Jones v. Workman (98 F. Supp. 3d 1179, 2015)

MEMORANDUM OPINION

LEE R. WEST, District Judge.

This matter comes before the Court on the Petition for Writ of Habeas Corpus filed by Oklahoma death row inmate Jared William Jones pursuant to 28 U.S.C. § 2254 (docket entry no. 21). Petitioner, who appears through counsel, challenges the convictions and sentences entered against him in Oklahoma County District Court Case No. CF-2003-2046. In that case, a jury found Petitioner guilty of three counts of First Degree Malice Murder (Counts I, II, and III), and two counts of Shooting with Intent to Kill (Counts IV and V). Petitioner was sente'nced to death for each of the three murder convictions. He was sentenced to life imprisonment for each of the two convictions for shoóting with intent to kill. The trial judge ordered all sentences to run consecutively.

Petitioner has presented 14 grounds for relief. Six of those grounds, Grounds One through Five, Ground Eleven and Ground Twelve, assert claims that, if meritorious, could entitle Petitioner to a new trial of his guilt as well as a new sentencing. The remaining grounds for relief present claims having the potential to warrant re-sentencing only. Respondent has responded to the Petition (docket entry no. 32), and Petitioner has replied (docket entry no. 38). In addition to the Petition, Petitioner has filed a motion for an evidentiary hearing (docket entry no. 26), to which Respondent has filed an objection (docket entry no. 33), and Petitioner has replied (docket entry no. 39). He has also filed a motion for discovery (docket entry no. 22). Respondent has filed a response to the motion (docket entry no. 23), and Petitioner has replied (docket entry no. 24). By order entered September 29, 2011, Vicki Miles-LaGrange, Chief Judge of the United States Court for the Western District of Oklahoma, denied the motion for evidentiary hearing but stated that “[i]f the Court determines at a later date that a hearing is needed, the parties will be notified accordingly.” By a separate order entered that same date, Judge Miles-LaGrange addressed Petitioner’s motion for discovery by granting his request for production of the videotaped interview of Carla Phillips, as well as his request for the production of all crime scene photographs, and denying all remaining discovery requests while noting that “[i]f the Court determines at a later date that discovery is needed and warranted, the parties will be notified at such time.”

The Court has conducted a thorough review of the entire state court record, the pleadings filed herein, and the applicable law, and has carefully considered all those materials in reaching its decision. It concludes, for the reasons stated herein, that Petitioner has failed to demonstrate that he is entitled to a new trial of his guilt. The Court finds, however, that Petitioner’s first and second grounds for relief establish that he is entitled to a new sentencing. The Petition should, therefore, be conditionally granted to afford Petitioner a new sentencing proceeding.

I. Procedural History

In May of 2005, Petitioner’s case was tried to a jury which sentenced him to death for the First Degree Malice Murders of Pamela Karr, Brian Galindo, and Joel Platt, and to life in prison for Shooting with the Intent to Kill Tara Platt and Tara Johns. The jury found that the death sentence imposed for the murder of Pamela Kárr was supported by the single aggravating circumstance of Petitioner’s having knowingly created a great risk of death to more than one person. The jury found that the death sentences imposed for the murders of Brian Galindo and Joel Platt were supported by two aggravating circumstances: (1) Petitioner’s having knowingly created a great risk of death to more than one person; and (2) the murders were especially heinous, atrocious, or cruel (O.R. Ill at 514-523).

In Case No. D-2005-599, Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (the “OCCA”). In a published opinion, Jones v. State, 201 P.3d 869 (Okla.Crim.App.2009), the OCCA denied relief. Petitioner sought review by the United States Supreme Court of the OCCA’s decision. His petition for writ of certiorari was denied on October 5, 2009. Jones v. Oklahoma, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009). Petitioner also sought postconviction relief from the OCCA. In an unpublished order entered April 27, 2009, the OCCA denied the post-conviction application. Jones v. State, Case No. PCD-2005-822, slip op. (Okla.Crim.App.2009).

II. Facts

In adjudicating Petitioner’s direct appeal, the OCCA made a determination of the facts of the case. Pursuant to 28 U.S.C. § 2254(e)(1), these factual determinations are presumed correct absent clear and convincing evidence rebutting them. Following review of the record, the trial transcripts, and the admitted exhibits, this Court finds that the OCCA’s factual summary is adequate and accurate. The Court therefore adopts the following summary as its own.

[Petitioner] was convicted of shooting Joel Platt, Brian Galindo, [Pamela] Karr, Tara Platt and Tara Johns. Only the last two survived the shootings. The shootings were connected to [Petitioner’s] relationship with Carla Phillips, his live-in girlfriend. [Petitioner] and [Carla] Phillips lived down the street from the Platt residence, where brother and sister, Joel and Tara lived and where the crime in question took place. Eight adults and two children were in the Platts’ home at the time of the shootings. Five of the adults testified as witnesses for the State and [Petitioner] testified in his own behalf. While certain details of the circumstances leading up to and including the shootings vary among the witnesses, the State witnesses essentially testified to the following.

On the night of April 11, 2003, [Carla] Phillips and her young son went ter the Platt residence, while [Petitioner] went to a car show. Before going to the show, [Petitioner] and his friends drank beer and wine and smoked marijuana. Meanwhile, at the Platt residence, [Carla] Phillips had joined Tara Platt, Tara Johns, and [two] other women in visiting, playing video games, drinking beer and smoking marijuana. While there were several children at the house early in the evening, by the time of the fatal confrontation, only Tara Platt’s two children remained in the house, asleep in their beds. During the evening and into the early morning hours, [Carla] Phillips spoke with [Petitioner] several times over the phone. Their conversations included some amount of verbal sparring. After a conversation at approximately 2:36 a.m., April 12, [Petitioner] headed to the Platt residence, armed with two .45 caliber guns in his pockets.

