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Selsor v Workman

Case No. 09-5180 (C.A. 10, May. 2, 2011)

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
 

 

Judge(s): Mary Briscoe
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Constitutional Law
 
Circuit Court Judge(s)
Mary Briscoe
Neil Gorsuch
Timothy Tymkovich

 
Petitioner Lawyer(s) Petitioner Law Firm(s)
Gary Peterson
Madeline Cohen Office of the Federal Public Defender
Raymond Moore Office of the Federal Public Defender
Dean Sanderford Office of the Federal Public Defender

 
Respondent Lawyer(s) Respondent Law Firm(s)
Drew Edmondson Office of the Oklahoma Attorney General
Robert Whittaker Office of the Oklahoma Attorney General

 

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to begin with, selsor's case subsequently declared unconstitutional constitutes an implied acquittal of the in fact the product of vindictiveness, the court fashioned what in it is uncontroverted that selsor never presented this claim to the occa. presumption of vindictiveness, or whether selsor was instead required to prove attempted to analyze united states supreme court precedent in effect andrade, 538 u.s. 63, (2003) (holding that "`clearly established federal law' actions." id. the supreme court disagreed, stating that petitioner's "sophistic 7 selsor's penalty-phase mitigation evidence was comprised of testimony aggravator likely would have shifted the balance in favor of a life sentence." id. finally, we reject petitioner's claim that to subject him to the and that, as a result, his first degree murder conviction violates the ex post facto receipt, of something of pecuniary value, the trial judge rejected it on the grounds clearly establish that it is a violation of the eighth amendment to allow a victim decision was consistent with viereck, gardner, and darden. to begin with, the that the portion of booth prohibiting family members of a victim from stating with first degree murder under oklahoma's 1973 death penalty statute. however, acknowledging "[t]he basic principle that a criminal statute must give fair cautioned, however, that the due process clause does not, depending upon the fired a shot striking morris in the shoulder. aggravator) it had asserted at the original trial, as well as a third aggravator authority is given adequate information and guidance," and that "[a]s a general ina morris. it was a tragedy. that night was a tragedy. she was appeal, the arizona supreme court "concluded that, under . . . bullington . . . , d) § 2254(d) analysis that charge was filed on july 9, 1976, three days after the supreme court held original). according to the court, "the existence of the [first degree murder] that selsor knowingly created a great risk of death to more than one person, and cir. 1981). aggravating circumstances before the death penalty can be imposed. if a defendant has not been acquitted of the death penalty and his court reverses a defendant's conviction, and the state, on retrial, seeks a more prison based upon the evidence at trial in determining the appropriate victim impact statements they had prepared prior to trial. as part of her victim unconstitutional death penalty statute, 21 o.s.supp.1973, § 701.3, or to those the state trial court also separately instructed the jury on the elements of in blackledge, the court addressed the related question of whether the recently emphasized, however, it is unnecessary that a state court "explain[] [its] provided the basis for [his] life sentence, and had been cited only with approval 6. prosecutorial misconduct from his convictions, i.e., that "the trial court erred by requiring time he acted, found by the supreme court of florida to be invalid under . . . selsor contends the occa's decision "directly conflicts with" blackledge florida . . . because the earlier statute enacted by the legislature was, after the prosecutorial misconduct claim. deserve to die like a dog in that store. the nightmare, he created a degree murder, but this time imposed a sentence of death." id. on direct appeal, progeny, the occa was left to determine whether to define selsor's "original michael b. selsor, on or about the 15th day of september, clayton chandler lost his life, brutally, savagely, without mercy, judgment." brecht, 507 u.s. at 634. however, "when a court is `in virtual 65 things about selsor; indeed, knott testified that he was not concerned about the sentences violated the eighth and fourteenth amendments. furman v. georgia, in marcus, a criminal defendant was indicted on charges that he engaged in the occa's decision in turnbull was erroneous in one key respect: the defendants, as compared to the burden of proof under section 701.3." 947 p.2d at if a claim was not resolved by the state courts on the merits and is not to oklahoma's 1973 murder statute, allowed the state to convict a defendant of chandler during the course of the convenience store robbery. in short, then, the nightmare. you bet he did. they [(the government's second-stage 1973 murder statute required imposition of the death penalty for any defendant rape, kidnapping for the purpose of extortion, arson in the first concluded that "[t]he lesson that emerge[d] from [them] [wa]s that the due legitimate governmental interest," u.s. dep't of agric. v. moreno, 413 u.s. 528, severe sentence than it sought before the reversal, a presumption of vindictive death penalty provisions were in effect, could not be tried under on direct appeal from his first trial, selsor argued that he was sentenced petitioners that" the statute of conviction "did not give them fair warning, at the his first trial . . . differ[ed] significantly from those employed in any of the death penalty, because his sixth amendment right to effective state corrective process" or "circumstances exist that render such process capital sentencing proceeding in arizona share[d] the same characteristics of the petitioners' convictions were "tainted by a jury-room discussion of evidence not decisions addressing the two general types of revised death penalty schemes. in sentencing." id. at 438. specifically, the court noted, the sentencing phase of the occa correctly noted that the state trial court's first degree murder the state produces objective proof rebutting the presumption." id. (emphasis in situated to the identified group because of his successful federal habeas action severe punishment than was lawful at the time [he] committed the alleged crime" 9 assistance of counsel was violated, flies in the face of due process. face, blown away by a shotgun." 477 u.s. at 180 n.12. sentences were modified in accordance with riggs. petitioner's selsor was convicted of first degree murder under the elements of the 1976 held that the trial court's reliance in the original sentencing proceeding "on a phase of his trial was rendered "fundamentally unfair" by prosecutorial arguments were fair challenges to selsor's mitigating evidence. required. under newly enacted death penalty statutes, the state not the pre-crime first degree murder statute under which he was originally charged; argument: selsor ii, 2 p.3d at 350. statute is applied retroactively to subject a person to criminal liability for past four alleged aggravating circumstances, the prosecution presented evidence that day, gregg v. georgia, 428 u.s. 153 (1976), the court held that georgia's post- in sum, where the presumption applies, the sentencing authority santa barbara, california. selsor confessed this and other crimes to jeopardy claim was procedurally barred. how do you think that's gonna sit well with the other long-term u.s. 619, 637-38, 113 s. ct. 1710, 123 l. ed. 2d 353 (1993)." marcus, 130 s. ct. ups of any kind. selsor also presented testimony from four current or former required to prove the elements of the crime of first degree murder. ; instead, selsor's claim hinges on the assertion that the state trial lawful at the time [he] committed the alleged crime" of murder in the first selsor, who committed their crimes prior to its enactment, and respondents do not clayton chandler with harm if he resisted, and by said chandler, the said richard eugene dodson and the said has never precisely defined the meaning of "similarly situated," it has emphasized change the burden of proof to the detriment of riggs and other 408 u.s. 238, 240 (1972); id. at 309-10 (stewart, j., concurring); id. at 313 oklahoma department of corrections employees, all of whom knew selsor the general principle relied on by selsor appears to have first originated in the conclusory nature of the occa's reasoning in selsor i, combined with "did not have an actual impact on [selsor's] sentence." welch, 607 f.3d at 695 50 years." id. at 435-36. thereafter, the petitioner successfully moved for a new his new trial . . . ." id. during his imprisonment following his original conviction. all four of these survived. selsor and dodson then fled. in proposition six of his appellate brief, selsor contends that the penalty- relevant to the imposition of sentence and provided with standards to guide its use oklahoma's 1973 death penalty statute to be unconstitutional. immediately after at 2165; see fry v. pliler, 551 u.s. 112, 121-22 (2007) (holding that the brecht firearms did kill the said clayton chandler by means of a firearm loaded selsor's odc witnesses, the prosecutor elicited testimony indicating that selsor, were not contained within instruction 9, they were included within applicable elements of first degree murder and that the information actual vindictiveness. first degree murder and sentenced to death prior to the enactment of the new statute served as an `operative fact' to warn the petitioner of the penalty which of the information." id. at 195. a state prisoner generally may not raise a claim for federal habeas corpus before it. williams v. oklahoma, 428 u.s. 907 (1976); justus v. oklahoma, 428 convict selsor of first degree murder under the 1973 murder statute, the robbery april 6, 1977, the occa issued a published decision affirming all of selsor's 42 36 although the arizona supreme court agreed with petitioners that the evidence unconstitutionality of oklahoma's death penalty statute, 21 o.s. sentence. at the conclusion of the sentencing hearing, however, the trial judge defendant's character and record or of the circumstances of the particular offense, would ask each and every one of you to think about their testimony jeopardy clause,'" id. at 109 (quoting richardson v. united states, 468 u.s. 317, situation before it, the court held that "[a] person convicted of an offense is (1978)), i.e., that "pearce is inapplicable whenever a jury agrees or an appellate difference in treatment," village of willowbrook v. olech, 528 u.s. 562, 564 powers of the legislature . . . ." marks v. united states, 430 u.s. 188, 191 retroactively without an ex post facto violation. id. upon retrial?" id. at 713. the court first held "that neither the double jeopardy appropriate sentence' during the penalty phase of a capital trial survived the a violation of the double jeopardy clause because [defendant]'s initial sentence the tulsa county district attorney's office initiated retrial proceedings in 4 (1964), that "[w]hen a state court unforeseeably changes the scope of a criminal resentencing [him] to death, both the state and the occa have deprived him of that the murder was committed for the purpose of avoiding and preventing a 1 florida between the time of the first-degree murder [he committed] and the time information. however, the prosecution also filed a bill of particulars (something the district court applied the incorrect legal standard" to selsor's sixth whether it sought the death penalty, and if so, requiring the parties to specify the court applied the law erroneously or incorrectly." mcluckie v. abbott, 337 f.3d 46 act of remaining on the premises of another after receiving notice to leave," id. at to "[apply] a presumption of vindictiveness, which may be overcome homicide statute [wa]s life imprisonment." id. at 829. as for "individual[s] s.ct. at 2302, 53 l.ed.2d at 361; see also cheatham v. state, 900 no mention of any of these factors (or of pearce or its progeny) when he presented chandler, pulled his gun, and demanded the contents of the register. following aggravating circumstances: (1) "[t]he defendant knowingly created a 38 1998. at the outset, selsor's counsel moved to dismiss the charges against selsor failed to cite to any of the three supreme court cases he now relies on. murder statute, we disagree. in our view, the occa was simply explaining that only by objective information in the record justifying the increased september 15th, 1975, in tulsa county, oklahoma. the reviewing court hold that the prosecution had `failed to prove its case' that proof contained in the 1973 statute (under which selsor was charged) if you believe, hey, mike [selsor], here you go. there you go, in the first degree [wa]s `life in the penitentiary at hard labor,' under the 1973 in 1984, the court, prompted by a "conflict among the circuits," revisited the occa stated: general rules are being applied in an arbitrary or discriminatory way." in turn, ordinarily will not entertain an application for a writ of habeas corpus unless 293-94. the petitioner also asserted a "second ex post facto claim," i.e., "that at marks omitted). statute[]." riggs, 554 p.2d at 825. in resolving this question, the occa prosecution. aplt. br. at 77. sentence, but merely an application of the correct law, and/or a reasoned review of the evidence." id. court applied bullington to reverse a death sentence imposed on an arizona state "determine whether: (1) [selsor]'s objection at trial to the joint representation was was rendered fundamentally unfair by prosecutorial misconduct; and (7) whether arizona's petition for writ of certiorari and affirmed the decision of the arizona selsor's original trial and direct appeal argues, "the jury could not have found the aggravator" because, "[u]nder the 1973 that the `avoid arrest or prosecution' aggravator required proof of `a predicate o.s.1991, § 801). thus, considering instructions 9 and 18 together the state of oklahoma, judge was contemplating a death sentence based on five specific aggravating death penalty" on the basis of the "same aggravating circumstances" it attempted 29 674, 695 (10th cir. 2010). thus, we conclude that selsor's eighth amendment the information alleges that richard eugene dodson and on the first degree murder and robbery with firearms charges, meant that the 13 case."13 appellate court's modification of a death sentence on appeal to life imprisonment retroactively . . . and that it raises the penalty from whatever the law provided "argument did not manipulate or misstate the evidence, nor did it implicate other had no further burden of proof because the death penalty was michael b. selsor, on or about the 15th day of september, compared the newly enacted statutes to the statutes in effect on the defendants, as compared to the burden of proof under section 701.3. its then-recent decision in riggs v. branch, 554 p.2d 823 (okla. crim. app. noted that although the 1973 murder statute mandated a sentence of death for 43 petitioner's equal protection claim can be easily and summarily 81 the possibility of life imprisonment, and now life without parole. 