Full opinion text
BRISCOE, Circuit Judge. Petitioner Scotty Lee Moore, an Oklahoma state prisoner sentenced to death, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We affirm. I. Moore was convicted of robbery in 1978 and served three and a half years in state confinement. After his release, he lived with an aunt and uncle in Umbarger, Texas, for a brief time and began a romantic relationship with his cousin, Vicki Caster. In late September or early October 1983, Moore and Caster went to Oklahoma City, and lived there most of October, staying initially with a friend of Moore’s and later at the Airline Motel. Moore worked at a pizza restaurant, at a car wash, and as a clerk at the Airline Motel, using the alias “Jerry Whitlock.” In late October, a co-worker at the Airline Motel, Alex Fernandez, accused Moore of stealing money from the business, and the owner of the motel authorized Fernandez to fire Moore. Moore and Caster returned to Texas for a brief period, then drove to Dodge City, Kansas, where they stayed with Debbie McLaughlin, a friend of Caster’s, until the middle of November. On November 11, 1983, Caster called June Setzkorn, a friend of hers who lived just outside of Dodge City, to borrow money. At Setzkorn’s invitation, Moore and Caster drove to Setzkorn’s house and Caster borrowed $50. Caster and Moore purchased beer and whiskey and returned to the Setzkorn home later that same evening as they knew the Setzkorns would be out of town attending a funeral. They broke into the home and stole a variety of items, including money, firearms, and ammunition. Moore and Caster also broke into the Setz-korns’ adjoining meat processing business and stole additional items, including money, food stamps, and packaged meat. They dropped some of the stolen items off at a friend’s house before returning to McLaughlin’s house. Moore and Caster left the next day and arrived in Oklahoma City on November 13, 1983, where they visited a nightclub and Moore tried unsuccessfully to sell some of the stolen firearms. After leaving the nightclub, Moore and Caster purchased some liquor and attempted to rob the Airline Motel, where Alex Fernandez was working the night shift. Although Moore attempted to enter the motel carrying one of the stolen firearms, he was unsuccessful, and the couple fled in their car. Later that evening, Moore called Fernandez to ask if there were any rooms available. Fernandez apparently said “no,” which angered Moore. Moore and Caster spent the next three nights with friends and, on November 16, 1983, they checked into the Swank Motel. On the evening of November 17, 1983, they went to a nightclub and again decided to rob the Airline Motel. As with them first attempt, Moore and Caster knew Fernandez would be working alone. Moore told Caster she was to open the cash register while he tied and gagged Fernandez. Moore and Caster drove to the Airline Motel and parked behind the motel. As they walked from their car to the office, Moore said to Caster: “Dead people can’t talk.” Trial Transcript at 528. Caster entered the office first, walked to the counter, and began talking to Fernandez. Moore entered behind Caster, carrying a stolen .22 rifle. Moore yelled at Fernandez to look at him, then directed him to come out from behind the counter. Moore instructed Caster how to open the cash register and told her to look in the drawers for “the big money.” Id. at 529. He directed Fernandez into the office restroom. As Caster was attempting to wipe away her fingerprints, she heard gunshots. She ran out of the office toward the car, with Moore following her. The couple drove around for a while and then returned to the Swank Motel and loaded their belongings. They stopped initially at a pay phone and called the Airline Motel to see if anyone would answer. There was no answer and they drove to a cafe, ate breakfast, and drove toward Texas. Caster asked Moore why he had killed Fernandez and Moore replied: “You’d be dead, too, if you had been shot five times in the head.” Id. at 531. Moore told her he directed Fernandez to lay face down and not to move and then, shot him in the head. Moore said “he couldn’t figure out why every time he pulled the trigger there [were] little red balls of fire that come out.” Id. at 532. Finally, Moore said “he didn’t know it could be so easy to kill someone.” Id. at 532-33. Motel employees discovered Fernandez’ body later that morning and called the police. The police found several .22 casings on the floor in the bathroom near Fernandez’ body, as well as outside the bathroom in the lobby area. Bloodstain evidence indicated Fernandez had been shot multiple times in the back of the head while lying in the same position on the bathroom floor. There were no signs of a struggle. An autopsy indicated Fernandez suffered five gunshot wounds to the head, all fired from approximately the same angle. Moore and Caster visited the home of Moore’s sister and brother-in-law in Big Springs, Texas, on the morning of November 20, 1983. During the visit, Moore gave the .22 rifle he had used to kill Fernandez to his brother-in-law and told him to keep it for Moore’s nephew. Moore’s brother-in-law agreed, and retained custody of the rifle until it was recovered by the police. According to Caster, Moore told her he needed to get rid of the rifle and he believed it would not be found at his brother-in-law’s house. On November 23, 1983, Moore and Caster were stopped by police in LaMesa, Texas, because their vehicle’s headlights were not on. During the stop, Moore told Caster (who was in the driver’s seat) he was not going to jail. Moore proceeded to place the car in gear and press on the gas pedal from his position in the passenger seat. He directed. Caster to drive, saying “If I have to, I’ll take a few of them [the police] with me.” Id. at 543. As Caster drove away at a high rate of speed, officers fired shots at the vehicle. The vehicle came to a stop after its front tires were blown out. Caster and Moore were arrested and taken into custody: Caster subsequently agreed to cooperate with authorities. After a five-day jury trial in Oklahoma state court, Moore was convicted of first degree felony murder on October 19, 1984, and was sentenced to death. