Grissom v. Carpenter (902 F.3d 1265, 2018)

BRISCOE, Circuit Judge.

Petitioner Wendell Grissom, with the assistance of a man he had just met, randomly selected a rural Oklahoma home to burglarize. Upon realizing that the home was occupied by two women and two minor children, Grissom shot his way into the home, then killed one woman and seriously injured the other. After the injured woman was able to escape in Grissom's own vehicle, Grissom and his accomplice fled on a stolen all-terrain vehicle. Grissom and his accomplice were arrested shortly thereafter.

Grissom was tried and convicted in Oklahoma state court of first degree murder, shooting with intent to kill, possession of a firearm after former conviction of a felony, and larceny of a motor vehicle after two or more previous felony convictions. The jury fixed Grissom's punishment at death for the first degree murder conviction, and sentenced him to lengthy prison sentences for the other convictions.

After exhausting his state court remedies through a direct appeal and a single application for state post-conviction relief, Grissom filed a federal petition for writ of habeas corpus pursuant 28 U.S.C. § 2254. The district court denied Grissom's petition, but granted him a certificate of appealability (COA) with respect to one issue. We subsequently granted Grissom a COA with respect to two additional issues.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm the district court's denial of federal habeas relief.

I

The underlying facts of Grissom's crime

The Oklahoma Court of Criminal Appeals (OCCA) summarized the relevant underlying facts of Grissom's case in addressing his direct appeal:

On November 2, 2005, Appellant left Arkansas and headed west on Interstate 40, driving his white Chevrolet truck. Just across the Oklahoma state line, he picked up a homeless hitchhiker, Jessie Johns. As they continued west, the two men drank whiskey and got acquainted. They also discussed plans to commit some robberies or burglaries to raise money. Later that evening, Appellant checked into a hotel in Oklahoma City, paying $266.00 for a weekly rental. Appellant shared his room that evening with Jessie Johns, who slept on the floor.

The following morning, Jessie Johns watched as Appellant showed him how to load a .44 caliber black powder pistol, one of two firearms in Appellant's possession at the time. The other was a two-shot .22 caliber derringer. The two men drank more alcohol that morning as they again headed west in Appellant's truck on Interstate 40. They stopped around 10:45 a.m. at the Love's Country Store on Exit 108, where security cameras recorded each man buying a pair of brown cotton gloves. They then drove into rural Blaine County, looking for a house to burglarize.

Appellant ultimately parked his truck in the driveway of the residence of Matt and Dreu Kopf, near Hitchcock, in rural Blaine County. He told Jessie Johns to wait until the shooting was over and then come in and help him burglarize the house. Appellant approached a sliding door at the rear of the residence and knocked. Dreu Kopf was inside her home that morning with her best friend, Amber Matthews, and her two young children, eighteen month-old Rylie and infant Gracie Jo. Rylie was in her crib in the bedroom and Ms. Kopf was holding Gracie. Ms. Matthews answered the sliding glass door as Ms. Kopf turned in her glider chair to speak with Appellant. He asked Ms. Kopf if her husband was home. She replied that her husband was at work. Appellant told her he would come back later. Ms. Matthews closed the door, but seconds later Appellant reappeared. Ms. Kopf handed the baby to Ms. Matthews and approached the door again. Appellant shot a pistol round into the large glass pane and shattered it. He then stepped into the residence and fired a second shot at Ms. Kopf, striking her in the hand.

Amber Matthews ran with the baby into Rylie's bedroom. Ms. Kopf fought with the intruder and pushed him across the room onto a couch. While Ms. Kopf was on top of Appellant fighting him, she begged him to take what he wanted and leave. He just laughed at her as he pulled the black powder pistol from his waist and put it to her head. She grabbed at the weapon as he fired it, but a bullet tore through her hand and struck the side of her head, fracturing her skull. Appellant then stuck the big pistol in her hip and fired again. The force of this shot threw Ms. Kopf onto the floor.

Appellant got up and headed toward the bedroom where the children and Ms. Matthews were. Ms. Kopf then heard Ms. Matthews beg for her life, and the report from Appellant's pistol. Ms. Kopf escaped from the house to her garage and activated the overhead door. Realizing that she was leaving a blood trail for her killer to follow, she knew she could not hide. She saw the white truck in her driveway pointed toward the road for a getaway, and ran toward it.

Jessie Johns had left the truck and approached the residence after hearing several shots. He saw Ms. Kopf run from the house. He stepped through the shattered door and found Appellant standing over a wounded Amber Matthews. He watched as Appellant fired another shot into Ms. Matthews with the .44. Johns then told Appellant that someone had run from the house. Appellant ran toward the truck, tried to get inside, and fired his .44 pistol again at Ms. Kopf as she pulled away. Not far from her house, Dreu Kopf flagged down a trio of truckers hauling rock and told them that her friend and children were dead and she had been shot. One of the truck drivers, himself a retired police officer, got into the truck with Ms. Kopf. He reported the shooting by phone to the Kingfisher County Sheriff's Office and drove Ms. Kopf to the hospital in nearby Watonga.

Realizing their plans were foiled, Appellant and Johns attempted their escape from the crime scene on a red four-wheeler ATV they found in the Kopf's garage. A postal delivery man saw two men on the red four-wheeler leaving the Kopf residence with a black dog chasing them. The rock haulers, who had encountered Dreu Kopf only a few minutes earlier, saw two men speed past them on a red four-wheeler. The men on the four-wheeler ran out of gas after a short distance, but managed to hitch a ride with a passing farmer, who assumed they were laborers. He gave them a ride to the Hillstop Cafe, just over the Kingfisher County line on Highway 33.

The two women who were running the Hillstop Cafe that day became frightened when they noticed a pair of men looking in the windows of the store from outside and looking inside cars parked at the Hillstop. The two men then came in the store. Each bought an individual can of beer. One of the men, later identified as Jessie Johns, walked across the highway, ducked into some trees, and sat there drinking his beer. The other man headed across a wheat field on foot. Johns later walked back across the street and purchased a second can of beer. After he left the store the second time, one of the clerks called the Kingfisher County Sheriff's Office and reported two suspicious men hanging around the store. The clerks also asked the only customer in the store, a local man waiting on his lunch, to stay with them until the two strangers were gone.