21 timely, and, if so, (2) whether the trial court took `adequate steps to ascertain affirmed by the [occa] in an unpublished order on august 18, 1989." id. nevertheless "facing the death penalty, a greater punishment than that in place at consideration of ex post facto principles. cartwright, 778 p.2d at proposition these concerns are best met by a system that provides for a bifurcated section 701.3, had been declared unconstitutional. the united states murder, but also must prove aggravating circumstances before the the united states supreme court granted certiorari to "consider once again c) the occa's resolution of the claim have held that the comparison group identified by the party asserting an equal appellant. despite the prosecution's notice that it was not seeking that penalty. in so ruling, br. at 72. more specifically, selsor contends that "[t]he state treated [him] "[t]he imposition and carrying out of the death penalty under the law of 827. however, the occa in turn concluded that "the remaining provisions of a) clearly established federal law applicable to the claim the same transaction or occurrence or series of events closely related which the parties presented arguments but no new evidence. id. the trial court proceedings, the slate is wiped clean and a defendant may be process clause is not offended by all possibilities of increased punishment upon rule recognized in pearce," id. at 442 (citing burks v. united states, 437 u.s. 1 clause. in support, selsor notes that in turnbull the occa "proclaimed that [he] because § 2254(d)'s deferential standards of review do not apply in such the penitentiary; proceeding: whether death was the appropriate punishment for the offense." id. petitioner was subsequently convicted by a jury of both counts. in response to a degree murder statute), and then concluded that the filing of a bill of particulars established federal law and deprived [him] of due process" when, in turnbull, it that underlie th[e] principle" that "[a] verdict of acquittal on the issue of guilt or overturning riggs, implicates the due process clause and requires the instructions as a whole. instruction 18 correctly informs the jury [dodson] and [selsor] to, over [their] objection, be tried jointly but what has he done? what has been his reign of terror? b) clearly established federal law applicable to the claim reasoning." harrington v. richter, 131 s. ct. 770, 784 (2011). thus, we must declined invitations to extend the presumption." id. after doing so, the court instructed on all the elements of first degree murder under the 1973 increase the quantity, or degree of proof necessary to establish his was not an `acquittal' of that circumstance for double jeopardy purposes, and did returned as to all three charges [against selsor], punishment being assessed at corpus with the state trial court "alleging that the supreme court . . . had declared selsor's motion, and selsor immediately petitioned the occa for a writ of acknowledgment, of course, was no more than a reaffirmation that action, it actively sought the death penalty against him. selsor contends that the on cross-examination denied any concern for the possible ramifications caused by charged with breach of the peace, resisting arrest, and criminal trespass. under an unconstitutional death penalty statute (i.e., oklahoma's 1973 death selsor was charged: disagreed with the prosecution's recommended sentence of death for selsor. to fill what has been termed "the apparent void" in our murder law judgment and sentence has been vacated and he stands before this states doing so adopted differing definitions of the crime of first degree murder). admitted at trial," and accordingly reversed the convictions and ordered a retrial. four of the odc witnesses testified they disagreed with the imposition of the v. mcaninch, 513 u.s. 432, 435 (1995). notably, "an error that may justify from the murder.'" id. (quoting s. r., vol. iii at 403; emphasis in original). this defend. we address these propositions together and conclude that this court held "there was an actual conflict of interest that adversely affected after a new trial, the reasons for his doing so must affirmatively law," id. at 56. "in so ruling," selsor argues, "the occa unreasonably 2. double jeopardy violation and with a premeditated design to effect the death of one clayton in his first assignment of error, defendant asserts the what have you heard about over the last 23 years? this will be sentences were modified in accordance with riggs. petitioner's the changes in the law [we]re procedural, and on the whole ameliorative, and that presentencing order issued by the trial judge, the prosecution advised petitioner see fla. stat. § 782.04 (2010), amendment notes (explaining historical changes 6. when perpetrated by a person who effects the death of a victims: constitutional error" rises to the "substantial and injurious effect standard set the crime that serves as the underlying felony for the murder conviction can also mandatory nature of the death penalty and the consequential eighth amendment murder, he faced a maximum sentence of life imprisonment." id. at 22. (1977). in this case, there is no assertion that the alleged error resulted from a in the first degree. riggs, 554 p.2d at 824-25 nn.1-3. this court murder while in the perpetration of a felony," and the petitioner presented that selsor killed chandler to avoid arrest for `another crime separate and distinct jeopardy purposes." id. "bullington," the court noted, "indicates that the proper ex post facto. dobbert, supra; cartwright, supra. the ex post facto id. (internal paragraph numbers omitted). considering imposition of the death penalty, selsor was afforded adequate notice (10th cir. 2009). that is precisely the situation here: although the occa applied notably, "the sentencing procedures considered in [these] cases did not have the assume, in applying the standards outlined in § 2254(d), that the occa ineffective to protect the rights of the applicant." 28 u.s.c. §§ 2254(b)(1)(b)(i), second-stage closing arguments that "reflect[ed] an emotional reaction to the of life imprisonment was undoubtedly an acquittal on the merits of the central jeopardy" and "therefore ordered [the] sentence . . . reduced to life imprisonment we must still address, however, whether the state trial court's instructional three years later, in arizona v. rumsey, 467 u.s. 203 (1984), the supreme the form of 21 o.s.supp.1973, § 701.3. contrary to this court's petitioner's equal protection claim can be easily and summarily crime. these elements are: 2 aggravating circumstances found by the sentencer.'" id. at 155 (quoting committed homicide murder while the statutes with unconstitutional v. no. 09-5180 selsor v. kaiser (kaiser ii), 81 f.3d 1492, 1496 (10th cir. conviction and sentence are reversed on appeal or collateral to a particular claim depends upon how that claim was resolved by the state the defendant is charged with: criminal defendants, as compared to the burden of proof under the 1973 first legitimacy," of the enhanced sentence may thereby be readily doesn't even hold a job. he sits around and does what he wants. 85 "that evidence and argument relating to the victim and the impact of the victim's the defendant in this case, michael b. selsor, stands cited to pearce and its progeny. salazar, 919 p.2d at 1127 n.8; stafford, 800 p.2d evidence, "the jury deliberated for some 3½ hours" before sending a note to the existence of another statutory aggravating factor, specifically that petitioners had aircraft, train, bus or other commercial vehicle for hire which 79 premeditated design to effect the death of one clayton chandler," and what is he going to have? he's going to have freedom, freedom to joint representation was timely." kaiser ii, 81 f.3d at 1496. "however, [the cases in which the capital defendant is charged with first-degree felony murder, robbery, petitioners killed two armed guards by taking them "to a lake and constitutional penalty provisions in place for the offense of murder punishment for petitioner's successful attack on his judgment and describing blackledge, the court stated: c) selsor's failure to present claim to the occa 52 sentencing proceeding did not provide petitioner with any indication that the trial bomb or of any similar explosive. both defendants were represented, over their respective objections, by the (4) whether the imposition of the death penalty at his retrial proceedings violated under section 701.3. under section 701.3, the only available 136 p.3d 671, 677 (okla. crim. app. 2006) (citing cases from the mid-1990's). did. the surviving family, her 29-year mate, the person she loved, on the facts and context of the case," and that, consequently, many "legitimate" murder and advised by the trial judge at the time of arraignment that the degree arson. carolina," on march 14, 1960. 378 u.s. at 348. the petitioners, "two negro [t]his determination [wa]s mandatory as to that class of defendants the trial "resembled and, indeed, in all relevant respects was like the immediately witnesses)] told you about it, and they lived it every single day while 2159, 2165 (2010) (citing bouie, 378 u.s. at 353-54). the supreme court has ina morris? no. you've heard their testimony. they really don't tenth circuit kaiser ii. selsor moved to strike the bill of particulars filed by the prosecution, 3 or misstate the evidence in that regard. thus, as was the case in darden, the chandler." tr., vol. iv at 738. the state trial court overruled selsor's motion. oklahoma's 1976 murder statute, rather than the 1973 murder statute under which court has never addressed whether ex post facto violations are subject to harmless a) relevant background facts 563 (1984). in doing so, the court outlined the key portion of pearce's holding: prosecution's "recommended sentence." further, the evidence presented by the that recommended by the prosecution, and sentenced petitioner to death on the same result by judicial construction." id. at 353-54 (italics in original). thus, the of the "avoid arrest or prosecution" aggravator requires proof that "the defendant b) selsor's arguments salazar v. state, 919 p.2d 1120, 1127 (okl.cr.1996). finally, however, appear to have any impact whatsoever on our resolution of selsor's due not only from vague statutory language but also from an unforeseeable and his testimony. committed the crime of murder in the first degree or murder in the statutorily designated felony offense). but the occa's error in this regard does and shot, held in the hands of the said defendants and with which sentence to life imprisonment. in doing so, the occa concluded, consistent with 50 whether the sentencing judge or the reviewing court ha[d] `decid[ed] that the constitute[d] the appropriate constitutionally permissible punishment which 280, 299 (1976). others "adopted mandatory measures" requiring the imposition in the imposition of the sentence of life imprisonment upon [the] petitioner . . . at heinous, atrocious, or cruel"; (3) "[t]he murder was committed for the purpose of against ex post facto laws and expose [him] to more severe punishment than was turn, the occa concluded that no constitutional error occurred. consequently, rogers cannot be treated as part of the "clearly established federal you've got to know both sides. denying selsor's petition in its entirety. on that same date, the district court broadly than its later rulings in rogers, it is to selsor's benefit that we apply jury's second-stage findings. id. (emphasis added). rejected this argument, emphasizing that its earlier holding "`was simply that the court stated, "the [trial] judge's finding of any particular aggravating 60 of, the three supreme court decisions cited by selsor. see id.; 28 u.s.c. § illegally restrained." riggs, 554 p.2d at 824. after the state trial court denied the the time of the alleged commission of the crime, because his sixth amendment selsor also quotes and cites the supreme court's decision in rogers v. fact that he, unlike every other member of that group, obtained federal habeas subjecting him to a significantly increased potential period of incarceration." id. own mitigating evidence, it was, quite frankly, less than compelling. although all murder conviction and 21 years' imprisonment for the armed robbery conviction. "variables" may serve to distinguish the plaintiff from those other persons. charged with violating the prior 1973 murder statute violated the prohibition because "[a]ggravating circumstances . . . are `standards to guide the making of calling a special session, repealing the 1973 statute, and enacting, effective july selsor initiated the instant federal habeas proceedings on october 3, 2001, the prosecution, as part of its second-stage evidence, presented testimony 33 on september 22, 1975, selsor and dodson were arrested in elements than were required for conviction under the applicable 1973 murder error clearly had an ex post facto effect on selsor. specifically, selsor was (internal quotation marks omitted). to begin with, the challenged statements by supreme court at the time the state court renders its decision."). this does not, "the factual data upon which the increased sentence is based" be judgment and sentence has been vacated and he stands before this in sum, selsor is not entitled to federal habeas relief on the basis of his stated, "and he stands before this court, similarly situated to defendants awaiting 55 jennings v. stillwater, 383 f.3d 1199, 1213-14 (10th cir. 2004). other circuits witnesses, are they biased? do they have to survive in that system? statute in effect in 1975, and on the date his crime was committed, in oklahoma capital cases, the occa "conclude[d] the death penalty as provided in selsor does not argue that the state trial court's instructional error argument is not won by proving disadvantage alone. cartwright, 778 but what selsor overlooks is that the occa's decisions also provide that "in "whenever a judge imposes a more severe sentence upon a defendant after a new the occa then addressed "the status of those defendants . . . convicted of petitioner-appellant, johnson v. california, 543 u.s. 499, 505 (2005) (quoting adarand constructors, huggins and anne chandler did not expressly refer to selsor being put to death; attorney, corrections employee or fireman engaged in the methods employed in determining whether the death penalty was to be imposed; defendant. the defendant therein was convicted by a jury of first degree murder or the prosecutor must rebut the presumption that an increased to kill, crf-75-2182; and, murder in the first degree, crf-75-2181, after this court focuses on the following factors when determining punishment, and (3) did not decrease but in fact increased the 5. when perpetrated by any person engaged in the pirating of an and all you knew about your neighbors and whether they should denial of his motion to dismiss the prosecution's bill of particulars. the occa dodson had agreed to leave no witnesses. human being. malice is that deliberate intention unlawfully to take proceedings, the slate is wiped clean and a defendant may be state, 749 p.2d 1146 (okl.cr.1987), cert. denied 485 u.s. 971, 108 furman . . . ." id. at 297 (italics in original). in other words, petitioner argued, held that neither the double jeopardy clause, nor the eighth amendment, nor the a) clearly established federal law appellate pleadings addressing seven of those issues. clause of the fourteenth amendment." id. at 111. at the outset of its opinion, doing so, the occa stated: (2000), meaning that "the classification itself [must be] rationally related to a aggravators and, after independently weighing the mitigating and aggravating states, article 1, section 10. * * * for this reason the new homicide offenders, the other killers that she works with? do you think that (continued...) 83 conceded that selsor remained a threat, id. at 1098 (testimony of williamson). jury received . . . explaining that the murder and robbery were separate offenses, you bet they do. their word is their bond. they've worked in the sixth, from the person of another; selsor did not cite to pearce or blackledge, nor did he argue that the prosecution double jeopardy clause imposes no absolute prohibition against the imposition of a federal habeas proceeding. app. to assume original jurisdiction and pet. for court's jury instructions and concluded that, because instruction 18 correctly id. at 371. at 71. thus, selsor asserts, the district court's instructional error "had a commission of the murder in one of several specified circumstances, the 1976 the occa reasonably concluded that was a valid comment on the evidence already explained, an ex post facto violation. rather, it is a due process violation new trial, kaiser ii, 81 f.3d at 1506. have committed the crime of murder in the first degree," but that he was supreme court's jurisprudence," specifically bullington, rumsey, and poland, the adduced at trial. there was no error. to prevent actual vindictiveness from entering into a decision and salazar v. state, 919 p.2d 1120, 1127 (okl.cr.1996). finally, at approximately 11:00 p.m. on september 15, 1975, selsor and we thus conclude that selsor is not entitled to federal habeas relief on the 5. vindictive prosecution - due process violation statute, 21 o.s.supp.1973, § 701.3, or to those defendants whose hearing the shots, dodson emptied his weapon through the cooler the defendant is charged with: concluded, in pertinent part, that the death penalty statutes enacted by the punished by death unless the verdict included a recommendation of mercy by a furman that the penalty of death not be imposed in an arbitrary or capricious convictions, as well as the sentences imposed for the shooting with intent to kill b) the occa's resolution of the claim court's admission, during the penalty-phase, of testimony from clayton the due process clause."5 lieutenant governor of this state, a judge of any appellate court or commented on selsor's mitigation evidence and merely asked the rights were violated by admission of the challenged testimony from huggins and rejected the claim, concluding as follows: proceedings, set forth specific procedures guiding the sentencing judge or jury in favor of the death penalty, they disagreed with the district attorney's selsor appealed the district court's ruling to this court. this court death penalty can be imposed. id. therefore, newly enacted death prosecution overwhelmingly supported the two aggravating circumstances found punishment for petitioner's successful attack on his judgment and madeline s. cohen, assistant federal public defender, denver, colorado, was limited to situations involving contract killings, and (c) the trial judge could, law, such as art. i, § 10, of the constitution forbids." id. at 353 (italics in (...continued) district court] held that the state trial court made an adequate inquiry into the in pertinent part: underlying the occa's rejection of selsor's double jeopardy claim was imprisonment that was ordered by the occa on direct appeal in selsor i. to be committed the offense as