By this time, Joel Platt, Brian Galindo, [Pamela] Karr, and Ramone Hernandez were at the Platt residence, having been at nightclubs earlier in the evening. Tara Platt was at the front door when she saw [Petitioner]^ car drive up. She opened here front door to see [Petitioner] get out of his car, walk to her house and inform her he had come to party with them. He entered the living room and asked for [Carla] Phillips. [Tara] Platt indicated [Carla] Phillips was in the back bedroom and she would get her for [Petitioner]. To get to the back bedroom, [Tara] Platt had to walk through the bedroom where her seven year old son was sleeping. Unbeknownst to [Tara] Platt, [Petitioner] followed her. He reached around her and pushed open to the door to the back bedroom. Angry that [Petitioner] had followed her into her son’s room, she shoved him backwards, causing him to fall over a child size chair.

The ensuing argument over why [Petitioner] had forced open the door and why [Tara] Platt had pushed him, brought Joel Platt and Brian Galindo out from the bedroom. Joel Platt and [Brian] Galindo tried to calm [Petitioner] down and remove him from the child’s bedroom either by placing him between the two of them with each grabbing an arm, or by Joel Platt placing his arm around [Petitioner’s] shoulder and pushing him towards the door. [Petitioner] resisted their efforts to remove him from the room, saying he needed to talk with [Carla] Phillips. While coming through the doorway from the little boy’s room into the living room, an intoxicated Joel Platt fell. He got up and took a “drunken swing” at [Petitioner], but missed him. Others in the house began telling, with some shouting, [Petitioner] to leave.

Despite continued efforts to get [Petitioner] to leave, [Petitioner], Joel Platt, and [Brian] Galindo ended up in the front bedroom which [Tara] Platt shared with her two year old daughter. [Tara] Platt told the men to leave and climbed onto her sleeping daughter’s bed and covered her ears. Backed into a corner, [Petitioner] took out a gun, pointed it at Joel Platt’s eyes, and announced he had “two [.45s].” Joel turned to get Ms. Phillips. She entered the room, briefly spoke with [Petitioner], then left the house. At the sight of the gun, [Brian] Galindo put his hands in the air and told [Petitioner], “we’ve got children in the house, we don’t need this, put the gun away.” [Petitioner] fired [four] times at [Brian] Galindo, striking him in the chest. [Brian] Galindo fell in the middle of the bedroom floor. [Pamela] Kan-rushed in and knelt by his side. [Petitioner] shot her twice in the head. Tara Platt put her head down and covered her daughter. [Petitioner] turned toward her and shot her in the shoulder and thumb.

Tara Johns was standing in the living room when she saw [Petitioner] shoot [Brian] Galindo. She grabbed a phone to call 911 and turned to see [Petitioner] facing her with a gun in each hand. She also saw Joel Platt facing [Petitioner]. [Petitioner] shot Tara Johns in the hip. She held on to the phone waiting for the dispatcher to pick up. [Petitioner] then shot her in the head. She was able to hold on until the dispatcher answered, then she fell to the floor. The 911 call recorded the rest of the events at the house. [Petitioner] fired two more shots and struck Joel Platt in the back of his head. He fired three more shots into Tara Johns as she lay on the ground.

After having been shot Tara Platt remained in her daughter’s bedroom. She heard [Petitioner]^ screams and seven more gunshots. She then heard him leave thorough the front door. She picked up her daughter and started out of the bedroom. However, [Petitioner] met her at the door and forced her back into the house, cornering her near the bathroom door, which adjoined the bedrooms. Attempting to protect her daughter, Tara Platt stood in front of her and begged [Petitioner] not to shoot them. [Petitioner] waved his guns in her face and mockingly said, “don’t shoot me.” By this time, [Petitioner]^ guns were empty. [Petitioner] ran out of the house and Tara Platt ran to look for a phone, unaware that Tara Johns had already called 911.

The State’s witnesses all testified that once the shooting started the situation was chaotic. However, they all consistently stated the only physical contact with [Petitioner] was Joel Platt and [Brian] Galindo attempting to push him out the door. The witnesses testified there was no fighting and no one hit, kick[ed], punched or even threatened [Petitioner].

By contrast, [Petitioner] testified that during the altercation he felt trapped and described the group in the house as a “crazed mob” that was “tweaked out” on “crank”. [Petitioner] testified he was familiar with the drug from previous experience with his brother and his brother’s friends, and that he recognized the smell and the crazy behavior its users exhibited.

[Petitioner] said the group used profanity and unnecessary force to remove him from the house, slammed him against a wall, restrained his arms and ultimately choked him. [Petitioner] claimed that as he reached for the guns inside the little girl’s bedroom, Joel Platt grabbed him by his throat and began choking, possibly grabbing one of his hands in the process. [Petitioner] claimed he pulled a pistol from his left pocket, but [Brian] Galindo grabbed that arm. As he was about to black out, he pulled the other pistol from his right pocket and hit Joel [Platt] with it. According to [Petitioner], this did not stop the choking. As he and [Brian] Galindo struggled with the pistol, it went off and fell to the floor. [Petitioner] said [Brian] Galindo grabbed the gun, but [Petitioner] shot him with the other pistol. Someone grabbed the first pistol and moved toward [Petitioner], so he shot her. [Petitioner] said he [then] made his way to the living room, but found Joel [Platt] coming toward him. He shot Joel [Platt] and continued shooting as he ran out the front door, stating “they’re going to kill me.”

[Petitioner] offered no explanation for the shootings of Tara Platt and Tara Johns, but said he did not go to the Platt residence with the intention of killing anyone.

Jones v. State, 201 P.3d at 875-77. Beyond this summary of the evidence, additional facts will be discussed as they relate to the individual grounds for relief raised by Petitioner.

