petitioner argues he fairly presented his claim to the OCCA. (Reply at 5-7.) The Court need not determine whether Petitioner sufficiently raised his claim in state court because it is more easily denied on the merits. 28 U.S.C. § 2254(b)(2). Petitioner fails to cite clearly established federal law that supports an Eighth Amendment violation for a failure to instruct a jury on the meaning of life without parole. As noted above, the Court in Simmons expressly limited its holding as deriving from principles of due process. Simmons, 512 U.S. at 162 n. 4, 114 S.Ct. 2187. As a result, Petitioner’s claim under the Eighth Amendment also fails. The Court denies Petitioner’s second claim for relief.

3. Ground Three: Opinion Testimony

In his third claim for relief, Petitioner argues he was denied his constitutional right to due process when the trial court admitted certain opinion testimony. Specifically, Petitioner complains of: (1) emergency room physician Dr. William McCreight’s opinion that Victim suffered physical and sexual abuse; (2) Kathleen Hatlelid, physician’s assistant, regarding her opinion that VW was physically abused; and (3) child welfare worker Rebecca Price vouching and bolstering of CW and Detective Willy Edwards. (Pet. at 33.) Petitioner presented this claim on direct appeal and the OCCA denied relief. Warner, 2006 OK CR 40, ¶¶ 20-28, 144 P.3d at 859-61. Respondent argues the OCCA’s determination is not contrary to, nor an unreasonable application of, clearly established federal law. (Resp. at 34-38.)

Acknowledging the limited scope of habeas review of state evidentiary decisions, Petitioner submits that the trial court’s errors were “ ‘so grossly prejudicial that [they] fatally infected the trial and denied the fundamental fairness that is the essence of due process.’ Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir.2000), (quoting Williamson v. Ward, 110 F.3d 1508, 1522 (10th Cir.1997)).” (Pet. at 30.) See also Hooker v. Mullin, 293 F.3d 1232, 1238 (10th Cir.2002). State evidentiary decisions do not rise to a due process violation unless they “offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Montana v. Egelhojf, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (internal quotation marks and citation omitted); see also Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir.2002).

a. Opinions of Dr. McCreight and Ms. Hatlelid

During the first stage of Petitioner’s trial, the State called Dr. McCreight as a witness. Previously, the trial court overruled Petitioner’s motion in limine to exclude Dr. McCreight’s sexual abuse diagnosis and granted Petitioner a continuing objection. (Ill O.R. at 593; Tr. Vol. Ill, p. 538.) Dr. McCreight was an emergency room physician on August 22, 1997, and treated Victim upon arrival at Mercy Hospital. (Tr., Vol. Ill, pp. 596-97.) On direct examination, Dr. McCreight recounted the efforts of the hospital staff to treat Victim. Following Victim’s death, Dr. McCreight observed blood and a tear to her rectum. (Id. at 610.) Additional examination revealed that Victim had suffered at least two skull fractures, a fracture of the left side of the mandible, and a rib fracture. (Id. at 615-16.) Dr. McCreight testified that his overall diagnosis for Victim was “physical and sexual abuse.” (Id. at 618.) Further, according to Dr. McCreight, such injuries were inconsistent with Victim falling from a bed onto a padded and carpeted floor. The injuries described would have prevented Victim from drinking water or playing with another child. (Id. at 618-19.) These last two opinions conflicted with Petitioner’s version of Victim’s death.

At the second stage of Petitioner’s trial, Kathleen Hatlelid testified about her observation of Petitioner’s oldest daughter, VW. Based upon her experience and personal observation of visible scars on VW’s jaw, torso, thighs, and left arm, Ms. Hatlelid concluded “[tjhat this child was physically abused, probably on many different occasions.” (Tr., Vol. VII, 1278-81.) The State solicited this evidence in support of the continuing threat aggravating circumstance.