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed Moore’s conviction and sentence. Moore v. State, 736 P.2d 161 (Okla.Crim.App.1987). The Court of Criminal Appeals denied his petition for rehearing and his petition for writ of certiorari was denied by the United States Supreme Court on October 5, 1987. Moore v. Oklahoma, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Moore filed an application for post-conviction relief in state court, which was denied on June 9, 1988. On appeal, the Oklahoma Court of Criminal Appeals rejected most of the arguments raised by Moore, but agreed the “especially heinous, atrocious or cruel” aggravating circumstance was invalid. Moore v. State, 809 P.2d 63, 65 (Okla.Crim.App.1991), cert. denied, 502 U.S. 913, 112 S.Ct. 313, 116 L.Ed.2d 255 (1991). Specifically, the court noted it had previously limited this aggravating circumstance “to those murders which were preceded by torture or serious physical abuse,” and concluded the record in Moore’s case was “void of any torture or serious physical abuse suffered by Mr. Fernandez prior to his death.” Id. Independently reweighing the aggravating and mitigating circumstances, the court found the evidence at the sentencing phase was sufficient to support the jury’s findings on the remaining three aggravating circumstances (i.e., that Moore would constitute a continuing threat to society, that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and that Moore was previously convicted of a felony involving the use or threat of violence to a person). Although the court noted Moore had presented “much evidence in mitigation,” it concluded the sentence of death was “factually substantiated and appropriate” in light of the remaining three aggravating circumstances. Id. at 65-66. On May 21, 1992, Moore and other death row inmates filed a civil action pursuant to 42 U.S.C. § 1983 in Oklahoma federal district court challenging an Oklahoma State Penitentiary policy prohibiting barrier-free or contact visits with counsel, psychologists, and other health professionals. The federal district court held the challenged policy violated plaintiffs’ constitutional rights, but determined alterations of the policy unilaterally adopted by penitentiary officials during the htigation were in compliance with constitutional requirements. At the time it entered final judgment, the federal district court dissolved the stays of execution it had entered on behalf of Moore and his fellow plaintiffs. On appeal, this court remanded and directed the district court to enter an order invalidating the modified restrictions on contact visits between plaintiffs and their counsel. Mann v. Reynolds, 46 F.3d 1055, 1064 (10th Cir.1995). However, this court refused to enter new stays of execution. Id. at 1063. Following dissolution of the stay of execution in the civil action, Moore’s execution was rescheduled for July 12, 1994. This prompted a flurry of activity, including simultaneous efforts at post-conviction relief in state court and in federal district court. The state court denied Moore’s second application for post-conviction relief and his application for stay of execution on July 8, 1994, and that denial was affirmed by the Oklahoma Court of Criminal Appeals on December 16,1994. Moore’s emergency motion to stay execution was denied in federal district court. This court affirmed that denial on July 8, 1994. On July 9, 1994, Moore filed his petition for writ of habeas corpus in federal district court, along with a renewed application for stay of execution, and the court granted the stay on July 11, 1994. While his federal habeas action was still pending, Moore filed what amounted to a third application for post-conviction relief in state district court, which was denied. It is unclear from the record before us whether Moore appealed that denial. II. Before we address the issues raised by Moore on appeal, we must determine whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is applicable to this appeal. The AEDPA amended chapter 153 of title 28 of the United States Code governing all habeas proceedings in federal courts, and created a new chapter 154 governing state habeas proceedings filed by prisoners subject to capital sentences. See 110 Stat. 1217-26. Although the new provisions of chapter 154 are expressly applicable “to cases pending on or after [April 24, 1996], the date of enactment of [the AEDPA],” 110 Stat. 1226, a state can take advantage of them only if it satisfies the requirements of 28 U.S.C. § 2261(b) and (c). As for the amendments to chapter 153 (which do not contain an effective date), the Supreme Court has held they are generally not applicable to cases filed before AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Because the State of Oklahoma has not yet satisfied, or even argued it can satisfy, the requirements of § 2261(b) and (c), the expedited habeas procedures set forth in chapter 154 are inapplicable to this ease. See Nguyen v. Reynolds, 131 F.3d 1340, 1345 (10th Cir.1997) (reaching similar conclusion in ha-beas action filed by Oklahoma state prisoner facing capital sentence). Further, because the habeas petition in this case was filed prior to AEDPA’s effective date, the amendments to chapter 153 (including the requirement that a habeas petitioner obtain a certificate of appealability) are also inapplicable. See Lindh, 521 U.S. at -, 117 S.Ct. at 2068. Under pre-AEDPA standards, a state ha-beas petitioner cannot appeal a district court’s ruling on a habeas petition unless a district or circuit judge issues a certificate of probable cause (CPC). 28 U.S.C. § 2253. To obtain a CPC, a petitioner must make a “substantial showing of a denial of [a] federal right,” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), precisely the same showing a petitioner must make under AEDPA standards to obtain a certificate of appealability (COA). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.1996), cert. denied — U.S. -, 117 S.Ct. 746, 136 L.Ed.2d 684 (1997). The district court denied Moore a COA. Out of an abundance of caution, we will grant Moore a CPC and review his issues on the merits. III. Ineffective assistance of counsel during guilt/penalty phases of trial Moore contends his primary trial counsel, assistant public defender Robert Whittaker, was ineffective. He asserts Whit-taker spent an inadequate amount of time investigating and preparing for both the guilt and penalty phases of trial. He also asserts Whittaker failed to prepare a summation for the penalty phase of trial and, as a result, was forced to waive summation. Moore’s claims of ineffective assistance present mixed questions of law and fact, which we review de novo. Duvall v. Reynolds, 139 F.3d 768, 776-77 (10th Cir.1998). To prevail on his claims of ineffective assistance of counsel, Moore must satisfy two requirements. First, he must demonstrate his counsel’s performance was constitutionally deficient, i.e., it fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To make this showing, Moore must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance that might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Second, he must demonstrate there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir.1997). Pretrial preparation/investigation. In connection with his attack on Whittaker’s pretrial investigation and preparation efforts, Moore alleges Whittaker spent fewer than eight hours with him in preparing the case for trial, made no effort to investigate Caster’s background, who was the State’s primary witness, made only one trip to Texas to investigate possible mitigating evidence to present at the penalty phase, and did not begin preparing for the penalty phase until one week prior to trial. In addition, Moore complains he was tried, convicted, and sentenced to death within 100 days of his first contact with Whittaker. Moore failed to raise these allegations either on direct appeal or in his first application for post-conviction relief filed in state court. Instead, they were first raised in his second application for post-conviction relief. The state court summarily rejected these arguments, concluding they were barred on the grounds of res judicata. No evidentiary hearing was conducted on Moore’s claims. On appeal, the Court of Criminal Appeals agreed the arguments were barred by res judicata. Generally, where “a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner” can satisfy either the “cause and prejudice” standard, or, alternatively, the “fundamental miscarriage of justice standard.