III. Standard of Review

A. Exhaustion

As a preliminary consideration, the Court must determine whether Petitioner meets the exhaustion requirements of 28 U.S.C. §§ 2254(b) and (c). See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The exhaustion doctrine is a matter of comity. Id. at 518, 102 S.Ct. 1198. In a federal system, “the States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Pursuant to 28 U.S.C. § 2254(b)(2), “[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.”

B. Procedural Bar

Beyond the issue of exhaustion, a federal habeas court must also examine the state court’s resolution of the claim presented. “It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court’s decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.’ ” Cone v. Bell, 556 U.S. 449, 465, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (quoting Coleman, 501 U.S. at 729, 111 S.Ct. 2546). “The doctrine applies to bar federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546.

C. Merits

In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), this Court’s power to grant habeas corpus relief to state prisoners is limited. Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under the AED-PA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Alverson v. Workman, 595 F.3d 1142, 1146 (10th Cir.2010) (citing Snow, 474 F.3d at 696). When a state prisoner presents a claim to this Court, the merits of which have been addressed in state court proceedings, this Court cannot grant habeas corpus relief upon the claim unless it determines that the state court proceedings resulted in a decision (1) “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) “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)(1), (2).

The focus of § 2254(d) is on the reasonableness of the state court’s decision. To obtain relief, a petitioner must show that the state court decision is “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring but delivering the opinion of the Court with respect to Part II). “The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Thus, “evidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” Id. at 1400 (footnote omitted).

“Under § 2254(d), a habeas court must determine what arguments or theories supported ... the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 101-02, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Relief is warranted only “where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.” Id. at 102, 131 S.Ct. 770. The deference embodied in § 2254(d) “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.” Id. (citation omitted).

IV. Analysis

Petitioner was tried for three capital counts of First Degree Malice Murder and two counts of Shooting with Intent to Kill. His defense to all charges was based on his claim that he was attacked by the methamphetamine-intoxicated decedents, and that he acted out of fear for, and in defense of his life. In Ground One and Ground Two of the Petition, Petitioner challenges evidentiary rulings that deprived him of forensic evidence of the decedents’ methamphetamine use, as well as testimony that Petitioner bore signs of physical injury shortly after his arrest. Stripped of that evidence, Petitioner’s defense was supported only by his own testimony and that of his hired crime-scene reconstruction expert, Tom Bevel.

At the close of evidence, the trial court instructed the jury not, only with respect to First Degree Malice Murder and Shooting with Intent to Kill, but also with respect to manslaughter, as a lesser-included offense, and self-defense as a defense to all counts. Petitioner argues that the excluded evidence corroborated his defense, and that its exclusion had a substantial and injurious effect not only on the jury’s guilt determination, but on its penalty decision as well. It is against that backdrop that the Court examines Petitioner’s claims.

A. Ground One: Exclusion of Evidence of Decedents’ Drug Use

In his first ground for relief, Petitioner alleges that his right to present a complete defense to the criminal charges against him, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, was violated when the trial court excluded evidence that the decedents were intoxicated with the drug methamphetamine. The trial court excluded, on relevance grounds, reports from the Medical Examiner’s Office establishing the presence of methamphetamine in the bodies of all three decedents (“the toxicology reports”). The trial court also excluded evidence that methamphetamine was found on the premises of the Platt residence, (Tr. Vol. I at 7), as well as evidence that a quantity of methamphetamine and a pipe used for smoking the drug were found on the body of decedent Brian Galindo (Tr. Vol. IV at 217-18, Tr. Vol. VI at 129). In, addition, the trial court excluded expert testimony regarding the effects of the methamphetamine consumed by the decedents (Tr. Vol. VI at 129-30).

The claim is exhausted as Petitioner raised it on direct appeal to the OCCA where it was denied on the merits. The OCCA found that the evidence concerning the decedents’ methamphetamine use was relevant to Petitioner’s self defense case, to the manslaughter lesser included offense, and to his mitigation case at sentencing. Jones, 201 P.3d at 882. It concluded that the trial court’s exclusion of the evidence was manifestly unreasonable and an abuse of its discretion. Id. at 881-82. The OCCA refused to grant relief, however, as it concluded that the error did not have a substantial influence on the outcome of the trial and it did not deny Petitioner his right to present a defense. Id. at 882. Petitioner contends the OCCA’s ruling is unreasonable.

“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (citations omitted); see also Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006); Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). The Supreme Court has established, “at a minimum, that criminal defendants have the right to the govérnment’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” Taylor, 484 U.S. 400 at 408, 108 S.Ct. 646; Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Taylor at 408, 120 S.Ct. 1495 (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). Indeed, this right is an essential attribute of the adversary system itself. Taylor, 484 U.S. at 408, 108 S.Ct. 646. It is “imperative to the function of the courts,” which “depend on full disclosure of all the facts, within the framework of the rules of evidence.” United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

Although the right to present a defense is fundamental, it is not unlimited. A defendant, for example, “must comply with established rules of procedure and evidence designed to assure both fairness and reliability.” Chambers, 410 U.S. at 302, 93 S.Ct. 1038. Thus, the accused “does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor, 484 U.S. at 410, 108 S.Ct. 646. Just as a defendant’s right to present a defense is limited, however, so too are the states’ rulemaking powers. The exclusion of defense evidence on the basis of a-state evidentiary or procedural rule “abridge[s] an accused’s right to present a defense,” where the restriction is “ ‘arbitrary’ or ‘disproportionate to the purposes’ [it is] designed to serve,” and the evidence “implicate^ a sufficiently weighty interest of the accused.” United States v. Scheffer, 523 U.S. 303, 308-09, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)).