The OCCA concluded that the testimony of Dr. McCreight and Ms. Hatlelid was properly admitted because it was based on the witnesses’ experience and observations:

Dr. McCreight’s diagnosis that the victim had suffered physical and sexual abuse was based upon his experience as an emergency room physician for over ten years. His diagnosis was also based upon his observations of the victim’s injuries. Kathleen Hatlelid’s testimony was based upon her eleven years of experience as a physician’s assistant specializing in the area of suspected child abuse. Her testimony was also based upon her observation and examination of [VW]. The opinion testimony of both of these medical experts assisted the jury in understanding the cause of the injuries found on both children. This Court has previously found such testimony properly admissible under § 2702. See Revilla v. State, 1994 OK CR 24, ¶ 20, 877 P.2d 1143, 1150; cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995); Roubideaux v. State, 1985 OK CR 105, ¶ 23, 707 P.2d 35, 39. Further, the witnesses’ opinions were not improper opinion testimony on an ultimate issue since the opinions did not tell the jury what result to reach. See Welch v. State, 2000 OK CR 8 ¶ 23, 2 P.3d 356, 369, cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 L.Ed.2d 567 (2000).

Warner, 2006 OK CR 40, ¶ 23, 144 P.3d at 860. The Court determines that the testimony of Dr. McCreight and Ms. Hatlelid did not render Petitioner’s trial fundamentally unfair such that he was deprived of his due process rights.

b. Testimony of Ms. Price

Rebecca Price, a child welfare worker at the Department of Human Services, was the first individual to interview CW. (Tr., Vol. V, pp. 1094-95.) The interview took place the day after Victim’s death. Ms. Price testified that CW said he had never seen his dad hit or hurt Victim, stating that he only yelled at her. (Id. at 1095.) At trial, CW testified earlier that he saw his father shake Victim on the day of her death. (Tr., Vol. IV, p. 864.) Addressing this discrepancy, Ms. Price stated on cross-examination by the State that it was “very normal” for a child like CW to hesitate or refuse to give incriminating information about his parents. (Id. at 1099-1100.) Ms. Price also testified that it is not uncommon for a child in a suspected abuse case to “open up” to a police officer in the days after an incident. (Id. at 1102.) Further, Ms. Price was familiar with Det. Edwards’ investigation techniques and procedures he used to talk with kids about suspected child abuse and considered them “proper.” (Id. at 1105-7.) Petitioner argues Ms. Price’s testimony improperly bolstered and vouched for the credibility of CW and Det. Edwards’ techniques for interviewing children.

Petitioner alleges this testimony rendered his trial fundamentally unfair and violated his right to due process. On direct appeal, the OCCA denied relief, concluding as follows:

Here, Price testified that when she interviewed [CW] he was six years old. She gave no opinion on the truthfulness of his statements. As for her testimony regarding Detective Edwards, she testified she had observed Detective Edwards and the way he interviewed suspected child abuse victims. She said she thought he used proper techniques in trying to get information from children. Ms. Price’s testimony was not improper vouching for Detective Edwards as it addressed only the procedures he used, not the veracity or credibility of any responses he received in his interviews.

Warner, 2006 OK CR 40, ¶ 25, 144 P.3d at 861. Petitioner argues the OCCA’s determination is contrary to, or involved an unreasonable application of, clearly established federal law. Further, pursuant to § 2254(d)(2), Petitioner submits that the OCCA’s holding that Ms. Price did not give an opinion on the truthfulness of CW’s testimony and that her testimony did not improperly vouch for Det. Edwards is an unreasonable determination of the facts in light of the evidence presented at trial.

In support of his argument, Petitioner relies on Parker v. Scott, 394 F.3d 1302 (10th Cir.2005), a habeas case in which the Tenth Circuit considered whether testimony from three of the State’s witnesses impermissibly bolstered or “vouched” for the credibility of a child in a trial for sexual abuse. Parker was convicted of repeatedly sexually abusing a seven-year-old child. At trial, the child’s testimony described some specifics of the abuse, but the testimony was less clear on other parts of the abuse. Id. at 1307. Parker strongly denied the allegations. Reviewing the state court’s evidentiary rulings for fundamental fairness under due process principles, the Tenth Circuit concluded that, taking the witnesses’ testimonies together, Parker’s due process rights were not violated. Even though each witness’s testimony indicated a belief that sexual abuse had occurred, the jury remained capable of determining the credibility of the child’s testimony. Id. at 1314.

In Petitioner’s case, the closest Ms. Price came to bolstering the credibility of CW was her testimony that, in her experience as a child welfare worker, it is common for children in abuse cases to refrain from incriminating their parents shortly after the alleged abuse and that such children may later feel comfortable disclosing additional facts. At no point did Ms. Price give her opinion that CW was being truthful. Similarly, her testimony concerning the investigation techniques of Det. Edwards did not improperly bolster his credibility. Ms. Price merely indicated Det. Edwards used proper interview techniques. The OCCA’s factual determination to the same is not an unreasonable determination in light of the evidence presented at trial.

