Full opinion text
EBEL, delivered the opinion of the court except as to part III.C. EBEL, Circuit Judge In May 1989, an Oklahoma jury convicted Victor Wayne Hooks of first degree murder and first degree manslaughter for beating to death, respectively, his common-law wife and the 24-week-old fetus she was carrying. After a one-day sentencing hearing, Hooks was sentenced to death on the murder conviction and to 500 years’ imprisonment on the manslaughter conviction. On December 2, 1996, after direct and collateral appeals in the Oklahoma courts, Hooks filed a petition for writ of habeas corpus in the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254. The district court denied Hooks’ petition on all thirteen grounds advanced, and granted a certificate of appealability (“COA”) under 28 U.S.C. § 2253 as to Hooks’ claims of ineffective assistance of trial counsel and denial of a fair trial. Hooks filed a timely appeal in this court and requested that we grant a COA on several additional issues raised before the district court. We granted Hooks a COA on Issues I (ineffective assistance of trial and/or appellate counsel), II (trial court failure to instruct the jury on lesser included offenses), and V (constitutionality of certain aggravating sentencing factors), as raised in Hooks’ brief on appeal. We REMAND for the district court to consider the adequacy of the state’s claim of procedural bar on all but one of Hooks’ claims of ineffective trial counsel. As to all other issues as to which a certificate of appeala-bility has been granted, we AFFIRM. BACKGROUND At approximately 7:00 p.m. on October 6, 1988, defendant Hooks showed up at the home of Ms. Virginia Plumley, the mother of his putative common-law wife, Shalimein Blaine, and told her that Shalimein had been beaten and raped. Hooks, father of Shalimein’s then-one-year old daughter Vargus Shalimar and the father of the fetus she was carrying, implored Ms. Plumley to check on her daughter Shali-mein — who had just moved into an apartment less than a block away from Ms. Plumley — and to take her to the hospital. When Ms. Plumley asked Hooks what happened to Shalimein, he responded that he did not know. After the badly beaten Shalimein had been taken down the stairs of her apartment building and placed in Hooks’ Cadillac, Ms. Plumley asked Hooks again what had happened. On the drive to the hospital Hooks told a number of stories to the effect that Shalimein had taken a walk earlier in the evening, and after about two hours had returned, knocked on the door or entered her upstairs apartment, and fell into his arms beaten and bloodied. At that point, Hooks said that either he removed her clothes or she removed them herself so he could wash her in the bathtub. During the drive, Ms. Plumley noticed that Shali-mein’s hair was shaven and her face “was swollen real bad.” Ms. Plumley told Hooks that she thought Shalimein was dead, which made him “hysterical” and prompted him to exclaim, “That’s my baby, she’s not dead,” and “I’m going to kill” the people who did this. Ms. Plumley asked Hooks why he had shaved Shalimein’s head. He said that he had not done it and that it must have been the person who raped and beat her. When they arrived at the hospital, Hooks carried Shalimein into the hospital, asking everybody to get out of his way because “his baby had to have medical attention.” After handing Shalimein over to hospital staff, Hooks called the police (but Ms. Plumley testified that since the police arrived “about a minute or two after” Hooks called, she believed someone else had called first). As doctors began efforts to revive Shalimein, the police interviewed Hooks, Ms. Plumley, and her daughter Amanda. During the preliminary investigation by Oklahoma City Police Officer Robert Ar-dle, Hooks told essentially the same story he had told Ms. Plumley. Then, while still at the hospital, Hooks signed a search warrant authorizing a search of Shali-mein’s apartment. In the apartment, officers found her hair in a trash can, as well as blood on the bed, on the carpet near the bed, and on several wash cloths and towels that had been thrown in a clothes hamper. Outside Shalimein’s apartment, in a trash dumpster, police found bloody clothing and wash cloths as well as a large clump of hair. In the course of the investigation, Hooks was interviewed by Oklahoma Police Detectives Eric Mullenix and Randy Scott at approximately 1:00 a.m. on October 7th. At first, Hooks told the detectives a version of the same story he had told Ms. Plumley and Officer Ardle; however, after the detectives confronted him with questions about the hair and blood found in the apartment and the nearby dumpster, Hooks broke down crying and explained that he wanted to come clean. Hooks admitted that he and Shalimein had fought on the evening of October 6, 1988. He explained that their verbal fight over money escalated into a physical one when Shal-imein slapped him in the face. Hooks admitted that he struck Shalimein with his fist, and that when she fell to the floor by the bed, he began kicking her in the stomach and the face “real hard.” Hooks admitted that he beat her until she lay still on the floor with blood coming from her mouth and nose. At that point, Hooks explained that he picked her up, took her into the bathroom, removed her clothes, and began trying to clean her up in the bathtub. In response to the detectives’ inquiry about why they had found hair in the dumpster, Hooks said that he had shaved some of her hair with a razor in an effort to locate her head injuries. He further explained that Shali-mein was having trouble breathing and that she eventually lost consciousness, at which point he began cleaning up the apartment and the couple’s one-year old daughter Vargus Shalimar, who had gotten blood on her in the course of witnessing Hooks beat her mother. The detective then stopped the interview and asked if Hooks would restate his new story on audio tape. Hooks agreed. That tape was played for members of the jury, who were also provided with a written transcript in order to follow along. At trial, in an effort to show the graphic and violent nature of the beating that caused Shalimein’s death the state put on Oklahoma City Police Lieutenant Tom Bevel, an expert in geometric blood stain pattern interpretation and crime scene reconstruction. Lieutenant Bevel testified that the blood stains found on the blue jeans Hooks was wearing when he beat Shalimein to death were consistent with the state’s theory that Hooks “stomped” Shalimein. The state also presented the testimony of Shanna K. (Allen) Dinh, a former girlfriend of Hooks. Ms. Dinh testified that she began a sexual relationship with Hooks when she was 13 years-old — approximately 10 years his junior — and earned money for Hooks through prostitution and nude dancing. Ms. Dinh testified that Hooks was a violent man, and that if one of his girls refused to follow his orders she “got [her] butt kicked.” Further, she explained that “whenever [Hooks] would get mad, he would look at us and say, ‘One of these days I’m going to end up killing one of you bitches.’ ” Ms. Dinh testified that she had Hooks’ child when she was 15 years-old; and, that when she became pregnant for the second time with Hooks, “[a] beating by Victor [Hooks]” caused a miscarriage. She explained that Hooks had informed her and all the other women with whom he was involved that “if anyone ever got pregnant again [a second time], that he was going to kick it out of their ass.” As to Shalimein’s second pregnancy (the one she was in when Hooks killed her), Ms. Dinh testified that Hooks said “he didn’t want no more babies and that he was mad because she was pregnant again.” Moreover, Ms. Dinh testified that she saw Hooks inflict violence on Shalimein “several” times, including one beating approximately one month prior to the fatal beating, during which Hooks hit Shalimein with a two-by-four, then “pushed her down on the couch, ... spread her legs open and ... kick[ed] her in her vagina [with cowboy boots], saying that he doesn’t want this baby.” At trial, Hooks’ attorney conceded that Hooks killed Shalimein, but argued that he did so unintentionally. Based on this theory, Hooks’ counsel moved the trial court to instruct the jury on the lesser included offenses of second degree murder and first degree manslaughter as to Shalimein. The judge refused, and instead instructed the jury only on first degree murder. After the foregoing events had been introduced over a two-day trial and the court issued its instructions, an Oklahoma jury convicted Hooks of first degree murder for intentionally causing Shalimein’s death, and of first degree manslaughter for causing the death of the unborn quick fetus she was carrying. After a one-day sentencing hearing, during which Hooks’ counsel put on the testimony of an Oklahoma County Deputy Sheriff, a clinical psychologist, and Hooks’ mother and sister, the jury fixed Hooks’ sentence at death for Shalimein’s murder and at 500 years’ imprisonment for the manslaughter of the unborn child. Regarding Shalimein’s murder, the jury specifically found that three statutory aggravating circumstances supported a death sentence: (1) Hooks had been previously convicted of a felony involving the use or threat of violence to a person; (2) the murder was especially heinous, atrocious, or cruel; (3) there existed a probability that Hooks would commit criminal acts of violence that would constitute a continuing threat to society. On May 19, 1988, the trial judge sentenced Hooks to death in accordance with the jury’s recommendation. Hooks’ trial counsel filed a direct appeal in the Oklahoma Court of Criminal Appeals. On September 7, 1993, that court affirmed Hooks’ conviction and sentence. Hooks v. State of Oklahoma, 862 P.2d 1273 (Okla.Crim.App.1993) (Hooks I). Hooks’ new counsel then filed an application for state postconviction relief, which was denied by the District Court of Oklahoma County, Oklahoma, on December 9, 1994. On September 18, 1995, the Oklahoma Court of Criminal Appeals affirmed the denial of postconviction relief. Hooks v. State of Oklahoma, 902 P.2d 1120 (Okla.Crim.App.1995) (Hooks II). On December 2, 1996, Hooks filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Western Oklahoma. Hooks raised thirteen issues before the federal district court, many of which directly alleged, or were tied to allegations of, ineffective assistance of counsel. Prior to ruling on Hooks’ petition, the district court conducted an evidentiary hearing on April 3-4, 1997. During the federal evidentiary hearing, Hooks’ counsel put on the testimony of Hooks’ mother, Clara Hooks; his ex-wife, Virginia Betts; Hooks himself; an expert in psychology and neuropsychology, Dr. Michael Gelbort; Hooks’ counsel on direct appeal, Robert Boren and Patrick Lavelle; Hooks’ trial counsel, Ron Evans; and an expert in death penalty defense, David Ruhnke. Hooks’ counsel also introduced into evidence an affidavit of Hooks’ sister, Vargas Hooks. After the evidentia-ry hearing and briefing from both sides, the district court denied Hooks’ petition on all thirteen grounds. Pursuant to 28 U.S.C. § 2253, the district court issued a certificate of appealability (“COA”) as to Ground I (ineffective assistance of trial counsel) and Ground II (denial of right to a fair trial because of the court’s exclusion of the proffered expert testimony of two clinical psychologists). On appeal, Hooks raises essentially all the claims denied by the district court and requests that we grant a COA as to the claims the district court had refused. We granted a COA on the following issues: (1) whether Hooks received ineffective assistance of counsel at trial, and/or on appeal; (2) whether Hooks was denied his constitutional right to due process and a fair trial by the trial court’s failure to instruct the jury on lesser-included offenses to first degree murder; and (3) whether the sentencing phase instructions regarding aggravating factors were unconstitutional. DISCUSSION I. Applicability and standards under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”). Because Hooks filed his habeas petition after AEDPA’s April 24, 1996 effective date, AEDPA governs our review of the instant habeas petition. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir.1999). Accordingly, we may not grant Hooks’ application for a writ of habeas corpus: with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). II. Whether Hooks received ineffective assistance of counsel at trial and on appeal. A. State Procedural Bar As an initial matter, the appellee asserts state procedural bar because Hooks failed to raise his claims of ineffective assistance of counsel on direct appeal in the Oklahoma courts. “On habeas review, this court does not address issues that have been defaulted in state court oh an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” English v. Codly, 146 F.3d 1257, 1259 (10th Cir.1998) (citing Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). On direct appeal, Hooks raised only one issue of ineffective assistance of trial counsel, All of his other claims of ineffective assistance of trial counsel were first raised in his state postconviction proceeding. His direct appeal claim was denied on the merits, see Hooks I, 862 P.2d at 1283, and his other ineffective counsel claims raised in his application for ■ postconviction relief were denied on the grounds of “res judica-ta” see Hooks II, 902 P.2d at 1122 & n. 4. As a matter of state law, Oklahoma generally bars review in postconviction proceedings of ineffective assistance of trial counsel claims not raised on direct appeal. See Okla. Stat. Ann. tit. 22, § 1086; Brecheen v. Reynolds, 41 F.3d 1343, 1363 (10th Cir.1994). Such state procedural bar will foreclose federal habeas review if it is independent and adequate. See. Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir.1996). In English, we traced the development of the law in this circuit regarding state procedural bars for ineffective assistance of counsel claims. See 146 F.3d at 1259-61. “In Brecheen, this court found inadequate the Oklahoma procedural requirement that all ineffective assistance of trial counsel claims be raised on'direct appeal or forfeited.” Id. at 1259 (citing Brecheen, 41 F.3d at 1363-64). Brecheen relied on the Supreme Court’s decision in Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), which recognized that the general rules of procedural bar arising from the failure to raise a claim on direct appeal were not well-suited to ineffective assistance of counsel claims, “[bjecause collateral review will frequently be the only means through which an accused can effectuate the right to counsel” due to the fact that “[a] layman will ordinarily be unable to recognize counsel’s errors and to evaluate counsel’s professional performance” without the assistance of a trained lawyer, which he is unlikely to receive until after the trial and appeal are completed. 477 U.S. at 378, 106 S.Ct. 2574. In Brecheen we observed that: The practical effect of [Oklahoma’s procedural bar] is to force [an accused] either to raise [an ineffective assistance of counsel] claim on direct appeal, with new counsel but without the benefit of additional fact-finding, or have the claim forfeited under state law. This Hob-son’s choice cannot constitute an adequate state ground under the controlling case law because it deprives [an accused] of any meaningful review of his ineffective assistance claim. 41 F.3d at 1364. Thus, we concluded in Brecheen that the Oklahoma procedural bar on ineffective assistance of trial counsel claims not raised on direct appeal was inadequate and could not preclude federal habeas review. See Brecheen, 41 F.3d at 1364. Nearly four years after Brecheen, we revisited the issue in English. There, the appellant-warden argued that Brecheen “is built on a faulty premise: a perceived inability of habeas petitioners to develop factual issues on a direct appeal to the Oklahoma Court of Criminal Appeals.” English, 146 F.3d at 1260. The warden claimed that “evidentiary hearings are available as part of the direct appeal process in Oklahoma,” thus Brecheen’s rationale could no longer support its result. Id. After a study of the caselaw, English clarified the rule in this circuit: Kimmelman, Osborn, and Brecheen do not establish a rigid constitutional rule prohibiting Oklahoma from requiring the presentation of ineffective assistance of trial counsel claims on direct appeal. Instead, those cases identify the importance of the Sixth Amendment right to counsel and mandate that no state procedure for resolving claims of ineffective assistance will serve as a procedural bar to federal habeas review of those claims unless the state procedures comply with the imperatives set forth in Kimmel-man: (1) allowing petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel’s performance and (2) providing a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness. Id. at 1262-63 (footnotes omitted). Petitioners in English asserted that the Oklahoma procedural bar was inadequate because it failed to meet the second requirement articulated above, i.e., to provide “a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness.” Id. Specifically, the petitioners there claimed that; (1) the rule which apparently grants the Oklahoma Court of Criminal Appeals the power to remand a claim of ineffective assistance of counsel to the trial court for additional factual development, Okla. Stat. Ann. tit. 22, ch. 18, app., Rules of the Court of Criminal Appeals, Rule 3.11 (hereinafter “Rule 3.11”), has been amended frequently in the last decade; (2) the remand provisions of Rule 3.11 are far too narrow to adequately allow development of ineffective assistance claims to comply with the second Kim-melman imperative; (3) even if Rule 3.11 were sufficient to comply with the second Kimmelman imperative, the Oklahoma Court of Criminal Appeals merely pays lip-service to the Rule and never remands for factual development of ineffectiveness claims; and (4) the Oklahoma Court of Criminal Appeals generally resolves ineffective assistance claims in such a cursory manner that it is usually impossible to tell from the opinion whether additional fact-finding was necessary to adequately resolve the claim. Id. at 1263-64. Because it was unclear in English whether petitioners’ ineffectiveness claims could have been resolved on the record alone or whether they needed further factual development, the court did not reach the issue of the adequacy of the Oklahoma remand procedure under Rule 3.11. Instead, we remanded to the federal district court for “a determination of whether these claims embrace matters in the trial record or whether they require enlargement of that record or additional fact-finding.” Id. at 1264. Applying these principles to Hooks, it is clear that Hooks failed to raise, on direct appeal all but one of the claims of ineffectiveness of trial counsel he now asserts. In his direct appeal ip Oklahoma state court, Hooks was not represented by the same lawyer who defended him at trial. Thus, the first Kimmelman requirement is met. Before addressing the second Kimmelman requirement, we must address a preliminary argument advanced by Hooks. Hooks claims that the Oklahoma Court of Criminal Appeals did not rely on procedural bar in denying his other claims of ineffective assistance of trial counsel raised in his application for postconviction relief before the Oklahoma state courts, but rather, resolved all those ineffectiveness claims on their merits by invoking the doctrine of res judicata. If a state court decides an issue on the merits, state procedural bars will not preclude federal habeas review. See Ylst v. Nunnemaker, 501 U.S. 797, 801-03, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In affirming the denial of postconviction relief to Hooks on his claims of ineffective trial counsel, the Oklahoma Court of Criminal Appeals stated: We note that Hooks’s application for post-conviction relief alleges thirteen instances of trial counsel ineffectiveness which he did not directly raise and this Court did not explicitly consider when analyzing this issue on direct appeal. Yet, the fact remains that trial counsel’s ineffectiveness was’ brought to this Court’s attention on direct appeal. Accordingly, we consider this issue [ineffectiveness of trial counsel] — and all instances of trial counsel ineffectiveness which could have been raised but were not — res judicata for purposes of Hooks’s' post-conviction appeal. But cf. U.S. v. Galloway, 56 F.3d 1239, 1241-42 (10th Cir.1995) (fact that ineffective assistance of counsel claim is raised and adjudicated on direct appeal will not procedurally bar an ineffectiveness claim in a collateral proceeding where new' instances of ineffectiveness are advanced iñ support of that claim). Hooks II, 902 P.2d at 1122 n. 4. Focusing on the court’s use of the term “res judicata,” Hooks argues that the Oklahoma Court of Criminal Appeals’ decision affirming denial of postconviction relief constitutes a ruling on the merits as opposed to a procedural bar. We disagree. It is clear that the Oklahoma Court of Criminal