Full opinion text
BRISCOE, Chief Judge. Petitioner Michael Selsor, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. Selsor asserts seven issues on appeal: (1) whether a state appellate ruling allowing the prosecution at his retrial proceedings to seek the death penalty against him violated his due process rights; (2) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Double Jeopardy Clause; (3) whether the state trial court violated his constitutional rights at the retrial proceedings by instructing the jury as to the elements of a post-crime first degree murder statute, rather than the elements of the pre-crime first degree murder statute under which he was originally charged; (4) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Equal Protection Clause; (5) whether the prosecution acted vindictively, in violation of his due process rights, by seeking the death penalty at his retrial proceedings; (6) whether the penalty phase of his retrial proceedings was rendered fundamentally unfair by prosecutorial misconduct; and (7) whether the admission, during the penalty phase of the retrial proceedings, of testimony from the victim’s family members regarding the appropriate sentence violated his rights under the Eighth Amendment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I Factual background The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Selsor’s most recent direct appeal: At approximately 11:00 p.m. on September 15,1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, “You’ve got to be kidding me.” Dodson then fired a shot striking Morris in the shoulder. Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled. On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses. Selsor v. State (Selsor II), 2 P.3d 344, 347-48 (Okla.Crim.App.2000) (internal paragraph numbers omitted). Selsor’s original trial and direct appeal Following his arrest, Selsor “was charged in the District Court, Tulsa County, with the offenses of Armed Robbery, CRF-75-2183; Shooting With Intent to Kill, CRF-75-2182; and, Murder in the First Degree, CRF-75-2181, After Former Conviction of a Felony.” Selsor v. State (Selsor I), 562 P.2d 926, 927 (Okla. Crim.App.1977). The case proceeded to trial in January 1976, and Selsor “was tried conjointly with co-defendant ... Dodson.” Id. “A guilty verdict was returned as to all three charges [against Selsor], punishment being assessed at death for Murder in the First Degree; twenty (20) years’ imprisonment for Shooting With Intent to Kill; and, twenty-five (25) years’ imprisonment for Armed Robbery.” Id. Selsor filed a direct appeal challenging his convictions and sentences. On April 6, 1977, the OCCA issued a published decision affirming all of Selsor’s convictions, as well as the sentences imposed for the Shooting With Intent to Kill and Armed Robbery convictions. The OCCA, however, modified Selsor’s death sentence to life imprisonment. In doing so, the OCCA concluded, consistent with its then-recent decision in Riggs v. Branch, 554 P.2d 823 (Okla.Crim.App.1976), that the Oklahoma death penalty statute under which Selsor was sentenced, Okla. Stat. tit. 21, § 701.3 (1973), was unconstitutional. Selsor I, 562 P.2d at 927. Selsor’s first application for state post-conviction relief On November 8, 1978, Selsor filed a pro se application for post-conviction relief in state district court. The application asserted a single claim for relief from his convictions, i.e., that “THE TRIAL COURT ERRED BY REQUIRING [Dodson] AND [Selsor] TO, OVER [their] OBJECTION, BE TRIED JOINTLY WITH THE SAME COUNSEL FROM THE PUBLIC DEFENDERS OFFICE.” S. R., Vol. I at 160. On February 28, 1980, the state district court denied Selsor’s application, noting that Selsor’s claim had previously been rejected by the OCCA on direct appeal. The state district court’s denial of post-conviction relief was affirmed by the OCCA on June 12, 1980. Selsor’s second application for state post-conviction relief “On July 3, 1989, Selsor filed a second application for post-conviction relief in state court.” Selsor v. Kaiser (Kaiser II), 81 F.3d 1492, 1496 (10th Cir.1996). “That application was denied on July 24, 1989, and that ruling was affirmed by the [OCCA] in an unpublished order on August 18,1989.” Id. Selsor’s first federal habeas proceedings In October of 1991, Selsor filed a pro se petition for federal habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. Selsor v. Kaiser (Kaiser I), 22 F.3d 1029, 1031 (10th Cir.1994). Selsor’s petition asserted “two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney’s conflict of interest — i.e., the same attorney represented both [Selsor] and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony'— i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment.” Id. The district court denied Selsor’s petition on December 4, 1992. Id. In doing so, the district court addressed and rejected the ineffective assistance claim on the merits, but concluded that Selsor’s double jeopardy claim was procedurally barred. Selsor appealed the district court’s ruling to this court. This court appointed a federal public defender to represent Selsor. On May 2, 1994, this court issued a published opinion reversing the decision of the district court and remanding for further proceedings. More specifically, this court concluded “that the district court applied the incorrect legal standard” to Selsor’s Sixth Amendment claim, id. at 1033, and thus remanded the case to the district court to “determine whether: (1) [Selsor]’s objection at trial to the joint representation was timely, and, if so, (2) whether the trial, court took ‘adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel,’ ” id. at 1033-34 (quoting Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). “On remand the district [court] concluded that Selsor’s objection to the joint representation was timely.” Kaiser II, 81 F.3d at 1496. “However, [the district court] held that the state trial court made an adequate inquiry into the possibility of a conflict of interest....” Id. Thus, the district court “denied Selsor’s petition.” Id. Selsor appealed again to this court. On April 8, 1996, this court issued a published opinion (Kaiser II) reversing the district court’s ruling. In doing so, this court held “there was an actual conflict of interest that adversely affected counsel’s performance on behalf of Selsor,” resulting in “violations of Selsor’s Sixth and Fourteenth Amendment rights to effective assistance of counsel.” Id. at 1506. Accordingly, this court remanded the case to the district court “with directions to enter judgment invalidating Selsor’s convictions ..., but providing that such judgment [wa]s without prejudice to further proceedings by the state for retrial of [Selsor] within a reasonable time.” Id. Selsor’s neio trial The Tulsa County