The balance of defendants’ rights and states’ interests requires that to establish a violation of his right to present a complete defense, Petitioner must make a two-part showing. First, he must show that evidence concerning the decedents’ methamphetamine use would have been material and favorable to his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 874, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Second, he must show that the trial court’s exclusion of the evidence was arbitrary or disproportionate to the evidentiary purpose advanced by the exclusion. Scheffer, 523 U.S. at 308, 118 S.Ct. 1261; Rock, 483 U.S. at 56, 107 S.Ct. 2704. The OCCA’s opinion reveals that Petitioner made the requisite showing.

The OCCA found that evidence concerning decedents’ methamphetamine use “would have corroborated [Petitioner’s] testimony that the group of people he encountered in the house were under the influence of illegal drugs and acting unusually aggressive, thus causing him to fear for his life and act in defense of his life.” Jones, 201 P.3d at 881-82. It further found that evidence regarding the decedents’ intoxication levels was relevant to the manslaughter lesser offense option as it “might have convinced jurors that [Petitioner] was acting out of a heat of passion, rather than with malice.” Id. at 882. Finally, the court found that the excluded evidence “could also have been used to show witness bias and/or as mitigating circumstances for stage two proceedings.” Id.

Implicit in the OCCA’s findings is the court’s determination that the excluded evidence was favorable and material to Petitioner’s defense. In Valenzuela-Bemdl, the Supreme Court held that excluded defense evidence is material if “there is a reasonable likelihood” that it “could have affected the judgment of the trier of fact.” 458 U.S. at 874, 102 S.Ct. 3440. By concluding that it “might have convinced jurors that [Petitioner] was acting out of a heat of passion, rather than with malice,” the OCCA confirmed the reasonable likelihood that the excluded evidence could have affected the judgment of the jury. See Jones, 201 P.3d at 882.

Also implicit in the OCCA’s ruling is its determination that the exclusion of Petitioner’s evidence was not only disproportionate to, but actually unrelated to the evidentiary purpose advanced by the exclusion. The trial court excluded the methamphetamine-related evidence on the ground that it lacked relevance under 12 Okla. Stat. § 2401. That provision defines relevant evidence as “evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The OCCA found that the evidence was relevant to every aspect of Petitioner’s defense, that its exclusion lacked any legal basis, and that the trial court had, therefore, abused its discretion. In other words, the OCCA found the exclusion to be arbitrary.

The OCCA’s ruling constitutes a determination that the trial court committed constitutional error by arbitrarily excluding favorable material defense evidence. Its conclusion that the exclusion did not “deny [Petitioner] the ability to present a defense” is irreconcilable with its own findings. The court supports its refusal to recognize constitutional error with the observation that the jury heard evidence that several of the victims used marijuana on the night of the shootings. It reasons that the evidence of marijuana use “could serve to corroborate [Petitioner’s] description of those at the house as a ‘crazy mob,’ ‘drugged up,’ and ‘tweaked out,’ and the jury could have found the victims were the aggressors.” Jones, 201 P.3d at 882. The court appears to suggest, in essence, that the methamphetamine evidence was merely cumulative of the marijuana evidence. Evidence is cumulative when it “goes to prove what has already been established by other evidence.” Smith v. Secretary of New Mexico Dept. of Corrections, 50 F.3d 801, 829 (10th Cir.1995); see also Arizona v. Fulminante, 499 U.S. 279, 299, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). As Judge Chapel points out in his dissenting opinion,

Even a lay person is aware that marijuana and alcohol use has very different effects and results in different behavior than the use of methamphetamine. Jones was making a very specific claim about a particular type of drug use commonly known to lead to aggressive behavior and bad judgment. This claim was supported by forensic evidence. I agree with the majority that the circumstances of this crime — Jones entered the house armed and shot multiple unarmed victims several times — make it unlikely that jurors would believe a self-defense claim. For that reason I find the admission of this evidence essential. Forensic evidence corroborating Jones’s claim that his victims were high on methamphetamine might well have made a difference to jurors who were reviewing the possibility that he acted in the heat of passion, who were judging witness credibility, and who were reviewing mitigating circumstances.

Jones, 201 P.3d at 898.

Petitioner’s defense rested on the specific allegation that he acted out of his fear of people in whose violent and belligerent behavior he recognized the distinctive signs of methamphetamine intoxication. As the OCCA conceded, the excluded evidence “would have been the only evidence, aside from [Petitioner’s] own testimony,” supporting that defense. Id. at 882 (emphasis added). The methamphetamine-related evidence could not reasonably be considered cumulative of other evidence presented at trial. The trial court’s arbitrary exclusion of such favorable material evidence was constitutional error. The OCCA’s determination that it did not “deny [Petitioner] the ability to present a defense” is incongruent with the court’s own analysis and is contrary to Supreme Court authority. See Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440; Scheffer, 523 U.S. at 308, 118 S.Ct. 1261.

The OCCA’s failure to acknowledge the constitutional import of the trial court’s erroneous exclusion led it to an objectively unreasonable harmless error determination. While constitutional error is generally subject to harmless error analysis, it is well established that on direct appeal, such an error may be deemed harmless only after the State “prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The QCCA did not require the State to meet the Chapman standard. Instead, citing its own decision in Simpson v. State, 876 P.2d 690, 702 (Okla.Crim.App.1994), the OCCA ruled the erroneous exclusion to be harmless because it “did not have a substantial influence on the outcome of the trial.” Jones at 882. Simpson addressed the standard of review to be applied where an appellant urges fundamental error as “a vehicle to bring before [the OCCA] on appeal alleged errors which would otherwise be waived by failure to object at trial.” Simpson, 876 P.2d at 701. In Simpson, the court made clear that where fundamental error does not amount to constitutional error, the appellant retains the burden of proving its substantial influence on the outcome of his trial. Id. at 701-702. No fairminded jurist could reasonably conclude that the Simpson harmless error standard applied by the OCCA comported with Chapman’s requirement that the State prove a constitutional error to be harmless beyond a reasonable doubt. Accordingly, the OCCA’s harmlessness determination is also contrary to clearly established Supreme Court authority. See Turrentine v. Mullin, 390 F.3d 1181, 1190 (10th Cir. 2004) (holding harmless error determination contrary to Supreme Court authority as the OCCA failed to apply the appropriate harmless error test on direct appeal).