consideration for the receipt, or in expectation of the situation differed in a key respect from the circumstances in pearce and its daughter of clayton chandler, the murder victim in the case, and from ina morris, follows: once those elements were proven, the state had no further burden of by concluding, contrary to its decision in riggs, that defendants charged with armed robbery."2 factors to determine whether the death penalty should be imposed," proffitt v. but affirmed the criminal trespass convictions. petitioners subsequently sought in different contexts, this court has adopted and applied the ramifications of his testimony. nevertheless, during its final second-stage closing and armed robbery convictions. the occa, however, modified selsor's death statute defined first degree murder to require only malice aforethought or response to the presentencing order had the practical effect of concealing from the 72 punishment that mike selsor deserves, then i submit to you, you go knowing what they knew about this case? was that fair? whether the risk [of a conflict of interest] was too remote to warrant separate the united states supreme court subsequently granted the state of time of their conduct . . . , that the act for which they . . . st[oo]d convicted was defendant's successful appeal or habeas action, to file more serious charges of arraignment, combined with the terms of the idaho code, provided sufficient correction of the applicable law. see stafford v. state, 800 p.2d 738, sentence" as the death sentence imposed at his original trial, or the modified life selsor . . . contends that the prosecutor demeaned his mitigation entitlement to a life sentence. id. of all the elements of first degree murder under the applicable 1973 (1987); and wiley v. epps, 625 f.3d 199, 211 (5th cir. 2010). notably, selsor he's doing this. (1978)). that the killing occurred during the commission of one of several statutorily enacted by the oklahoma state legislature. s. r., vol. iii at 436. counsel timely objected to both statements, but was overruled by the state trial death. id. selsor argues that the occa's "turnbull decision, overruling riggs, as previously noted, the changes implemented by florida to its murder scheme selsor filed a direct appeal challenging his convictions and sentences. on certiorari with the united states supreme court. that petition was denied on 80 the presidency of the united states of america, the governor or in fact increased the quantity and degree of proof necessary to c) § 2254(d) analysis ineffective assistance claim on the merits, but concluded that selsor's double warning that his contemplated conduct constitutes a crime." id. at 354-55. court of record of this state, or any person actively engaged in a petitioners deserved the death penalty." id. further, the court rejected issues to be resolved by the adversary process," the court emphasized, "is a relevant to the question of harmlessness, it does nothing to alter the fact that ultimately found the presence of the pecuniary gain aggravating circumstance and in the case, the purpose and effect of which could only have been to arouse cases: jeopardy argument that selsor now asserts. selsor ii, 2 p.3d at 349. specifically, murder conviction and death sentence, as well as selsor's shooting with intent to "waiving all but plain error." selsor ii, 2 p.3d at 354. the occa then rejected court denied selsor's motion. selsor immediately petitioned the occa for a writ the pennsylvania supreme court "concluded that neither the double jeopardy amenable to harmless error review. is whether the occa's decision was contrary to, or an unreasonable application selsor also suggests that lankford v. idaho, 500 u.s. 110 (1991), is back there with conscience, you vote for it. b. analysis circumstances, . . . she would have advanced arguments that addressed these disposed of. petitioner is simply no longer similarly situated to those against the defendant, i.e., charges that carry a more severe sentence than was court, and then from the supreme court of missouri. the supreme court of 84 state law," id. the supreme court rejected petitioner's argument. "under the leash," and "i wish that i could see him [(the defendant)] sitting here with no court erroneously instructed the jury as to the elements of the 1976 murder motion. of the nine issues on which a coa was granted, selsor has since filed enumerated felony offenses, including armed robbery. id. consistent with that defendants subject to oklahoma's unconstitutional death penalty in doing so, the occa expressly overturned its decision in riggs (which that the comparative group identified by the plaintiff/petitioner must be "similarly between 1919 and 1980, the supreme court repeatedly held "that the making cash deliveries to various banks in northern arizona." id. as part of the same two lawyers from the tulsa county public defender's office. as discussed do they know anything about anne chandler [(the victim's wife)] states supreme court overturned the death penalty statutes of several 67 the state trial court entered judgment consistent with the verdicts on may 70 in proposition five of his appellate brief, selsor contends that the state which it prohibits." id. statute] ha[d] been effectively stricken from [the] statute," id. at 827, but that "a aggressive and surprising campaign to overrule riggs," id. at 83; "[t]he state's retrial even if based on legal error." id. that the double jeopardy clause . . . barred the imposition of the penalty of death the prosecution also, during its final second-stage closing argument, asked or prosecution,'" id. at 69-70 (quoting scott v. state, 891 p.2d 1283, 1294 (okla. i state statute that allowed for unbridled jury discretion in the imposition of death assessed on appeal. ibid. when he acted."). at the time selsor murdered clayton chandler, oklahoma's committing the crime of robbery with firearms, did kill the said may 2, 2011 not substantially alter the pre-existing definition of murder in the first degree. other human being, is murder in the first degree in the following if a defendant has not been acquitted of the death penalty and his was both relevant and proper for the prosecutor to have asked the jury to infer this an ex post facto effect, it could not have violated the due process principles argument mock[ed] the substance of the ex post facto clause." id. (italics in fifth, of another; affirmed by the occa on june 12, 1980. repeatedly because he [(selsor)] made a blood pact with his partner was very candid. no, it's not fair to the victims to sit and make a rule 3.5(c)(4), rules[ of the court of criminal appeals]. moreover, statute. but the presence of instruction 18, which correctly outlined for the jury correction of the applicable law. see stafford v. state, 800 p.2d 738, hearing. selsor appealed again to this court. on april 8, 1996, this court issued a sentence was death. under newly enacted death penalty statutes, the and all of his needs are met: clothing, food, and shelter. is that too state will retaliate by substituting a more serious charge for the original one, thus the question then becomes whether "the prejudicial impact of [this] petitioner michael selsor, an oklahoma state prisoner convicted of first * * * of any more severe sentence that could have been imposed," id. at 438. entered judgment in favor of respondent and against selsor. following the entry (d.c. no. 4:cv-01-00721-cve-tlw) held that "[t]he equal protection clause provides a basis . . . for contending that 57 tennessee, 532 u.s. 451 (2001). aplt. br. at 32-33. rogers, however, was case. let's think about the punishment. if you vote for a verdict 35 anyone convicted of first degree murder, it also authorized the occa to modify a 1976 murder statute to be applied retroactively to criminal defendants, such as crime of robbery with firearms. a) relevant background facts actual use of violence against store clerks (specifically the shooting of one clerk involving an issue of constitutional law (i.e., whether application of the in proposition four of his appellate brief, selsor contends that "[b]y must be based upon objective information concerning identifiable conduct on the place. "which was reserved for whites," "and waited to be served." id. "after they clayton chandler, and in his immediate presence, without his 66 supreme court. id. at 209. in doing so, the supreme court noted that "[t]he he took clayton chandler from his family. his little girl did not get these decisions are relevant to selsor's due process issue. of defendants," id., the occa held, was "to examine the effect of the supreme know. one of them read it in the paper. minitrials on the existence of each aggravating circumstance." id. at 155-56. determination by the occa that he was being tried under oklahoma's 1976 announced intention to rely only upon the same aggravating circumstances it more difficult to assess the likely consequences of that failure than with numerous summarized the impact of pearce, blackledge, and the other four cases: appropriate to move with the necessary speed to clarify and attempt the instant federal habeas proceedings 356, 366 n.4 (2001). this court, in turn, has attempted to provide a somewhat circumstances, "concluded that the death penalty was appropriate in each controlled prison environment for a couple of years. some of those non-`structural' . . . ."). vindictively, in violation of his due process rights, by seeking the death penalty at id. at 104. arrest aggravator, and in turn did not have a substantial and injurious effect on the elements of a post-crime first degree murder statute, rather than the elements of 3. ex post facto/due process violation remedies, see mccormick v. kline, 572 f.3d 841, 851 (10th cir. 2009), or that it was not required to do under the 1973 murder statute) alleging the existence of "presented evidence of one statutory aggravating circumstance: commission of the stage evidence, the jury found selsor guilty of the three charges against him, i.e., first, wrongful; 5 relief, had his original convictions and sentences invalidated, and was afforded a murder statute altered the definition of first degree murder to require proof of death penalty for selsor, two of those witnesses conceded that selsor's prison d) the merits of the claim 2. when perpetrated by one committing or attempting to commit sentence to life imprisonment in selsor i, "acquitted" selsor of the death penalty. paragraph numbers omitted). nonvindictive justification for the greater charge. this college students, took seats in a booth in the restaurant department at eckerd's," based on reason rather than caprice or emotion." 430 u.s. at 358. finally, in on direct appeal to the occa from his retrial, selsor argued, in pertinent defendants with the use of a certain firearm, to-wit: a .22 caliber of capital-sentencing proceedings." id. at 103. although the court's precedent the jury to consider what selsor's life would be like if sentenced to life okla. stat. tit. 21, § 701.3 (1973), was unconstitutional. selsor i, 562 p.2d at presented evidence establishing that selsor attempted to escape from prison in offense, separate from the murder, for which the defendant seeks to avoid arrest subjected to any punishment authorized by law, including death. instead, they both simply stated without embellishment they agreed with the 1193, 1197 (10th cir. 2003). "rather, we must be convinced that the application whether there has been an ex post facto violation: i, the elements of "the ex post facto clause, by its own terms, does not apply to courts." rogers, 11 essence is a "prophylactic rule," see colten v. kentucky, 407 u.s. context of the judicial decision at issue, necessarily incorporate all of the specific 2181, murder in the first degree, is hereby modified to life defendants whose sentences were modified in accordance with riggs." turnbull, subjecting petitioner to the death penalty does not appear to be (white, j., concurring). in the wake of furman, states generally responded in one notes that in jones v. helms, 452 u.s. 412, 423-24 (1981), the supreme court state, 47 p.3d 876, 885 (okla. crim. app. 2002) (same). would likely again be assigned to supervise selsor if selsor was sentenced to life that it could find the `avoid arrest or prosecution' aggravator only if it determined id. at 678 (citing prior cases from 1994, 2000, and 2004). thus, even though the with the occa raising the due process issue. and wiley, aside from being a of riggs and other defendants, as compared to the burden of proof be freed of apprehension of such a retaliatory motive on the part of the sentencing 288. on october 14, 1997, the occa issued a published decision affirming the (...continued) lays right over there. proof necessary to establish his guilt. castro, 749 p.2d at 1151. selsor argues that the error had precisely such an effect because it "led to the that such judgment [wa]s without prejudice to further proceedings by the state for concluded that the petitioner's crimes warranted punishment more severe than selsor argues, however, that exhaustion of the claim was futile because the occa (okla. crim. app. 2000) ("victim impact testimony may include information in lankford, who was effectively deprived of notice that the trial judge was protection claim must be "identical in all relevant respects." srail v. village of of two ways. some, like georgia, "legislated standards to guide jury discretion" alleging that selsor "should be punished by death" for "the offense of murder in post facto claim de novo and grant him the writ as to his unconstitutional abject deference, . . . but nonetheless prohibits us from substituting our own from the victim's family members regarding the appropriate sentence violated his prosecution has not proved its case' that the death penalty is appropriate." id. chandler loaded a sack with money and handed it to selsor, who similarly, anne chandler stated, in reading her victim impact statement, "i agree than it was, when committed." calder, 3 u.s. (3 dall.) at 390 (emphasis in court with instructions to dismiss that charge. selsor ii, 2 p.3d at 346. more clause was not violated under an ex post facto analysis. castro v. unlawfully and with malice aforethought causes the death of another conviction and sentence are reversed on appeal or collateral 10 her best friend, her provider, her security, her hero, he's gone. he death penalty for any defendant convicted of first degree murder. and it was the process may have malfunctioned in th[e] case." id. at 127. consequently, the judge misinterpreted the law by concluding that the "pecuniary gain" aggravator preceding trial on the issue of guilt or innocence." id. this procedural bifurcated proceeding's second stage at which the prosecution has the burden of id. at 582-83. later in its opinion, the occa rejected selsor's due process crime of murder in the first degree. punishment prescribed therefor, or increase the quantity or degree of december 4, 1992. id. in doing so, the district court addressed and rejected the [defendant]'s [death] sentence violated the constitutional prohibition on double 17 plain error review to selsor's claims, it ultimately concluded the claims lacked molestation of a child under the age of sixteen (16) years; each of which `must stand on its own merits,'" id. at 70 (quoting s. r., vol. iii at have been called for had the state advanced a legitimate prosecution also elicited a concession from one of the witnesses, knott, that he that's what you get for what you've done, and you go back there and to prove at the first trial. id. the petitioner "moved to strike the notice, arguing that the aggravator encompassed only "contract killing[s]." id. at 149. have "arouse[d] [the jury's] passion," vierick, 318 u.s. at 247, or "emotion[s]," 50 (suggesting that selsor i amounted to a determination "`that the prosecution entitled to pursue his statutory right to [appeal], without apprehension that the nevertheless painted a picture of selsor that was certainly less than flattering, and 34 the petitioner in dobbert was a florida state prisoner convicted of two murders 16 can give rise to "a valid due process claim." united states v. marcus, 130 s. ct. oklahoma, 428 u.s. 907 (1976); green v. oklahoma, 428 u.s. 907 (1976); davis "a premeditated design to effect the death of the person killed, or of any other attorney's conflict of interest--i.e., the same attorney represented both [selsor] 4. when perpetrated against the president or vice president of argue otherwise. death. rather, oklahoma's 1973 murder statute mandated the imposition of the allegedly committed the crime (21 o.s.supp.1973, § 701). in originally imposed on the defendant after the first trial. in addressing this 823 (okl.cr.1976) are hereby overturned. directions to enter judgment invalidating selsor's convictions . . . , but providing this reasoning is backwards. while the presence of instruction 18 may be `characterizations and opinions about the crime, the defendant, and the affirm their convictions . . . , the state . . . punished them for conduct that was not required to "weigh eight aggravating factors against seven statutory mitigating in our view, however, the occa's more narrow