Petitioner also claims error in the trial court’s failure to hold a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to determine the admissibility of the expert testimony. (Pet. at 40-41.) However, Daubert is not a rule of constitutional law and does not provide a basis for habeas relief. Wilson v. Sirmons, 536 F.3d 1064, 1101-02 (10th Cir.2008) (“Daubert does not set any specific constitutional floor on the admissibility of scientific evidence.”). The appropriate inquiry for a federal habeas court is whether the admission of the challenged evidence violates Petitioner’s due process rights. Id. at 1102. As discussed above, the Court concludes Petitioner’s due process rights were not offended.

Based on the foregoing, the Court determines that the testimonies of Dr. McCreight, Ms. Hatlelid, and Ms. Price did not render Petitioner’s trial fundamentally unfair in violation of his due process rights. Accordingly, Petitioner’s third claim for relief is denied.

4. Ground Four: Restrictions on Cross-Examination of Shonda Waller

Petitioner argues in his fourth claim for relief that he was denied his Sixth and Fourteenth Amendment rights to present a meaningful defense, due process, and confrontation when the trial court restricted his cross-examination of Shonda Waller. (Pet. at 42-46.) The trial court granted the State’s motion in limine to prevent Petitioner from cross-examining Ms. Waller and presenting evidence of, among other things: (1) Ms. Waller considering whether to place Victim in adoption; (2) whether Victim was born as the result of a rape; (3) whether Ms. Waller went out drinking in the days before Victim’s death, the day after, and the night of Victim’s funeral; (4) whether Ms. Waller attempted to give Petitioner’s property away after his arrest; (5) whether Ms. Waller provided a headstone for Victim; and (6) whether Ms. Waller provided adequate care for her baby. (Ill O.R. at 566-67; Tr., Vol. Ill, pp. 744-A6; Tr., Vol. VI, p. 1141.) In addition, Petitioner claims the restrictions on his examination of Ms. Waller affected the jury’s second stage verdict because the excluded evidence would have sharply contrasted with her emotional victim impact testimony. (Pet. at 45.) Petitioner presented his claim as it relates to the first stage of his trial to the OCCA on direct appeal. The OCCA denied relief. Warner, 2006 OK CR 40, ¶¶ 29-32, 144 P.3d at 861-62.

Respondent argues Petitioner’s second stage claim is unexhausted. (Resp. at 39.) The Court agrees. In his Reply, Petitioner submits that he fairly presented his claim to the OCCA in his eighteenth proposition of error on direct appeal, which addressed cumulative error. (Reply at 20.) However, Petitioner did not argue that the subject matter of the restricted cross-examination influenced the jury’s second stage verdict. Before this Court, Petitioner cites the following passage from his brief on direct appeal to support fair presentation of the issue in state court: “To determine whether a sentence is excessive, [the OCCA] considers the entire record, including improper matter received without objection, and where justice requires, the sentence will be modified. Owens v. State, 706 P.2d 912, 913 ([Okla.Crim.App.] 1985).” (Appellant’s Brief, Case No. D-2003-829, pp. 99-100.) The quoted passage falls far short of the “fair presentation” requirement. Demarest v. Price, 130 F.3d 922, 932 (10th Cir.1997). Fair presentation “means that the substance of the claim must be raised [in state court]. The prisoner’s allegations and supporting evidence must offer the state courts a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.” Id. (internal quotations omitted). Were Petitioner’s quoted passage sufficient to meet the fair presentation requirement, nearly any claim relating to Petitioner’s sentence would be “exhausted” for purposes of habeas review. The Court therefore applies “anticipatory procedural bar” to Petitioner’s claim as it relates to the second stage of his trial and denies relief. Anderson v. Simons, 476 F.3d 1131, 1139 n. 7 (10th Cir.2007) (“ ‘Anticipatory procedural bar’ occurs when the federal courts apply procedural bar to an unexhausted claim that would be proeedurally barred under state law if the petitioner returned to state court to exhaust it.”) (internal quotation marks and citation omitted).