Neither the OCCA’s refusal to assign constitutional error nor its application of an improper harmless error test to that constitutional error is sufficient to entitle Petitioner to relief. To determine whether relief is warranted, this Court must conduct a de novo harmless error analysis applying the standard articulated in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under the Brecht standard, a habeas petitioner obtains plenary review to determine whether a constitutional error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 637-38, 113 S.Ct. 1710: see Welch v. Workman, 639 F.3d 980, 992 (10th Cir.2011). “In other words, when a state court fails to apply the proper harmless error standard under Chapman (whether the error was harmless ‘beyond a reasonable doubt’), the reviewing federal court must evaluate the trial- court error under the Brecht standard (whether the error had a ‘substantial and injurious effect or influence in determining the jury’s verdict’).” Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (holding that regardless of the standard applied by a state court, the Brecht harmless error standard must be applied by the federal court on habeas review).

As the Tenth Circuit has instructed, Brecht’s substantial and injurious standard must be construed and applied by this Court in light of the Supreme Court’s subsequent decision in O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). See Herrera v. Lemaster, 301 F.3d 1192, 1198 (10th Cir.2002). In O’Neal, the Supreme Court held that when a federal habeas judge finds a constitutional error in a state court trial, but the record is evenly balanced such that the judge is in grave doubt about whether the error is harmless, “the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’).” 513 U.S. at 435, 115 S.Ct. 992. Consistent with O’Neal, the Tenth Circuit has consistently held an error’s effect to be substantial and injurious where a court harbors grave doubt as to it’s impact. See Lockett v. Trammel, 711 F.3d 1218, 1232 (10th Cir.2013); Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006).

Respondent argues that under the Brecht standard, the trial court’s erroneous exclusion of methamphetamine-related evidence was harmless. It notes that the State adduced evidence contradicting Petitioner’s testimony that the he acted out of fear of the aggressive individuals he encountered at the Platt residence. It further contends that the evidence of Petitioner’s guilt was so overwhelming that the exclusion could not have had a substantial or injurious effect on the outcome of the trial. Response at 12-14. But, as the Supreme Court has clearly held,

“[t]he inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”

O’Neal, 513 U.S. at 438, 115 S.Ct. 992 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (emphasis added)).

Certainly the record establishes, and Petitioner does not deny, that he shot five individuals at the Platt residence in the pre-dawn hours of April 12, 2003. That the shootings resulted in death of three people and the severe injury of two others was never in question. Petitioner’s first-stage defense was built entirely on his contention that his actions were a fear-driven response to the aggression of a group of individuals whose methamphetamine intoxication caused them to react in an extreme and violent manner to his attempts to speak with Carla Phillips. Petitioner testified that upon recognizing the smell of methamphetamine and the “crazy” behavior the drug induces, he became fearful for his life and acted out of and while in the grip of that fear. Evidence that the deceased victims had methamphetamine in their systems could have served as corroboration for Petitioner’s testimony and might have bolstered the credibility of his assertion that his actions flowed from fear as opposed to premeditation. As the OCCA noted, the excluded evidence “would have been the only evidence, aside from [Petitioner’s] own testimony” supporting his defense. Id. at 882.

This Court is deeply troubled that the trial court deprived Petitioner of the opportunity to present evidence that' could so clearly have strengthened his defense. It is also concerned that by failing to apply the harmless beyond a reasonable doubt standard, the OCCA deprived Petitioner of the prescribed analysis which would almost certainly have required that he be granted a new trial. This Court, however, is not empowered to restore to Petitioner those lost opportunities. It may grant habeas relief only if it harbors grave doubt as to whether the trial court’s erroneous exclusion had a substantial and injurious influence on the trial. The Court is simply not persuaded that the methamphetamine-related evidence would altered the jury’s guilt verdicts.

The trial court’s erroneous exclusion of methamphetamine-related evidence does not entitle Petitioner to a new trial of his guilt. Neither does trial counsel’s failure to adduce more evidence about the nature and effect of methamphetamine. Petitioner urges, as an alternative claim, that said failure amounted to ineffective assistance of counsel. The claim is exhausted having been raised on direct appeal and denied by the OCCA on the ground that Petitioner had failed to demonstrate that his counsel’s performance not meet the first prong of the test prescribed by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

As set forth above, the trial erroneously determined that all evidence of the decedents’ methamphetamine use was irrelevant absent proof that Petitioner had actual knowledge that the decedents had ingested the drug. Petitioner attempted to meet the trial court’s knowledge requirement by demonstrating that he recognized from the decedents’ behavior and from the distinctive methamphetamine odor in the house, that the decedents were intoxicated with the drug. The trial court was unmoved and refused to modify its ruling. In light of those facts, the OCCA found that “no amount of evidence submitted in an offer of proof about the effects of methamphetamine use would have altered the trial court’s ruling.” Jones, 201 P.3d at 893. It concluded that counsel could not be deemed deficient for failing to present more evidence of a type the trial court had pronounced irrelevant and inadmissible.

Petitioner has failed to demonstrate that the OCCA’s ruling is “objectively unreasonable.” See Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. 1495. Many, if not most, reasonable jurists would concur with the court’s determination. In addition, as this Court has found that the excluded evidence would not have substantially influenced the jury’s guilt determination, Petitioner is unable to meet Strickland’s requirement that he establish he suffered prejudice as a result of counsel’s performance.