Recognizing the possible connection to the report of a shooting at the nearby Kopf residence about thirty minutes earlier, Kingfisher County Sheriffs officers now raced toward the Hillstop Cafe. Not far away, emergency personnel and various officers of the Watonga Police Department, the Blaine County 4/11/2011 Sheriffs Office, and the Oklahoma Highway Patrol descended on the Kopf residence after the initial report of a shooting. Officers approached the home cautiously, but managed to enter and find the Kopf children alive. Amber Matthews was unconscious and mortally wounded. She died during a medical evacuation flight to an Oklahoma City hospital.

Back at the Hillstop Cafe, a Kingfisher County deputy sheriff approached Jessie Johns, who was now walking down the road, and detained him for investigation. The deputy questioned Johns briefly, searched him for weapons, and drove him back to the Hillstop Cafe. Meanwhile, law enforcement officers continued to gather information about the crimes at the Kopf residence and the suspicious persons reported at the Hillstop. About forty-five minutes after being detained, police arrested Jessie Johns for involvement in the four-wheeler theft and other crimes at the Kopf residence.

Investigators eventually located Appellant hiding in a rock pile near the Hillstop Cafe. They recovered a blood-stained .22 pistol and a pair of brown cotton gloves from his person. They ultimately recovered Appellant's .44 pistol and a second pair of brown cotton gloves discarded near the crime scene.

Grissom v. State, 253 P.3d 969, 973-75 (Okla. Crim. App. 2011) ( Grissom I ) (paragraph numbers and footnotes omitted).

Grissom's state trial proceedings

On November 10, 2005, Grissom was charged in Blaine County District Court with four criminal counts: (1) first degree murder, in violation of Okla. Stat. tit. 21, § 701.7(A) and (B) ; (2) shooting with intent to kill, in violation of Okla. Stat. tit. 21, § 652(A) ; (3) grand larceny, in violation of Okla. Stat. tit. 21, § 1705 ; and (4) possessing a firearm after a felony conviction, in violation of Okla. Stat. tit. 21, § 1283. On September 14, 2006, the State filed a bill of particulars alleging the existence of three statutory aggravating circumstances: (1) Grissom knowingly created a great risk of death to more than one person; (2) the murder was committed by a person serving a sentence of imprisonment after conviction of a felony; and (3) the existence of a probability that Grissom would commit criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial on February 25, 2008. "Defense counsel at no point contested [Grissom's] guilt of first degree murder or the non-capital charges." Id. at 981. Instead, defense counsel repeatedly reminded the jury that Grissom "was admitting he committed first degree murder and the other crimes alleged, and was simply seeking to persuade the jury to spare his life due to his remorse and other mitigation evidence." Id. The jury ultimately found Grissom guilty of all four counts alleged against him. Id. at 973. The jury also sentenced Grissom to life imprisonment for the shooting with intent to kill conviction, twenty-five years' imprisonment for the grand larceny conviction, and forty years' imprisonment for the firearms conviction. Id.

During the penalty phase of trial, Grissom's attorneys urged the jury to consider numerous mitigating circumstances. At the conclusion of the second phase proceedings, the jury found that all three statutory aggravating circumstances alleged by the State were supported by the evidence, and in turn the jury fixed Grissom's punishment at death for the first-degree murder conviction.

The state trial court formally sentenced Grissom on June 17, 2008.

Grissom's direct appeal

Grissom filed a direct appeal, asserting twelve propositions of error. In connection with his direct appeal, Grissom also filed a motion for new trial based on what he described as newly discovered evidence of juror misconduct. The OCCA "remanded the [juror misconduct] issue[ ] presented in [that motion] to the district court for evidentiary hearing to permit the development of a complete record." Id. at 975. After the state trial court conducted an evidentiary hearing on the issue, the OCCA allowed for supplemental briefing and then heard oral arguments in the case. On April 1, 2011, the OCCA issued an opinion affirming Grissom's convictions and sentences for first degree murder, shooting with intent to kill, and possession of a firearm after former conviction of a felony. Id. at 996. The OCCA also modified Grissom's conviction for grand larceny "to a conviction for larceny of a motor vehicle, after two (2) or more previous felony convictions." Id.

Grissom filed a petition for writ of certiorari with the United States Supreme Court. That was denied on December 5, 2011. Grissom v. Oklahoma, 565 U.S. 1084, 132 S.Ct. 825, 181 L.Ed.2d 534 (2011).

Grissom's first application for state post-conviction relief

On July 21, 2010, while his direct appeal was still pending before the OCCA, Grissom filed an application for state post-conviction relief asserting five propositions of error. Grissom claimed, in pertinent part, that his trial attorneys were ineffective for failing to adequately investigate and present at the penalty phase additional relevant mitigating evidence.

The OCCA denied Grissom's application for state post-conviction relief in an unpublished decision issued on September 13, 2011. Grissom v. State, Case No. PCD 2008-928 (Okla. Crim. App. 2011) (Grissom II ).

The filing of Grissom's federal habeas petition

On December 12, 2011, Grissom initiated these federal habeas proceedings by filing a motion for appointment of counsel and another for leave to proceed in forma pauperis. The magistrate judge assigned to the case denied the motion for leave to proceed in forma pauperis, but granted Grissom's motion for appointment of counsel.

On December 4, 2012, Grissom's appointed counsel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting eleven grounds for relief. Briefing in the case was completed on May 29, 2013, when Grissom filed his reply brief to respondent's answer.

On August 3, 2016, the district court issued an order denying Grissom's petition. On that same day, the district court also issued an order granting Grissom a COA on Ground Three of his petition, which alleged that Grissom's constitutional rights were violated when the state trial court concluded that the evidence did not support instructing the jury on lesser-included offenses. The district court also entered final judgment on August 3, 2016.

Grissom filed a timely notice of appeal.

Proceedings in this court

On February 16, 2017, we held a case management conference regarding Grissom's appeal. On February 17, 2017, we issued an order granting Grissom a COA on two additional issues: (1) Ground One of his petition, which alleged ineffective assistance of counsel, "limited to trial counsel's failure to (i) adequately investigate and present mitigating evidence of ... Grissom's organic brain deficits; (ii) request proper jury instructions on voluntary intoxication; and (iii) request proper jury instructions on a lesser-included offense"; and (2) Ground Eleven of the petition, which alleged cumulative error, "limited to the issues for which a [COA] has been granted, and any constitutional errors the [OCCA] considered to be harmless error." Order Dated February 17, 2017 at 1-2.