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). For this procedural default doctrine to apply, the state law ground must have been “the exclusive basis for the state court’s holding” and “strictly or regularly followed” by the state courts and applied “evenhandedly to all similar claims.” Maes v. Thomas, 46 F.3d 979, 985 (10th Cir.1995). In Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir.1994), we recognized an exception to this general rule and held failure to raise an ineffective assistance of counsel claim in a direct state court appeal will not preclude federal habeas corpus review of the claim despite state law characterizing such a failure as a procedural default. Our conclusion rested on “the interplay of two factors: the need for additional fact-finding, along with the need to permit the petitioner to consult with separate counsel on appeal in order to obtain an objective assessment as to trial counsel’s performance.” Id. at 1364. In light of these needs, we concluded a state law rule barring review of claims not raised on direct appeal was not an “adequate” basis for barring federal habeas review of ineffective assistance claims because it forced criminal defendants to either raise such claims on direct appeal, with new counsel but without the benefit of additional fact-finding, or to have such claims forfeited under state law. Id. The question presented here, and not addressed in Brecheen, concerns the legal effect of a state prisoner presenting an ineffective assistance claim for the first time in a second or successive state post-conviction application. As in Brecheen, many of Moore’s ineffective assistance arguments were subject to dismissal by the state court on state procedural grounds. Unlike Brecheen, however, there is a more compelling basis for us to conclude many of Moore’s ineffective assistance arguments are procedurally barred. Specifically, Moore could have raised those arguments in his first post-conviction application in state court. Cases from other courts suggest failure to raise an ineffective assistance claim in the first state collateral proceeding procedurally bars federal habeas review of that claim where the final state court considering the claim rejects it on state procedural grounds. See McCoy v. Norris, 125 F.3d 1186, 1189-92 (8th Cir.1997) (habeas petitioner’s claim of ineffective assistance procedurally barred because not raised in state post-conviction proceeding), cert. denied, — U.S. -, 118 S.Ct. 1195, 140 L.Ed.2d 324 (1998); Hill v. Jones, 81 F.3d 1015, 1024 (11th Cir.1996) (habeas petitioner’s ineffective assistance claim procedurally barred where raised for first time in second state post-conviction proceeding and rejected by state courts on procedural grounds), cert. denied, — U.S. -, 117 S.Ct. 967, 136 L.Ed.2d 851 (1997); see also Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir.1994) (“The failure to raise the ineffective assistance claims in an appeal from the denial of [post-conviction] relief raises a procedural bar to pursuing those claims in federal court.”). Ultimately, we conclude Moore’s failure to raise these ineffective assistance claims until his second application for post-conviction relief precludes federal habeas corpus review of the claims absent a showing of either cause and prejudice or a fundamental miscarriage of justice. As outlined above, the Oklahoma Court of Criminal Appeals concluded Moore’s claims were barred on res judicata grounds. Thus, the denial of these claims rested on a state procedural ground independent of the federal question raised by Moore. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Further, both at the time Moore filed his initial application for post-conviction relief and later when the Court of Criminal Appeals denied his second application for post-conviction relief, it was firmly established under Oklahoma law that “[a]ny ground ... not raised” in an “original, supplemental or amended application” for post-conviction relief could not form “the basis for a subsequent application” for post-conviction relief. Okla. Stat. Ann. tit 22, § 1086; see, e.g., Jones v. State, 668 P.2d 1170, 1171 (Okla.Crim.App.1983) (applying § 1086 to second application for post-conviction relief filed by state prisoner). Unlike the petitioner in Brecheen, Moore failed to take the opportunity in his first application for post-conviction relief to raise his ineffective assistance of trial counsel claims and develop any necessary facts related to those claims. Thus, he “deprived the [Oklahoma] state courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S. at 732, 111 S.Ct. 2546. Accordingly, we conclude the state procedural ground relied upon by the Oklahoma Court of Criminal Appeals constituted an “adequate” basis'for dismissing Moore’s claims. See id. at 750, 111 S.Ct. 2546. After carefully reviewing the record, we further conclude Moore can demonstrate neither cause and prejudice, see Demarest v. Price, 130 F.3d 922, 941 (10th Cir.1997) (ineffective assistance of counsel in post-conviction proceedings does not constitute “cause” under federal law), nor a fundamental miscarriage of justice, id. (to meet “fundamental miscarriage of justice” standard, petitioner must supplement habeas claim with colorable showing of factual innocence), to bypass the procedural bar caused by his failure to raise these issues in his first application for- post-conviction relief. Even assuming for purposes of argument that Moore could demonstrate either cause and prejudice or a fundamental miscarriage, of justice and thereby provide us with a “gateway” to review claims that Whittaker failed, to adequately investigate or prepare, we would find no merit to them. Notably, Moore acknowledges in his opening appellate brief that “he lacks the factual back-up to suggest just what would have been discovered if Mr. Whittaker had conducted any kind of guilt-phase investigation.” Opening Brief at 42-43 n. 36. Thus, Moore effectively concedes he cannot demonstrate any prejudice arising out of Whittaker’s alleged failure to conduct an adequate guilt-phase investigation. As for Whittaker’s alleged failure to conduct an adequate penalty-phase investigation, Moore argues Whittaker should have discovered and presented the following mitigating evidence: (1) Moore’s long history of drug and alcohol abuse, which had roots in underlying chronic depression, learning disorders, and neurological impairment (Moore does not indicate how Whittaker could have learned of alleged psychological problems without benefit of a- mental health expert); (2) Moore’s family history of affective disorders, learning disorders, and alcohol and drug dependence; (3) Moore’s mother’s co-dependence and her accompanying facilitation of Moore’s (and his father’s) substance abuse; (4) Moore’s chronic health problems during childhood; (5) Moore’s father’s failure to adequately parent Moore; (6) Moore’s traumatic experiences in the Texas prison system; and (7) Moore’s suicide attempt at age 20. In addition, Moore contends there are numerous witnesses who would have come forward to testify on his behalf if Whit-taker had contacted them. Moore does not specifically indicate