Although the Court concludes that exclusion of methamphetamine-related evidence did not substantially influence the guilt phase of Petitioner’s trial, it finds that that same evidence might well have altered the jury’s sentencing decision as it provided valuable mitigating evidence. The record reveals that Petitioner’s second-stage presentation was minimal. Despite indications that serious mental illness that might have helped explain the extreme nature of Petitioner’s reaction to the provocations he allegedly encountered at the Platt residence, defense counsel opted instead to rest the mitigation ease upon childhood privations and early traumas that shaped Petitioner’s psychological development. As support for his second-stage defense, Petitioner relied upon the testimony of a single expert witness, Dr. Mary Wanda Draper, whose qualifications were a bachelor’s degree in education, a masters degree in child development, and a Ph.D. in development. Tr. Vol. X at 138. The only additional second-stage evidence was character testimony offered by Petitioner’s mother, father and uncle.

Petitioner’s meager mitigation presentation made especially injurious the trial court’s exclusion of the only factual evidence corroborating his claim that fear of the decedents’ methamphetamine-fueled aggression drove his actions. The toxicology reports establishing decedents’ methamphetamine ingestion, expert testimony regarding methamphetamine intoxication, and evidence that officers had found methamphetamine and its paraphernalia at the Platt residence could have significantly buttressed Petitioner’s second-stage defense. Because Oklahoma permits only a unanimous jury to impose the death penalty, the exclusion of evidence sufficient to cause even one juror to strike a different balance presents a reasonable probability of harm. See Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Viewing the record as a whole, the Court cannot escape the conclusion that the erroneous exclusion of material evidence had a substantial and injurious effect on the sentencing stage of Petitioner’s trial. Habeas relief in the form of a new sentencing proceeding is therefore warranted with respect to Ground One.

B. Ground Two: Exclusion of testimony of detention officer Robert Clark

In his second ground for relief, Petitioner alleges that his constitutional right to present a defense was violated when the trial court erroneously excluded the testimony of defense witness Robert Clark. Mr. Clark, a former detention officer at the Oklahoma County Jail, was expected to testify that he saw bruises and scratch marks on Petitioner’s neck at the time he was arrested, just hours after the homicides. The trial court excluded the testimony as a sanction for defense counsel’s discovery violations including defense counsel’s failure to timely identify Mr. Clark and the substance of his testimony. Petitioner contends, as an alternative ground for relief, that counsel’s discovery violations constitute ineffective assistance of counsel.

The claims asserted in Petitioner’s second ground for relief are exhausted, having been raised on direct appeal to the OCCA, which rejected it on the merits. The OCCA summarized the facts leading to the trial court’s sanction as follows:

The record reflects the defense filed its first witness list approximately three months before the August 30, 2004, trial date, and Robert Clark was not listed. Changes in counsel necessitated a continuance and trial was reset for December 2004, February 7, 2005, and February 14, 2005. On February 4, 2005, the defense filed an additional witness list and included Robert Clark’s name for the first time, an address in Bethany, Oklahoma, and stated that Clark would testify that he was with [Petitioner] pri- or to the homicides. The same day the State filed a demand for more specific discovery specifically requesting more information on Robert Clark and his proposed testimony. On February 11, 2005, the defense requested funds to hire Tom Bevel as an expert and the trial was again reset for May 9, 2005. At a status conference held April 4, 2005, defense counsel informed the court he anticipated interviewing a jailer who processed [Petitioner] the day he was arrested, he would provide an updated witness list, and he would provide Tom Bevel’s report by that Friday. On April 15, 2005, the defense endorsed Tom Bevel as a witness but did not include a name for the jailer who allegedly processed [Petitioner] into jail.

As their last stage witness,. the defense called Robert Clark informing the court he was the detention officer on duty when [Petitioner] was arrested and would testify that he observed bruises and scratch marks on [Petitioner’s] neck. The State objected on the grounds of lack of notice and argued that the discovery it had received listed Clark as testifying he was with [Petitioner] the night of the homicide[s]. Defense counsel responded that when he prepared the initial witness list including Clark’s name he did not know that the -witness would testify to and that he had just found out the subject of Clark’s testimony that day. The trial court noted that the address given for Clark was his home address and that his name had not been included on the list of witnesses read to the jury. The court informed defense counsel she had seen the witness the day before when he was brought to her chambers and introduced as a witness. The trial court determined that someone on the defense team knew the substance of Clark’s testimony prior to that day and could have provided the State with the information and given them time to prepare. In the absence of such notice, the court found the discovery violation deliberate and ruled Clark would not testify.

Jones at 883.

The OCCA observed that the exclusion of evidence as a sanction for the violation of discovery rules is a severe remedy which could arise to the level of a Sixth Amendment violation if the exclusion concerned a material defense witness. Jones, 201 P.3d at 883. Thus, “[excluding a material defense witness is appropriate only where the discovery violation is “willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence.’ ” Id. (quoting White v. State, 973 P.2d 306, 311 (Okla.Crim.App.1998) (exclusion of material testimony as sanction for non-willful discovery violation held reversible error)). “Where the discovery violation is not willful, blatant or calculated gamesmanship, alternative sanctions are adequate and appropriate.” Id. After considering the totality of circumstances surrounding Mr. Clark’s designation- as a witness, the OCCA determined that defense discovery violations were due more to “poor preparation by defense counsel than a willful desire to gain a tactical advantage.” Jones, 201 P.3d at 883 (emphasis added). The OCCA concluded that given the lack of willfulness on the part of defense counsel, exclusion of a material witness such as Mr. Clark was too harsh a sanction for the violation committed and was, therefore, erroneous. The court found, however, that neither the trial court’s error nor “defense counsel’s apparent ineffectiveness in the matter” warranted relief. Id. The parties differ in their interpretation of the state’s court’s disposition.