II

In accordance with the COAs issued by the district court and this court, Grissom asserts on appeal three propositions of error: (1) that his trial attorneys were ineffective for failing to adequately investigate and present mitigating evidence related to his organic brain deficits; (2) that the state trial court erred, and his trial attorneys were also ineffective, regarding first-stage instructions for intoxication and lesser-included offenses; and (3) cumulative error. We conclude that Grissom is not entitled to federal habeas relief on any of these claims.

Standard of review

"The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking federal habeas relief first to 'exhaus[t] the remedies available in the courts of the State.' " Kernan v. Hinojosa, --- U.S. ----, 136 S.Ct. 1603, 1604, 194 L.Ed.2d 701 (2016) (quoting 28 U.S.C. § 2254(b)(1)(A) ). "If the state courts adjudicate the prisoner's federal claim 'on the merits,' § 2254(d), then AEDPA mandates deferential, rather than de novo , review, prohibiting federal courts from granting habeas relief unless the state-court decision 'was contrary to, or involved an unreasonable application of, clearly established Federal law,' § 2254(d)(1), or 'was based on an unreasonable determination of the facts,' § 2254(d)(2)." Id. If, however, the state courts did not address the merits of the prisoner's federal claim, the federal habeas courts review the claim de novo. Miller v. Champion, 262 F.3d 1066, 1071 (10th Cir. 2001). In doing so, this court "grant[s] due deference to [any] factual findings underlying the district court's determination." Id.

Proposition One - ineffective assistance of counsel - penalty phase

In his first proposition of error, Grissom contends that his trial attorneys were ineffective for failing to adequately investigate and present, during the penalty phase of his trial, evidence of his organic brain damage. Grissom argues that his trial attorneys "fail[ed] to follow up on multiple red flags for brain damage." Aplt. Br. at 11. "The red flags," Grissom asserts, "included very poor speech development as a child; neurological insults, including reported loss of oxygen at birth and at least three severe head injuries ; and long-term chronic heavy alcohol consumption." Id. Grissom complains that his trial attorneys "did not competently follow the lead of these blaring signals for brain damage/organic brain deficits" and instead "looked only to mental health practitioners without any brain-based expertise or focus."

Id. at 12. Grissom argues that had his trial attorneys obtained and presented evidence from a neuropsychologist, such as the one that his direct appeal counsel retained and utilized, the testimony of such an expert at the second stage proceedings "would have changed everything." Id. at 37.

a) Clearly established federal law applicable to the claim

The clearly established federal law applicable to this claim is the familiar two-part test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first part of this test, a "defendant must show that counsel's performance was deficient." Id. at 687. "In light of the variety of circumstances faced by defense counsel and the range of legitimate decisions regarding how best to represent a criminal defendant, the performance inquiry necessarily turns on whether counsel's assistance was reasonable considering all the circumstances." Wong v. Belmontes, 558 U.S. 15, 17, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (internal quotation marks and brackets omitted).

Under the second part of the test, a "defendant must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id."Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. (emphasis added).

Where, as here, a defendant alleges that his trial counsel was ineffective for failing to investigate and present "mitigating evidence at a capital-sentencing proceeding, we evaluate the totality of the evidence-both that adduced at trial, and the evidence adduced in habeas proceedings." Littlejohn v. Royal, 875 F.3d 548, 553 (10th Cir. 2017) (quotation marks omitted). "In doing so, we ... consider the strength of the State's case and the number of aggravating factors the jury found to exist, as well as the mitigating evidence the defense did offer and any additional mitigating evidence it could have offered." Id. (quotation marks omitted). "We must consider not just the mitigation evidence that Defendant claims was wrongfully omitted, but also what the prosecution's response to that evidence would have been." Id. (brackets and quotation marks omitted). Ultimately, "if there is a reasonable probability that at least one juror would have struck a different balance" then "prejudice is shown." Id. (brackets and quotation marks omitted).

b) The mitigating evidence presented at the second-stage proceeding

Grissom was represented at trial by the father-son team of John Coyle, III, and John "Billy" Coyle, IV (the Coyles). As noted, the Coyles essentially conceded during the first-stage proceedings that Grissom was involved in the offenses. Their second-stage strategy focused on establishing the following mitigating circumstances: Grissom's age (thirty-nine years old at the time of trial); Grissom's speech problems and learning disabilities as a youth; Grissom's emotional and family history; the fact that Grissom had not posed a threat to other inmates or detention staff since the time of his arrest; that Grissom was amenable to a structured prison setting and would pose little risk therein; that Grissom had zero incidents of violence while incarcerated in the Texas Department of Corrections from 1992 to 2002; Grissom's "excellent" institutional record while in the Texas Department of Corrections; that Grissom had a family who loved him and valued his life; that Grissom did not graduate from high school but earned a GED; that Grissom could contribute to prison society and be of assistance to others; Grissom was clinically depressed at the time of the crimes; Grissom did not have a violent past; Grissom had a significant history of drug and alcohol abuse; Grissom had a stormy and tumultuous marriage to Barbara Grissom Carlisle that contributed to his depression; Grissom demonstrated remorse in his video statement as well as in his letters to the victim's family; Grissom cooperated with law enforcement and did not resist arrest; Grissom admitted and accepted responsibility for his actions; Grissom was a victim of child sexual abuse; and Grissom was on medication for depression, and was intoxicated from alcohol, at the time of the offense.

In their second-stage opening statements, Grissom's trial attorneys asserted that these mitigating factors "[we]re not meant to be excuses for what happened." Trial Tr., Vol. VII at 46. Instead, they argued, the mitigating factors gave the jury "reasons to spare [Grissom's] life." Id. at 47. Grissom's trial attorneys specifically argued that, at the time of the offenses, Grissom was "a very sick lost man" who was "extremely depressed," "drunk," and "under a lot of mental stress," all of which caused him to "snap[ ]." Id. at 47-48.

To establish the existence of some of the alleged mitigating factors, Grissom's trial attorneys presented testimony from two expert witnesses: Terese Hall, a forensic psychologist and professor at Oral Roberts University; and Dr. Mitchell Dunn, a forensic psychiatrist.