construction of the trial court stating they were "hopelessly deadlocked at 9-3 for life imprisonment." all of the relevant facts, and because they might be fearful of future retaliation original). consequently, we conclude the occa unreasonably determined that no sentence," id. at 445 (internal quotation marks and citation omitted), and thus on june 29, 1972, the united states supreme court held that a georgia supreme court held the changes in death penalty statutes were accordingly, the state trial court's instructional error did not invalidate the avoid elements of the crime of first degree murder, but also must prove supports his claim, and it is not apparent to us how woodson is relevant. from five non-familial witnesses. the first of those, ladonna penny, a data entry court, similarly situated to defendants awaiting trial under current selsor under the language of the 1973 first degree murder statute, alleged both for further proceedings. id. at 128. in crime to leave no witnesses. she has suffered, she has suffered. convicted of first degree murder. thus, because turnbull did not "raise[] the the offense; ii, the conditions and quantum of punishment; and iii, the evidence insufficient to support the only aggravating factor on which the result in an ex post facto violation, but rather a due process violation that is time, selsor was being retried in state court pursuant to this court's decision in the second-stage proceedings began following a short recess. to prove the selsor's first application for state post-conviction relief established that "`a retrial following a "hung jury" does not violate the double 75 oklahoma fell into the latter camp. in 1973, the oklahoma legislature by the georgia supreme court "of the appropriateness of imposing the sentence and twenty years' imprisonment for the robbery with firearms conviction. together, these principles clearly support the occa's conclusion that selsor was trial court's denial of his motion to strike the bill of particulars filed by the ha[d] not proven its case that the death penalty [wa]s appropriate.'" (quoting a probability that the defendant would commit criminal acts of violence that first degree murder on the basis of malice aforethought alone, without proving crime . . . when committed." calder v. bull, 3 u.s. (3 dall.) 386, 390 (1798) edmondson, attorney general of court acknowledged "that the sentencer's finding, albeit erroneous, that no prosecution ha[d] not proved its case' for the death penalty and hence ha[d] violate[] the prohibition against ex post facto laws and expose [him] to more if petitioners were again convicted of first degree murder, "find the existence of b) facts relevant to claim slate' rule applied." id. third, the death was caused by the defendant; the records from this proceeding were not included in the record before were triggered when the jury deadlocked at his first sentencing proceeding and they pointed at, fired, and shot the said clayton chandler, id. (emphasis added). degree murder and sentenced to death, appeals the district court's denial of his 28 p.2d 414, 428-30 (okl.cr.1995). prosecution "contended that the trial court had committed an error of law in crim. app. 1996)). 19 sentence" was the death sentence imposed by the state trial court pursuant to the action implicates a fundamental right (in his case, he asserts, the right to life), disposed of. petitioner is simply no longer similarly situated to those the state was only required to prove the elements of the crime of of whether the ex post facto clause prohibited the application, of riggs was decided during the chaos caused when the united however, "returned its additional verdict fixing petitioner's punishment not at witnesses were testifying untruthfully out of fear of reprisals, and by comparing these included statements such as, "he [(the defendant)] shouldn't be out before briscoe, chief judge, tymkovich and gorsuch, circuit judges. that offense are the same under the statute applicable at the time of may of 1996. on august 6, 1996, the prosecution filed a bill of particulars statutory definition, the information filed against selsor alleged that he, "with a due process . . . because it does not change the crime for which a) background information conviction." id. circumstances, and as required by state law, the court then entered judgment in admission of a victim's family members' characterizations and opinions about the occa's decision in selsor i "to modify [his] death sentence to life imprisonment murder statute, rather than the 1973 murder statute he was charged with violating, 51 the 1976 murder statute, including its changed definition of first-degree murder." asserted in his second application for state post-conviction relief. challenged remarks by the prosecutor concerning the testimony of the odc post facto analysis and the holdings thereunder in riggs v. branch, respondent filed a response to the petition, as well as a certified copy of the allowing women to claim automatic exemption from jury service deprived [him] 699, it did not have an ex post facto effect. and, because turnbull did not have conviction that he could be resentenced to death if he secured a new trial." id. at was process claim. indeed, as we outline below in our discussion of selsor's ex post 1975, in tulsa county, state of oklahoma and within the jurisdiction to apply the newly enacted statutes to them would be to violate the dodson was acquitted of first degree murder, but convicted of the other s.ct. at 2302, 53 l.ed.2d at 361; see also cheatham v. state, 900 the underlying felony--i.e., armed robbery, violated the double jeopardy clause 73 witness; equipoise as to the harmlessness of the error' under the brecht standard, the court informed the jury of the elements of robbery with firearms, the instructions as a statute." id. analysis and the holdings thereunder in riggs v. branch, 554 p.2d the jury to convict selsor of first degree murder on the basis of fewer essential it failed to recognize that vindictiveness must be presumed, and that the state difrancesco, 449 u.s. 117 (1980)). these holdings rest on the principle that the the date his crime was committed, in the form of 21 o.s.supp.1973, § 701.3." his person and overcame all his resistance, and while so intimidating sentence." united states v. goodwin, 457 u.s. 368, 374, 102 s.ct. oklahoma department of corrections (odc) and had interacted with selsor concluded selsor was not entitled to a presumption of vindictiveness and that, in and what she's been through for the last 23 years? do they know criminal conviction has been set aside and a new trial ordered, to what extent in support, selsor points to blackledge v. perry, 417 u.s. 21 (1974), and clerk for the tulsa county sheriff's department, testified that selsor received no selsor failed to carry his burden of presenting sufficient evidence to justify a "that this violated his rights under the ex post facto clause, the occa once acquittals is not implicated," the court held, "when, as in the[] cases [before it], a sustained the [prosecution]'s position and made the writ absolute." id. at 437. "it death penalty statutes.'" aplt. br. at 55 (quoting turnbull, 947 p.2d at 583). relief in state court."3 the supreme court granted certiorari "to decide whether the sentencing while acting in concert each with the other, without authority of law, work in the garden. he doesn't have to have a job. you've heard he decision issued on september 2, 1976. the petitioner in riggs had been charged 711 (1969); chaffin v. stynchcombe, 412 u.s. 17 (1973); and united states v. turnbull, 947 p.2d at 583. convicted of first degree murder under oklahoma's 1973 murder statute. petitioners were subsequently acquitted of breach of the peace, but convicted of at the sentencing hearing, neither side discussed the death penalty as a possible prosecution sought a writ of prohibition first from an intermediate state appellate or an unreasonable application of, pearce or its progeny. turning first to the prosecution in selsor's case had to prove commission of the robbery in order to appropriate sentence for a capital defendant. see welch v. workman, 607 f.3d trial under current murder and death penalty statutes."9 altered the state's procedural scheme for imposition of the death penalty, it did sentenced the defendant to death for the murder conviction. id. at 208. on direct made and provided, and against the peace and dignity of the state. question, the court examined pearce and two of its own post-pearce decisions and 2485, 2489, 73 l.ed.2d 74 (1982). the rationale for requiring that the united states constitution." id. at 298 (italics in original). due process clause barred the imposition of the death penalty upon petitioner at lastly, "the jury was [properly] instructed on the use of mitigating evidence and 1. when perpetrated against any peace officer, prosecuting 1976), that the oklahoma death penalty statute under which selsor was sentenced, may 21, 2001. selsor v. oklahoma, 532 u.s. 1039 (2001). in october of 1991, selsor filed a pro se petition for federal habeas relief said shot causing mortal wounds in the body of the said clayton 7. murder by a person under a sentence of life imprisonment in "[p]etitioner's lack of adequate notice that the judge was contemplating the and dodson; and (2) the separate convictions and sentences for felony murder and and "reversed petitioner's first-degree murder conviction and remanded for a new in time and location; williams v. new york, 337 u.s. 241, 245 (1949)). the court in turn held, in the imposition of the death penalty. woodson v. north carolina, 428 u.s. of the fifth amendment." id. the district court denied selsor's petition on although none of the odc witnesses directly expressed any fear of reprisal, it receive the death penalty or not is whether they mow their yard, took belonging to u-tote-m store #918, and in the possession of said motion and, on may 20, 2002, selsor's appointed counsel filed a petition for writ death penalty by finding the `evidence [insufficient] to support the sole id. at the sentencing hearing, the prosecution alleged the same two aggravators misconduct. aplt. br. at 87. specifically, selsor contends that the prosecution, passion and prejudice." 318 u.s. at 247. in gardner, a capital case, the supreme about the victim, circumstances surrounding the crime, the manner in which the specific rights of the accused such as the right to counsel or the right to remain burden of proof, and under these circumstances, we do not find a held, "if the jury . . . convicted [the defendant] based exclusively on noncriminal, the idaho supreme court held that the trial judge's express advisement at the time penalty), and the failure to find any particular aggravating circumstances does not of the evidence presented in the state court proceeding," id. § 2254(d)(2). "when facto laws or implicate the equal protection clause. id. at 583. shooting with intent to kill; and, twenty-five (25) years' imprisonment for trial on the grounds "that missouri's constitutional and statutory provisions however, that the due process clause of the fourteenth amendment places penalty statutes (1) did not increase the elements of the offense of acting in concert each with the other, rob one clayton of habeas corpus on selsor's behalf asserting eighteen grounds for relief. been changed to the detriment of riggs and the other defendants, and committed some `predicate crime,' separate from the murder." mitchell v. state, the evidentiary burden of proof under it ha[d] been changed to their c) occa's rejection of the claim elisabeth a. shumaker 69 [oklahoma's 1973] homicide murder statute remain[ed] in effect after the striking entry on the premises of another after receiving notice not to enter, but also the selsor i, 562 p.2d at 927. at the conclusion of its decision, the occa then reversal of a defendant's conviction results in "the slate [being] wiped clean," and this aggravating circumstance." id. (internal quotation marks and citation arguing that "[a]llowing the state to seek the death penalty against [him would] selsor contends that "[t]he prosecutor, defense counsel, and the trial court but you've got individuals who only knew this defendant in a including first degree murder. at the penalty phase of the trial, the prosecution the occa, selsor argued, in pertinent part, that in light of riggs, "there was no interpreting the [alleged] pecuniary gain aggravating circumstance to apply only dodson located employee ina morris, who was restocking the woodson and roberts and reversed six oklahoma capital cases that were pending 24, 1976[, the date the 1976 murder statute became effective]." id. at 828. p.2d 414, 428-30 (okl.cr.1995). proof because the death penalty was required. under newly enacted turnbull violated the ex post facto clause as applied to judicial decisions 15 circumstances and resentencing." id. (internal quotation marks and citation allay any fear on the part of a defendant that an increased sentence is fourth, the death was caused with malice aforethought. on retrial, the prosecution served notice "that it intended again to seek the 48 according to selsor, "[t]he occa ruled contrary to this clearly established law, imposition of the death sentence created an impermissible risk that the adversary an `acquittal.'" id. and, the court further explained, neither the jury's deadlock u.s.c. § 2254 habeas petition. selsor asserts seven issues on appeal: (1) whether any retrial of the appropriateness of the death penalty." id. lastly, the court court emphasized that its decision did "not at all depend upon the [prosecution]'s conditions and quantum of punishment, and (3) did not decrease but selsor's direct appeal from the new trial newly enacted statutes. riggs, 554 p.2d at 825. this court found mandamus. on october 14, 1997, the occa issued its decision in turnbull and, the charge was filed, riggs responded by filing a petition for writ of habeas of [his] trial constitute[d] an ex post facto violation." 432 u.s. at 292 (italics in and were granted certiorari review by the united states supreme court. introduce no new evidence in support of its contention that petitioner deserve[d] other than death, what is going to be mike selsor's punishment? the trial judge, after considering the recommendation of a sentencing jury, was review. and "[b]ecause the occa did not reach th[e] issue, it is reviewed by this subsequent supreme court "decisions construing that case." aplt. br. at 80. pearce established a rebuttable presumption of vindictiveness, not an commission of forcible rape, robbery with a dangerous weapon, 7 sixth and fourteenth amendment rights to effective assistance of counsel." id. at circumstances, we review the district court's legal conclusions de novo and its according to selsor, "[t]hat body of law holds that where, as here, an appellate although selsor frames the alleged error as an ex post facto violation, we effectively subjected to a law "that aggravate[d] a crime, or ma[d]e[] it greater 104, 116, 92 s.ct. 1953, 1960, 32 l.ed.2d 584 (1972), that when the first jury had declined to impose the death sentence." id. after the trial error review, the constitutional violation that occurred here is not, as we have "on july 3, 1989, selsor filed a second application for post-conviction under § 2254(d)(1) is the governing legal principle or principles set forth by the consent and against his will, said robbery being accomplished by said supp.1996, § 701.10. under section 701.3, the state was only the occa, in its turnbull decision, rejected selsor's petition. in rejecting court also presumed that "[i]f defense counsel had been notified that the trial in sattazahn was convicted in a pennsylvania state court of various crimes, selsor notes that the state typically must establish "a rational basis for [a] pursuant to fed. r. app. p. 28(j) identifying three additional authorities in the occa's resolution of selsor's due process issue was neither contrary capital-sentencing proceedings under bullington, double-jeopardy protections punishment scheme set forth in oklahoma's 1976 murder statute to defendants prosecution, he petitioned the occa for a writ of mandamus. in his filing with standard for determining whether habeas relief must be granted is whether the . . . december 1984. lastly, the prosecution presented testimony from the widow and id. at 825. continuing, the occa noted that judge found all of the aggravating circumstances alleged by the prosecution, and sentencing judge relied, but does not find the evidence insufficient to support the of this court, did unlawfully, feloniously and wrongfully, while second degree, and those defendants convicted of said offenses prior 62 on november 8, 1978, selsor filed a pro se application for post-conviction evidence clearly established, without dispute from selsor, that selsor murdered o.s.supp.1976, §§ 701.9 and 701.10; 21 o.s.1991, § 701.9, and 1973 murder statute. but rather than considering whether this resulted in establish guilt. id. murder in the first degree of clayton chandler down. morris replied, "you've got to be kidding me." dodson then determined the factual question of whether [he] was tried under the 1976 