Appeals views res judicata for ineffective assistance of trial counsel claims as a procedural bar and not a ruling on the merits. See Slaughter v. State of Oklahoma, 969 P.2d 990, 995 (Okla.Crim.App.1998) (“Petitioner claims he was denied the effective assistance of both trial and appellate counsel.... The issue of ineffective assistance of counsel was raised and addressed on direct appeal. Therefore, further consideration of the issue is barred by res judicata. Despite the procedural bar of res judicata, a claim of ineffective assistance of trial counsel can be brought for the first time on post-conviction, but only if it requires fact-finding outside of the direct appeal record .... ” (emphasis added and citations omitted)); Turrentine v. State of Oklahoma, 965 P.2d 985, 987-88 (Okla.Crim.App.) (“In Propositions II and IV, [Petitioner] argues he was denied the effective assistance of trial counsel.... Despite the procedural bar of res judicata, a claim of ineffective assistance of trial counsel can be brought for the first time on post-conviction, but only if it requires fact-finding outside of the direct appeal record.” (emphasis added)), cert. denied, — U.S. —, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998). Cf. United States v. Galloway, 56 F.3d 1239, 1242-43 (10th Cir.1995) (in banc), (holding that “the fact that an ineffectiveness claim is raised and adjudicated on direct appeal will not procedurally bar an ineffectiveness claim in a proceeding under 28 U.S.C. § 2255, where new reasons are advanced in support of that claim.”) Turning then to the second prong of Kimmelman, it is clear that Hooks’ claims of ineffective assistance of trial counsel required further development of the record. Consequently, we are presented with the question whether Oklahoma’s remand procedure is adequate. Because the record below is largely silent on the adequacy of OMahoma’s Rule 3.11, the resolution of this issue on appeal will depend on which party has the burden of proof to establish the adequacy or inadequacy of the state procedures. The Fifth Circuit places that burden on the petitioner. See Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir.1997) (“The petitioner bears the burden of showing that the state did not strictly or regularly follow a procedural bar around the time of his direct appeal [in cases similar to his].”), cert. denied, — U.S. —, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998); see also Robison v. Johnson, 151 F.3d 256, 263 n. 4 (5th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Martin v. Maxey, 98 F.3d 844, 847 (5th Cir.1996); Amos v. Scott, 61 F.3d 333, 340-41 (5th Cir.1995). By contrast, two federal district courts in California have placed the burden of proving the adequacy of a state procedural bar on the state. In declaring a California state procedural bar inadequate to foreclose federal habeas review, the United States District Court for the Eastern District of California stated in Karis v. Vasquez, 828 F.Supp. 1449 (E.D.Cal.1993): Without citation to authority, the respondents assert that the burden of demonstrating that procedural default rules are not regularly and consistently applied rests with petitioner. I cannot agree. Procedural default is an affirmative defense which may be waived. Moreover, it is respondents who seek a dismissal, and ordinarily under such circumstances the burden rests with the proponent of the defense and of the motion. Id. at 1463 n. 21 (citations omitted). See also Coleman v. Calderon, No. C-89-1906RMW, 1996 WL 83882, at *3 (N.D.Cal. Feb.20, 1996) (Unpublished Order), ajfd on other grounds by 150 F.3d 1105 (9th Cir.), rev’d on other grounds by 525 U.S. 141, 119 S.Ct. 500, — L.Ed.2d — (1998). There is no doubt that “state-court procedural default ... is an affirmative defense,” and that the state is “obligated to raise procedural default as a defense or lose the right to assert the defense thereafter.” Gray v. Netherland, 518 U.S. 152, 165-66, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In addition, the state is undoubtedly in a better position to establish the regularity, consistency and efficiency with which it has applied Rule 3.11 in the past to allow direct appellants to develop a factual record challenging the adequacy of trial counsel than are habeas petitioners, who often appear pro se, to prove the converse. Cf 2 McCormick on Evidence § 337, at 431 (John W. Strong ed., 4th ed. 1992) (“If proof of the facts is inaccessible ... it is usually fairer ... to place the burden of proof and persuasion on the party claiming its existence.”). Accordingly, we conclude that the state bears the burden of proving the adequacy of a state procedural bar in order to preclude federal habeas review. This is not to say, however, that a petitioner has no responsibility to put the adequacy of the state procedural bar at issue before the state is required to come forward with its proof. Once the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in issue shifts to the petitioner. This must be done, at a minimum, by specific allegations by the petitioner as to the inadequacy of the state procedure. The scope of the state’s burden of proof thereafter will be measured by the specific claims of inadequacy put forth by the petitioner. Here, the state pled the defense of an adequate and independent state procedural bar, as it was required to do. However, Hooks thereafter failed to meet his burden of placing in issue the adequacy of the procedural bar. Nevertheless, we believe Hooks’ failure should be excused in this case in light of the peculiar timing of the proceedings below. Hooks filed his habeas petition in federal district court on December 2, 1996 — more than two years after Brecheen was decided and almost two years before ■ English was decided. The district court denied Hooks’ petition on March 30, 1998 — three months before we issued our opinion in English. In this posture, we cannot say that either Hooks or the district court was in error in relying upon the widely-understood holding in Brecheen that federal habeas review of ineffective assistance of counsel claims is not barred by Oklahoma’s rule that crimi-rial defendants must raise all claims on direct review or waive them. Understandably, here neither party addressed the kind of factual inquiry into the adequacy of Oklahoma’s Rule 3.11 that was suggested by English. Accordingly, as we did in English, we think it most appropriate here to remand to the district court for a determination of whether Oklahoma’s state procedural bar should preclude federal habeas review of Hooks’ claims of ineffective assistance of counsel not raised on direct appeal. On remand, if Hooks believes Oklahoma’s procedural bar to be inadequate, he must place that issue before the district court in a clear way. Respondent-Appel-lee then bears the burden of proving the adequacy of Oklahoma’s bar. If the district court finds Oklahoma’s procedural bar to be adequate, the merits of Hooks’ ineffectiveness claims need not be reached. If the court determines that Oklahoma’s procedural