Hall testified that she was hired to: conduct a general psychosocial history and assessment of Grissom's life; specifically note any emotional or mental problems that might exist; and conduct a risk assessment. Early on in her testimony, Hall noted that Grissom had been sexually molested for several years-beginning when Grissom was nine or ten years old-by an adult brother-in-law. Hall testified that Grissom did not tell anyone about the sexual abuse at the time it was occurring, and he remained reluctant to discuss it even as an adult. Hall opined that the sexual abuse continued to be a source of shame and upsetting thoughts for Grissom.

Hall found a number of developmental issues in examining Grissom's history. For example, she noted that Grissom's birth was a difficult one, and Grissom may have been deprived of oxygen for some period of time prior to delivery. In turn, Hall noted that Grissom had severe speech problems as a child, underwent years of speech therapy, and was teased by other children at school because of his speech difficulties. Hall noted that Grissom was also evaluated when he was in the fifth grade and the evaluator determined that Grissom had attention problems, learning disabilities, acute anxiety, emotional immaturity, and an impaired self-concept. Hall concluded that Grissom was a very shy, withdrawn and awkward child who was anxious, depressed, and socially isolated.

Hall testified that Grissom was involved in several motorcycle accidents during his childhood, at least one of which was very severe and resulted in his dropping out of high school at age sixteen. Hall testified that Grissom eventually earned his GED, possibly while he was imprisoned in Texas.

Hall also noted that Grissom began using alcohol and marijuana between the ages of seventeen and nineteen. Grissom also, Hall testified, began experimenting with harder drugs, such as LSD and methamphetamine. According to Hall, Grissom primarily used alcohol and marijuana. Hall testified that Grissom quickly began abusing both substances, and at some point resorted to burglary to support his habits.

Hall testified that Grissom's burglaries resulted in his incarceration in the State of Texas for approximately nine years. During that period of incarceration, Hall testified, Grissom had few disciplinary infractions, all of a minor nature, took a variety of classes, and received his commercial driver's license. Hall opined that Grissom thrived in the prison environment where he did not have access to alcohol or drugs or choices about what to do each day.

Hall testified that when Grissom was released from prison, he moved to Arkansas, began living in a trailer on his parents' property, and started working as a commercial truck driver. Shortly thereafter, in 2002, Grissom met an older woman named Barbara. The pair married three days after meeting and proceeded to live together in Grissom's trailer. According to Hall, the marriage was disastrous and chaotic, with a lot of fighting. Hall also testified that Grissom and his mother believed that Barbara was verbally abusive towards him. The marriage ended in 2004.

According to Hall, Grissom began drinking and using pills again during the course of his marriage to Barbara, and he sought treatment on at least four separate occasions between 2003 and 2005. Hall testified that, in August 2003, a doctor diagnosed Grissom with depression and prescribed him an antidepressant. Grissom allegedly took the antidepressant for a short period of time, but ultimately stopped taking it because it interfered with his ability to drive for long hours as a commercial truck driver. Hall further testified that, in 2004, after Grissom's marriage ended, Grissom started drinking more heavily and was arrested on at least two occasions for driving under the influence. Because of those arrests and a failed drug test, Grissom lost his commercial driver's license.

Hall testified that, in December 2004, Grissom successfully completed an inpatient substance abuse program, but started drinking the day he was discharged in January 2005. In February 2005, Grissom attended a few counseling sessions in Arkansas but then stopped. In July 2005, Grissom received a prescription for the antidepressant Cymbalta from his family physician. Grissom proceeded to take Cymbalta semi-regularly, but continued to drink heavily.

After recounting Grissom's history, Hall explained the findings of the psychological tests that she administered to Grissom. To begin, she testified that Grissom's IQ testing indicated he had a normal IQ. Hall in turn testified that she did not find any signs of psychosis on Grissom's part. Hall testified that the results of Grissom's Minnesota Multiphasic Personality Inventory (MMPI) showed high levels of depression and anxiety, as well as some possibility of suicidal thoughts. This type of profile, Hall testified, typically indicates a person has had serious and very longstanding problems with depression, anxiety and substance abuse. Additional personality traits associated with this profile, Hall testified, include being socially introverted, awkward around other people, and suffering from low self-esteem and social isolation.

Lastly, Hall testified about the results of the risk assessment she conducted on Grissom to determine his propensity for violence in various conditions and his likelihood of adjusting to a sentence of life imprisonment. Hall testified that the only higher risk factor was the fact that Grissom committed a burglary concurrent with the capital offense. Otherwise, Hall testified, there were a number of factors that she characterized as "protective" in nature, meaning they suggested that Grissom presented a lower risk of violence. Hall testified that these included the facts that Grissom: was thirty-nine years old; had no record of violent behavior or gang association while incarcerated; had no prior record of violent convictions; and had a good family structure and a supportive family. Considering all of these factors together, Hall opined that Grissom was in a very low risk category, meaning the chances were excellent that he would adjust very well to life in prison. Relatedly, Hall testified that Grissom did not make any excuses for his behavior in this case, which, according to Hall, was unusual for a criminal defendant in his position. Hall also testified that Grissom spontaneously expressed concern for the victims' families, as well as concern for the heartache that he had put his own family through.

Dunn, for his part, testified that he was hired by Grissom's attorneys to conduct a psychiatric evaluation of Grissom for potential use at trial. Dunn opined that Grissom, despite having committed the crimes at issue, was not a sociopath. Dunn explained that a sociopath is essentially an individual who is manipulative and antisocial in terms of criminal behavior, but who is "kind of slick" and has a "grandiose sense of self-worth." Trial Tr., Vol. VIII at 77. Such individuals, Dunn testified, think they are better than everyone else, take advantage of other people, and typically do not care about the impact of their behavior on other people. Dunn testified that Grissom, in contrast to a typical sociopath, had a sense of inferiority from very early on in his life, was weak, and did not know how to socially engage. Dunn also noted that Grissom did not seek to blame other people for the crimes that he committed, and this, Dunn testified, distinguished Grissom from most sociopaths and the mentally ill. Dunn in turn testified that Grissom's childhood sexual abuse had a significant impact on Grissom and was a source of anger and shame. Dunn opined that Grissom had suffered for an extended period of time from depression and alcoholism. Lastly, Dunn noted that Grissom expressed regret for his actions and spoke about having ruined the lives of two families.