the content of these witnesses’ testimony. In deciding whether there is a reasonable probability the mitigating evidence pointed to by Moore would have changed the outcome of the sentencing phase (i.e., persuaded the jury the balance of aggravating and mitigating circumstances did not warrant death), we must keep in mind the mitigating evidence that was actually presented. Five witnesses testified on Moore’s behalf: Sandy Osborne, his sister; Robert Hamilton and Dora Hendricks, two friends he met and worked with at a car wash in Oklahoma City; and Dwight and Annie Moore, his father and mother. Osborne recounted Moore’s childhood. She described Moore as a happy child through grade school, and testified he became involved with drugs sometime in junior high. Osborne indicated Moore’s drug use continued and culminated in the robbery charge. She testified she was very close to Moore, as was their mother; but that Moore and his father did not have a close relationship. Hamilton and Hendricks indicated Moore was a hard worker and was well liked. Moore’s father and mother recounted Moore’s childhood and life history. In particular, Moore’s father testified he worked long hours while Moore was growing up and was unable to spend much time with him. Moore’s mother testified she suspected Moore had a drug problem, but never talked to him about it because she did not know how to handle it. Both his father and his mother testified Moore’s father had problems with alcohol and was arrested for robbery shortly before Moore murdered Fernandez. We must also “keep in mind the strength of the government’s case and the aggravating factors the jury found.” Stafford v. Saffte, 34 F.3d 1557, 1564 (10th Cir.1994). Although the government’s case depended heavily on the testimony of Caster, the overall case against Moore in the guilt-phase of trial was extremely strong. In particular, the evidence unequivocally indicated he was the person who made the decision to steal firearms from the Setzkorns, was the only person who regularly handled the firearms, and was the person who ultimately decided to rob and kill Fernandez. -Further, the un-controverted evidence indicated Fernandez was murdered execution-style, with five gunshots to the back of the head while he was lying passively on the floor of the motel office bathroom. There was also extremely damaging testimony from the state’s firearms examiner and from Karl Setzkorn (the owner of the weapon), both of whom testified the murder weapon had a tendency to jam, particularly if pointed in a downward direction. The implication of this testimony was that it was possible (though not certain) that during the process of shooting Fernandez, Moore had to stop and physically clear the weapon before continuing to fire shots into the back of Fernandez’ head. Based upon this evidence, as well as evidence admitted during the penalty-phase (e.g., evidence of Moore’s robbery conviction, evidence of Moore’s use of a firearm during an altercation), the jury found the existence of four aggravating factors: (1) previous conviction of a felony involving the use or threat of violence to the person; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding a lawful arrest or prosecution; and (4) the existence of a probability that Moore would commit criminal acts of violence that would constitute a continuing threat to society. Although defense counsel did not introduce all of the mitigating evidence now pointed to by Moore, the mitigation witnesses touched on many of the topics to which Moore refers, such as his distant relationship with his father, drug abuse, and his father’s substance abuse and criminal problems. We conclude the jury would not have found additional evidence concerning these same topics sufficiently mitigating to change the sentence rendered. See Brewer v. Reynolds, 51 F.3d 1519, 1527 (10th Cir.1995). As for evidence of Moore’s alleged mental health problems, we seriously question whether Whittaker can be charged with negligence in failing to discover and present such evidence. As outlined in greater detail below, Whittaker filed a motion for funds to hire a mental health expert, but the trial court denied that request. Moore offers no explanation in his habeas petition concerning how Whittaker could have discovered and presented this information without receiving the requested funds. Accordingly, evidence of Moore’s alleged mental health problems, and their possible effect on the outcome of the sentencing phase, will be considered separately in our discussion of Moore’s argument that he was improperly denied funds for a mental health expert. Penalty-phase summation waiver. During the penalty phase of trial, the prosecution introduced testimony from two witnesses (an acquaintance of Moore’s, who testified Moore pulled a gun on him, and Moore’s ex-wife, who testified Moore came to her house after the murder and stated he would do what he had to do to stay out of trouble, even if it meant leaving a corpse), as well as a stipulation concerning Moore’s robbery conviction. In response, Moore introduced the testimony of five witnesses, whose testimony we have summarized in the preceding section addressing Moore’s claim of inadequate pretrial preparation and investigation. After the prosecutor gave his initial closing argument, Moore’s counsel waived closing argument. The following bench conference then took place: MR. MACY [prosecutor]: There is case law holding that— THE COURT: Just a minute. Wait until they get here. MR. MACY: There is case law holding in circumstances where the Defendant waives his closing argument, it is within the discretion of the Court as to whether or not to allow the State to give their final closing. I will respectfully request of the Court to grant permission for me to go ahead and make my final closing. MR. RAVITZ [defense counsel]: Judge, I don’t know of any case law that says that, but even if it did, this Court has held — this Court has constantly followed the rule that when a defense lawyer waives — when the Prosecution has shut down, you cannot give him a right to argue. In fact, the statute, the death penalty statute, is different. It says the Prosecutor may argue and the Defense may argue. It doesn’t set any type of situation. But I don’t know of any case that does it. I’ve never seen it done in the history of this courthouse, to let somebody else argue. If we are going to start doing it now in this second stage, this Defendant is not going to get a fair trial or a fair hearing. MR. MACY: If his lawyers don’t want to argue for him, I can’t help that, Your Honor, but I’m entitled to present the State’s case. THE COURT: I would like to see the ease that you refer to. This comes as a rather surprise to me. MR. MACY: I don’t have it available. It is there and I know it exists, I have seen it. THE COURT: We’ll take a brief recess and go back and make sure of this. MR. MACY: Okay. [A break was taken. Proceedings resumed in chambers.] THE COURT: If I do allow this, if I do allow it, I think I must determine whether your client is aware of the effect of waiving closing argument. Are we ready to proceed on this? On the record, I think your client needs to be in on this in view of this, Bob. Do you agree? MR. RAVITZ: In view of what? THE COURT: This. MR. RAVITZ: Oh, he’s aware of it. THE