bar is inadequate, the district court then need only reaffirm its previous rulings on the merits of Hooks’ ineffectiveness claims and the merits analysis will then be appealable to this court. Although a determination of the adequacy of the state procedural bar defense is a necessary prologue to our consideration of most of Hooks’ claims of ineffective trial counsel, we can reach the merits of one of his ineffective trial counsel claims because Hooks did raise on direct state appeal one such claim. In addition, we can consider on the merits Hooks’ claim of ineffective assistance of appellate counsel because that claim was raised and decided on the merits in Hooks’ state postconviction proceedings. B. Merits 1. Did Hooks’ trial counsel render ineffective assistance in not allowing Hooks to testify at trial? On direct appeal, the Oklahoma Court of Criminal Appeals stated that “Hooks contends that defense counsel was ineffective because Hooks was not allowed to testify during either the first or second, stage of trial.” Hooks I, 862 P.2d at 1283. Before the federal district court and before this court, Hooks has pared his claim to an allegation that his trial counsel was ineffective only for “failing] to allow Mr. Hooks to testify in the second stage.” Under AEDPA’s amendments to § 2254(d), we cannot grant the writ of habeas corpus unless the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Applying the general framework laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we conclude that the Oklahoma Court of Criminal Appeals decision was neither “contrary to [nor] involved an unreasonable application of Federal law, as determined by the Supreme Court of the United States.” Thus we affirm the district court’s denial of the writ on this claim. In order to prevail on a claim of ineffective assistance of counsel, petitioner must demonstrate: “(1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense.” Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir.1998) (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052). In Hickman, we explained the application of the Strickland standard: To satisfy the first prong of this test, petitioner must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. We review petitioner’s ineffective assistance of counsel claim from the perspective of his counsel at the time he rendered his legal services, not in hindsight. In addition, in considering counsel’s performance, we focus on not what is prudent or appropriate, but only what is constitutionally compelled. To satisfy the second prong, petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 160 F.3d at 1273 (citations and quotations omitted). “In the specific context of a challenge to a death sentence, the prejudice component of Strickland focuses on whether the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir.1994) (quotation omitted). In addressing this claim in Hooks’ direct appeal, the Oklahoma Court of Criminal Appeals identified the proper standard under Strickland. See Hooks I, 862 P.2d at 1283. The court quoted a hearing conducted in the trial court’s chambers at the end of the prosecution’s case during the first phase of trial that clearly evidenced Hooks’ understanding of his right to testify on his own behalf and his personal decision not to testify. Id. The court then provided the following analysis: Whether a defendant will testify on his own behalf at a criminal trial is a decision properly left to the accused. See Rule 1.2(a) of the Rules of Professional Conduct, 5 O.S.Supp.1988, Ch. 1, App. 3-A. Assuming Hooks was influenced by defense counsel’s advice, which may have suggested that he not testify, such advice is a matter of trial strategy and will not be considered ineffective assistance of counsel. See Camron v. State, 829 P.2d 47, 54 (Okl.Cr.1992). Hooks has failed to establish defense counsel’s performance was deficient. Even if we were to assume that defense counsel’s performance was deficient, he has failed to demonstrate any possibility that, but for counsel’s errors, the result of the trial would have been different. This assignment of error is denied. Id. While the state court opinion is a reasonable application of Strickland on its face, it is further corroborated by the testimony adduced at the federal evidentiary hearing in April 1997. Testimony from the federal evidentiary hearing illustrates that Hooks’ trial counsel’s performance was not legally deficient. Regarding Hooks’ trial lawyer’s decision not to call him as a witness during the penalty phase of the trial, the following exchange took place: [Q.] Why did you decide not to present ... Hooks as a witness in the second stage? A. I didn’t think he would make a good witness. [A.] Was he a good witness on — was he ready to be a good witness on May, whatever day, the 10th, that he would have testified? I didn’t think so. That was my call at the time. I don’t remember ordering him not to testify or telling him that he would not be allowed to testify. I don’t remember him insisting on testifying. In light of Strickland’s command that “[jjudicial scrutiny of counsel’s performance must be highly deferential,” and its admonition not to indulge in the temptation to “second-guess counsel’s assistance after ... adverse sentence,” 466 U.S. at 689, 104 S.Ct. 2052, we cannot say that Hooks’ counsel performed below the prevailing professional norms in advising Hooks not to testify at the sentencing phase of his trial. Further, the April 1997 federal eviden-tiary hearing corroborates the Oklahoma Court of Criminal Appeals’ conclusion, under Strickland’s second prong, that Hooks suffered no prejudice from his trial lawyer’s advice not to testify at the second stage of his trial. Hooks argues that his testimony from the evidentiary hearing established: (1) his love for his father and the disturbance he felt from watching his father yell at and beat his mother; (2) the problems he had after losing his father and brother through “traumatic events”; (3) the bias of Shanna Allen, one of the prosecution’s witnesses; and (4) “[m]ost importantly,” his love for Shalimein. As to his love for Shalimein, Hooks argues that his testimony at the evidentiary hearing demonstrated: (1) his shock at killing her; (2) that he did not “run away when he realized what he had done”; and (3) that he was “sorry” for killing her. However, Hooks’ jury heard similar sentiments regarding his love for Shalimein from Hooks himself, through the replay at trial of Hooks’ taped confession to police. Therein, Hooks explained that he started arguing with Shalimein over money, and that at some point she slapped him, which prompted him to hit and then beat her. Hooks explained his dismay once he realized what he had done: “I fell back on the floor, I fell on the floor and I took the razor and I said God what have I done. And my baby was just lying there. And I was fixin break it off, cut my wrists.” Hooks continued: Cut my wrists, my wrists. Cause I had hate what happened and I was fixing to cut my wrists. But something just wouldn’t let me do it so go