murder linda morgan, were either employed by, or retired from employment with, the according to selsor, the relevant comparison group for purposes of his reasoning and analysis of dobbert. cartwright v. state, 778 p.2d 479 of murder in the first degree. s. r., vol. ii at 203. the state trial court denied rights under the eighth amendment. exercising jurisdiction pursuant to 28 murder and death penalty statutes. dobbert, 432 u.s. at 301, 97 circumstances . . . ." id. at 122. based upon these facts and this presumption, the merit under controlling federal law. consequently, the question we must address was now `similarly situated to defendants awaiting trial under current murder and no person may be convicted of robbery with firearms `acquit' a defendant (i.e., preclude the death penalty). id. at 156. although the 8. when perpetrated against two or more persons arising out of (citing bouie, 378 u.s. at 353-54). the court in turn rejected the notion that selsor contends that "the occa both unreasonably applied clearly chandler did languish and die; state to seek the death penalty against [him would] violate[] the prohibition punishment, selsor argued, "fl[ew] in the face of due process." id. at 9. notably, degree, armed robbery or when death occurs following the sexual pursuant to 28 u.s.c. § 2254 in the united states district court for the western is whether [he] had fair warning when he collaterally attacked his unconstitutional petitioner's case." id. prosecution failed to prove its case for the death penalty to be imposed against crime was perpetrated, and the victim's opinion of a recommended sentence.")). jury found the existence of all but one of the essential elements of the 1973 selsor contends, citing bouie v. city of columbia, 378 u.s. 347, 353-54 jeopardy protection in capital-sentencing proceedings is whether there has been and concluded that (a) the evidence "was insufficient to support a finding of the according to selsor, he "reasonably relied on [riggs] when he pursued post- proposition v, he asserts that his jury was mis-instructed on the 47 44 process followed in th[e] . . . case satisfied the requirements of the due process challenges. on july 2, 1976, the united states supreme court issued a trio of were subsequently convicted by a jury in arizona state court of first degree 32 `acquitted' petitioners." id. at 154 (quoting bullington, 451 u.s. at 443). noting that a section of the 1973 murder statute authorized the occa to exercise first trial," id. at 84; and the lack "of any explanation by the state for its decision avoiding or preventing a lawful arrest or prosecution"; and (4) "[t]he existence of in 1998 pursuant to the first degree murder statute (21 o.s.1991, § oklahoma court of criminal appeals (occa) in addressing selsor's most recent reviewing a state court's application of federal law, we are precluded from issuing they're rubbing elbows with this defendant every day? of his cell unless he has a leash on him and a prison guard at the other end of that unreasonably construed pearce and its progeny to require comparison of the statute . . . ." id. consequently, he argues, "this court should review [his] ex factual background obtain a death sentence against him." aplt. br. at 21-22. in support, selsor error did not have a substantial and injurious effect on the jury's guilt phase the matter remanded for redetermination of aggravating and mitigating with an ex post facto effect. and on that point, the supreme court has recently first degree murder. once those elements were proven, the state issued approximately four years after the occa's decision in turnbull. . . . ." id. at 208-09. particular, the court held that "[d]ue process of law . . . requires that randall g. workman, warden, alternative sentence [that could] be imposed against those individuals convicted the crime of robbery with firearms: pursuant to the 1973 statute." id. at 351. selsor filed a petition for writ of fundamental characteristic of fair procedure." id. in sum, the court held, human being in exchange for money or any other thing of value, or and sentenced to death. "the murders of which petitioner was convicted were bullington line of cases," the court explained, "the touchstone for double- 318 u.s. at 247, but rather, as noted by the occa, were intended to directly newly enacted statutes for imposing the death penalty, to defendants two related questions remain: whether the error is subject to harmless error question of whether selsor was, under pearce and its progeny, entitled to a murder statute. and the only essential element that was not covered by the state murder was automatically sentenced to death without consideration of the turnbull, 947 p.2d at 583 (citing salazar v. state, 919 p.2d 1120, 1127 (okla. standard governs in federal habeas cases regardless of whether state courts dump[ing] them into the water in sacks weighted with rocks." id. petitioners issue in the proceeding -- whether death was the appropriate punishment for 947 p.2d at 582-83. 725. "and," the court further held, "since the fear of such vindictiveness may in the death penalty. prior to the effective date of our new homicide murder statute. original). to, nor an unreasonable application of, bouie.7 of the robbery, was essentially undisputed. in other words, the prosecution's conviction must play no part in the sentence he receives after a new trial." id. at to know what you vote for is what's right. community that any decision to impose the death sentence be, and appear to be, "this circuit and several other circuits have [since] expressly recognized specifically, the prosecutor was attempting to argue to the jury that the testimony issues raised by petitioner, noted at the outset that "[t]he procedure that resulted conviction and sentence are reversed on appeal or collateral trial.10 good for what he's done? is that the appropriate punishment in this "[t]he imposition of a particular sentence . . . [wa]s not regarded as an `acquittal' violating oklahoma's 1973 murder statute could be sentenced to death, the occa the trial judge's rejection of the `pecuniary gain' aggravating circumstance . . . the defendant in this case, michael b. selsor, stands the appropriate penalty for murder in the first degree . . . under the 1973 statute" however, changes in the law by judicial construction, such as statute, rather than the elements of the 1973 murder statute selsor was charged "original sentence." thus, in turn, the occa's refusal to apply a presumption of was insufficient to support the "especially heinous, cruel, or depraved" with the same counsel from the public defenders office." s. period of time, fla. stat. ann. §§ 775.082 (1971) and 921.141 (supp.1971-1972), united states court of appeals confinement, in particular his attempted escape in the early 1980's. the relevant comparison, according to the supreme court, is between the "original selsor's second application for state post-conviction relief id. at 739 ("i think that the information, albeit old, properly informs mr. selsor of see okla. stat. tit. 21, §701.12 (1976). selsor moved to strike the bill of constitutional rights at the retrial proceedings by instructing the jury as to the silent," id. at 182. the life sentence, amount[ed] to an acquittal on the merits and, as such, bar[red] particulars. after the state trial court denied selsor's motion, selsor petitioned 350. petitioners argued "that by applying such a construction of the statute to occa was mistaken in concluding that "the newly enacted death penalty statutes (okl.cr.1989). this court has acknowledged an ex post facto reasonable. see 28 u.s.c. § 2254(d)(1) and (2). acquitted the [petitioner] of whatever was necessary to impose the death "fair warning" that a conviction of first degree murder in oklahoma would result 40 the applicability of the fifth amendment's double jeopardy clause in the context vindictiveness against a defendant for having successfully attacked his first selsor asked the occa to revisit the issue on direct appeal following his misconstruction of the pecuniary gain aggravating circumstance" did "not change 8 original). the supreme court rejected this argument, however, "conclud[ing] that chandler was working at the cash register. selsor approached (1973)). finally, exercising that modification power, the occa concluded "that were denied due process of law . . . because the [trespass] statute failed to afford death penalty statute in effect in oklahoma in 1975, when [he] [wa]s alleged to were seated, an employee of the store put up a chain with a `no trespassing' sign the fundamental premise of petitioners' argument, namely, that a capital defendant] of a fair trial," id. at 181, the court emphasized that the prosecutor's 28 death penalty could not be based solely upon [the "especially heinous, cruel, or in proposition two of his appellate brief, selsor contends that the occa turn, selsor failed to prove actual vindictiveness. county, with the offenses of armed robbery, crf-75-2183; shooting with intent these witnesses testified, in pertinent part, that, despite their being generally in confession, selsor admitted that before entering the store, he and indicates that selsor's jury was instructed upon and found him guilty the occa first addressed these judicial and legislative events in its riggs watch tv, write letters, participate in rodeos, workout, play ball, tr., vol. v at 1200-02. presentencing order entered by the trial court requiring the [prosecution] to advise crime, the defendant, and the appropriate sentence violates the eighth unlike the situation in lankford, there was no "risk [in selsor's case] that the relief in state district court. the application asserted a single claim for relief to sentence selsor to life imprisonment rather than death. to be sure, the id. at 443. in reaching this conclusion, the court emphasized that "[t]he values cir. 2006), overruled on other grounds by wilson v. workman, 577 f.3d 1284 sixth amendment right to the effective assistance of counsel because of his although selsor now suggests that these statements amounted to a factual for two decades, had produced the very result the state requested in that case, had michael b. selsor did, while being then and there engaged in facto claim, rogers appears to have narrowed the reach of the bouie decision, and the jury's passion and prejudice, and therefore violated the eighth amendment," presumption of vindictiveness of the kind imposed in pearce." id. at 565. id. however, selsor notes, when he argued on direct appeal from his second trial of the crime. these elements are: (10th cir. 2009) (en banc). evidence in the context of other evidence presented," that the improper evidence city, oklahoma, for respondents-appellees. establish guilt, and are not ex post facto. [citations omitted] the ex defendant] must show both that the law [or decision] he challenges operates witnesses testified that, despite supporting the death penalty generally, they has consistently upheld admission of similar evidence. indeed, selsor asserts, court's "judgment, based on findings sufficient to establish legal entitlement to in 1986, the court granted certiorari in another arizona death penalty case petitioners in poland committed an armed robbery of "a purolator van that was (emphasis in original). and, the court further noted, it was "not prepared to in turnbull, the occa sua sponte "anticipated and resolved" the double differs from bouie in terms of the substance of the judicial decision at issue: perpetrated against any human being while intending to kill such scared to say anything negative about selsor: seventh, by force/fear; richard eugene dodson robbed the u-tote-m convenience store at `life, health, habits, conduct, and mental and moral propensities.'" id. (quoting federal law, as determined by the supreme court of the united states," 28 u.s.c. proceedings. in turn, selsor was able to utilize the adversary process to challenge lisle, 588 f.3d 940, 945 (7th cir. 2009) (internal quotation marks omitted). prison rodeos and gardening. the prosecutor in turn emphasized this testimony instruction (instruction 9) failed to include all of the essential elements under the recommendation of death for selsor," aplt. br. at 103-04, "served only to inflame murder statute and its corresponding penalty provisions violated the prohibition applying the overruling retroactively to [him], thereby permitting the state to i.e., "ask[ing] the jury for a sentence 250 times greater than it had requested at the the first degree, as charged in the [original] information," as a result of the trial, the reasons for his doing so must affirmatively appear," and "[t]hose reasons trial" or because "the death penalty was discriminatorily or disproportionately overruling of riggs violated selsor's due process rights. on direct appeal selsor in turn presented testimony from a data entry clerk employed by the 3. when perpetrated against any witness subpoenaed to testify at robbery with firearms of clayton chandler on petitioners' first capital sentencing hearing and appeal did either the sentencer or of the odc employees should be discounted both because they were not privy to unconstitutionally deter a defendant's exercise of the right to appeal or presumption does not apply, the defendant must affirmatively prove fourth, personal property; sentence proceeding," the court emphasized "[t]his [wa]s because `the law retrial of [selsor] within a reasonable time." id. families with the life selsor would lead if sentenced to a term of imprisonment, imprisonment, and, in doing so, contrasted that with the plight of selsor's equal protection claim includes all oklahoma state defendants convicted of the writ simply because we conclude in our independent judgment that the state the petitioner in lankford, and fourteenth amendments." williams, 428 u.s. at 907. 24, 1976, new first and second degree murder statutes. importantly, for purposes penalty statute). the occa agreed with selsor, summarily stating: selsor was originally charged by information with first degree murder in the time he" committed the murders "there was no death penalty `in effect' in in imposing the life sentence, the trial judge found that none of the three statutory affirming their convictions, had "construed the statute to cover not only the act of to contract killings." rumsey, 467 u.s. at 207. the arizona supreme court judge contemplated death as a sentence," id. at 119; and second, that "[t]he 449, 456-57 (1958); saint francis college v. al-khazraji, 481 u.s. 605, 608-09 extend bullington further and view the capital sentencing hearing as a set of the state trial court then proceeded to provide the jury with specific objections to the bill of particulars. selsor's crime ( 21 o.s.1971, § 801) and the current statute ( 21 in cross-examining these latter four witnesses, the prosecution focused on of death? they're gonna come right back and they're gonna live v. oklahoma, 428 u.s. 907 (1976). in doing so, the supreme court held that and let's talk about the state employees, the [odc] personnel. i selsor presented this claim to the occa in 1997 when, following the state error had a substantial and injurious effect on the jury's penalty phase verdict. sentence of death to life imprisonment based upon "errors of law occurring at 1996). "that application was denied on july 24, 1989, and that ruling was [selsor]'s arguments, there was a death penalty statute in effect in 1975, and on of the instant appeal, the new statutes effectively expanded the definition of first selsor also cites to woodson v. north carolina, 428 u.s. 280, 290 tenth circuit its discretion and modify a sentence of death, the occa concluded "that the presented during the second-stage proceedings. in cross-examining each of omitted). retrial. selsor argued that his "case present[ed] the unique question of whether an statute (i.e., malice aforethought and commission of the murder during a cleburne living ctr., 473 u.s. 432, 439 (1985), for the general proposition that in light of marcus, we conclude that the due process violation that resulted federal habeas proceeding. picard v. connor, 404 u.s. 270, 278 (1971). should befall [defendants] . . . convicted of murder in the first degree, or . . . in selsor v. turnbull, this court . . . anticipated and resolved [an] constitutional error, the occa instead looked to the remainder of the state trial 8 "adequately resolved in . . . turnbull," and that "nothing in [selsor's new oklahoma state penitentiary; drew gardner, 430 u.s. at 358. that said, however, the prosecutor did not manipulate court outlined for the jury the essential elements of first degree murder under constituted an `implied acquittal' on the merits of the central issue in the edmondson, attorney general of oklahoma, with him on the brief), oklahoma robbery of the tulsa u-tote-m convenience store, two of which involved the a. a person commits murder in the first degree when he the prosecution at the retrial proceedings to seek the death penalty against him. advantages of selsor's life in prison to the plight of the dead victim. l.ed.2d 344 (1977). in its ex post facto analysis, the supreme court court issued a published opinion reversing the decision of the district court and right to effective assistance of counsel was violated" and ultimately vindicated in of this court's decision overruling riggs v. branch violated due 82 more detailed definition, noting that "the degree to which others are viewed as selsor. be imposed." id. at 432. the petitioner in bullington was convicted by a jury of 6, 1998. the judgment stated, in pertinent part, that selsor was found guilty of actual vindictiveness on the part of the prosecution in filing the bill of particulars counsel's performance on behalf of selsor," resulting in "violations of selsor's 64 recognized the error and applied any harmless error review). under brecht, "the death penalty, because his sixth amendment right to effective id. at 363. by the person procuring the killing; the double jeopardy clause; (3) whether the state trial court violated his equal protection claim. to begin with, selsor cites to city of cleburne v. retrial after appeal, but only by those that pose a realistic likelihood of asserts a host of arguments in an attempt to prove actual vindictiveness: the fact proceedings, the slate is wiped clean and a defendant may be supreme court reversed the resisting arrest charges due to insufficient evidence, `are narrowly tailored measures that further compelling governmental interests.'" citations to the record. thus, it is unclear precisely what claim or claims selsor of an amended judgment on november 24, 2009, selsor moved for a certificate of "[t]he occa upheld admission of a victim's death recommendation the same day id. at 150. the arizona supreme court also reviewed the sentencing proceedings united states court of appeals the occa summarily rejected the claim, concluding that the argument was 1506. accordingly, this court remanded the case to the district court "with direction that all persons similarly situated should be treated alike." selsor also the united states supreme court subsequently "granted certiorari to law" we must consider in reviewing the occa's turnbull decision under the was filed against selsor in 1975. s. r., vol. iii at 351-54. that language stated, (1976). aplt. br. at 105. selsor does not explain, however, how woodson not, as selsor now suggests, "acquit" him of the death sentence. see aplt. br. at specifically, the supreme court noted that "[t]he new statute simply altered the 740 (okl.cr.1990). 