COURT: Do you want to waive his presence? I decline to do that. I think it’s fundamental. MR. RAVITZ: Bring him in, that’s fine. [Moore brought into chambers and proceedings resumed.] THE COURT: All right. Here is Professor Whinery speaking to this, too. You must be advised what your attorney — attorneys have elected on your behalf and you heard them waive closing argument on your behalf, didn’t you? THE DEFENDANT: Yes, sir. THE COURT: You must understand the purpose of closing argument. The purpose of closing argument is persuasion. It is not evidence. It contemplates a liberal freedom of speech and the range of discussion, illustration, and argumentation is wide. Counsel for the State and your attorneys in this case have a right to discuss fully from their standpoints the evidence and the inferences and deductions that arise therefrom. Do you understand me so far? THE DEFENDANT: Yes, sir. THE COURT: You have an absolute right for your attorneys to argue this case; however, you may waive that right, providing it is done knowingly and intelligently. Do you understand the purpose of closing argument as I have explained it to you? THE DEFENDANT: Yes, sir, I do. THE COURT: Do you concur with the decision of your attorneys that you wish to waive closing argument? THE DEFENDANT: Yes, sir, I do. THE COURT: You have consulted with your attorneys prior to them announcing in open court that they wish to waive on your behalf closing argument; is that true? THE DEFENDANT: Yes, sir. THE COURT: You have had their advice in the matter? THE DEFENDANT: Yes, sir, I have been advised on it. THE COURT: I must advise you further of some of the law involved here. It is true that closing arguments may be waived by the parties if they choose to do so. However, waiving' — a waiver of the closing argument by the Defendant does not preclude the prosecuting attorney from making his closing argument. It is within the discretion of the trial Court of whether a closing — whether a final closing argument may be made by the prosecutor after the Defendant has waived his argument. For the record, I cite the following cases: Harvey Brewer versus State, which is cited 280 P. 473, Oklahoma Criminal 461 P. —:— no, that’s not the cite. MR. MACY: Here it is. THE COURT: 44 Oklahoma Criminal 361; also at 280 P. 473, and Moore versus State, which is cited as 461 P.2d at 1017. Professor Whinery in his Treatise on Manual of Evidence, at Page 161, cites these two cases in support of his statement that the waiver of a closing argument by the Defendant does not preclude the prosecuting attorney from making his final closing argument and that it is within the discretion of the trial Court whether a final closing argument may be made by the prosecutor after the Defendant has waived his argument. In summation of this point, as I view the law on this so far, unless I am persuaded to the contrary, it is up to the trial judge, me in this case, in the exercise of my judicial discretion, of whether I shall permit the State now to make a closing argument after your attorneys have waived argument in your behalf. Now, I ask again, knowing what all I have said here, do you wish to waive your closing argument? MR. RAVITZ: We want the record to show that unless the' Court is ordering us off the case, we are giving this man professional advice, not the Court. We don’t believe that that is the law in a capital case that the Court has just stated. We believe that there is a different standard in a capital case, because the statute specifically says the State and the Defendant or his Counsel shall be permitted to present argument for or against the sentence of death, unlike the statute that allows for the State to go first and then last, the death penalty statute is not set up that way. All judges have interpreted that final closing argument — to give, to rebut the Defendant’s closing argument, that’s why they have given the State that right, but it is not a right that is given to them under the statutes of the State of Oklahoma. It is different in those two cases that you cite,' because this is a capital case. Further we recommend at this particular time, based on the fact that there has been absolutely no preparation made on the closing argument on my advice to Mr. Whittaker. I specifically told Mr. Whittaker that he should not prepare a closing argument and that he should waive it and Mr. Whittaker could not get up and give a proper closing argument at this particular stage. So, I make a recommendation to you at this particular time to waive that closing argument. THE COURT: Do you understand what he said? THE DEFENDANT: Yes, sir. THE COURT: What is your desire? THE DEFENDANT: I’ll go along with his advice. I’ll waive closing arguments. THE COURT: State have any response on this? MR. MACY: At this time, the State respectfully requests that — that is the law of the State of Oklahoma. The fact that some of the judges — the fact that the attorneys have not seen fit to invoke the law doesn’t change the fact that it is the law. And of course again the purpose of the closing argument is to have a full explanation and argument of the issues. It’s not to play a game of one-upmanship or trickery or ambush. And of all cases, a death case is one in which the rule should be followed carefully; everyone should have a fully opportunity to present this case to the jury; to make the best search for the truth that they can and to obtain justice, and you don’t do that by playing little games; you do it by following the laws of the State and I am entitled to close. It is in your discretion. THE COURT: Anything further, gentlemen? MR. RAVITZ: I have several things to say, Your Honor. THE COURT: Say it. MR. RAVITZ: First of all, I know of no case in the history of this courthouse where the State has allowed the — where the judge has allowed the Defendant — for the State to get up. Specifically, I have never seen it done in a capital case. There has got — the word is “sound discretion.” If this Court felt that Mr. Keel’s argument was not up to snuff, if he didn’t cover something, I would like to know what the Court would put in the record for that. Secondly, the Court ought to be concerned with the rights of this individual Defendant. I’ll tell you flat out if I was Scott Moore, I would attack his counsel for being ineffective if I was handling his appeal, because in this particular instance, he was advised — he was advised by lawyers who obviously didn’t know what they were talking about, who felt that the Court would follow the law. Sound discretion means just that — sound discretion. There’s got to be some basis to do it; some reason to do it. An inexperienced prosecutor getting up and saying a few things in his closing argument and then sitting down, then that could do it; a prosecutor getting up there and saying two things — I think the guy is guilty beyond a reasonable doubt or I think he deserves the death penalty and sitting down, that would be proper, but a complete closing argument, there is no basis for it. Obviously, if the Court grants this, the Court is doing one thing; all they are caring about is prejudicing the Defendant to let everything in and get the Defendant; stick the Defendant any way they can. Just — we think to do this in this particular case in light of what has constantly been done