District Attorney’s Office initiated retrial proceedings in May of 1996. On August 6, 1996, the prosecution filed a Bill of Particulars alleging that Selsor “should be punished by Death” for “the offense of Murder in the First Degree, as charged in the [original] Information,” as a result of the following aggravating circumstances: (1) “[t]he Defendant knowingly created a great risk of death to more than one person”; (2) “[t]he murder was especially heinous, atrocious, or cruel”; (3) “[t]he murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution”; and (4) “[t]he existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” S. R., Vol. I at 191. Selsor moved to strike the Bill of Particulars, arguing that “[allowing the State to seek the death penalty against [him would] violate[] the prohibition against ex post facto laws and expose [him] to more severe punishment than was lawful at the time [he] committed the alleged crime” of Murder in the First Degree. Id., Vol. II at 203. On July 20, 1997, on the eve of trial, the state trial court denied Selsor’s motion. Selsor immediately petitioned the OCCA for a writ of mandamus and obtained from that court a stay of the impending trial. Id. at 288. On October 14, 1997, the OCCA issued a published decision affirming the trial court’s decision. Selsor v. Turnbull, 947 P.2d 579 (Okla.Crim.App.1997). In doing so, the OCCA expressly overturned its decision in Riggs (which concluded, in pertinent part, that the death penalty statutes enacted by the Oklahoma Legislature in 1976 changed the burden of proof to the detriment of criminal defendants, as compared to the burden of proof under the 1973 first degree murder statute), and then concluded that the filing of a Bill of Particulars under the contemporaneous death penalty statutes (i.e., statutes enacted in 1976 that remained effective in 1997) did not violate the prohibition against ex post facto laws or implicate the Equal Protection Clause. Id. at 583. Following the OCCA’s decision, Selsor’s retrial began on February 2, 1998. At the outset, Selsor’s counsel moved to dismiss the charges against Selsor, arguing that the Information, which was filed in 1975 and which charged Selsor under the language of the 1973 first degree murder statute, alleged both “that ... Selsor with premeditated design effected] the death of Clayton Chandler and during the course of a robbery with firearms did kill Clayton Chandler.” Tr., Vol. IV at 738. The state trial court overruled Selsor’s motion. Id. at 739 (“I think that the Information, albeit old, properly informs Mr. Selsor of the charge that is against him.”). At the conclusion of the government’s first-stage evidence, the jury found Selsor guilty of the three charges against him, i.e., murder in the first degree, shooting with intent to kill, and robbery with firearms. The second-stage proceedings began following a short recess. To prove the four alleged aggravating circumstances, the prosecution presented evidence that Selsor and Dodson committed four similar armed robberies shortly prior to the robbery of the Tulsa U-TOTE-M convenience store, two of which involved the actual use of violence against store clerks (specifically the shooting of one clerk by Selsor and the stabbing of another clerk by Dodson). The prosecution also presented evidence establishing that Selsor attempted to escape from prison in December 1984. Lastly, the prosecution presented testimony from the widow and daughter of Clayton Chandler, the murder victim in the case, and from Ina Morris, the store clerk wounded by Dodson during the robbery. All three of these witnesses read into the record victim impact statements they had prepared prior to trial. As part of their testimony, each of these three witnesses testified that they agreed with the District Attorney’s recommended sentence of death. Selsor in turn presented testimony from a data entry clerk employed by the Tulsa County Sheriffs Department, who testified that during the nineteen months Selsor was confined in the Tulsa County Jail awaiting retrial, Selsor had no write-ups of any kind. Selsor also presented testimony from four current or former Oklahoma Department of Corrections employees, all of whom knew Selsor because of their contact with him during his post-trial incarceration. All four of these witnesses testified, in pertinent part, that, despite their being generally in favor of the death penalty, they disagreed with the District Attorney’s recommended sentence of death for Selsor. At the conclusion of the second-stage evidence, the jury found the existence of two of the four aggravating circumstances alleged by the prosecution: that Selsor knowingly created a great risk of death to more than one person, and that the murder was committed for the purpose of avoiding and preventing a lawful arrest. In turn, the jury fixed Selsor’s punishment at death for the first degree murder conviction. As for the other two counts of conviction, the jury recommended life imprisonment for the shooting with intent to kill conviction, and twenty years’ imprisonment for the robbery with firearms conviction. The state trial court entered judgment consistent with the verdicts on May 6, 1998. The judgment stated, in pertinent part, that Selsor was found guilty of “MURDER, 1st DEGREE,” in violation of “21-701.7,” the 1976 murder statute enacted by the Oklahoma state legislature. S. R., Vol. III at 436. Selsor’s direct appeal from the new trial Selsor appealed his convictions and sentence to the OCCA. On May 10, 2000, the OCCA issued a published opinion affirming Selsor’s first degree murder conviction and death sentence, as well as Selsor’s shooting with intent to kill conviction and related sentence of life imprisonment, but reversing the conviction and sentence for robbery with firearms and remanding to the state trial court with instructions to dismiss that charge. Selsor II, 2 P.3d at 346. More specifically, the OCCA concluded that the robbery with firearms conviction “must be dismissed based upon double jeopardy because all the elements of Robbery with Firearms are included within the elements of the First Degree Murder pursuant to the 1973 statute.” Id. at 351. Selsor filed a petition for writ of certiorari with the -United States Supreme Court. That petition was denied on May 21, 2001. Selsor v. Oklahoma, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001). The instant federal habeas proceedings Selsor initiated the instant federal habeas proceedings on October 3, 2001, by filing a motion for appointment of counsel. The district court granted Selsor’s motion and, on May 20, 2002, Selsor’s appointed counsel filed a petition for writ of habeas corpus on Selsor’s behalf asserting eighteen grounds for relief. Respondent filed a response to the petition, as well as a certified copy of the relevant state court records. On September 29, 2009, the district court issued an opinion and order denying Selsor’s petition in its entirety. On that same date, the district court entered judgment in favor of respondent and against Selsor. Following the entry of an amended judgment on November 24, 2009, Selsor moved for a certificate of appealability with respect to nine issues. The district court granted Selsor’s motion. Of the nine issues on which a COA was granted, Selsor has since filed appellate pleadings addressing seven of those issues. II A. Standard of review Because Selsor filed his federal habeas petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA’s provisions govern these proceedings. Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id. If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless the state court decision “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), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). “When reviewing a state court’s application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly.” McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). “Rather, we must be convinced that the application was also objectively unreasonable.” Id. “This standard does not require our abject deference, ... but nonetheless prohibits us from substituting our own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal quotation marks omitted). If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)’s deferential standards of review do not apply in such circumstances, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197. B. Analysis 1. Due process violation — OCCA’s overruling of Riggs Selsor contends, in Proposition One of his appellate brief, that the OCCA in Turnbull violated the Ex Post Facto Clause as applied to judicial decisions through the Due Process Clause by overruling its decision in Riggs and allowing the prosecution at the retrial proceedings to seek the death penalty against him. a) Background information On June 29, 1972, the United States Supreme Court held that a Georgia state statute that allowed for unbridled jury discretion in the imposition of death sentences violated the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 240, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); id. at 309-10, 92 S.Ct. 2726 (Stewart, J., concurring); id. at 313, 92 S.Ct. 2726 (White, J., concurring). In the wake of Furman, states generally responded in one of two ways. Some, like Georgia, “legislated standards to guide jury discretion” in the imposition of the death penalty. Woodson v. North Carolina, 428 U.S. 280, 299, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Others “adopted mandatory measures” requiring the imposition of the death penalty for any person convicted of first degree murder (although the states doing so adopted differing definitions of the crime of first degree murder). Id. Oklahoma fell into the latter camp. In 1973, the Oklahoma Legislature adopted a statutory scheme that mandated imposition of the death penalty for anyone convicted of first degree murder, and defined first degree murder as follows: Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being, is murder in the first degree in the following cases: 1. When perpetrated against any peace officer, prosecuting attorney, corrections employee or fireman engaged in the performance of his official duties; 2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when death occurs following the sexual molestation of a child under the age of sixteen (16) years; 3. When perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of the witness, or when perpetrated against any human being while intending to kill such witness; 4. When perpetrated against the President or Vice President of the United States of America, any official in the line of succession to the Presidency of the United States of America, the Governor or Lieutenant Governor of this state, a judge of any appellate court or court of record of this state, or any person actively engaged in a campaign for the office of the Presidency or Vice Presidency of the United States of America; 5. When perpetrated by any person engaged in the pirating of an aircraft, train, bus or other commercial vehicle for hire which regularly transports passengers; 6. When perpetrated by a person who effects the death of a human being in exchange for money or any other thing of value, or by the person procuring the killing; 7. Murder by a person under a sentence of life imprisonment in the penitentiary; 8. When perpetrated against two or more persons arising out of the same transaction or occurrence or series of events closely related in time and location; 9. When perpetrated against a child while in violation of Section 843, Title 21 of the Oklahoma Statutes; and 10. Intentional murder by the unlawful and malicious use of a bomb or of any similar explosive. Okla. Stat. tit. 21, § 701.1 (1973). These state legislative responses to Furman in turn led to new court challenges. On July 2, 1976, the United States Supreme Court issued a trio of decisions addressing the two general types of revised death penalty schemes. In Wood- son, 428 U.S. at 305, 96 S.Ct. 2978, and Roberts v. Louisiana, 428 U.S. 325, 336, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the Court held that mandatory death penalty schemes adopted by North Carolina and Louisiana, i.e., schemes under which a person convicted of first degree murder was automatically sentenced to death without consideration of the defendant’s character and record or of the circumstances of the particular offense, violated the Eighth and Fourteenth Amendments. In the third decision issued that day, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court held that Georgia’s postFv/rman death penalty scheme, which provided for bifurcated capital trial proceedings, set forth specific procedures guiding the sentencing judge or jury in its selection of an appropriate sentence (including the consideration of aggravating and mitigating circumstances), and mandated expedited direct review by the Georgia Supreme Court “of the appropriateness of imposing the sentence of death in the particular case,” id. at 166, 96 S.Ct. 2909, survived Eighth Amendment scrutiny. Id. at 187, 207, 96 S.Ct. 2909. In doing so, the Court held that “the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance,” and that “[a]s a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” Id. at 195, 96 S.Ct. 2909. Four days later, on July 6, 1976, the Supreme Court applied its decisions in Woodson and Roberts and reversed six Oklahoma capital cases that were pending before it. Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Justus v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Rowbotham v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Lusty v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1214 (1976); Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Davis v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1215 (1976). In doing so, the Supreme Court held that “[t]he imposition and carrying out of the death penalty under the law of Oklahoma constitute^] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Williams, 428 U.S. at 907, 96 S.Ct. 3218. The Oklahoma legislature responded to these Supreme Court decisions by calling a special session, repealing the 1973 statute, and enacting, effective July 24, 1976, new first and second degree murder statutes. Importantly, for purposes of the instant appeal, the new statutes effectively expanded the definition of first degree murder by defining it in the following manner: A. A person commits murder in the first degree when he unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof. B. A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary or first degree arson. Okla. Stat. tit. 21, § 701.7 (1976). In other words, in contrast to the 1973 murder statute, which defined first degree murder to require both malice aforethought and commission of the murder in one of several specified circumstances, the 1976 statute defined first degree murder to require only malice aforethought or commission of the murder during one of several enumerated felonies. The OCCA first addressed these judicial and legislative events in its Riggs decision issued on September 2, 1976. The petitioner in Riggs had been charged with first degree murder under Oklahoma’s 1973 death penalty statute. However, that charge was filed on July 9, 1976, three days after the Supreme Court held Oklahoma’s 1973 death penalty statute to be unconstitutional. Immediately after the charge was filed, Riggs responded by filing a petition for writ of habeas corpus with the state trial court “alleging that the Supreme Court ... had declared Oklahoma’s First Degree Murder Statute unconstitutional and thus he was being illegally restrained.” Riggs, 554 P.2d at 824. After the state trial court denied the petition, Riggs appealed to the OCCA. The OCCA noted at the outset that its task was to determine the status of those defendants either charged or having committed the crime of Murder in the First Degree or Murder in the Second Degree, and those defendants convicted of said offenses prior to the effective date of our new [1976] murder statutes. We find it appropriate to move with the necessary speed to clarify and attempt to fill what has been termed “the apparent void” in our Murder law prior to the effective date of our new homicide murder statute. Id. at 825. Continuing, the OCCA noted that [t]his determination [wa]s mandatory as to that class of defendants charged with or committing homicide murder prior to the effective date of our new statute; they cannot be tried under the new statute, as the evidentiary burden of proof under it hafdj been changed to their detriment. * * * To [hold] otherwise in th[is] situation! ] would be to violate the ex post facto provision of the Constitution of the United States, Article 1, Section 10. * * * For this reason the new homicide murder statute cannot be applied retroactively by judicial construction. Id. (emphasis added). The OCCA then addressed “the status of those defendants ... convicted of First Degree Murder and sentenced to death prior to the enactment of the new [1976] statute.” Id. “A threshold inquiry in resolving the status of th[is] class!] of defendants,” id., the OCCA held, was “to examine the effect of the Supreme Court decisions upon the Oklahoma homicide murder statutes,” id. at 825-26. Citing the Supreme Court’s post-Woodson, and Roberts reversal of the six pending Oklahoma capital cases, the OCCA “conclude[d] the death penalty as provided in 21 O.S.Supp.1973, § 701.3 [(the 1973 death penalty statute) ], ha[d] been effectively stricken from [the] statute, which [itself had been] repealed.” Id. at 827. However, the OCCA in turn concluded that “the remaining provisions of [Oklahoma’s 1973] homicide murder statute remain[ed] in effect after the striking of the death penalty provision.” Id. The OCCA then addressed “what constitute^] the appropriate constitutionally permissible punishment which should befall [defendants] ... convicted of murder in the first degree, or ... committing the offense of murder in the first degree prior to 12:01 a.m. of July 24, 1976[, the date the 1976 murder statute became effective].” Id. at 828. Noting that a section of the 1973 murder statute authorized the OCCA to exercise its discretion and modify a sentence of death, the OCCA concluded “that the alternative sentence [that could] be imposed against those individuals convicted of murder in the first degree prior to the effective date of [the] new murder homicide statute [wa]s life imprisonment.” Id. at 829. As for “individuals] committing, but not convicted of, the crime of murder in the first degree prior to 12:01 a.m., July 24, 1976,” the OCCA held, “the appropriate penalty for murder in the first degree [wa]s ‘life in the penitentiary at hard labor,’ under the 1973 statute.” Id. On June 17, 1977, approximately nine months after the issuance of Riggs, the Supreme Court issued its opinion in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The petitioner in Dobbert was a Florida state prisoner convicted of two murders and sentenced to death. “The murders of which petitioner was convicted were alleged to have occurred” in late 1971 and early 1972. Id. at 288, 97 S.Ct. 2290. “During that period of time, Fla. Stat. Ann. §§ 775.082 (1971) and 921.141 (Supp.1971-1972), as then written, provided that a person convicted of a capital felony was to be punished by death unless the verdict included a recommendation of mercy by a majority of the jury.” Id. “[O]n July 17, 1972, ... the Florida Supreme Court found the 1971 Florida death penalty statutes inconsistent with Furman.” Id. “Late in 1972 Florida enacted a new death penalty procedure,” id., under which the trial judge, after considering the recommendation of a sentencing jury, was required to “weigh eight aggravating factors against seven statutory mitigating factors to determine whether the death penalty should be imposed,” Proffitt v. Florida, 428 U.S. 242, 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). The petitioner in Dobbert “argue[d] that the change in the role of the judge and jury in the imposition of the death sentence in Florida between the time of the first-degree murder [he committed] and the time of [his] trial constitute[d] an ex post facto violation.” 