Petitioner asserts that the OCCA recognized the trial court’s exclusion to constitute a Sixth Amendment error, but then denied relief based on an unreasonable conclusion that the error was harmless. Respondent maintains that the OCCA found no constitutional error and that its ruling is consistent with federal law as applied by the Tenth Circuit in Young v. Workman, 383 F.3d 1233 (10th Cir.2004) (holding that barring evidence as a sanction for discovery violations is not constitutionally impermissible where the excluded evidence is not material). This Court finds the OCCA’s brief analysis to be somewhat opaque. Certainly the court unequivocally held the trial court’s exclusion to be erroneous. The designation of error appears to arise out of the court’s reasoning that because Mr. Clark’s testimony was material to the defense, its exclusion was an excessive sanction for defense counsel derelictions owing more to disorganization than design. The logical progression of the court’s reasoning dictates that the erroneous exclusion amounted to Sixth Amendment error. However, after recognizing the error, the OCCA proceeded to deem it harmless as follows:

“[gliving [Petitioner] the benefit of the defense of self-defense, as the trial court did, even without Clark’s testimony, Appellant was still able to present to the jury testimony and photographs supporting his claim of injuries suffered at the hands of Joel Platt. Appellant testified to his alleged injuries and how they occurred. Defense forensics expert Tom Bevel identified a photograph wherein he stated he could see a scratch on Appellant’s neck.”

Id. at 883.

Although the court failed to indicate the harmless error test it employed, it is clear that it did not apply the “harmless beyond a reasonable doubt” standard prescribed by Chapman. In light of its failure to apply Chapman, and in light of its treatment of the excluded methamphetamine evidence at issue in Ground One, it is possible the court determined that the exclusion of Mr. Clark’s testimony did not implicate Petitioner’s constitutional rights. Such a determination, however, would not only contradict the OCCA’s own analysis, it would be objectively unreasonable.

As discussed more fully with respect to Ground One, Petitioner had a constitutionally protected right to present a complete defense to the charges against him. See Ground One at pages 12-14; see also Valenzuela-Bernal, 458 U.S. at 867, 102 S.Ct. 3440; Scheffer, 523 U.S. at 308, 118 S.Ct. 1261. That right included the right to offer witnesses to establish his version of the facts. Washington v. Texas, 388 U.S. at 19, 87 S.Ct. 1920. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.” Id. The right to present a complete defense is a fundamental element of due process of law. Id. The exclusion of reliable material defense evidence on the basis of a state evidentiary or procedural rule “abridge[s] an accused’s right to present a defense” where the restriction is “ ‘arbitrary’ or ‘disproportionate to the purposes’ [it is] designed to serve.” Scheffer, 523 U.S. at 308-09, 118 S.Ct. 1261.

The OCCA explicitly ruled the trial court’s exclusion of Mr. Clark’s testimony to be an excessive, i.e., disproportionate sanction for defense counsel’s non-willful violation of discovery rules. In so ruling, the court gave every appearance of having acknowledged the materiality of Mr. Clark’s testimony to Petitioner’s defense. That defense to multiple serious felony charges, including three counts of capital murder, rested on Petitioner’s claim that he acted in self defense against an attacking mob. No fairminded jurist could doubt there was a reasonable likelihood that the jury’s judgement could have been affected by an eyewitness’ testimony that he saw scratches and bruises on Petitioner’s neck just hours after the homicides. Contrary to the OCCA’s suggestion, Mr. Clark’s testimony was not cumulative of Petitioner’s testimony or the expert testimony offered by Tom Bevel. Mr. Bevel did not observe Petitioner at the time of his arrest. He could testify only to impressions he gleaned from photographs shown to him by prosecutors for the first time at trial. Tr. Vol. IX at 19-21. By testifying that he personally observed the signs of fresh injury to Petitioner’s neck just hours after his arrest, Mr. Clark could have corroborated Petitioner’s account of events in a way Mr, Bevel could not. His téstimony could also have rebutted the testimony of Officer Todd Deaton and Detective Ken Whitebird, both of whom stated that they had not noticed injuries to Petitioner’s neck at the time of his arrest. Tr. Vol. VII at 219, 240.

Because the materiality of Mr. Clark’s testimony is beyond reasonable dispute, his erroneous exclusion as punishment for defense counsel’s non-willful discovery violations abridged Petitioner’s constitutionally-protected right to present his defense. Accordingly, it is incumbent upon this Court to assess whether that violation had a substantial and injurious effect in determining the jury’s verdict. Brecht at 637-38,113 S.Ct. 1710. “A substantial and injurious effect exists if a court finds itself in grave doubt about the effect of the error on the jury’s sentencing decision.” Lockett, 711 F.3d at 1232 (brackets and internal quotation mark omitted). Thus, “when a court is in virtual equipoise as to the harmlessness of the error under the Brecht standard, the court should treat the error as if it affected the verdict.” Fry, 551 U.S. at 121 n. 3, 127 S.Ct. 2321, (ellipses and internal quotation marks omitted).

Petitioner went to trial confessing that he was armed with two 45-caliber weapons when he entered the Platt residence, which was filled with unarmed people. He confessed to shooting two men and a woman and did not deny shooting two additional women. See Jones, 201 P.3d at 875-76. Certainly, absent some measure of corroboration, any reasonable jury would be inclined to regard his testimony with considerable skepticism. The corroborating testimony of a disinterested witness who personally observed Petitioner shortly after the homicides held the potential to influence the jury’s perception of the case. As Judge Chapel observed in his dissenting opinion;

Clark could have presented eyewitness testimony which corroborated [Petitioner’s] claims that he had fought with the victims. While this was certainly subject to impeachment, it would have provided jurors confirmation of [Petitioner’s] story. The evidence came not from [Petitioner’s] friends or family but from a detention officer, which might have made it more credible in jurors’ eyes. This claim must be analyzed in light of the juror’s inability to consider forensic evidence, which also supported [Petitioner’s] story. Taken together these two rulings prevented jurors from hearing any independent evidence supporting [Petitioner’s] claims, or considering it as they deliberated. I simply cannot find that exclusion of this evidence could have had no effect on the jury’s decisions.