In addition to these two expert witnesses, Grissom's trial attorneys presented testimony from four other witnesses. The first, Chuck McAnarney, was an Oklahoma State Bureau of Investigation employee who testified briefly about acting as custodian for certain items of evidence-including tax returns and other documents, a Cymbalta pill bottle, and two empty vodka bottles-that were seized from Grissom's truck and hotel room following his arrest. The second, Vicky Carter, was a longtime friend of Grissom. Carter testified that her first husband was physically abusive and that Grissom, on at least two occasions, took steps to protect her from him. Carter also testified that when she knew Grissom in the late 1980s, he would do anything to help others and would never engage in the acts of violence of which he was convicted.

The last two defense witnesses were Grissom's parents, Bobbie and Mary Grissom. Bobbie Grissom testified that, on November 3, 2005, the date of the crimes in this case, he received a phone call from Grissom saying he had passed his welding test and was going for a job interview at a company called Alliance in Oklahoma City. Bobbie Grissom testified that he and his wife would visit Grissom in prison, and he expressed sorrow for the victims of the crimes and families involved in the incident. Bobbie Grissom asked the jury to spare Grissom's life.

Mary Grissom began her testimony by expressing her regrets to the victims' families. Mary Grissom in turn testified that she thought alcoholism was Grissom's problem, and indicated that she had been unaware, until the trial, of the sexual abuse that Grissom suffered and the effects it had on him. Trial Tr., Vol. VIII at 115 ("It wasn't alcohol. It was child abuse that was eating his life. He was angry. He lashed out."). Mary Grissom then briefly testified about significant events in Grissom's life, including the serious motorcycle accident, his dropping out of high school, his time spent in prison in Texas, and his marriage to Barbara. Mary Grissom also asked the jury to spare her son's life.

At the conclusion of the second-stage proceedings, Grissom's lead attorney again stated that there was "no excuse for what happened," but he argued that "it doesn't take an excuse to decide, to make a moral decision to decide for life [imprisonment]." Trial Tr., Vol. IX at 19. He in turn argued that the death penalty is "for the worst of the worst" and "not for the pitiful." Id. at 20. He further argued that the murder "[wa]s a senseless impulsive act of a drunken depressed pitiful man." Id. at 22. Lastly, Grissom's lead attorney asked the jury to exercise mercy and spare Grissom's life.

c) Neuropsychological evidence presented by Grissom on direct appeal

Grissom was represented on direct appeal by attorneys Michael Morehead and Kathleen Smith from the Oklahoma Indigent Defense System's Capital Direct Appeals Division. These attorneys "referred ... Grissom to neuropsychologist, Antoinette McGarrahan, Ph.D., for a comprehensive neuropsychological evaluation to determine if [he] suffered from any cognitive impairments, and if so, the nature and severity of the same." Aplt. Br. at 13. McGarrahan, Grissom notes, "reviewed the records, conducted scientifically accepted and appropriate diagnostic tests, and ultimately found permanent, severe brain effects to ... Grissom's temporal and frontal systems of his brain." Id. She also, Grissom notes, "specifically diagnosed him with Dementia Due to Multiple Etiologies." Id. In the report that McGarrahan prepared, she opined that Grissom's "cognitive impairment resulted from the permanent organic brain effects of his repeated head injuries in combination with his severe alcoholism." OCCA Case No. D-2008-595, Application For An Evidentiary Hearing On Sixth Amendment Claims, Appendix 1-B at 12. McGarrahan also opined that "Grissom's severe cognitive dysfunction ... was present at the time of the ... offenses" and would have included "significant memory impairment and ... difficulties in planning, reasoning, and organiz[ing]." Id. Additionally, McGarrahan opined that the deficits are "permanent and ... put ... Grissom at risk for accelerated age-related decline in functioning compared to his unimpaired peers." Id.

In her report, McGarrahan also noted that Grissom's medical records indicated that, on November 3, 2006, while he was confined in the Blaine County Jail awaiting trial, he experienced "an episode of syncope (a transient loss of consciousness due to inadequate blood flow to the brain)." Id. at 5. Grissom was taken by ambulance to a local hospital where a CT scan of his head was performed. According to McGarrahan, the CT scan"results showed 'posterior hypodensity or intracranial hemorrhage.' " Id.

The OCCA affirmed Grissom's convictions and sentences on direct appeal and, in doing so, expressly rejected Grissom's assertion that his trial attorneys were ineffective for failing to discover and present evidence like that provided by McGarrahan:

In Proposition Eleven, counsel argues that the failure to utilize mitigating evidence of [Grissom's] neurological deficits violated his right to effective counsel. In his accompanying request for evidentiary hearing as permitted by Rule 3.11(B), Appellant presents the affidavit and report of a neuropsychologist[, Dr. McGarrahan,] who evaluated Appellant for this appeal. In the report of her evaluation, the neuropsychologist concludes that Appellant meets the diagnostic criteria for dementia due to multiple etiologies, specifically possible deprivation of oxygen during his birth, a history of head injuries, and chronic abuse of alcohol. The neuropsychologist concludes that Appellant:

has overall low average intellectual abilities ... with moderately severe memory dysfunction and significant impairment in planning and organization abilities. His relatively intact verbal comprehension and vocabulary skills give him the appearance that he is higher functioning than is the case, cognitively. His overall pattern of cognitive dysfunction appears consistent with multiple brain insults, possibly beginning with the reported lack of oxygen at birth, but particularly relevant are the repeated significant head injuries in adulthood in combination with chronic, severe, and heavy alcohol consumption and suggests primary involvement of temporal lobes, bilaterally, with implication of the frontal systems as well.

... Mr. Grissom's cognitive difficulties meet the Diagnostic and Statistical Manual for Mental Disorders-Fourth Edition, Text Revision criteria for Dementia Due to Multiple Etiologies ...

Mr. Grissom presently suffers from significant cognitive dysfunction involving memory and planning, reasoning and organization abilities ... Mr. Grissom's cognitive impairment resulted from permanent organic brain effects of his repeated head injuries in combination with his severe alcoholism ... [A]t the time of the instant offenses Mr. Grissom's significant memory impairment and his difficulties in planning, reasoning, and organization abilities were made worse by his ingestion of a large amount of alcohol and likely impaired his ability to function in a cognitively efficient manner.