432 U.S. at 292, 97 S.Ct. 2290 (italics in original). The Supreme Court rejected this argument, however, “concluding] that the changes in the law [we]re procedural, and on the whole ameliorative, and that there [wa]s no ex post facto violation.” Id. (italics in original). More specifically, the Supreme Court noted that “[t]he new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime.” Id. at 293-94, 97 S.Ct. 2290. The petitioner also asserted a “second ex post facto claim,” i.e., “that at the time he” committed the murders “there was no death penalty ‘in effect’ in Florida ... because the earlier statute enacted by the legislature was, after the time he acted, found by the Supreme Court of Florida to be invalid under ... Furman....” Id. at 297, 97 S.Ct. 2290 (italics in original). In other words, petitioner argued, “there was no ‘valid’ death penalty in effect in Florida as of the date of his actions.” Id. The Supreme Court disagreed, stating that petitioner’s “sophistic argument mock[ed] the substance of the Ex Post Facto Clause.” Id. (italics in original). According to the Court, “the existence of the [first degree murder] statute served as an ‘operative fact’ to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder,” and “[t]his was sufficient compliance with the ex post facto provision of the United States Constitution.” Id. at 298, 97 S.Ct. 2290 (italics in original). The final relevant piece of procedural history occurred in 1997. At that time, Selsor was being retried in state court pursuant to this court’s decision in Kaiser II. Selsor moved to strike the Bill of Particulars filed by the prosecution, arguing that “[allowing the State to seek the death penalty against [him would] violate[] the prohibition against ex post facto laws and expose [him] to more severe punishment than was lawful at the time [he] committed the alleged crime” of Murder in the First Degree. S. R., Vol. II at 203. The state trial court denied Selsor’s motion, and Selsor immediately petitioned the OCCA for a writ of mandamus. On October 14, 1997, the OCCA issued its decision in Turnbull and, at the urging of the prosecution, expressly overturned its decision in Riggs. In doing so, the OCCA stated: Riggs was decided during the chaos caused when the United States Supreme Court overturned the death penalty statutes of several states, and during the scramble by those states to ensure there were constitutional penalty provisions in place for the offense of Murder in the First Degree. Riggs, 554 P.2d at 824-25 nn. 1-3. This Court attempted to analyze United States Supreme Court precedent in effect at the time, and determined that Riggs, and other defendants who had committed homicide murder while the statutes with unconstitutional death penalty provisions were in effect, could not be tried under newly enacted statutes. Riggs, 554 P.2d at 825. This Court found the evidentiary burden of proof under the newly enacted statutes had been changed to the detriment of Riggs and the other defendants, and to apply the newly enacted statutes to them would be to violate the ex post facto provisions of the Constitution of the United States. Id. After this Court attempted to construe federal ex post facto law in Riggs, the United States Supreme Court directly addressed the issue of whether the ex post facto clause prohibited the application, of newly enacted statutes for imposing the death penalty, to defendants whose crimes were committed pri- or to the enactment of the new statutes. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In its ex post facto analysis, the Supreme Court compared the newly enacted statutes to the statutes in effect on the date the crime was committed, even though the old statutes, like Section 701.3, had been declared unconstitutional. The United States Supreme Court held the changes in death penalty statutes were procedural and on the whole ameliorative, and could be applied retroactively without an ex post facto violation. Id. In different contexts, this Court has adopted and applied the reasoning and analysis of Dobbert. Cartwright v. State, 778 P.2d 479 (Okl.Cr.1989). This Court has acknowledged an ex post facto argument is not won by proving disadvantage alone. Cartwright, 778 P.2d at 482. In addition, the true focus of ex post facto analysis is on (1) the elements of the offense, (2) the conditions and quantum of punishment, and (3) the quantity and degree of proof necessary to establish guilt. Id. Contrary to Petitioner’s arguments, there was a death penalty statute in effect in 1975, and on the date his crime was committed, in the form of 21 O.S.Supp.1973, § 701.3. Contrary to this Court’s analysis in Riggs, the newly enacted death penalty statutes did not change the burden of proof to the detriment of Riggs and other defendants, as compared to the burden of proof under Section 701.3. Under Section 701.3, the only available sentence was death. Under newly enacted death penalty statutes, the sentencing options increased in favor of a defendant to include not only death but also the possibility of life imprisonment, and now life without parole. 21 O.S.Supp.1976, §§ 701.9 and 701.10; 21 O.S.1991, § 701.9, and Supp.1996, § 701.10. Under Section 701.3, the State was only required to prove the elements of the crime of First Degree Murder. Once those elements were proven, the State had no further burden of proof because the death penalty was required. Under newly enacted death penalty statutes, the State not only must prove the same elements of the crime of First Degree Murder, but also must prove aggravating circumstances before the death penalty can be imposed. Id. Therefore, newly enacted death penalty statutes (1) did not increase the elements of the offense of First Degree Murder, (2) did not increase but in fact decreased the conditions and quantum of punishment, and (3) did not decrease but in fact increased the quantity and degree of proof necessary to establish guilt, and are not ex post facto. Dobbert, supra; Cartwright, supra. The ex post facto analysis and the holdings thereunder in Riggs v. Branch, 554 P.2d 823 (Okl.Cr.1976) are hereby overturned. Ex post facto analysis only applies to legislative enactments, however, changes in the law by judicial construction, such as overturning Riggs, implicates the Due Process Clause and requires consideration of ex post facto principles. Cartwright, 778 P.2d at 482. This Court has previously addressed the retroactive application of a judicial interpretation of a statute, which changed the law thus allowing independent reweighing of aggravating and mitigating circumstances and denying defendants automatic modification of a death sentence to life imprisonment, and found the Due Process Clause was not violated under an ex post facto analysis. Castro v. State, 749 P.2d 1146 (Okl.Cr.1987), cert. denied 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). Similarly, the change in law by judicial decision that Riggs should be overturned does not violate