30 do what he wants. of counseling for, what did it be [sic]? go outside. and he deserves 58 states, and during the scramble by those states to ensure there were aggravating factors alleged by the prosecution existed. on appeal, the allowing independent reweighing of aggravating and mitigating turnbull, 947 p.2d at 582. in support, the occa stated: proceeding." id. at 726. subjecting petitioner to the death penalty does not appear to be were asked to come in here and sit in judgment of your neighbors, with firearms are included within the elements of the first degree murder his retrial proceedings; (6) whether the penalty phase of his retrial proceedings addressing this question, the court concluded that "[a]t no point during 13 without parole. 21 o.s.supp.1976, §§ 701.9 and 701.10; 21 away the life of a human being, which is manifested by external a. standard of review it decided [his] appeal." aplt. br. at 104 (citing welch v. state, 2 p.3d 356, 373 finally, we reject petitioner's claim that to subject him to the the evidentiary burden of proof under the newly enacted statutes had 5 against ex post facto laws). moreover, even ignoring this distinction, the occa's did not change the burden of proof to the detriment of riggs and other counsel,'" id. at 1033-34 (quoting holloway v. arkansas, 435 u.s. 475, 484 comparable to a pretrial order limiting the issues to be tried," id. at 120. the convincing or persuasive enough to change those results. part, that the state trial court's retroactive application of the 1976 first degree relief unless he "has exhausted the remedies available in the courts of the state." absolute prohibition on enhancement of sentence. robert l. whittaker, assistant attorney general, criminal division (w. a. drew subsequent to the first trial that may have thrown new light upon the defendant's as then written, provided that a person convicted of a capital felony was to be murder and sentenced to death by the trial judge. in support of the death instructions. depraved"] aggravating circumstance because there was insufficient evidence to degree murder conviction. as for the other two counts of conviction, the jury failing to give notice of his intention to consider imposing the death sentence would constitute a continuing threat to society." s. r., vol. i at 191. the supreme court issued its opinion in dobbert v. florida, 432 u.s. 196 (1977). as discussed in greater detail below, this conclusion was neither contrary to, nor when a judge fails to give an instruction, a reviewing court would find it any for the foregoing reasons, the sentence in case no. crf-75- crime." id. at 349. in support, petitioners noted that although the statute of by the occa." id. in turn, selsor contends that "[t]he due process question . . . certain limitations on the sentence that can be imposed following retrial. in we have little trouble concluding that the state trial court's instructional reasoning of [these cases] . . . appl[ied] under a system," specifically missouri's no death penalty `acquittal' by that court," and thus "[t]he double jeopardy in turnbull did not authorize a greater punishment "than the law annexed to the 2 death penalty, alleging the same aggravating circumstance it had attempted to chandler, from which mortal wounds the said clayton capital sentencing hearing." payne, 501 u.s. at 830 n.2. that holding was assault, threats and menace did then and there put the said legislative act8 of the death penalty for any person convicted of first degree murder (although the no person may be convicted of murder in the first degree unless the facts? would you know why someone wants your neighbor 78 his due process claim to the occa. thus, the occa's implicit conclusion that its selection of an appropriate sentence (including the consideration of `especially heinous, cruel, or depraved' aggravating circumstance," (b) the trial process. * * * this court . . . found that the retroactive application reversal on direct appeal will not necessarily support a collateral attack on a final contrary to, nor an unreasonable application of, lankford. unlike the petitioner has sufficiently established that exhaustion of his claim with the occa would did not adequately notify him of the charges against which he had to purposes of the double jeopardy clause." id. the court in turn concluded that came in here and starts saying, well, this defendant deserves to die? deferential standard of review outlined in 28 u.s.c. § 2254(d)(1). see lockyer v. 12:01 a.m., july 24, 1976," the occa held, "the appropriate penalty for murder 14 id. at 1202-04. [defendant]'s offense." id. at 211. more specifically, "[t]he trial court entered appellate] brief [wa]s convincing or persuasive enough to change th[at] result[]." detriment. * * * to [hold] otherwise in th[is] situation[] would be to is not entitled to federal habeas relief on the basis of his equal protection claim. ultimately harmless, "several offensive comments" made by the prosecutor during having concluded that the state trial court's instructions effectively section of the community." id. at 436. 28 u.s.c. § 2254(b)(1)(a). to exhaust a claim, a state prisoner must pursue it c) § 2254(d) analysis selsor v. state (selsor ii), 2 p.3d 344, 347-48 (okla. crim. app. 2000) (internal subjected to any punishment authorized by law, including death. ladies and gentlemen, i submit to you, based on the evidence felony involving the use or threat of violence on another person). id. "the trial (1977), and darden v. wainwright, 477 u.s. 168 (1986). in vierick, the supreme that the occa acted unreasonably in treating selsor's death sentence as his statute, 21 o.s.supp.1973, § 701.3, or to those defendants whose agreed and thus ordered "the sentence of life imprisonment . . . to be set aside and the death penalty." id. at 446. "having received one fair opportunity to offer proceeding when, on appeal from a sentence of death, the reviewing court finds neither of these implicit conclusions reached by the occa are contrary to, the "only . . . other circumstance [in which it] ha[d] identified a need to indulge a serve as the predicate crime for the avoid arrest aggravator in the second stage." court addressed the following question: "when at the behest of the defendant a judgment for that of the state court." snow, 474 f.3d at 696 (internal quotation on june 17, 1977, approximately nine months after the issuance of riggs, 22 office regarding the recommendation of this case." tr., vol. v at 1042. instruction, selsor argues, "was consistent with the occa's decisions holding death, but at imprisonment for life without eligibility for probation or parole for whose crimes were committed prior to the enactment of the new with the district attorney's recommendations on this case." id. at 1045. selsor's violates the eighth amendment."14 its decision in marks, that it was "incorrect to classify the error at issue as an ex only must prove the same elements of the crime of first degree 31 the state's claim that the defendant deserves to die . . . ." id. at 445. finally, the of vindictiveness arises when the first sentence was based upon a guilty plea, and deprived him of his right to a fair sentencing hearing. in doing so, however, such a due process violation was a structural error. id. ("we see no reason why, writ of prohibition and/or mandamus at 6, 8-9. exposing him to such possible penalty statutes did not change the burden of proof to the detriment clerk of court law, the robbery was an essential element of" first degree murder "and thus could determine the status of . . . those defendants[, like selsor,] convicted of [first degree. id., vol. ii at 203. on july 20, 1997, on the eve of trial, the state trial decision to grant a writ of habeas corpus in selsor's favor. contrary to, or involved an unreasonable application of, clearly established by judicial decision that riggs should be overturned does not violate id. at 569.11 in his seventh, and final, proposition of error, selsor contends that the trial "[t]he equal protection clause of the fourteenth amendment . . . is essentially a employees were not "wholly irrelevant to any facts or issues in the case," vierick, death penalty statutes, the state not only must prove the same (continued...) michael bascum selsor, likewise, the occa's resolution of selsor's due process issue was neither rumsey, the court stated that "the relevant inquiry in the cases before [it] [wa]s sentencing options increased in favor of a defendant to include not court decisions upon the oklahoma homicide murder statutes," id. at 825-26. great risk of death to more than one person"; (2) "[t]he murder was especially ii as for the prosecutor's comparison of the plight of the victims and their "[i]t is of vital importance to the defendant [in a capital case] and to the parties the principal issue to be decided at the hearing." id. at 126. "notice of specifically, the occa concluded that the robbery with firearms conviction "must on her knees, asking god to forgive her for her sins. she was shot addressed the due process issue. in any event, we are not persuaded that any of of the death penalty provision." id. the occa then addressed "what appear." 395 u.s., at 726, 89 s.ct., at 2081. this rule has been read witnesses read into the record victim impact statements they had prepared prior to (outlining four types of ex post facto criminal laws); see johnson v. united states, physical suffering. clayton suffered. he suffered. you bet he "while being then and there engaged in committing the crime of robbery with in the instant case, we conclude, out of an abundance of caution, that selsor preenactment conduct, [the defendant] would have a valid due process claim." id. opinion of [the] recommended sentence." welch, 2 p.3d at 373; see murphy v. maryland, 482 u.s. 496 (1987), contends "[t]he supreme court has long held that n.3 (quoting o'neal, 513 u.s. at 435). riggs, the united states supreme court directly addressed the issue turn, selsor argues, the jury "thus would have found only the `risk of death to guilt." in sum, selsor's argument[] in proposition[] . . . iii w[as] amendment." id. at 830 n.2. payne did not overrule this portion of booth. id. 12 constitutionally permissible penalty remain[ed]" for those defendants convicted of retrial he was effectively prosecuted and convicted under oklahoma's 1976 "[w]hen a state court applies plain error review in disposing of a federal statute, which defined first degree murder to require both malice aforethought and anything about his daughter debbie? do they know anything about the united states supreme court, in granting certiorari and addressing the premeditated design to effect the death of the person killed, or of any agreed with the district attorney's recommended sentence of death. 39 id. at 361. the death penalty against him violated his due process rights; (2) whether the time it decided his direct appeal and for several years thereafter, consistently morning appropriately. would you be biased? would you know all death penalty." poland v. arizona, 476 u.s. 147, 148 (1986). the two murder," and [t]his was sufficient compliance with the ex post facto provision of forth in" brecht. fry v. pliler, 551 u.s. 112, 120, 121 n. 3 (2007). as we have 360). had the jury been properly instructed on the 1973 murder statute, selsor claim lacks merit under federal law." douglas v. workman, 560 f.3d 1156, 1171 provision nor the equal protection clause imposes an absolute bar to a more selsor first presented his claim to the occa on direct appeal from his 1998 committing the offense of murder in the first degree prior to 12:01 a.m. of july two aggravating circumstances enumerated in oklahoma's 1976 murder statute. not increase but in fact decreased the conditions and quantum of to see daddy come home that night. when she went into the door to statutes. dobbert v. florida, 432 u.s. 282, 97 s.ct. 2290, 53 only death but also the possibility of life imprisonment, and now life did." id. at 104-05 (internal citations omitted). on direct appeal, the united states of america; 324 (1984)), the petitioner argued "that given the unique treatment afforded question of whether selsor was entitled to a presumption of vindictiveness, the adequately resolved in selsor v. turnbull; nothing in his brief is `vindictiveness.'" blackledge, 417 u.s. at 27. applying that lesson to the defendant who kills or procures the killing of the witness, or when judge." id. "in order to assure the absence of such a motivation," the court held, former conviction of a felony." selsor v. state (selsor i), 562 p.2d 926, 927 established federal law. although the supreme court, as far as we can determine, the statutes he was convicted of violating did not become law until october 28, jury as to cause [selsor] actual prejudice as required by brecht." id. 86 court's cases where the double jeopardy clause ha[d] been held inapplicable to "was tried conjointly with co-defendant . . . dodson."1 at the urging of the prosecution, expressly overturned its decision in riggs. in support it.'" id. (quoting state v. poland, 698 p.2d 183, 199 (ariz. 1985)). 2254(d)(1). him did then and there wrongfully take and obtain from him the violated his due process rights when, following his successful federal habeas at the time, and determined that riggs, and other defendants who had 701.7(a)) in effect then rather than the statute in effect when he (ii). the state prisoner bears the burden of proving that he exhausted state court d) the occa's ruling on the issue the due process clause that a criminal statute give fair warning of the conduct of mandamus and obtained from that court a stay of the impending trial. id. at rendered criminal by the statute." id. at 355. jeopardy claim is sattazahn v. pennsylvania, 537 u.s. 101 (2003). the petitioner 27 selsor's arguments, stating: have been futile. in particular, selsor correctly notes that the occa, both at the violation of the ex post facto provisions of the state and federal double jeopardy clause." id. applying the principles outlined in bullington and society, the prosecution's evidence of selsor's role in a string of violent robberies hallmarks of [a] trial on guilt or innocence," bullington, 451 u.s. at 439, and thus we disagree. to be sure, the occa's decisions provide that establishment prosecution arises that mandates invalidation of the more severe sentence, unless degree murder] prior to the effective date of [oklahoma's] new [1976] murder court informally announced its intention to grant petitioner's motion to strike, the an unreasonable application of, clearly established federal law. blackledge, 417 u.s. at 27-28. in selsor's case, we conclude that the "original 477 u.s. at 180. in concluding that the remarks "did not deprive [the the court held that mandatory death penalty schemes adopted by north carolina imposed." id. (internal quotations omitted; citing okla. stat. tit. 21, § 701.5 "the government has the burden of proving that [the challenged] classifications of this society. this was a good man. he didn't do anything to in addressing petitioners' argument, the supreme court began by sure, neither pearce nor its progeny dealt with a situation identical to the one at previously noted, riggs was decided in the immediate wake of the supreme verdict. to be sure, the instructional error, as we have already discussed, allowed selsor's petition." id. 947 p.2d at 583. selsor's "judgment and sentence has been vacated," the occa fair warning that the conduct for which they [were] convicted had been made a evidence, the state trial court read to the jury the language of the information that we conclude, after "[a]ssessing the improper parts of the victim impact the implicit conclusion that the occa had not, in modifying selsor's death consider whether reimposing the death penalties on petitioners violated the ex post facto provisions of the constitution of the united states. id. actual vindictiveness on the part of the prosecution. as the supreme court retrial, the occa sua sponte addressed and rejected the question of whether its equal protection of the laws, in violation of the fourteenth amendment." aplt. evidence of two mitigating circumstances. id. at 104. at the close of the after this court attempted to construe federal ex post facto law in the occa was "the substantial equivalent" of the claim he now asserts in this part of the defendant occurring after the time of the original sentencing punishment. this is proper argument. 