The record also reflects that Appellant retained a forensic psychologist [Terese Hall] and a forensic psychiatrist [Dr. Dunn] to testify in his defense at trial. These expert witnesses evaluated Appellant and gave extensive testimony of their findings, including Appellant's reported history of a difficult birth, academic and social problems at an early age; a history of head trauma ; his criminal history and imprisonment; abuse of alcohol; depression; and his troubled marriage. Neither of Appellant's expert witnesses at trial expressly diagnosed Appellant as suffering from dementia at the time of these offenses.

Under [OCCA] Rule 3.11(B)(3)(b)(i), this Court reviews the affidavits and evidentiary materials submitted by Appellant to determine whether they contain "sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence." If the Court determines from the application that a strong possibility of ineffectiveness is shown, we will "remand the matter to the trial court for an evidentiary hearing, utilizing the adversarial process, and direct the trial court to make findings of fact and conclusions of law solely on the issues and evidence raised in the application." Rule 3.11(B)(3)(b)(ii). The evidentiary record thus created in the district court may then be admitted as part of the record on appeal and considered in connection with Appellant's claims of ineffective counsel. Rule 3.11(B)(3) and (C).

We have recently emphasized that our reading and application of Rule 3.11 is not inconsistent with Strickland ; nor does it lade appellants with a heavier burden to demonstrate ineffectiveness on appeal than Strickland itself.

This standard is intended to be less demanding than the test imposed by Strickland and we believe that this intent is realized. Indeed, it is less of a burden to show, even by clear and convincing evidence, merely a strong possibility that counsel was ineffective than to show, by a preponderance of the evidence that counsel's performance actually was deficient and that but for the unprofessional errors, the result of the proceeding would have been different as is required by Strickland . Thus, when we review and grant a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we do not make the adjudication that defense counsel actually was ineffective. We merely find that Appellant has shown a strong possibility that counsel was ineffective and should be afforded further opportunity to present evidence in support of his claim. However, when we review and deny a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we necessarily make the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in Strickland .

Simpson v. State , 2010 OK CR 6, ¶ 53, 230 P.3d 888, 906.

After considering Appellant's claim in light of the evidence offered at trial, the arguments in his brief, and his supplemental materials, the Court finds that Appellant has not shown clear and convincing evidence that suggests a strong possibility that trial counsel was ineffective in failing to develop and utilize the type of evidence presented here. The neuropsychological report largely reflects the mitigating narrative already presented at trial. Other aspects of the report are equivocal, at best: The mitigating force of Appellant's reported deficits in memory, planning, and organizational skills-as a result of his alleged dementia-is significantly diminished by other undisputed evidence of how he carried out these crimes. To borrow a phrase from his expert, if Appellant had been slightly more "cognitively efficient" in the execution of his plans, he certainly would have murdered Dreu Kopf, and might have avoided apprehension altogether, or at least long enough to endanger additional lives. The proffered evidence of Appellant's diagnosis with dementia and its accompanying deficits does not appreciably alter the balance of aggravating and mitigating circumstances considered by the jury at trial. We conclude that Appellant has not shown that counsel was ineffective for failing to utilize the type of evidence presented in his supplemental materials, and no evidentiary hearing is necessary. Appellant's request for evidentiary hearing and Proposition Eleven are denied.

Grissom I, 253 P.3d at 994-96 (paragraph numbers omitted).

d) Additional evidence cited by Grissom for the first time in this habeas action

Grissom's appointed attorneys in this federal habeas action forwarded Grissom's 2006 CT scan results (the results mentioned by McGarrahan in her report) "to neuroradiologist, L. Anne Hayman, M.D." Aplt. Br. at 16. According to Grissom, "Dr. Hayman could easily see [he] has brain atrophy much greater than expected for his age." Id."The atrophy," Grissom asserts, "was observable in the prefrontal cortex and related to the brain insults [he] received in his motorcycle wrecks, or possibly from the asphyxia he reportedly experienced at birth." Id. at 16-17. According to Dr. Hayman, "[t]he structural damage that was visible from the CT scan shows damage to an area thought to mediate socially inappropriate behavior, and can produce marked personality changes, impulsivity, and explosiveness, among other behaviors." Id. at 17.

Dr. Hayman ordered an MRI to be conducted on Grissom's brain. "The MRI confirmed her findings from the CT scan and showed additional abnormalities, both congenital and acquired." Id. According to Dr. Hayman, "[t]he three most striking abnormalities include that Grissom's cerebellum is 'roughly 60% smaller than a normal cerebellum,' his occipital lobe is 'mal-positioned and 20% larger than normal,' and his lateral ventricle is '10X larger than that of the normal brain.' " Id. In turn, "[t]he enlarged ventricle shows 'generalized loss of brain tissue' because as brain tissue dies the ventricle cavity, which is filled with cerebrospinal fluid, gets larger." Id. at 17-18. This "damage found is in areas of the brain 'known to impact behavior.' " Id. at 18. For example, the congenital and acquired damage that occurred to Grissom's cerebellum can "adversely affect the critical 'executive functions' of the frontal lobes." Id. Further, according to Dr. Hayman, Grissom's "severe motor vehicle accidents" likely resulted in damage to his "cerebrum, both the pre-frontal cortex and the lateral ventricle." Id. at 18-19. The pre-frontal cortex, Dr. Hayman explains, is the "area of the brain ... responsible for mediating socially appropriate behavior," and "[d]amage in this area can produce marked personality changes, including impulsivity, explosiveness, tactlessness, liability and lack of interpersonal sensitivity." Id. at 19.

Grissom's habeas counsel also hired three other experts: (1) Dr. Bhushan Agharkar, a medical doctor board certified in adult and forensic psychiatry; (2) Dr. Victoria Reynolds, a licensed clinical psychologist and forensic consultant on the effects of trauma; and (3) Kim Light, who holds a Ph.D. in pharmacology.