Turning to Petitioner’s exhausted claim, Petitioner cites United States Supreme Court cases regarding the right to confrontation in support of his argument that the trial court violated his constitutional rights. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The Confrontation Clause guarantees an accused the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis, 415 U.S. at 315-16, 94 S.Ct. 1105 (internal quotation marks and citation omitted). Cross-examination permits an accused the opportunity to test the believability of a witness as well as the truthfulness of that witness’s testimony. Id. at 316, 94 S.Ct. 1105. However, “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam). Importantly, “trial 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. 1431. The denial of a defendant’s right to confrontation is subject to harmless error review. Id. at 684, 106 S.Ct. 1431.

The OCCA concluded Petitioner failed to argue how the excluded evidence was relevant to Ms. Waller’s bias, credibility, or motivation in testifying. Warner, 2006 OK CR 40, ¶ 30, 144 P.3d at 862. Before this Court, Petitioner also fails to proffer an explanation as to the relevance of the challenged evidence. To be sure, the subjects of the evidence Petitioner sought to include are collateral to the issue of Ms. Waller’s bias, motive, or credibility. In addition, as described by the OCCA, Petitioner was able to cross-examine Ms. Waller:

[T]he trial court did not prevent [Petitioner] from challenging Ms. Waller’s credibility as a truthful witness and did not deny him the ability to put on a defense. [Petitioner] thoroughly cross-examined Ms. Waller with prior inconsistent statements concerning the timetable of events the day of the murder. Through this cross-examination, [Petitioner] set out his defense that the victim’s injuries did not occur until Ms. Waller returned home from the grocery store.

Id. ¶ 31, 144 P.3d at 862. A review of the record confirms the reasonableness of the OCCA’s determination that the trial court did not deny Petitioner his constitutional rights by excluding the challenged evidence described. Petitioner’s fourth claim for relief is denied.

5. Ground Five: Sufficiency of the Evidence for Petitioner’s Conviction of Rape in the First Degree

In his fifth claim for relief, Petitioner argues there was insufficient evidence to support his conviction of rape in the first degree. (Pet. at 46-55.) Petitioner presented this claim on direct appeal and the OCCA denied the claim on the merits. Warner, 2006 OK CR 40, ¶¶ 33-40, 144 P.3d at 862-63. Respondent argues the OCCA’s determination is not contrary to, nor an unreasonable application of, clearly established federal law. (Resp. at 42-46.)

Petitioner also argues the conviction unfairly prejudiced him during the second stage and denied him his constitutional right to a fundamentally fair sentencing proceeding. (Pet. at 54.) Respondent contends Petitioner’s claim as it relates to the second stage of his trial is unexhausted. (Resp. at 43.) A review of Petitioner’s brief on direct appeal confirms Petitioner did not raise a sufficiency of the evidence argument as it relates to his second stage proceedings. (Appellant’s Brief, Case No. D-2003-829, pp. 19-25.) Petitioner declined to address Respondent’s exhaustion argument in his Reply before this Court. Accordingly, the Court concludes Petitioner’s claim as it relates to the second stage of his trial is unexhausted, applies “anticipatory procedural bar,” and denies relief. Anderson, 476 F.3d at 1139 n. 7.

Turning to Petitioner’s exhausted ground for relief, a sufficiency of the evidence claim requires a habeas court to determine, “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Brown v. Simons, 515 F.3d 1072, 1088-89 (10th Cir.2008). It is the responsibility of the jury to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Because the OCCA applied the Jackson standard on direct appeal, AEDPA deference applies. Matthews, 577 F.3d at 1183. On habeas review, a sufficiency of the evidence challenge is a mixed question of law and fact, requiring the Court to apply both 28 U.S.C. § 2254(d)(1) and (d)(2). Maynard v. Boone, 468 F.3d 665, 673 (10th Cir.2006); see also Brown, 515 F.3d at 1089. The Court’s review is “sharply limited, and a court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Brown, 515 F.3d at 1089 (internal quotation marks and citations omitted).

A sufficiency of the evidence challenge begins “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781. Petitioner’s conviction for first degree rape required the State to prove, beyond a reasonable doubt: (1) sexual intercourse; (2) with a person who was not the spouse of the defendant; and (3) where the Petitioner was over the age of eighteen, and the victim was under the age of fourteen. (VI O.R. at 1092.) See also 21 Okla. Stat. § 1111(A)(1); Instruction No. 4-120, OUJI-CR (2d). The element of sexual intercourse was defined as “the actual penetration of the vagina or anus by the penis. Any penetration, however slight, is sufficient.” (VI O.R. at 1093) (emphasis added); 21 Okla. Stat. § 1113; Instruction No. 4-122, OUJI-CR (2d). Petitioner argues that because the physical evidence supports only external injuries to the Victim’s rectum, there is no support for the element of actual penetration. Further, Petitioner contends the State failed to submit sufficient evidence that the injury was caused by a penis. (Pet. at 51-53.)