the Due Process Clause or ex post facto principles, because it does not change the crime for which Petitioner is charged, increase the punishment prescribed therefor, or increase the quantity or degree of proof necessary to establish his guilt. Castro, 749 P.2d at 1151. Petitioner’s equal protection claim can be easily and summarily disposed of. Petitioner is simply no longer similarly situated to those defendants subject to Oklahoma’s unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs. Petitioner’s Judgment and Sentence has been vacated and he stands before this Court, similarly situated to defendants awaiting trial under current murder and death penalty statutes. Dobbert, 432 U.S. at 301, 97 S.Ct. at 2302, 53 L.Ed.2d at 361; see also Cheatham v. State, 900 P.2d 414, 428-30 (Okl.Cr.1995). Finally, we reject Petitioner’s claim that to subject him to the death penalty, because his Sixth Amendment right to effective assistance of counsel was violated, flies in the face of due process. Petitioner has not supported this claim with citation to any authority. Rule 3.5(C)(4), Rules [of the Court of Criminal Appeals], Moreover, if a defendant has not been acquitted of the death penalty and his conviction and sentence are reversed on appeal or collateral proceedings, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law, including death. Salazar v. State, 919 P.2d 1120, 1127 (Okl.Cr.1996). Finally, subjecting Petitioner to the death penalty does not appear to be punishment for Petitioner’s successful attack on his Judgment and Sentence, but merely an application of the correct law, and/or a correction of the applicable law. See Stafford v. State, 800 P.2d 738, 740 (Okl.Cr.1990). 947 P.2d at 582-83. b) Selsor’s arguments Selsor contends that “the OCCA both unreasonably applied clearly established federal law and deprived [him] of due process” when, in Turnbull, it “constru[ed] its 1976 decision in Riggs[] to mean something no reasonable person would have understood that case to mean, overruling this purported holding, and applying the overruling retroactively to [him], thereby permitting the State to obtain a ’ death sentence against him.” Aplt. Br. at 21-22. In support, Selsor contends that “Riggs held that even if someone in [his] position were retried for murder, he faced a maximum sentence of life imprisonment.” Id. at 22. According to Selsor, he “reasonably relied on [Riggs ] when he pursued post-conviction relief,” believing he could not again be subjected to a sentence of death. Id. Selsor argues that the OCCA’s “Turn-bull decision, overruling Riggs, was both unforeseeable and indefensible” because “Riggs had stood unchallenged for two decades, had produced the very result the State requested in that case, had provided the basis for [his] life sentence, and had been cited only with approval by the OCCA.” Id. In turn, Selsor contends that “[t]he due process question ... is whether [he] had fair warning when he collaterally attacked his unconstitutional conviction that he could be resentenced to death if he secured a new trial.” Id. at 33. c) Clearly established federal law applicable to the issue Selsor contends, citing Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), that “[w]hen a state court unforeseeably changes the scope of a criminal law, and applies that change retroactively, to a defendant’s detriment, it violates the Due Process Clause.” Aplt. Br. at 32 (emphasis in original). Bouie “arose out of a ‘sit-in’ demonstration at Eckerd’s Drug Store in Columbia, South Carolina,” on March 14, 1960. 378 U.S. at 348, 84 S.Ct. 1697. The petitioners, “two Negro college students, took seats in a booth in the restaurant department at Eckerd’s,” “which was reserved for whites,” “and waited to be served.” Id. “After they were seated, an employee of the store put up a chain with a ‘no trespassing’ sign attached.” Id. After refusing to leave, petitioners were eventually arrested and charged with breach of the peace, resisting arrest, and criminal trespass. Petitioners were subsequently acquitted of breach of the peace, but convicted of resisting arrest and criminal trespass. On direct appeal, the South Carolina Supreme Court reversed the resisting arrest charges due to insufficient evidence, but affirmed the criminal trespass convictions. Petitioners subsequently-sought and were granted certiorari review by the United States Supreme Court. Before the Supreme Court, petitioners argued, in pertinent part, “that they were denied due process of law ... because the [trespass] statute failed to afford fair warning that the conduct for which they [were] convicted had been made a crime.” Id. at 349, 84 S.Ct. 1697. In support, petitioners noted that although the statute of conviction prohibited “entry upon the lands of another ... after notice from the owner or tenant prohibiting such entry,” id., the South Carolina Supreme Court, in affirming their convictions, had “construed the statute to cover not only the act of entry on the premises of another after receiving notice not to enter, but also the act of remaining on the premises of another after receiving notice to leave,” id. at 350, 84 S.Ct. 1697. Petitioners argued “that by applying such a construction of the statute to affirm their convictions ..., the State ... punished them for conduct that was not criminal at the time they committed it, and hence ... violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits.” Id. In addressing petitioners’ argument, the Supreme Court began by acknowledging “[t]he basic principle that a criminal statute must give fair warning of the conduct that it makes a crime....” Id. In turn, the Court held “[t]here can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Id. at 352, 84 S.Ct. 1697. Indeed, the Court noted, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.” Id. at 353, 84 S.Ct. 1697 (italics in original). And, the Court emphasized, “[i]f a state legislature is barred by the Ex Post Facto Clause from passing [an ex post facto] law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Id. at 353-54, 84 S.Ct. 1697 (italics in original). Thus, the Court held, “[w]hen a[n] ... unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.” Id. at 354-55, 84 S.Ct. 1697. Finally, applying these principles to the facts before it, the Court “agree[d] with petitioners that” the statute of conviction “did not give them fair warning, at the time of their conduct ..., that the act for which they ... st[oo]d convicted was rendered criminal by the statute.” Id. at 355, 84 S.Ct. 1697. Selsor also suggests that Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), is relevant to, and supportive of, his due process claim. The petitioner in Lankford, an Idaho state criminal defendant, was charged with two counts of first-degree murder and advised by the