Agharkar conducted a psychiatric evaluation of Grissom in August and September 2012. ROA, Sealed Vol. 3 at 34-35. Agharkar opined, "to a reasonable degree of medical certainty, that ... Grissom suffers from Cognitive Disorder, Not Otherwise Specified, and complex Post Traumatic Stress Disorder (PTSD)." Id. at 39. Agharkar also noted that Grissom "has a past history of significant alcohol and drug use which appear to serve as self-medication for his conditions." Id. Agharkar noted that Grissom's "[tr]ial counsel and their experts touched [on] the existence of the[ ] issues" of Grissom's past sexual abuse at the hands of his brother-in-law and Grissom's abuse of illicit drugs and alcohol, "but failed to explain how these are related issue[s], despite a broad literature on the subject." Id. at 41. Agharkar opined that "[t]o not discuss this relationship and their attendant effects on brain and behavior was a considerable oversight." Id.

Reynolds evaluated Grissom in September 2012 "regarding his reported experience of sexual abuse and other traumatic experiences that he endured in his development." Id. at 51.

Light, for her part, prepared a report "addressing several questions related to the pharmacology of drugs and alcohol and the disease of addiction as it relates to ... Grissom." Id. at 189. Light, in particular, extrapolated that Grissom's blood alcohol level at the time of the crimes was between .18% and .29%

Grissom asserted in his federal habeas petition that "[t]he reports/declarations of ... Agharkar, Reynolds, and Light confirm what was revealed after [his] conviction in state court; namely, that much compelling mitigation evidence was missed, and the multiple and synergistic traumas suffered in [his] life had not only an individualized effect but a combined effect on him." Id. at 23 (emphasis in original). He argued that the new evidence developed by his habeas counsel was "clearly tied to existing claims previously raised in state court and d[id] not substantially change them." Dist. Ct. Docket No. 20 at 29. And, notably, Grissom asserted that he was not "offer[ing] this [new] evidence to assess whether the OCCA's adjudication under § 2254(d)(1) [wa]s contrary to law or unreasonable," and instead was simply offering it to "support that a constitutional violation occurred and can be considered by th[e] [district] court in deciding whether to grant relief." Id. at 29-30. Alternatively, Grissom asked the district court to hold his case "in abeyance to permit [him] to exhaust this material in a second post-conviction application" (the district court rejected that request). Id. at 30.

e) Was the OCCA's analysis of Grissom's claim contrary to or an unreasonable application of Strickland?

Because the OCCA considered and applied the analytical framework outlined in Strickland in rejecting Grissom's ineffective assistance claim on direct appeal, we must determine whether, under § 2254(d), the OCCA's analysis was contrary to or an unreasonable application of Strickland. As we read the OCCA's decision, it disposed of Grissom's ineffective assistance claim primarily, if not exclusively, "on the ground of lack of sufficient prejudice." Strickland, 466 U.S. at 697, 104 S.Ct. 2052. That reading will therefore frame our § 2254(d) analysis of the OCCA's decision. See Littlejohn v. Royal, 875 F.3d 548, 552 (10th Cir. 2017) (adopting similar approach-addressing only prejudice prong of Strickland-in disposing of petitioner's ineffective-assistance claim).

Grissom focuses on the unreasonable application prong of § 2254(d), arguing that "[t]he OCCA presented two completely unreasonable rationales for" rejecting his claim of ineffective assistance on direct appeal. D. Ct. Dkt. No. 20 at 11 (Habeas Pet. at 11). First, Grissom notes, the OCCA concluded that the evidence presented by Grissom on direct appeal, i.e., the neuropsychological report from Dr. McGarrahan, "largely reflect[ed] the mitigating narrative already presented at trial." Grissom I, 253 P.3d at 995. Grissom argues that this rationale was unreasonable because "Terese Hall and Mitchell Dunn are both mental health professionals" who "were not qualified to detect [his] brain deficits," and "[a] review of their testimony reveals they did not mention his brain one single time." D. Ct. Dkt. No. 20 at 11. Grissom argues that McGarrahan's findings of permanent organic brain effects from his multiple head injuries and severe alcoholism were "something else entirely from the narrative that was [actually] presented" at his second stage proceeding. Id. at 12.

The OCCA's second rationale, Grissom asserts, was that "[o]ther aspects of [McGarrahan's] report [we]re equivocal, at best." Grissom I, 253 P.3d at 995. In particular, the OCCA stated that "[t]he mitigating force of [Grissom's] reported deficits in memory, planning, and organizational skills-as a result of his alleged dementia-[were] significantly diminished by other undisputed evidence of how he carried out these crimes." Id.

Grissom argues that this second rationale is "patently unreasonable." D. Ct. Dkt. No. 20 at 12. Specifically, he argues that "[t]he mitigating effect of [his] brain-based memory, planning, and organizational deficits is paradoxically negated in the OCCA's mind on the basis of how he carried out the crime, as if it was brilliantly orchestrated, rather than pathetically un -orchestrated." Id. at 12-13. Furthermore, Grissom argues, "reduced cognitive efficiency [wa]s merely one of many deficits referenced by Dr. McGarrahan in her report." Id. at 13. Ultimately, Grissom argues that "it really came down to" the fact that "the OCCA judges themselves do not understand how critical neuropsychological impairments are and how they relate to the myriad legal issues arising in capital trials." Id.

Addressing Grissom's arguments in order, we are not persuaded that the OCCA was unreasonable in concluding that McGarrahan's "neuropsychological report largely reflect[ed] the mitigating narrative already presented at trial." Grissom I, 253 P.3d at 995. As discussed, the two expert witnesses presented by Grissom's trial attorneys during the second-stage proceedings, Hall and Dunn, essentially outlined for the jury all of the significant events in Grissom's life, including his: difficult birth; speech problems as a child; history of head injuries and the effect they had on his school attendance (causing him to drop out of high school at age sixteen); criminal history; abuse of drugs and alcohol; marriage and divorce; and depression. McGarrahan's report was similar in the sense that a large segment of it (pages 3 through 7 out of the thirteen-page report) detailed key portions of Grissom's life history under headings entitled: "Childhood and Family History"; "Educational History"; "Vocational History"; "Military History"; "Medical History"; "Psychiatric/Psychological History"; "Substance Abuse/Dependence History"; "Legal History"; and "Marital/Relationship History." In the "Clinical Summary" section of her report, McGarrahan in turn noted that Grissom's "childhood [wa]s notable for a couple of years of sexual abuse by an adult male when he was only 10 or 11 years old," his "[e]arly history [was] remarkable for very poor speech development that required many years of speech therapy," he experienced a series of "[n]eurological insults, including reported loss of oxygen at birth" and "at least three severe head injuries, one of which occurred in the 9th grade and resulted in his inability to return to school," and that he exhibited "chronic heavy alcohol consumption over the course of many years." McGarrahan Report at 11.