in this courthouse and what has constantly been done in which there was a proper closing argument and it was detailed and whatnot, where the defense counsel have themselves admitted that they are unprepared to make a closing argument, because we felt the court would follow the law. We specifically state that this man’s rights are being totally and completely violated if the prosecutor is allowed to make a closing argument, which is just going to be solely to prejudice the jury and that’s the whole purpose of that closing argument, because that’s the only reason he could give it, because everything has been covered already. THE COURT: Do you concede that it is within the Court’s discretion to allow this? MR. RAVITZ: No, I have already stated the reason, I think, because of the statutes. THE COURT: You have several times referred to my, what, “sound discretion”? MR. RAVITZ: No, the Court has overruled our objection, it is my understanding, based on the fact that I think the death penalty statute clearly does not allow— THE COURT: Wait a minute. Let me ‘interrupt you. I haven’t ruled on anything on this issue yet. MR. RAVITZ: Oh, okay. I’m sorry. The Court stated— THE COURT: I’m seeking your advocacy. I ask again, Do you concede that this is within the Court’s sound discretion to— MR. RAVITZ: Absolutely not. I think the death penalty statute is specific; that it says both sides can argue. It doesn’t say the State has a right to rebuttal. The Courts have constantly let the State rebut the Defendant’s contentions, but there’s no right under the statutes in a capital case to do that. THE COURT: You are overruled. The State is permitted to close. MR. RAVITZ: While I’m making a further record, the Defendant believes that the Court is making this ruling solely to get the Defendant the death penalty in this case; that the Court has bent over backwards from day one to make sure that this Defendant got the death penalty; that further this Defendant was given ineffective assistance of counsel by virtue of our advice. And we want the record to so state this man’s rights under the Sixth, Eighth, and Fourteenth Amendments have totally been violated and that the Defendant has received a totally fundamentally unfair trial and this Court’s last decision just verifies that out. He won’t even state the reason why he is exercising discretion; why he is going to- let the prosecutor argue. THE COURT:' You are bordering- on contempt of Court. MR. RAVITZ: That’s on the record; that’s in the record, too, is it not? THE COURT: I think I would be justified in citing you, but I decline to do it, because I have known you so long. Let’s go and complete this case. Trial transcript at 1181-91. Based upon the trial court’s ruling, the prosecutor proceeded to give a second closing argument. Defense counsel then requested an opportunity to present á closing argument. The trial court denied that request, concluding defendant had waived closing argument. In his direct appeal, Moore contended the court erred in (1) allowing the prosecution to make 'a second closing argument after defense had waived closing argument, and (2) in refusing to allow him to revoke his waiver and give a closing argument after the prosecution’s second argument. With respect to this second argument, Moore specifically contended the court denied him effective assistance of counsel. The Oklahoma Court of Criminal Appeals rejécted Moore’s arguments, noting Moore “was represented at trial by one of the most experienced capital defense lawyers in the State. Though he had two attorneys at trial, it was Mr. Ravitz who waived closing arguments, and whose advice appellant told the court he wanted to follow after being informed of his rights.” 736 P.2d at 167. In his first application for post-conviction relief in state court, Moore repeated the same arguments. In particular, he argued the trial court erred in allowing the prosecution to make a second closing argument after defense had waived its closing argument, and in refusing to allow Moore’s counsel to retract the waiver and give a summation after the prosecution had made its second closing argument. In connection with this argument, Moore also contended trial counsel’s decision to waive oral argument in the penalty phase “was [not] based on a reasonable trial strategy ... and thus denied [Moore] his sixth and fourteenth amendment rights to effective assistance of counsel.” Application 1/25/88 at 19-20. However, Moore made no contention that trial counsel’s waiver was based on counsel’s alleged failure to actually prepare a closing argument. The court summarily rejected Moore’s arguments, concluding they previously had been raised and rejected on direct appeal. In his second application for post-conviction relief in state court, Moore argued, for the first time, that defense counsel was ineffective for failing to prepare and give a closing argument. The state district court summarily rejected these arguments, concluding they were barred on the grounds of res judicata. No evidentiary hearing was conducted on Moore’s claims. The Oklahoma Court of Criminal Appeals agreed the claims were barred under the doctrine óf res judica-ta. In his federal habeas action, Moore continues to argue he was denied effective assistance due to defense counsel’s decision to waive closing argument in the penalty phase. Moore also contends this tactical error was the direct result of and compounded by Whit-taker’s alleged failure to prepare a closing argument. In support of this latter contention, Moore has submitted the affidavit of counsel Ravitz, who alleges he learned, immediately prior to the start of the penalty phase, that Whittaker had not prepared a closing penalty phase argument, but instead planned to “work something up over dinner.” According to Ravitz, his ultimate decision to waive summation was the direct result of Whittaker’s failure to prepare a summation. The federal district court considered Moore’s arguments on the merits, and concluded: [T]he defense devised the plan to waive closing argument in order to cut off the State’s final closing argument. Considering the strength of the State’s evidence and Mr. Ravitz’s presumed familiarity with the tactics of the Oklahoma County District Attorney’s Office in capital eases, this tactic was professionally reasonable. Mr. Macy, a seasoned district attorney, was to deliver the final summation on behalf of the State. Mr. Ravitz’s actions were calculated to prevent this from occurring and were not the conduct of incompetent counsel. Furthermore, the defendant made a knowing waiver of the right to closing argument after lengthy questioning and explanation by the trial court. In fact, the court’s prophylactic actions were so thorough as to clearly frustrate Mr. Ravitz in his strategic decision. Although he asserts in his affidavit that he selected the waiver tactic due to Mr. Whittaker’s unpreparedness to deliver a closing, Mr. Ravitz stated to the trial court that the lack of preparation for the closing argument was due to his advice to Mr. Whittaker; as he stated during the in camera hearing, “defense counsel have admitted that they are unprepared to make a closing argument, because we felt the court would follow the law.” The Court’s review of Mr. Ravitz’s statements made during trial leads to the conclusion that