482. this court has previously addressed the retroactive application trial." id. at 105. on remand, the prosecution filed a notice of intent to seek the conviction prohibited "entry upon the lands of another . . . after notice from the seeking the death penalty following [his] habeas victory," including "its now in proposition[] . . . iii . . . : whether the retroactive application dreams were in that man. her dreams. he took the father, the pillar 74 of murder in the first degree prior to the effective date of [the] new murder 21 "late in 1972 florida enacted a new death penalty procedure," id., under which rebut selsor's arguments as to why he should be sentenced to life imprisonment. aggravating and mitigating circumstances on which they intended to rely, was itself in "grave doubt" about the effect of the error on the jury's verdict. o'neal and clearly spoken. not violate due process. we specifically stated: "the change in law when he takes the life of a human being, regardless of malice, in the (1973). that statute defined the crime of first degree murder to require proof of the person." id. "at the second trial, the jury again convicted petitioner of first- contrary to this court's analysis in riggs, the newly enacted death circumstance does not of itself `convict' a defendant (i.e., require the death br. at 68. as we have explained, however, the state trial court's error did not on cross-examination that it could potentially place him in danger to say negative constitutions. district of oklahoma. selsor v. kaiser (kaiser i), 22 f.3d 1029, 1031 (10th cir. 12 number of states, including oklahoma. the occa acknowledged these supreme 10 of the prosecution's intent to seek the death penalty at the 1998 retrial that, because the record was devoid of any explanation for the new detective john evans of the santa barbara police department. in his put her arms around dad, there was no dad. he took a husband. her recommended life imprisonment for the shooting with intent to kill conviction, selsor contends, in proposition one of his appellate brief, that the occa in murder statute. as we have noted, oklahoma's 1976 murder statute, in contrast write-ups during the nineteen months he was confined in the tulsa county jail. campaign for the office of the presidency or vice presidency of the and louisiana, i.e., schemes under which a person convicted of first degree "similarly situated" to his identified comparison group. thus, we conclude selsor under the contemporaneous death penalty statutes (i.e., statutes enacted in 1976 jurisdiction of this court, did unlawfully, feloniously, and willfully, with powder . . . ." s. r., vol. i at 10. oklahoma constitute[d] cruel and unusual punishment in violation of the eighth 7. impermissible testimony by victim's family degree murder by defining it in the following manner: a victim-impact witness's testimony supporting a death sentence for the defendant court, where his retrial proceedings began. at the close of the first-stage remanding for further proceedings. more specifically, this court concluded "that it is apparent from its decision that the occa did not expressly address the returning to selsor i, it is apparent that the occa, by applying its decision for the northern district of oklahoma with violating. the quantity and degree of proof necessary to establish guilt. murder and death penalty statutes. dobbert, 432 u.s. at 301, 97 record was simply "a little bit better than average," tr., vol. v at 1124 (testimony by selsor and the stabbing of another clerk by dodson). the prosecution also 41 thus rogers lends no support to selsor's due process claim. as the supreme in context of the evidence in this case. i would submit to you, liken 1. due process violation - occa's overruling of riggs f.3d 693, 696 (10th cir. 2007). under aedpa, the standard of review applicable crimes, as well as the crime of shooting with intent to kill. court held, "[w]hen a[n] . . . unforeseeable state-court construction of a criminal sentence or charge resulted from vindictiveness; where the 533 (1973). lastly, selsor asserts that where, as here, the challenged government collaterally attack his first conviction, due process also requires that a defendant that in his first direct appeal "the state asked the occa to modify [his] sentence 7 law, and applies that change retroactively, to a defendant's detriment, it violates 23 id. at 564-65 (brackets in original). the court in turn noted that blackledge was third, carrying away; in bullington, the court granted certiorari to consider "whether the selsor, arguing that the information, which was filed in 1975 and which charged on september 29, 2009, the district court issued an opinion and order by filing a motion for appointment of counsel. the district court granted selsor's filed 3 acted vindictively in filing the bill of particulars against him.12 p.2d at 482. in addition, the true focus of ex post facto analysis is on to life," aplt. br. at 82; "[t]he extraordinary lengths to which the state went in "the meaning of [its] holding in pearce." wasman v. united states, 468 u.s. 559, against one of the petitioners (that this petitioner was previously convicted of a violation that prompted the occa to modify selsor's sentence to life id. at 566. the court proceeded to describe four cases in which it "expressly poland, 476 u.s. at 155)). indeed, the occa's decision could not have amounted furman death penalty scheme, which provided for bifurcated capital trial exhaustion would have been futile, see clonce v. presley, 640 f.2d 271, 273 (10th b. a person also commits the crime of murder in the first degree below, that joint representation was ultimately the basis for this court's 1996 it to your neighbors that you live next door to. think about if you instructions regarding the crime of first degree murder. in doing so, the state trial 788, 819 (10th cir. 2005). although selsor correctly notes that the supreme selsor was "similarly situated" to defendants being tried under the 1976 murder nor the trial court's subsequent entry of a life sentence constituted an acquittal was contrary to, or an unreasonable application of, clearly established federal law, petition, riggs appealed to the occa. the occa noted at the outset that its task (1) the elements of the offense, (2) the conditions and quantum of these state legislative responses to furman in turn led to new court innocence is . . . absolutely final" "are equally applicable when a jury has rejected constitutional errors. o'sullivan v. boerckel, 526 u.s. 838, 845 (1999). if a death on the victim's family are inadmissible [under the eighth amendment] at a b) occa's resolution of the issue ladies and gentlemen, we have a jury system where you all get to chandler and during the course of a robbery with firearms did kill clayton published opinion (kaiser ii) reversing the district court's ruling. in doing so, you've heard in this case, you've got to decide the punishment in this the most recent supreme court decision relevant to selsor's double id. id. in riggs to modify selsor's death sentence to a term of life imprisonment, did your punishment. he [(selsor)] can do what he wants. he can evidence legally insufficient to justify imposition of the death penalty, there was 61 or a victim's family member to comment, during second-stage proceedings, on the a) clearly established federal law applicable to the claim jury's verdict, and not, as suggested by selsor, the modified sentence of life otherwise procedurally barred, our standard of review is more searching. that is, id. at 931. and on that question, selsor cannot prevail. in other words, because selsor's issue here. however, under the standard of review set forth in § 2254(d)(1), defendants subject to oklahoma's unconstitutional death penalty selsor was confined in the tulsa county jail awaiting retrial, selsor had no write- publish that, consequently, "whatever punishment has actually been suffered under the newly enacted death penalty statutes, the sentencing options significant history of felony convictions involving the use or threat of violence to (state), okl.cr., 554 p.2d 823 (1976). sought to prove at petitioner's first trial or upon its statement that it would at 28. the jury's verdict.'" 507 u.s. at 623 (quoting kotteakos v. united states, 328 aplt. br. at 32 (emphasis in original). bouie "arose sentencer's failure to find a particular aggravating circumstance alleged by the the double jeopardy effects of a judgment that amount[ed] to an acquittal on the id. at 583. both the salazar and stafford decisions cited by the occa expressly in turnbull, in which selsor sought mandamus relief on the eve of his 63 a state appellate ruling allowing the prosecution at his retrial proceedings to seek selsor presented his equal protection claim to the occa in the context of death for murder in the first degree; twenty (20) years' imprisonment for resisting arrest and criminal trespass. on direct appeal, the south carolina retrial, arguing, in pertinent part, that the prosecutor's second-stage arguments prosecution always constitutes an `acquittal' of that circumstance for double basis of his double jeopardy claim. attached." id. after refusing to leave, petitioners were eventually arrested and punishment, and (3) the quantity and degree of proof necessary to the oklahoma legislature responded to these supreme court decisions by id. "a guilty verdict was appeal from the united states district court selsor's claim that the prosecution's pursuit of the death penalty against him there [wa]s no ex post facto violation." id. (italics in original). more courts. id. on march 1, 2011, selsor filed a notice of supplemental authority 56 quantity and degree of proof necessary to establish guilt, and are not selsor ii, 2 p.3d at 350 (internal paragraph numbers and footnotes omitted). clayton chandler in fear of immediate and unlawful injury to homicide, when perpetrated without authority of law and with a court. however, we explicitly observed that a different disposition would 59 "there was no `valid' death penalty in effect in florida as of the date of his state prisoner has not properly exhausted state remedies, the federal courts because selsor filed his federal habeas petition after april 24, 1996, the and seeking the death penalty on retrial. in this federal habeas action, selsor to statute). 37 period, and the jury convicted him. on appeal, the defendant argued that because petitioners' argument "that the arizona supreme court `acquitted' them of the at 740. relevant to, and supportive of, his due process claim.6 offenders hear that someone like [selsor's] last witness, ms. morgan, first degree murder, (2) did not increase but in fact decreased the there was no change in the quantum of punishment attached to the crime." id. at not lend support to selsor's due process claim. judicial decision that riggs should be overturned does not violate the procedural and on the whole ameliorative, and could be applied whereas the south carolina supreme court in bouie was interpreting the scope of clayton chandler by means of a firearm loaded with powder whether a trial error "resulted in actual prejudice." id. at 637 (internal quotation 24 sentence to life imprisonment, and that, consequently, his resentencing to death d) § 2254(d) analysis again sentenced both petitioners to death." id. respondents-appellees. appealability with respect to nine issues. the district court granted selsor's imposition of the death penalty at his retrial proceedings violated his rights under "furthermore," the court held, "because the reviewing court did not find the due process clause or ex post facto principles, because it does not proving certain elements beyond a reasonable doubt before the death penalty may holding in payne and remains valid." welch v. sirmons, 451 f.3d 675, 703 (10th first degree murder under the 1973 statute, id. at 828. specifically, the occa 554 p.2d 823 (okl.cr.1976) are hereby overturned. or, alternatively, its implicit finding of no actual vindictiveness, was entirely id. "the trial judge, in accordance with pennsylvania law, discharged the jury as review and, if so, "whether the error was harmless." patton v. mullin, 425 f.3d she lost everything. she lost her innocence, she lost her trust. she an idaho state criminal defendant, was charged with two counts of first-degree original). and, the court emphasized, "[i]f a state legislature is barred by the ex and subsequent retrial, was an entirely reasonable construction of clearly was life imprisonment. id. at 829. thus, in sum, the occa effectively modified, pursuit of an excessive sentence on the shooting with intent to kill conviction," violated the eighth and fourteenth amendments. in the third decision issued that selsor's first federal habeas proceedings made part of the record, of course, is that the "constitutional in addressing selsor's arguments, the occa first held that, "[c]ontrary to aggravator, it concluded the evidence was sufficient to support the other two reversal of riggs in turnbull did not have an ex post facto effect. specifically, relevant state court records. 21 o.s.supp.1973, § 701.3 [(the 1973 death penalty statute)], ha[d] been the admission, during the penalty phase of the retrial proceedings, of testimony charged by an information filed by the state of oklahoma with the effectively acquitted him of the death penalty in selsor i when it modified his imprisonment, and otherwise affirmed . . . . on direct appeal, the arizona supreme court concluded that the and the supreme court's "later decisions construing that case." aplt. br. at 80. whole encompassed all of the essential elements of the 1973 murder statute. in of his sixth and fourteenth amendment right to a jury drawn from a fair cross- [defendant]'s favor on the issue of death." id. the court held that the state trial concluded that "the death penalty as provided in [the 1973 first degree murder inc. v. peña, 515 u.s. 200, 227 (1995)). committing, but not convicted of, the crime of murder in the first degree prior to (okla. crim. app. 1977). the case proceeded to trial in january 1976, and selsor differ from those contained in the current statute, selsor's jury was at the conclusion of the second-stage evidence, the jury found the by the jury. indeed, those circumstances were all but uncontroverted. moreover, supreme court is barred by the due process clause from achieving precisely the aplt. br. at 105. in booth, the court held the information alleges that richard eugene dodson and the petitioner in dobbert "argue[d] that the prohibitions of the ex post facto clause. rogers, 532 u.s. at 458-60. not foreclose its consideration by the reviewing court." id. at 157. factual findings, if any, for clear error. mcluckie, 337 f.3d at 1197. court did not address prosecutorial misconduct, but instead held generally that adversary process may have malfunctioned . . . ." 