McGarrahan's report also, under a heading entitled "Emotional/Psychological/Personality Functioning," discussed the results of a "Personality Assessment Inventory (PAI)" that McGarrahan administered to Grissom. Id. at 10. The PAI results, McGarrahan noted, "revealed extreme elevations on both the alcohol and drug scales." Id. According to McGarrahan, "[i]ndividuals with this type of profile report that drugs and alcohol have caused severe negative consequences in their lives, including significant problems with the law, employment, and maintenance of relationships." Id. McGarrahan further noted that "Grissom's profile ... demonstrated that his personality style involves a degree of adventurousness, risk-taking, and a tendency to be rather impulsive, mostly likely when using alcohol and drugs." Id.

Of course, it is undisputed that neither Hall nor Dunn conducted a neuropsychological evaluation of Grissom or otherwise touched on the possibility of brain damage. Nor, in turn, did they testify about the cognitive difficulties that were discussed by McGarrahan in her report. But, considering McGarrahan's report in its entirety, we conclude it was not unreasonable for the OCCA to conclude that the report "largely reflect[ed] the mitigating narrative" that was actually presented by Grissom's trial attorneys during the second-stage proceedings. Grissom I, 253 P.3d at 995 (emphasis added).

Turning to Grissom's second argument, we are not persuaded it was unreasonable for the OCCA to conclude that "[o]ther aspects of [McGarrahan's] report [we]re equivocal, at best." Id. In support of this conclusion, the OCCA stated that "[t]he mitigating force of [Grissom's] reported deficits in memory, planning, and organizational skills-as a result of his alleged dementia-[were] significantly diminished by other undisputed evidence of how he carried out these crimes." Id. Although the OCCA did not offer any further explanation, the record reasonably supports this statement. The State's first-stage evidence established that Grissom, with the assistance of Jessie Johns, knowingly and intentionally decided to commit an armed burglary or robbery on the morning of November 3, 2005. In carrying out this decision, Grissom and Johns first stopped at a convenience store and each purchased a pair of brown cotton gloves. After doing so, they proceeded to drive into rural Blaine County (Oklahoma) "looking for a house to burglarize." Id. at 974. Once they selected the Kopf's residence, Grissom parked his truck in the driveway, with the front of the vehicle facing towards the road in order to facilitate his escape. Grissom told "Johns to wait until the shooting was over and then come in [the residence] and help him burglarize the house." Id. Grissom then approached the rear sliding door of the residence, knocked, and, when Dreu Kopf answered, gave a false name and story and asked if Dreu Kopf's husband was home. When Dreu Kopf said that her husband Matt was at work, Grissom told her he would come back later, acting as if he had legitimate reasons for needing to speak with Matt. After briefly disappearing from view, Grissom then reappeared in front of the sliding glass door and began firing into the house. In sum, notwithstanding McGarrahan's opinions regarding Grissom's "difficulties in planning, reasoning, and organization abilities," McGarrahan Report at 12, the State's evidence clearly established that Grissom's crimes involved some degree of planning, reasoning and organization. That is, any difficulties that Grissom may have experienced in planning, reasoning, and organizing did not prevent him from carrying out the crimes of conviction.

Grissom also challenges the OCCA's statement that "if Appellant had been slightly more 'cognitively efficient' in the execution of his plans, he certainly would have murdered Dreu Kopf, and might have avoided apprehension altogether, or at least long enough to endanger additional lives." Grissom I, 253 P.3d at 995. This statement was perhaps intended by the OCCA to suggest that Grissom's purported difficulties in planning, reasoning, and organization may have actually reduced the severity of the offense and, in turn, diminished his ability to elude law enforcement authorities after the offense. In other words, the OCCA appears to have been suggesting, and reasonably so in our view, that Grissom's purported deficiencies in planning, reasoning, and organization did not cause the offense, but instead diminished its severity.

Lastly, Grissom argues that "it really came down to" the fact that "the OCCA judges themselves do not understand how critical neuropsychological impairments are and how they relate to the myriad legal issues arising in capital trials." D. Ct. Dkt. No. 20 at 13. This generic argument is not supported by the record. The fact of the matter is that the OCCA considered McGarrahan's neuropsychological report, and it ultimately concluded that the presentation of McGarrahan's testimony would not have altered the outcome of the second-stage proceedings. For the reasons already stated, that conclusion was not unreasonable.

Notably, Grissom does not directly challenge the OCCA's ultimate conclusion that "[t]he proffered evidence of [his] diagnosis with dementia and its accompanying deficits d[id] not appreciably alter the balance of aggravating and mitigating circumstances considered by the jury at trial." Grissom I, 253 P.3d at 995. And, in any event, this conclusion is reasonably supported by the record in this habeas appeal. More specifically, we are not persuaded that McGarrahan's proffered opinions regarding Grissom's cognitive impairments and his resulting "difficulties in planning, reasoning, and organization abilities" would have caused the jury to find that the mitigating factors outweighed the aggravating factors and to in turn sentence him to life in prison rather than death.

In sum, we conclude that the OCCA did not unreasonably apply Strickland in rejecting Grissom's ineffective-assistance claim on the basis of lack of prejudice. We therefore reject Proposition One of Grissom's appellate brief.

Proposition Two - intoxication and lesser included offenses

In Proposition Two of his appellate brief, Grissom asserts two factually related, but legally distinct, claims arising out of his intoxication defense and the state trial court's failure to instruct the jury on the possibility of lesser-included offenses. Specifically, Grissom claims that the state trial court violated his constitutional rights by failing to instruct the jury on lesser-included offenses and by failing to adequately instruct the jury on the defense of intoxication. In addition, he argues that his trial attorneys were ineffective for failing to request instructions on lesser-included offenses.

a) Clearly established federal law applicable to the claim

The clearly established federal law applicable to Grissom's claim of ineffective assistance is the two-part Strickland test. As previously discussed, that test requires a defendant to show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. 2052.

The clearly established federal law applicable to Grissom's claim that the state trial court violated his constitutional rights by failing to instruct the