the defense had banked on the trial court disallowing further argument by the State after waiver, and that was in fact the reason no closing remarks were prepared. In addition, the Court concludes that Mr. Ravitz’s conduct and remarks indicate that he believed that the trial court’s decision to allow a second state summation would be held to be error on appeal. Mr. Ravitz stated the basis for his belief that the court’s interpretation of the law was erroneous in an articulate and vociferous fashion. After he was informed of the trial court’s intention to permit further argument by the State, he expressed his disagreement with such zeal that he was almost found in contempt. Moreover, when the proceedings reconvened and the court inquired again if the defense intended to waive, the defense stuck by their tactical decision. These circumstances lead the Court to conclude that defense counsel thought a winning issue had been preserved for appeal, clearly a valid tactic in light of the outcome of the first phase of the trial. As stated, the claim was raised in several guises on direct appeal. The fact that the claims were ultimately unsuccessful does not render trial counsel’s reliance on such strategy to be constitutionally deficient. District Court’s Opinion at 18-19. Ultimately, the court found “that the conscious, tactical choice of the defense in waiver of closing argument [wa]s to be accorded deferential scrutiny and that the tactic was not unreasonable.” Id. at 21. In addition, the court found “no reasonable probability that, but for the waiver of closing argument, the jury would not have imposed a sentence of death.” Id. Although we can consider Moore’s general claim that waiver of closing argument was improper, there is some question whether we should consider the new argument that the waiver was prompted by Whittaker’s failure to prepare a closing argument. This new argument was not raised until Moore’s second application for post-conviction relief, and arguably not until the instant habeas petition. As we concluded in our discussion of Moore’s arguments concerning defense counsel’s alleged failure to properly investigate and prepare, ineffective assistance claims not raised in the first post-conviction application cannot be raised in a second post-conviction application absent a showing by petitioner of either cause and prejudice or fundamental miscarriage of justice. As regards his ineffective assistance of counsel claim that the waiver of argument was prompted by lack of preparation, Moore can meet neither of these standards. With respect to Moore’s general ineffective assistance of counsel claim concerning waiver of closing argument, he must satisfy the two requirements set forth in Strickland. First, he must demonstrate Ms counsel’s performance was constitutionally deficient, i.e., it fell below an objective standard of reasonableness. 466 U.S. at 688, 104 S.Ct. 2052. To make this showing, Moore must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance that might be considered sound trial strategy. Id. at 689, 104 S.Ct. 2052. Second, he must demonstrate there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different. Kimmelman, 477 U.S. at 375, 106 S.Ct. 2574; Williamson, 110 F.3d at 1514. The above-quoted portions of the trial transcript clearly demonstrate the waiver of closing argument was the product of a strategic decision on the part of defense counsel designed to prevent the district attorney from giving a second summation. Indeed, the transcript indicates defense counsel believed the trial court’s decision to allow a second summation by the prosecution was contrary to Oklahoma law and would be reversed on appeal. Although the trial court’s ruling was ultimately affirmed on direct appeal, we are unable to say defense counsel’s decision to waive closing argument was anything less than an informed strategic choice. See Flamer v. State of Delaware, 68 F.3d 710, 732 (3d Cir.1995) (defense counsel’s waiver of closing argument in guilt phase of trial was within wide range of reasonable professional assistance where counsel’s strategy was to avoid devastating rebuttal from prosecution and prosecutorial tactic of giving very brief opening statement and lengthy rebuttal had been employed in other cases); United States ex rel. Spears v. Johnson, 463 F.2d 1024, 1026 (3d Cir.1972); see also Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir.1995) (“For counsel’s advice to rise to the level of constitutional ineffectiveness, the decision ... must have been ‘completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.’ ”) (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir.1983)). Accordingly, we reject Moore’s argument that defense counsel’s performance in this regard was constitutionally deficient. Even assuming, arguendo, that defense counsel’s performance was professionally unreasonable, we conclude Moore cannot demonstrate he was prejudiced Where, as here, “the alleged ineffective assistance occurred during the penalty phase of a capital trial, we consider whether there is a ‘reasonable probability that, absent the errors, the senteneer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ” Duvall, 139 F.3d at 776-77 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). Although we have never addressed the precise issue raised by Moore, the Fifth Circuit has held that, in order to demonstrate prejudice in these circumstances, a habeas petitioner must make some type of showing of what defense counsel might have said at closing that would have had a reasonable probability of changing the result. Sawyer v. Butler, 848 F.2d 582, 592 (5th Cir.1988), aff'd, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Here, Moore offers no hypothetical arguments that can satisfy this standard. Although the jury was presented with mitigating evidence from Moore’s family and friends, it was also faced with extremely damaging evidence of Moore’s involvement in the murder. In particular, the jury was able to consider all of the evidence presented during the guilt phase of trial and most, if not all, of it overwhelmingly pointed to Moore’s guilt. The evidence indicated Moore intended to shoot Fernandez when he entered the motel, and that he shot Fernandez five times in the back of the head while Fernandez was lying facedown on the bathroom floor. In addition, the prosecution admitted evidence at the penalty phase indicating Moore had been previously convicted of robbery and had attempted to use a firearm during an altercation with an acquaintance. In fight of the strength of the State’s evidence, and the weakness of any evidence in mitigation, we conclude there is no reasonable probability that, had Moore’s defense counsel given a closing argument, the jury would 'have chosen fife over death; See Duvall, 139 F.3d at 776-77. Ineffective assistance of appellate counsel Moore was represented on direct appeal by Pete Gelvin of the Oklahoma County Public Defenders’ office. Gelvin raised the following-points on direct appeal: (1) the trial court’s admission into evidence of two photographs depicting the victim; (2) the trial court’s refusal to appoint a ballistics expert to cast doubt on the testimony of the State’s ballistics expert; (3) Moore’s culpability was not proven to be great enough to allow imposition of the death