Jones, 201 P.3d at 898.

Not only Petitioner’s assertion of self defense, but also his manslaughter case and his mitigation presentation relied upon his allegation that he was attacked by an aggressive mob. Mr. Clark’s testimony had the potential to affect all three of those aspects of the jury’s deliberations. It was valuable not only in it’s own right as evidence that Petitioner had been involved in a physical altercation with persons at the Platt residence, but also as support for Petitioner’s credibility, which was necessarily undermined by the trial court’s erroneous exclusion of all objective evidence of the decedents’ methamphetamine use.

In conducting its harmless error review, the Court is required to consider the record as a whole. That record includes the OCCA’s determination that several serious errors beset Petitioner’s trial, a trial in which the State passionately urged jurors not only to convict Petitioner of three counts of first degree malice murder, but also to reject as punishment therefor, any lawful sentence short of death. The state court held the errors to • be harmless whether considered individually or in aggregate. The two errors addressed herein as Ground One and Ground Two precluded the jury from evaluating, or even learning the existence of, relevant and admissible evidence that lent independent support to important elements of Petitioner’s defense and mitigation ease.

The Court does not diminish the strength of the State’s evidence. It was sufficient to all but guarantee guilt verdicts with respect to the homicide counts. The Court is, therefore, confident that the erroneous exclusion of Robert Clark’s had only a minimal impact on the jury’s guilt determination. Thus neither the trial court’s error nor counsel’s discovery deficiencies warrant a new trial of Petitioner’s guilt. However, the Court harbors the gravest doubt as to the injurious effect of the exclusion of such valuable mitigation evidence on the jury’s sentencing decision. In accordance with applicable Supreme Court and Tenth Circuit authority, a court possessed of such doubt must treat the trial court’s error as though it had a substantial and injurious effect on the jury’s verdict.

In light of the record before it, and its grave doubt as to the effect of the erroneous exclusion on the jury’s sentencing decision, the Court finds that habeas relief is warranted with respect to Ground Two and Petitioner should be granted a new sentencing proceeding.

C. Ground Three: Admission of hearsay testimony.

Petitioner alleges that his Confrontation Clause rights under the Sixth Amendment were violated when .investigating officer Ricky Hernandez was permitted to give hearsay testimony as to statements made by Carla Phillips at the crime scene. The claim was raised on direct appeal and is exhausted.

On direct appeal, the OCCA noted that Petitioner claimed Officer Hernandez’ testimony “violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution,” and that “he was unduly prejudiced by the testimony as Phillips’ statements were ‘radically different’ from the trial testimony of all the other eye witnesses, including Phillips herself and was the first rendition of the events surrounding the homicides that the jury heard.’” Jones, 201 P.3d at 884. Because defense counsel lodged no objection to the hearsay testimony when it was introduced at trial, the OCCA reviewed the claim for plain error only. Id. Respondent argues that the OCCA’s disposition constitutes a recognition that the claim was waived by trial counsel’s failure to object, and that appellate review of the claim was procedurally barred. It contends that this Court’s habeas review of the claim is, likewise, barred. Response at 30.

When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them. Clayton v. Gibson, 199 F.3d 1162, 1170-71 (10th Cir. 1999). Petitioner insists that habeas review is not barred in this instance because the OCCA’s plain error analysis was not independent of federal law. Petition at 20-21.

In Oklahoma, plain error, formerly known as “fundamental error,” “arises from those ‘errors affecting substantial rights although they were not brought to the attention of the court.’ ” Primeaux v. State, 88 P.3d 893, 907 (Okla. Crim.App.2004) (quoting Jones v. State, 772 P.2d 922, 925 (Okla.Crim.App.1989)); Simpson v. State, 876 P.2d at 694. Plain error has also “been defined as an error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense.” Simpson, 876 P.2d at 698. Pursuant to Oklahoma law, plain error consists of: 1) an actual error (i.e., deviation from a legal rule); 2) that is plain or obvious; and 3) affects a defendant’s substantial rights (i.e., affects the outcome of the proceeding). See Hogan v. State, 139 P.3d 907, 923 (Okla.Crim.App. 2006); Simpson v. State, 876 P.2d at 698; 20 Okla. Stat. § 3001.1. If those elements are met, the court will correct the plain error only if it “seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings” or otherwise represents a “miscarriage of justice.” Simpson, 876 P.2d at 701 (citing United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Only structural errors, i.e., defects that affect the framework within which the trial proceeds, rather than simply an error in the trial process, require reversal regardless of whether they affected the outcome. Arizona v. Fulminante, 499 U.S. at 309-311, 111 S.Ct. 1246.

The OCCA found that because “Ms. Phillips’ out-of-court statements were offered [by Officer Hernandez] for the truth of the matter asserted and with no applicable hearsay exception, it was error to admit the testimony.” Jones, 201 P.3d at 884. The court determined, however, that the actual error did not have a substantial influence on the outcome of the trial because Ms. Phillips’ out-of-court statements were not “radically different” from her trial testimony. The court also observed that Officer Hernandez and, eventually, Ms. Phillips were subject to cross-examination. Finally, the court noted that the jury heard testimony from other witnesses that contradicted Ms. Phillips statements to Officer Hernandez. Thus, the OCCA concluded that the actual error did not rise to the level of plain error and Petitioner was not entitled to relief. Id. at 884-85.

The Court agrees with Petitioner that the OCCA’s plain error analysis reached the merits of his Confrontation Clause claim and was not, therefore, independent of federal law. See Black v. Workman, 682 F.3d 880, 918 (10th Cir.2012) (to be independent, “the state law ground must have been the exclusive basis for the state co