trial judge at the time of arraignment that the maximum punishment on either charge was life imprisonment or death. The petitioner was subsequently convicted by a jury of both counts. In response to a presentencing order issued by the trial judge, the prosecution advised petitioner and the trial judge that it would not be seeking the death penalty. Consequently, at the sentencing hearing, neither side discussed the death penalty as a possible sentence. At the conclusion of the sentencing hearing, however, the trial judge concluded that the petitioner’s crimes warranted punishment more severe than that recommended by the prosecution, and sentenced petitioner to death on the basis of five aggravating circumstances. On appeal, the Idaho Supreme Court rejected petitioner’s claim that the trial judge violated the Due Process Clause by failing to give notice of his intention to consider imposing the death sentence despite the prosecution’s notice that it was not seeking that penalty. In so ruling, the Idaho Supreme Court held that the trial judge’s express advisement at the time of arraignment, combined with the terms of the Idaho Code, provided sufficient notice that the death penalty might be imposed. The Supreme Court granted certiorari “to decide whether the sentencing process followed in th[e] ... case satisfied the requirements of the Due Process Clause of the Fourteenth Amendment.” Id. at 111, 111 S.Ct. 1723. At the outset of its opinion, the Court emphasized two undisputed facts: first, “that the character of the sentencing proceeding did not provide petitioner with any indication that the trial judge contemplated death as a sentence,” id. at 119, 111 S.Ct. 1723; and second, that “[t]he presentencing order entered by the trial court requiring the [prosecution] to advise whether it sought the death penalty, and if so, requiring the parties to specify the aggravating and mitigating circumstances on which they intended to rely, was comparable to a pretrial order limiting the issues to be tried,” id. at 120, 111 S.Ct. 1723. The Court also presumed that “[i]f defense counsel had been notified that the trial judge was contemplating a death sentence based on five specific aggravating circumstances, ... she would have advanced arguments that addressed these circumstances....” Id. at 122, 111 S.Ct. 1723. Based upon these facts and this presumption, the Court concluded that the trial judge’s “silence following the [prosecution]’s response to the presentencing order had the practical effect of concealing from the parties the principal issue to be decided at the hearing.” Id. at 126, 111 S.Ct. 1723. “Notice of issues to be resolved by the adversary process,” the Court emphasized, “is a fundamental characteristic of fair procedure.” Id. In sum, the Court held, “[petitioner’s lack of adequate notice that the judge was contemplating the imposition of the death sentence created an impermissible risk that the adversary process may have malfunctioned in th[e] case.” Id. at 127, 111 S.Ct. 1723. Consequently, the Court reversed the judgment of the Idaho Supreme Court and remanded the case for further proceedings. Id. at 128, 111 S.Ct. 1723. d) The OCCA’s ruling on the issue In Turnbull, in which Selsor sought mandamus relief on the eve of his retrial, the OCCA sua sponte addressed and rejected the question of whether its overruling of Riggs violated Selsor’s due process rights. On direct appeal following his 1998 retrial, Selsor asked the OCCA to revisit the issue. The OCCA again concluded that no due process violation occurred, stating as follows: In Selsor v. Turnbull, this Court ... anticipated and resolved [an] issue[ ] Selsor failed specifically to raise then but which he raises now in Proposition! ] ... Ill ...: whether the retroactive application of this Court’s decision overruling Riggs v. Branch violated due process. * * * This Court ... found that the retroactive application of this Court’s decision overruling Riggs v. Branch to this case did not violate due process. We specifically stated: “the change in law by judicial decision that Riggs should be overturned does not violate due process ... because it does not change the crime for which [Selsor] is charged, increase the punishment prescribed therefore, or increase the quantity, or degree of proof necessary to establish . his guilt.” In sum, Selsor’s argument! ] in Proposition ] ... Ill w[as] adequately resolved in Selsor v. Turnbull; nothing in his brief is convincing or persuasive enough to change those results. Selsor II, 2 P.3d at 349-50. e) § 2251 analysis The OCCA’s resolution of Selsor’s due process issue was neither contrary to, nor an unreasonable application of, Bouie. To begin with, Selsor’s case differs from Bouie in terms of the substance of the judicial decision at issue: whereas the South Carolina Supreme Court in Bouie was interpreting the scope of a criminal statute, the OCCA in Turnbull was revisiting one of its own decisions involving an issue of constitutional law (i.e., whether application of the punishment scheme set forth in Oklahoma’s 1976 murder statute to defendants charged with violating the prior 1973 murder statute violated the prohibition against ex post facto laws). Moreover, even ignoring this distinction, the OCCA’s reversal of Riggs in Turnbull did not have an ex post facto effect. Specifically, by concluding, contrary to its decision in Riggs, that defendants charged with violating Oklahoma’s 1973 murder statute could be sentenced to death, the OCCA in Turnbull did not authorize a greater punishment “than the law annexed to the crime ... when committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (outlining four types of ex post facto criminal laws); see Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (“To prevail on this sort of ex post facto claim, [a defendant] must show both that the law [or decision] he challenges operates retroactively ... and that it raises the penalty from whatever the law provided when he acted.”). At the time Selsor murdered Clayton Chandler, Oklahoma’s 1973 murder statute required imposition of the death penalty for any defendant convicted of first degree murder. Thus, because Turnbull did not “raise[ ] the penalty from what[ ] the law provided when [Selsor] acted,” Johnson, 529 U.S. at 699, 120 S.Ct. 1795, it did not have an ex post facto effect. And, because Turnbull did not have an ex post facto effect, it could not have violated the due process principles outlined in Bouie, i.e., in 1975, when Clayton Chandler was murdered, Selsor had “fair warning” that a conviction of first degree murder in Oklahoma would result in the death penalty. Likewise, the OCCA’s resolution of Selsor’s due process issue was neither contrary to, nor an unreasonable application of, Lankford. Unlike the petitioner in Lankford, who was effectively deprived of notice that the trial judge was considering imposition of the death penalty, Selsor was afforded adequate notice of the prosecution’s intent to seek the death penalty at the 1998 retrial proceedings. In turn, Selsor was able to utilize the adversary process to challenge (albeit unsuccessfully) the constitutionality of the prosecution’s action. Thus, unlike the situation in Lankford, there was no “risk [in Selsor’s case] that the adversary process may have malfunctioned. ...” 