get her mother, go get some help. She wasn’t breathing I felt her heart. I (unintelligible) Shalimein get up, I was grabbing her, holding her trying to make her get up, get up and she just kept flopping down and it scared me so bad I just grabbed the baby and run out of there. All I could think of was get help, get help.... I said come on get up now and quit playing joke on me come on get up, you know I didn’t hurt you, come on we fight like this I’m sorry. I was saying that. And I glanced back in there and she still laying there, then all of the sudden I didn’t feel no heart beating. I took a mirror, you know cause I watched it on T.V., they say that if you take a mirror and put it in some, in front of somebody’s uh mouth if, if they don’t, if it don’t get foggy that means that they, something ain’t right you know. And I hear heart beating and stop and then I put that mirror in there and I didn’t get no pulse and I mean I just ran into a state a shock. I didn’t believe it. I grabbed my baby I run over to her mother’s house. I just didn’t mean it to be like this that’s all. So help me God. I wanta live. I regret what I have done. I’m not that kinda person and Shalimein no matter what baby please, get well for me, good Lord up above you know how I am. Get well for Vargus, for me, long as I know you all are all right I feel a lot better inside, because only reason I’m making this statement is because no matter what I say I can’t bullshit myself I can’t live knowing I done what I done. While Hooks’ taped confession might not have accomplished all that Hooks claims he would have by testifying at trial, we believe the jury was exposed to his claims that he loved Shalimein, that he never meant to kill her, that he was anguished when he realized how badly he had beaten her, and that he attempted to get help for her instead of running away. In light of the fact that the jury heard Hooks’ “most important! ]” message at trial, we conclude that he failed to carry his burden here to demonstrate that in the absence of his trial attorney’s advice not to testify he would have testified and the jury would have “concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Accordingly, the Oklahoma Court of Criminal Appeals decision rejecting Hooks’ claim of ineffective assistance of counsel for advising Hooks not to testify at sentencing was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. 2. Did Hooks’ appellate counsel render ineffective assistance by failing to raise or adequately brief certain issues? Hooks claims that the two lawyers who represented him in his state direct appeal, Robert Boren (“Boren”) and Patrick Lavelle (“Lavelle”), provided ineffective assistance by (1) failing to raise “critical issues,” and (2) insufficiently researching and briefing the issues that they did raise. He first raised this claim in his application for state postconviction relief. There, the Oklahoma Court of Criminal Appeals held that Hooks’ appellate counsel were not constitutionally ineffective under Strickland. Hooks II, 902 P.2d at 1123-24. We conclude that the state court’s decision was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. a. Failure to raise a critical issue. The only “critical issue” that Hooks claims Boren and Lavelle failed to raise was a claim of prosecutorial misconduct arising from improper statements made by District Attorney Macy . during opening and closing arguments comparing Hooks to Charles Manson, which Hooks claims “inflam[ed] and prejudic[ed]” the jury. “After thoroughly reviewing” this issue, the Oklahoma Court of Criminal Appeals concluded that it did not “warrant relief.” Hooks II, 902 P.2d at 1124. The federal district court “assumed without deciding that Boren and Lavelle acted unreasonably and that their performance' on appeal was indeed deficient,” but nevertheless concluded that “Hooks is not entitled to relief ... because he has failed to affirmatively demonstrate prejudice.” Ineffective assistance of appellate counsel claims are governed by the standards of Strickland. See United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995). When considering a claim of ineffective assistance' of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue. Id. “If the omitted issue is without merit, counsel’s failure to raise it does not constitute constitutionally ineffective assistance of counsel.” Id. at 393 (quotation omitted). In his half-page argument before this court, Hooks makes little effort to develop the merits of his claim of prosecutorial misconduct underlying his claim of ineffective assistance of appellate counsel. However, divining his argument from other portions of his appellate brief, we understand Hooks to claim that the prosecutors acted outrageously by “paint[ing] a picture of Mr. Hooks as another ‘Charles Manson,’ asserting that Mr. Hooks had purposefully cut a cross into Shalimein’s forehead and ‘Helter Skelter’ was his favorite movie.” Hooks argues that his jury was inflamed, and he was' prejudiced, by prosecutorial attempts to link “Hooks to the infamous mass murderer Charles Manson . and the circumstances of Shalimein’s death to that of Sharon Tate.” Specifically, Hooks contends that the following remarks by District Attorney Macy constituted prosecuto-rial misconduct: Shanna [Dinh, ■ a prosecution witness] will further tell you that Helter Skelter was Hooks’ favorite movie, that he watched it a lot on VCR. In that movie Charles Manson shaved the head of his victim, Sharon Tate, cut a cross in her forehead and killed her unborn child, (opening statement of Mr.- Macy.) [Hooks] took a razor' and cut of[f] most of her hair and cut a cross in her forehead and killed her baby, just as Charlie Manson did in Helter Skelter, (opening statement of Mr. Macy.) What about the cross on the forehead and the shaving of the head, so consistent with .wthat Shanna [Dinh] told you about the movie Helter, Skelter and Charlie Manson. (closing, argument of Mr. Macy.) Hooks correctly points out that District Attorney Macy’s opening remarks contain inaccuracies. First, Dinh never testified that Helter Skelter was Hooks’' favorite movie. At trial, she said only: “I watched [Helter Skelter] with him once. I don’t know how many times he’s watched it.” Second, District Attorney Macy’s accounts of Helter Skelter’s depiction of the murder of Sharon Tate was inaccurate. District Attorney Macy’s reference to Manson during his closing argument did not make any inaccurate characterizations of .witness testimony. In closing, District Attorney Macy did not claim that Dinh testified that Helter Skelter was Hooks’ favorite movie. He merely made reference to a cross on Shalimein’s forehead and the fact that her hair had been shaved, then stated that those elements were consistent with what Dinh had testified to regarding the film. In fact, Dinh stated at trial, “all the' women in the movie had their heads shaved and had a cross right here on their forehead.” As to the accuracy of these characterizations of Shalimein’s physical appearance, we note only that post-mortem photographic