penalty in fight of the jury’s refusal to find he committed murder with malice aforethought; (4) denial of a jury that was representative of a fair cross-section of the community; (5) the trial court’s refusal to provide funds for trial counsel to travel to Texas to interview witnesses; (6) the trial court’s refusal to compel presence of two inmate witnesses from Texas; (7) the trial court’s decision to allow prosecutor to make second argument during the penalty phase after Moore waived summation; (8) the trial court’s refusal to allow Moore to give a closing statement after he had initially waived summation; (9) the trial court’s decision to allow prosecutor to make improper and redundant comments during closing argument in penalty phase; and (10) improper remarks by prosecutor during closing summation at penalty phase. • Moore contends Gelvin also should have raised the following arguments on direct appeal: (1) the trial court’s denial of motions for expert assistance; (2) lack of corroboration of Caster’s testimony; (3) invalid basis for continuing threat factor; (4) improper prosecutorial remarks during summation;' (5) the trial court’s admission of prejudicial hearsay statements; and (6) ineffective assistance of trial counsel. The district court addressed these arguments on the merits and found them to be meritless. Our scope of review is de novo. Brewer, 51 F.3d at 1523. Moore must show, as with his claims of ineffective trial counsel, that appellate counsel’s performance was deficient and that the deficient performance was prejudicial. See United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995). Failure to raise denial of motions for expert assistance. Prior to trial, Moore’s counsel filed motions requesting appointment of a ballistics expert, appointment of a parole and probation expert to testify at the penalty phase concerning Moore’s amenability to rehabilitation, appointment of a sociologist to testify on the rate of recidivism among capital murderers, appointment of a psychiatrist, funds for travel expenses incurred in locating and interviewing witnesses, and funds to conduct a presentenee investigation aimed at discovering mitigating evidence and disproving the aggravating factor that Moore presented a future danger. On direct appeal, Moore’s appellate counsel challenged only the denial of the appointment of the requested ballistics expert. In his habeas petition, Moore contends appellate counsel was ineffective for failing to challenge denial of the remaining pretrial requests. For the reasons outlined in our discussion of these remaining pretrial requests on their merits, we conclude Gelvin was not ineffective in failing to raise these issues on direct appeal. Failure to raise the lack of corroboration of Caster’s testimony. Moore contends Gelvin should have raised the lack of corroboration of Caster’s testimony on direct appeal. Under Oklahoma law, testimony of an accomplice must be corroborated in at least one material fact by independent evidence. See, e.g., Spears v. State, 900 P.2d 431, 440 (Okla.Crim.App.1995) (citing Okla. Stat. Ann. tit. 22, § 742). Here, it was uncontroverted Caster was an accomplice, see Carter v. State, 879 P.2d 1234, 1246 (Okla.Crim.App.1994) (outlining test used to determine if witness is an accomplice), and the trial court accordingly instructed the jury her testimony had to be corroborated. In rejecting Moore’s initial application for post-conviction relief, where this issue was first raised, a concurring member of the Court of Criminal Appeals’ panel specifically concluded Caster’s testimony was sufficiently corroborated. Likewise, the federal district court concluded Caster’s testimony was “corroborated in several respects, including Petitioner giving the murder weapon to his brother-in-law, his statements to his ex-wife about leaving a corpse if necessary to stay out of trouble, the burglary of the guns and other items from the Setzkorn residence, and Petitioner’s possession of the stolen guns.” District Court’s Opinion at 34. After carefully reviewing the trial transcript, we agree with the district court’s analysis. In each of the specific instances noted by the district court, independent witnesses corroborated Caster’s testimony on material facts. Although the corroborating testimony did not constitute complete, independent proof of the crime, it sufficiently connected Moore to the murder and allowed the jury to infer Caster’s entire testimony was truthful. See Spears, 900 P.2d at 440. We conclude Gelvin’s failure to raise this issue on direct appeal did not violate the Strickland standard. Failure to raise issue of invalid basis for continuing threat aggravating factor. Moore contends Gelvin erred in failing to attack the prosecution’s use of an unadjudi-cated crime (i.e., Moore’s brandishing of a firearm at an acquaintance during an altercation) to prove Moore was a continuing threat to society. He acknowledges we have concluded “consideration of evidence of unadjudicated crimes in imposing the death sentence does not violate a petitioner’s due process rights.” Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10th Cir.1995). Accordingly, Moore states he is simply preserving the issue “for possible era banc treatment and/or for ceHiorari review.” Opening Brief, at 53. Failure to challenge improper prosecutorial remarks during summation. For the reasons outlined in greater detail below, we conclude appellate counsel was not ineffective for failing to raise this issue on direct appeal. Failure to challenge admission of prejudicial hearsay. At trial, the prosecution elicited hearsay statements attributed to the victim regarding a dispute he had with Moore a few days prior to the murder. Margie Van-Winkle, a clerk at the Airline Motel, testified that, several days prior to the murder, Fernandez told her Moore had stopped by the motel and asked for a room. VanWinkle further testified that, according to Fernandez, Moore became angry when Fernandez would not let him have a room, and said to Fernandez before leaving, “Well, I’ll see to that.” Trial Transcript at 735. Sam Hema-ni, the owner of the Airline Motel, testified Fernandez told him during the week prior to the murder that Moore had stopped by the motel and asked for a free room. When Fernandez refused, Moore threatened his life. Id. at 758. Hemani also testified that Fernandez said he felt threatened and was afraid of Moore. Id. at 757. According to Moore, VanWinkle’s and Hemani’s testimony constituted inadmissible and prejudicial hearsay that should have been challenged on direct appeal. Under Oklahoma law, “[a] victim’s hearsay statements describing threats and beatings are admissible to show the victim’s state of mind and indicate fear of a defendant.” Hooper v. State, 947 P.2d 1090, 1102 (Okla.Crim.App.1997) (citing Okla. Stat. Ann. tit. 12, § 2803(3)). A concurring member of the Oklahoma Court of Criminal Appeals panel that considered Moore’s first application for post-conviction relief specifically rejected the identical argument now raised by Moore: The testimony of VanWinkle ... and of [Hemani] -... was admitted to show that the victim feared the petitioner. They each repeated statements by the victim to them demonstrating that Fernandez had become afraid of petitioner. The trial court offered to give the