500 U.S. at 127, 111 S.Ct. 1723. 2. Double jeopardy violation In Proposition Two of his appellate brief, Selsor contends that the OCCA effectively acquitted him of the death penalty in Selsor I when it modified his sentence to life imprisonment, and that, consequently, his resentencing to death following his second trial violated his rights under the Double Jeopardy Clause. a) Clearly established federal law Between 1919 and 1980, the Supreme Court repeatedly held “that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside.” Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (citing Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); and United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). These holdings rest on the principle that the reversal of a defendant’s conviction results in “the slate [being] wiped clean,” and that, consequently, “whatever punishment has actually been suffered under the first conviction ... is ... an unmitigated fiction....” Pearce, 395 U.S. at 721, 89 S.Ct. 2072. Notably, “the sentencing procedures considered in [these] cases did not have the hallmarks of [a] trial on guilt or innocence,” Bullington, 451 U.S. at 439, 101 S.Ct. 1852, and thus “[t]he imposition of a particular sentence ... [wa]s not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed,” id. at 438, 101 S.Ct. 1852. In Bullington, the Court granted certiorari to consider “whether the reasoning of [these cases] ... applied] under a system,” specifically Missouri’s 1978 capital murder scheme, “where a jury’s sentencing decision is made at a bifurcated proceeding’s second stage at which the prosecution has the burden of proving certain elements beyond a reasonable doubt before the death penalty may be imposed.” Id. at 432, 101 S.Ct. 1852. The petitioner in Bullington was convicted by a jury of capital murder. At the ensuing penalty phase of the trial, the prosecution attempted to prove the existence of two aggravating circumstances. The jury, however, “returned its additional verdict fixing petitioner’s punishment not at death, but at imprisonment for life without eligibility for probation or parole for 50 years.” Id. at 435-36, 101 S.Ct. 1852. Thereafter, the petitioner successfully moved for a new trial on the grounds “that Missouri’s constitutional and statutory provisions allowing women to claim automatic exemption from jury service deprived [him] of his Sixth and Fourteenth Amendment right to a jury drawn from a fair cross-section of the community.” Id. at 436, 101 S.Ct. 1852. On retrial, the prosecution served notice “that it intended again to seek the death penalty” on the basis of the “same aggravating circumstances” it attempted to prove at the first trial. Id. The petitioner “moved to strike the notice, arguing that the Double Jeopardy Clause ... barred the imposition of the penalty of death when the first jury had declined to impose the death sentence.” Id. After the trial court informally announced its intention to grant petitioner’s motion to strike, the prosecution sought a writ of prohibition first from an intermediate state appellate court, and then from the Supreme Court of Missouri. The Supreme Court of Missouri “issued a preliminary writ of prohibition” and, “[ajfter argument, ... sustained the [prosecutionj’s position and made the writ absolute.” Id. at 437, 101 S.Ct. 1852. “It held that neither the Double Jeopardy Clause, nor the Eighth Amendment, nor the Due Process Clause barred the imposition of the death penalty upon petitioner at his new trial....” Id. The United States Supreme Court, in granting certiorari and addressing the issues raised by petitioner, noted at the outset that “[t]he procedure that resulted in the imposition of the sentence of life imprisonment upon [the] petitioner ... at his first trial ... differed] significantly from those employed in any of the Court’s cases where the Double Jeopardy Clause ha[d] been held inapplicable to sentencing.” Id. at 438, 101 S.Ct. 1852. Specifically, the Court noted, the sentencing phase of the trial “resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence.” Id. This procedural difference, the Court went on to conclude, “meant that the jury ha[d] already acquitted the [petitioner] of whatever was necessary to impose the death sentence,” id. at 445, 101 S.Ct. 1852 (internal quotation marks and citation omitted), and thus served to place the case within “an important exception ... to the [clean slate] rule recognized in Pearce,” id. at 442, 101 S.Ct. 1852 (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)), i.e., that “Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case” against the defendant, id. at 443, 101 S.Ct. 1852. In reaching this conclusion, the Court emphasized that “[t]he values that underlie th[e] principle” that “[a] verdict of acquittal on the issue of guilt or innocence is ... absolutely final” “are equally applicable when a jury has rejected the State’s claim that the defendant deserves to die.... ” Id. at 445, 101 S.Ct. 1852. Finally, the Court emphasized that its decision did “not at all depend upon the [prosecutionj’s announced intention to rely only upon the same aggravating circumstances it sought to prove at petitioner’s first trial or upon its statement that it would introduce no new evidence in support of its contention that petitioner deserved] the death penalty.” Id. at 446, 101 S.Ct. 1852. “Having received one fair opportunity to offer whatever proof it could assemble,” the Court held, “the State [wa]s not entitled to another.” Id. (internal quotation marks and citation omitted). Three years later, in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), the Supreme Court applied Bullington to reverse a death sentence imposed on an Arizona state defendant. The defendant therein was convicted by a jury of first degree murder and armed robbery, and sentenced by the trial judge to life imprisonment for the murder conviction and 21 years’ imprisonment for the armed robbery conviction. In imposing the life sentence, the trial judge found that none of the three statutory aggravating factors alleged by the prosecution existed. On appeal, the prosecution “contended that the trial court had committed an error of law in interpreting the [alleged] pecuniary gain aggravating circumstance to apply only to contrac