evidence admitted at trial provides an arguable basis that Shalimein had a small cross cut into her forehead and had a significant amount of her hair shaved. Because Hooks’ trial lawyer did not object to District Attorney Macy’s remarks at trial, under Oklahoma law, these claims would have been reviewed on appeal only for fundamental error. The Supreme Court has “recognized, it is not enough that the prosecutors’ remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citation and internal quotations omitted). Here, in light of the evidence presented at trial we cannot say that the prosecutor’s unnecessary and inaccurate references to Charles Manson and “Helter Skelter” so prejudiced the jury as to have denied Hooks due process. The references were neither so far off the actual evidence nor so central to the prosecutor’s case that they were likely to have affected the jury’s verdicts. Furthermore, we note that the jury here was specifically instructed to decide the case only on the evidence introduced at trial. Because Hooks has failed to establish that his claim of prosecutorial misconduct is “clearly meritorious,” his appellate lawyers were not constitutionally ineffective for failing to raise it on direct appeal. b. Inadequate appellate brief. As a general matter, Hooks claims that Boren and Lavelle were untrained and inexperienced in death penalty appellate work. Hooks complains that the brief his state direct appeal lawyers filed was only “eighteen pages long and cited only four federal cases.” Hooks specifically identifies three issues raised in his direct appeal which he argues were insufficiently briefed for the Oklahoma Court of Criminal Appeals. First, he claims that his direct appeal brief inadequately attacked the three aggravating circumstances which the jury found because the brief failed to challenge the constitutionality of the aggrava-tors. Second, Hooks claims that his appellate lawyers performed deficiently by failing to cite Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), in support of his claim that the trial court should have instructed the jury on lesser included offenses. Third, Hooks asserts his appellate lawyers were constitutionally ineffective in not citing Strickland in support of his claim that he received ineffective assistance of trial counsel when his lawyer advised him not to testify at trial. Even assuming that Hooks’ appellate counsel provided representation below the constitutionally required level, Hooks cannot demonstrate prejudice because elsewhere in this opinion we reject on the merits all three issues that Hooks claims his appellate lawyers should have researched and briefed more thoroughly. Therefore, his claim of ineffective assistance of appellate counsel fails. III. Whether Hooks was denied his right to due process by the trial court’s refusal to instruct the jury on lesser included offenses. Predicated on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) and Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), Hooks claims that he was denied his federal constitutional right to due process of law when the state trial court refused to instruct the jury on second degree murder and first degree manslaughter with respect to Shalimein. In his state direct appeal, Hooks made an ■ analogous claim based only on a state law that required the trial court to instruct the .jury on lesser included offenses supported by-the evidence, which the Oklahoma Court of- Criminal Appeals, denied. See Hooks I, 862 P.2d at 1280. In his state application for postconviction relief, Hooks, for the first time, raised his federal constitutional claim under Beck. Based on “res judicata,” the Oklahoma Court of Criminal Appeals refused to consider this claim because the court had previously resolved Hooks’ related state law claims regarding lesser included instructions. See Hooks II, 902 P.2d at 1122 & n. 7. While the Oklahoma Court of Criminal Appeals appeared to rely on state procedural bar in refusing to consider Hooks’ Beck claim, the appellee has never asserted procedural bar as a defense on federal habeas. As such, we will consider Hooks’ Beck claim on the merits, as did the federal district court, which denied it based on a finding that there was “not sufficient credible evidence, admitted and/or omitted, that would support a finding that Hooks acted without deliberate intent on October 6,1988.” A Standard of Review At the outset, we must consider the appropriate standard of review. As noted, the Oklahoma courts never considered Hooks’ federal constitutional claim with regard to his requested instructions on lesser included offenses. Consequently, that claim was not “adjudicated on the merits in State court proceedings,” as contemplated by the new § 2254(d). Without a state court adjudication on the merits as to this claim, we cannot apply the § 2254(d) standard of “contrary to” or “unreasonable application of’ clearly ■ established Supreme Court law. In the absence of a state court adjudication on the merits we believe we must apply the standard of review that predated the recent amendments to § 2254. Prior to AEDPA, we reviewed de novo both puré questions of law and mixed questions of law and fact. See Hatch v. State of Oklahoma, 58 F.3d 1447, 1453 (10th Cir.1995). Because the Oklahoma Court of Criminal Appeals made some factual determinations that may bear on this issue, we note that “a determination of a factual issue made by a State court, shall be' presumed to be correct.” 28 U.S.C. § 2254(e)(1) (post-AEDPA). ' The appellee argues “that the trial court’s failure to give the requested instructions did not violate Beck,” because (1) “Beck is inapplicable to Oklahoma’s statutory scheme,” and (2) “the .evidence did not support the giving of the lesser included instructions.” . The threshold question thus is whether the rule of Beck v. Alabama applies to Hooks, in light of the discretion afforded in Oklahoma to the jury at the sentencing phase of'this trial. Because we' answer this question in the affirmative, we go on to consider whether the evidence adduced at trial supported either second degree murder or first degree manslaughter as to Shalimein Blainé. Because we answer this question in the negative, we affirm. B. Applicability of Beck v. Alabama In Beck, the Supreme Court held that “a sentence of death [may not] constitutionally be imposed after a jury verdict of guilt of a capital offense, when the, jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.” 