Underwood v. Royal, 2018 WL 3215764 (10th Cir. 7/2/18) (Okla.) - affirmance of habeas denial on six grounds in Okla. death penalty murder case.
1. There was no ineffective assistance of trial counsel in failing to present expert testimony on rebuttal regarding the timing of the victim's death. The state court concluded that presentation of such testimony might have done more harm than good. The Tenth decides that the Okla. court did not unreasonably apply Strickland in determining that trial counsel's strategy was at least reasonable.
2. The evidence discussed by the prosecutor at trial that Mr. Underwood argued amounted to prosecutorial misconduct did not unfairly overshadow other depraved things that Mr. Underwood freely admitted and thus did not render his trial so fundamentally unfair as to deny him due process.
3. The state court did not reach a decision contrary to or unreasonably applying Supreme Court law or unreasonably determining the facts with respect to the jury instruction on mitigating circumstances challenged by Mr. Underwood.
4. The concededly unconstitutional admission of the victim's parents' impact statements and recommendations for imposition of the death penalty at his trial was not structural error. The offending statements did not have a substantial and injurious effect or influence on the jury verdict because they were relatively brief and emotionally restrained; the aggravating case was relatively strong; and the mitigating case was insufficient to overcome the aggravating evidence.
5. The Okla. court did not decide contrary to clearly established Supreme Court law or unreasonably apply it by deciding that it was not reversible error to fail to instruct the jury that it must find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt .
6. The cumulative effect of the alleged errors on the jury's sentencing determination did not entitle him to habeas relief.