Pursuant to § 2254(e) and this Court’s review of the record, the following excerpt from the OCCA’s opinion adequately summarizes the evidence:

As the victim in this case was an infant, we have no personal testimony on the element of penetration and rely only on the medical evidence offered. Robin Justice, R.N., testified that in examining the victim in the emergency room she observed blight red blood in her diaper, which indicated a recent injury. She also observed tears around the victim’s rectum. Dr. McCreight, the examining physician, testified he also observed blood in the victim’s diaper and that the skin around her rectum was stained with blood. He was also of the opinion that the blood indicated a recent injury. Additionally, he observed tears in the rectum.

Ann Morie Spencer, M.D., pediatric emergency physician at Children’s Hospital, did not examine the victim but viewed photographs of her injuries. Dr. Spencer testified she observed lacerations around the rectum. She said that kind of injury indicated “some sort of force to that area” shortly before death and that the condition of the area indicated that the amount of force used was considerable, as that area does not tear easily. She also testified that the rectal muscle appeared to be transected or cut through and that such an injury was not the type normally associated with hard stools. On cross-examination, Dr. Spencer admitted she could not tell for sure what caused the victim’s injuries.

Dr. Chai Choi of the Medical Examiner’s office testified that while performing the autopsy she observed several tears around the victim’s rectum. She said the tears indicated the skin around the rectum had been “overstretched” from pressure being placed against the area. Dr. Choi said there was no way for her to determine what caused the injury, but she could not exclude an adult penis as the cause. On cross-examination, Dr. Choi said the injuries to the victim’s rectum were all external.

Although not a medical expert witness, Elaine Taylor, forensic chemist with the Oklahoma City Police Department, testified in her examination for DNA analysis, she found no evidence of semen in the diaper or the victim’s clothes.

Warner, 2006 OK CR 40, ¶¶ 36-39, 144 P.3d at 863.

The Court recognizes that the question before it is not whether the jury’s finding, based upon inferences and conclusions from the evidence, is reasonable. Rather, the question on habeas review is whether the OCCA’s determination that a rational juror could find penetration is, itself, unreasonable. Cf. Young v. Sirmons, 486 F.3d 655, 666, n. 3 (10th Cir.2007) (describing the standard of review for sufficiency of the evidence challenges on habeas review as “ ‘deference squared’ ”). The Court concludes the OCCA’s determination is not unreasonable. The jury in Petitioner’s case was presented with physical evidence that Victim suffered multiple tears to her rectum while in the sole care of Petitioner. Further, the State presented evidence that Petitioner cued a video cassette to a pornographic scene while in the bedroom in which Victim was found. (Tr., Vol. III, pp. 674-75.) Two different lubricants were found on top of the television. (Id. at 670.) The State presented evidence that a lubricant may have been applied to Victim’s genital region. (Id. at 653-54.) From this evidence, a rational jury was able to find the elements of first degree rape beyond a reasonable doubt. In sum, the OCCA’s determination, based upon the evidence presented at trial, was not an unreasonable application of, nor contrary to, clearly established federal law. Petitioner’s fifth ground for relief is denied.

6. Ground Six: Child Abuse Murder Jury Instructions

In his sixth ground for relief, Petitioner argues the trial court’s failure to instruct the jury that child abuse murder requires an intent to injure violated his rights under the federal constitution. Petitioner filed a motion to define “willful” as requiring “an intent to injure.” (Ill O.R. at 441-43; VI O.R. at 984.) However, the jury was given the following instruction:

No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a child under the age of eighteen;

Second, the death resulted from the willful or malicious injuring or torturing or maiming or using of unreasonable force;

Third, by the defendant.

(VI O.R. at 1090.) Willful was defined in the instructions as: “Purposeful. Willful’ is a willingness to commit the act or omission referred to, but does not require any intent to violate the law or to injure another or to acquire any advantage.” (Id. at 1091.)