447 U.S. at 627, 100 S.Ct. 2382 (quotation omitted). Beck involved a challenge to an Alabama procedure, that forbade the state trial judge in a capital c?,se “from giving the jury the option of convicting the defendant of a lesser included offense,” and that required the jury to “fix the punishment at death” if it found the defendant guilty. Id. at 628 & n. 3, 100 S.Ct. 2382. The Court noted that- “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.” Id. at 638, 100 S.Ct. 2382. Concluding that the Alabama procedure “interjects irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime,” the Court held that a death sentence could not be imposed under these conditions. Id. at 642, 645, 100 S.Ct. 2382. Since Beck, the Supreme Court has discussed its holding in a handful of cases raising Beck issues. Two years after Beck was decided, the Court explained: “Our opinion in Beck stressed that the jury was faced with a situation in which its choices were only to convict the defendant and sentence him to death or find him not guilty. The jury could not take a third option of finding that although the defendant had committed a grave crime, it was not so grave as to warrant capital punishment.” Hopper v. Evans, 456 U.S. 605, 609, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). In Hopper, the Supreme Court reiterated that lesser included instructions were only mandated when supported by the evidence, see id. at 611, 102 S.Ct. 2049, and therefore the Court upheld a conviction under the same Alabama law that was at issue in Beck because, under the facts of that case, there was no evidence to support a lesser included instruction. See id. at 612-13, 102 S.Ct. 2049. In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Supreme Court held that a defendant was not “entitled to the benefit of both lesser included offense instruction[s under Beck ]■ and an expired period of limitations on those offenses.” Id. at 454, 104 S.Ct. 3154. Spaziano refused to waive his statute of limitations defense as to the lesser-included offenses, thus the trial court instructed only on capital murder. See id. at 450, 104 S.Ct. 3154. After the jury found him guilty and the trial court sentenced him to death (disregarding the jury’s advisory recommendation for life imprisonment), Spaziano challenged the trial court’s decision to force him into a choice between availing himself of his right to instructions on lesser included offenses and his right to defend against them on the basis of expired statutes of limitations. The Supreme Court responded as follows: The Court in Beck recognized that the jury’s role in the criminal process is essentially unreviewable and not always rational. The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. In Beck, the Court found that risk unacceptable and inconsistent with the reliability this Court has demanded in capital proceedings. The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence. Requiring that the jury be instructed on lesser included offenses for which the defendant may not be convicted, however, would simply introduce another type of distortion into the factfinding process. Id. at 455-56, 104 S.Ct. 3154 (citations omitted). Thus, the Court concluded that “the defendant [should] be given the choice” between the benefit of lesser included offense instructions and asserting statute of limitations defenses as to those offenses. See id. at 456, 104 S.Ct. 3154. In Schad v. Arizona, the Supreme Court stated that “[o]ur fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” 501 U.S. at 646, 111 S.Ct. 2491. There, the Court upheld a conviction where the jury had been instructed on both first degree murder and the lesser included offense of second degree murder, but was not instructed on the lesser included offense of simple robbery, which also was arguably warranted under the evidence. The Court ruled that the Beck requirement was satisfied so long as the jury had the option of at least one lesser included offense which was supported by the evidence. See id. at 647-48, 100 S.Ct. 2382. Last year, in Hopkins v. Reeves, 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998), the Court held that Nebraska was not constitutionally required to give an instruction on the non-capital charge of second degree murder when the defendant was charged with the capital count of felony murder because, under Nebraska law, second degree murder is not a lesser included offense of felony murder. The reason Nebraska holds that second degree murder is not a lesser included offense of felony murder is because the former requires an intent to cause death, whereas the latter does not. The Court explained that since second degree murder requires proof of an element (intent to cause death) that is not required as an element of the crime of felony murder it is not a lesser included offense (even though “proof of a culpable mental state with respect to the killing” is a required element for imposition of the death penalty for the capital offense of felony murder under Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)). See Hopkins, 524 U.S. at —, 118 S.Ct. at 1902. As a result, the Supreme Court upheld a conviction for felony murder (and the subsequent death penalty that was imposed by a separate three-judge panel) even though the jury at the guilt phase was given no option to find the defendant guilty of a non-capital crime. The Court held that under Nebraska law there was no lesser included offense to felony murder and that Beck did not entitle a defendant to an instruction on a non-capital offense if it was not genuinely a lesser included offense under state law. See id. at — - —, 118 S.Ct. at 1900-03 In distinguishing Beck, the Supreme Court said the following: [T]he Court of Appeals again overlooked significant distinctions between this case and Beck. In Beck, the death penalty was automatically tied to conviction, and Beck’s jury was told that if it convicted the defendant of the charged offense, it was required to impose the death penalty. See Beck v. Alabama, 447 U.S. at 639, n. 15, 100 S.Ct. at 2390 n. 15. This threatened to make the issue at trial whether the defendant should be executed or not, rather than “whether the State ha[d] proved each and every element of the capital crime beyond a reasonable doubt.” See id. at 643 n. 19, 100 S.Ct. at 2392 n. 19. In addition, the distortion of the trial process carried over directly to sentencing, because an Alabama jury unwilling to acquit had no choice but to impose the death penalty. There .was thus a significant possibility that the death penalty would be imposed upon defendants whose conduct did not merit it, simply because their juries might be convinced that they had committed some serious crime and should not escape punishment entirely. These factors are not present here. Respondent’s jury did not have the burden of imposing a sentence. Indeed, with respect to respondent’s insanity defense, it was specifically instructed that it had “no right to take into consideration what punishment or disposition he may or may not receive in the event of his conviction or ... acquittal by reason of insanity.” App. 24. In addition, the three-judge panel that imposed the death penalty did not have to consider the dilemma faced by Beck’s jury; its alternative to death was not setting respondent free, but rather sentencing him to life imprisonment. [FN7] FN7. We are not, of course, presented with a case that differs from Beck only in that the jury is not the sentences and we express no opinion here whether that difference alone would render Beck inapplicable. The crucial distinction between Beck and this case, as noted