Petitioner first argues that the OCCA’s application of Fairchild v. State, 1999 OK CR 49, 998 P.2d 611, in which the OCCA clarified that child abuse murder under 21 Okla. Stat. § 701.7(C) as a general intent crime, violates ex post facto principles of the Fourteenth Amendment. Alternatively, Petitioner submits that by being convicted of a crime without a specific intent requirement, he has been denied due process. (Pet. at 55-62.) Petitioner presented his claims on direct appeal and the OCCA denied relief on the merits. Warner, 2006 OK CR 40, ¶¶ 78-81, 144 P.3d at 870-71. Respondent argues that Petitioner has failed to demonstrate the OCCA’s determination is contrary to, or an unreasonable application of, clearly established federal law. (Resp. at 46-51.)

a. Ex Post Facto Challenge

In Fairchild, the OCCA clarified the mens rea requirement under Oklahoma’s child abuse murder statute. Previously, in Workman v. State, 1991 OK CR 125, ¶ 22, 824 P.2d 378, 383, the OCCA concluded child abuse murder is a general intent crime. Subsequently, and without overruling Workman, the OCCA held that child abuse murder contained a “specific intent requirement.” Hockersmith v. State, 1996 OK CR 51, ¶ 12, 926 P.2d 793, 795. Faced with a conflict, the OCCA in Fairchild held Hockersmith to be an “aberration” and overruled its holding that child abuse murder is a specific intent crime. Fairchild, 1999 OK CR 49, ¶ 45, 998 P.2d at 622. Fairchild made it clear that, under Oklahoma law, child abuse murder “does not require a specific intent to injure, but only a general intent, included in the term willfully, to commit the act which causes the injury.” Id. ¶ 51, 998 P.2d at 622-23 (emphasis omitted).

Judicial decisions may violate ex post facto principles of due process. Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (“[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.”); see also Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798) (outlining four categories of ex post facto laws). However, in Rogers v. Tennessee, the Court clarified that Bouie did not “incorporate jot-for-jot the specific categories of Calder into due process limitations on the retroactive application of judicial decisions.” 532 U.S. 451, 459, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). Instead, “a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Id. at 462, 121 S.Ct. 1693 (internal quotation marks and citation omitted). Thus, ex post facto claims derived from judicial decision making are analyzed in the context of the Due Process Clause. Sallahdin v. Gibson, 275 F.3d 1211, 1228 (10th Cir.2002). See also Hawkins v. Mullin, 291 F.3d 658, at 664 n. 2 (10th Cir.2002) (“[Petitioner’s] argument implicates due process concerns instead, because [Petitioner] challenges the state appellate court’s decision rather than a legislative act.”). Importantly, “the Due Process Clause does not, depending upon the context of the judicial decision at issue, necessarily incorporate all of the specific prohibitions of the Ex Post Facto Clause.” Selsor v. Workman, 644 F.3d 984, 1010 (10th Cir.2011).

Petitioner argues, as he did on direct appeal, that application of Fairchild violates ex post facto principles of due process because at the time of the crime for which he was charged, Fairchild had not yet been decided. The OCCA, relying on Evans v. Ray, 390 F.3d 1247 (10th Cir.2004), concluded Fairchild did not change the law such that its application would violate the ex post facto prohibition. Warner, 2006 OK CR 40, ¶¶ 79-80, 144 P.3d at 871. In Evans, the Tenth Circuit concluded the OCCA’s determination that retroactive application of Fairchild did not violate ex post facto principles was reasonable because “Fairchild was not unexpected and indefensible in light of the plain language of the statute and Oklahoma case law in force as of the time the crime was committed.” Evans, 390 F.3d at 1254. As discussed above, the state of Oklahoma law on the mens rea requirement of child abuse murder was unclear and an opinion resolving the conflict “was eminently predictable.” Id. The state court’s decision to reinforce the general intent requirement from Workman “was certainly defensible in light of the statutory language of Okla. Stat. tit. 21, § 701.7(C) and Oklahoma’s long history of interpreting the statutory requirement of ‘willful’ as a general intent requirement rather than as a specific intent requirement.” Id. Petitioner fails to demonstrate how the OCCA’s determination is contrary to, or an unreasonable application of clearly established law, particularly in light of the Tenth Circuit’s decision in Evans. Accordingly, Petitioner’s claim based on ex post facto principles is without merit and denied.

b. Child Abuse Murder as a General Intent Crime

Petitioner argues that the omission of actual or implied mali