500 u.s. at 127. first conviction . . . is . . . an unmitigated fiction . . . ." pearce, 395 u.s. at 721. jury's consideration and finding of an invalid aggravating factor . . . ." aplt. br. ex post facto analysis only applies to legislative enactments, issue[] selsor failed specifically to raise then but which he raises of knott); id. at 1135 (testimony of cook), and one of those witnesses effectively the remaining four witnesses, kenneth williamson, bervin knott, fred cook, and 26 come in here and hear both sides. remember, one of their witnesses trial court's decision. selsor v. turnbull, 947 p.2d 579 (okla. crim. app. 1997). substantial and injurious effect on the jury's death verdict . . . ." id. from selsor or others if they agreed with the prosecutor's recommended sentence. overruled by the court in payne. id. at 830 & n.2. "booth also held that the bore the burden of rebutting that presumption." id. penalty at petitioner's retrial." id. during closing arguments to highlight for the jury the consequences of a decision clause nor the due process clause barred pennsylvania from seeking the death selsor moved to strike the bill of particulars, arguing that "[a]llowing the because in resting its decision on the perceived absence of evidence of retaliation, not serve as a predicate for the `avoid arrest or prosecution' aggravator." id. in out of a `sit-in' demonstration at eckerd's drug store in columbia, south bouie to this claim challenging the occa's overruling of riggs. in prison. knott, however, expressly disagreed with the prosecution's suggestion could put her in jeopardy? is it fair to those people in that position, 77 these comments by the prosecutor are not error. instead, they fairly moreover, the comments were not based upon facts outside the killed? and think about this, ladies and gentlemen, if they're your trial. as part of their testimony, each of these three witnesses testified that they marks omitted). a "substantial and injurious effect" exists when the court finds 33. (aedpa), aedpa's provisions govern these proceedings. snow v. sirmons, 474 following his arrest, selsor "was charged in the district court, tulsa 582. in reaching this conclusion, the occa overlooked a key difference between it gonna go when they get back to the walls and all those long-term possibility of a conflict of interest . . . ." id. thus, the district court "denied charged with or committing homicide murder prior to the effective to such an acquittal because the prosecution in selsor's original trial was never difference, the court went on to conclude, "meant that the jury ha[d] already viereck v. united states, 318 u.s. 236 (1943), gardner v. florida, 430 u.s. 349 florida, 428 u.s. 242, 242 (1976).4 1975, in tulsa county, state of oklahoma, and within the of this court's decision overruling riggs v. branch to this case did sentences, the trial judge found that the murders were committed in an especially omitted). "on remand the trial court held a new sentencing hearing," during and armed robbery, and sentenced by the trial judge to life imprisonment for the if a claim was addressed on the merits by the state courts, we may not grant while all elements of first degree murder under the 1973 statute charged by an information filed by the state of oklahoma with the case? because you do have to live with yourselves and you do have 6 [1976] statute." id. "a threshold inquiry in resolving the status of th[is] class[] s.ct. 1248, 99 l.ed.2d 446 (1988). similarly, the change in law by remarks made by the prosecutor that were "wholly irrelevant to any facts or issues you vote for life without parole. if you feel that is the appropriate (the "especially heinous, cruel, or depraved" aggravator and the "pecuniary gain" briscoe, chief judge. following his 1998 retrial, selsor asked the occa to revisit the issue. the lawful arrest. in turn, the jury fixed selsor's punishment at death for the first petitioner has not supported this claim with citation to any authority. supp. 1973, § 701.3. with this we agree. see riggs v. branch prosecutor brought the [greater] felony charge in bad faith, we agreed clause . . . did not foreclose a second sentencing hearing at which the `clean o.s.1991, § 701.9, and supp.1996, § 701.10. under section 701.3, okla. stat. tit. 21, § 701.1 (1973). constitution places limitations on the ability of a prosecutor, following a aggravating circumstance is present is an `acquittal' barring a second death "murder, 1st degree," in violation of "21-701.7," the 1976 murder statute support of his due process claim: naacp v. alabama ex rel. patterson, 357 u.s. post facto clause violation . . . ." marcus, 130 s. ct. at 2165. instead, the court believe the alleged error is more appropriately treated as a due process violation. id. at 351-54. 9. when perpetrated against a child while in violation of section the second sentence follows a trial." alabama v. smith, 490 u.s. 794, 795 post facto clause from passing [an ex post facto] law, it must follow that a state statute. court under the harmless error standard announced in brecht v. abrahamson, 507 finally, applying these principles to the facts before it, the court "agree[d] with owner or tenant prohibiting such entry," id., the south carolina supreme court, in 1978 capital murder scheme, "where a jury's sentencing decision is made at a work, and could participate (and had participated) in various activities, including 1994). selsor's petition asserted "two grounds for relief: (1) he was denied his 18 violated selsor's due process rights, and that the occa's resolution of this issue 14 hung, and indicated that he would enter the required life sentence, which he later should `treat the error ... as if it affected the verdict . . . .'" fry, 551 u.s. at 121 two charges. "the ex post facto violation render[ed] [his] conviction legally void . . . ." aplt. aggravating and mitigating circumstances), and mandated expedited direct review 352. indeed, the court noted, "an unforeseeable judicial enlargement of a 53 second, taking; violated his rights under the equal protection clause, the occa stated that selsor criminal at the time they committed it, and hence . . . violated the requirement of its role in the sentencing deliberations." welch, 607 f.3d at 695. considered missouri proceeding [at issue in bullington] that ma[d]e it resemble a trial for error [at issue] `had substantial and injurious effect or influence in determining through "one complete round of the state's established appellate review process," judicial decisionmaking are inherent in the notion of due process." rogers, 532 because there were no factual findings sufficient to establish petitioner's legal they both lack merit. rule 3.5(c)(4), rules [of the court of criminal appeals]. moreover, either (but not both) of the two critical elements required under the 1973 murder 2000, the occa issued a published opinion affirming selsor's first degree certain episodes of misconduct committed by selsor during his period of criminal statute, applied retroactively, operates precisely like an ex post facto death sentence to life imprisonment, and found the due process "original" sentence to the sentence ultimately sought by the prosecution on retrial. increased in favor of a defendant to include not only death but also found the 1971 florida death penalty statutes inconsistent with furman." id. 532 u.s. at 460. instead, "[t]he ex post facto clause is a limitation upon the government presented evidence of the defendant's conduct during that entire required, and thus did not attempt, to prove that selsor should be sentenced to c) clearly established federal law applicable to the issue it is significant to note that although the florida legislature in late 1972 u.s. 750, 776 (1946)). in other words, did the constitutional error at issue oklahoma's first degree murder statute unconstitutional and thus he was being human being," and commission of the murder during the course of one of several selsor appealed his convictions and sentence to the occa. on may 10, attempted to prove the existence of two aggravating circumstances. the jury, chandler, by wrongfully taking and carrying away certain money analysis in riggs, the newly enacted death penalty statutes did not at selsor's retrial proceedings, the prosecution relied on the original adopted a statutory scheme that mandated imposition of the death penalty for the court prescribed a sentence of life imprisonment pursuant to pennsylvania death penalty." state aplt. br. at 38. selsor in turn argued "that under the selsor's counsel failed to object to the purported misconduct at trial, thereby woodson, 428 u.s. at 305, and roberts v. louisiana, 428 u.s. 325, 336 (1976), in proposition i, selsor argues that the ex post facto provisions of "constru[ed] its 1976 decision in riggs[] to mean something no reasonable person through the due process clause by overruling its decision in riggs and allowing stated, in pertinent part: would have understood that case to mean, overruling this purported holding, and 927. selsor points to a number of supreme court decisions in support of his the relevant underlying facts of this case were outlined in detail by the appointed a federal public defender to represent selsor. on may 2, 1994, this r., vol. i at 160. on february 28, 1980, the state district court denied selsor's change the crime for which petitioner is charged, increase the supreme court's decision on their first appeal that the evidence failed to support on the basis of constitutional error, all death sentences imposed on defendants id. therefore, newly enacted death penalty statutes (1) did not to decide "whether the double jeopardy clause bars a further capital sentencing 68 89 on the grounds that the statute under which the defendant was sentenced was violation of oklahoma's 1973 murder statute. see okla. stat. tit. 21, § 701.1 unlawful conduct between january 1999 and october 2001. at trial, the the value of [his] life in prison to the victim's death, . . . created a grave risk that court condemned as prejudicial to the defendant's right to a fair trial closing 4. equal protection - imposition of death penalty for pre-1976 murder barred reimposition of the death penalty" because, in their view, "the arizona eighth, through use of a loaded firearm. 6 court, similarly situated to defendants awaiting trial under current the court emphasized two undisputed facts: first, "that the character of the "whenever a judge imposes a more severe sentence upon a defendant heinous, cruel, or depraved manner. although the prosecution argued the walk-in cooler. dodson pointed his gun at her and ordered her to get tulsa county sheriff's department, who testified that during the nineteen months smoke dope, he can hang out with his friends, he can read books, that remained effective in 1997) did not violate the prohibition against ex post could still properly serve as the predicate crime for the avoid arrest aggravator. of a judicial interpretation of a statute, which changed the law thus decision if i don't know both sides. total agreement with that. supreme court, however, rejected those arguments. the court first held, citing the federal and state constitutions were violated because he was tried petitioners' brief; brackets in original). more specifically, the court "reject[ed] darden, another capital case, the supreme court characterized as "improper," but gary peterson, oklahoma city, oklahoma, with her on the briefs), for petitioner- his rights under the equal protection clause; (5) whether the prosecution acted instructional error resulted in no "actual prejudice" at the guilt phase of selsor's regularly transports passengers; c) § 2254(d) analysis four days later, on july 6, 1976, the supreme court applied its decisions in impact statement, huggins stated, "i am in agreement with the district attorney's again changed its tune," id., and held that "selsor was not tried under the 1976 giving the state courts a "full and fair opportunity" to correct alleged the jury's death verdict was based on passion and prejudice, rather than a outlined in bouie, i.e., in 1975, when clayton chandler was murdered, selsor had existence of two of the four aggravating circumstances alleged by the prosecution: constitutional error resulted from the state trial court's first degree murder commission of the murder during one of several enumerated felonies. petitioner has not supported this claim with citation to any authority. manner can be met by a carefully drafted statute that ensures that the sentencing b) the occa's resolution of the claim retroactive judicial expansion of narrow and precise statutory language." id. at chandler's widow and daughter "that they agreed with the prosecution's on remand, the "petitioners were again convicted of first-degree murder." sentence imposed on direct appeal. nothing in pearce or its progeny indicates sentence, but merely an application of the correct law, and/or a record but were reasonable inferences and arguments from the facts anne chandler. exhaustion would have been futile because either "there is an absence of available 49 a harsher sentence at retrial after a defendant has succeeded in having his original 25 against ex post facto laws. the occa rejected that argument, stating as follows: an `acquittal' of the death penalty." id. at 151. the arizona supreme court pistol, and which they used to menace and threaten the said sentence, whether greater or less than the original sentence, in light of events following the occa's decision, selsor's retrial began on february 2, [i]f a defendant has not been acquitted of the death penalty and his "similarly situated" test, and its related conclusion that selsor was not similarly increase the elements of the offense of first degree murder, (2) did maximum punishment on either charge was life imprisonment or death. the a criminal statute, the occa in turnbull was revisiting one of its own decisions id. at 187, 207. in doing so, the court held that "the concerns expressed in although the elements of first degree murder and the burden of to the effective date of our new [1976] murder statutes. we find it violate the ex post facto provision of the constitution of the united murders occurring between may 17, 1973 and july 24, 1976. in so defining this defendant is sentenced to death, i.e., `convicted.'" id. the court thus held "that e) § 2254 analysis right next door to you. do you think those people don't know that following his second trial violated his rights under the double jeopardy clause. under section 701.3, the only available sentence was death. under (albeit unsuccessfully) the constitutionality of the prosecution's action. thus, stroud v. united states, 251 u.s. 15 (1919); north carolina v. pearce, 395 u.s. does the constitution limit the imposition of a harsher sentence after conviction state's action in this regard raises an "unrebuttable presumption" of vindictive date the crime was committed, even though the old statutes, like 9 the state has proved beyond a reasonable doubt each element of the from the state trial court's instructional error is amenable to harmless error 740 (okl.cr.1990). to seek the death penalty," id. at 86. the problem, however, is that selsor made 87 despite selsor's failings, we conclude that the claim he asserted before 529 u.s. 694, 699 (2000) ("to prevail on this sort of ex post facto claim, [a the charge that is against him."). at the conclusion of the government's first- u.s.c. § 1291, we affirm. not, because of having obtained federal habeas relief and received a new trial, u.s. 907 (1976); rowbotham v. oklahoma, 428 u.s. 907 (1976); lusty v. court reversed the judgment of the idaho supreme court and remanded the case murder in the first degree, shooting with intent to kill, and robbery with firearms. second, the death was unlawful; circumstances capable of proof. noted, this standard affords a state habeas petitioner plenary review to determine sentence" and the "new" or newly-sought sentence. pearce, 395 u.s. at 723; unless the state has proved beyond a reasonable doubt each element north carolina v. pearce, 395 u.s. 711, 726 (1969). in pearce, the supreme in 1989, the court refined pearce slightly, "hold[ing] that no presumption selsor and dodson committed four similar armed robberies shortly prior to the conviction and sentence for robbery with firearms and remanding to the state trial inquiry is whether the sentencer or reviewing court has `decided that the selsor argues that the prosecutor improperly compared the another." id. (internal quotation marks and citation omitted). we conclude, contrary to selsor's arguments on appeal, that the occa's performance of his official duties; other kinds of instructional errors that we have previously held to be federal habeas relief on the basis of that claim unless the state court decision "was pennsylvania superior court concluded that the jury instructions were erroneous okla. stat. tit. 21, § 701.7 (1976). in other words, in contrast to the 1973 murder more than one person' aggravator," and "[t]he . . . finding of only a single "that . . . selsor with premeditated design effect[ed] the death of clayton 5950 33rd west avenue in tulsa. selsor and dodson entered the "petitioners argued on [direct] appeal . . . that the double jeopardy clause 45 (1989). that holding appears to have no impact on selsor's case. u.s. at 456. in other words, a judicial decision that has an ex post facto effect remand to the state trial court for determination of the actual vindictiveness issue, following the issuance of turnbull, selsor's case returned to the state trial designated felony offenses. and because the 1976 murder statute required fewer [the] choice' between the alternative verdicts of death and life imprisonment," the prosecutor's related discussion of the plight of the victims and their families may effective date of the antiterrorism and effective death penalty act of 1996 the mandamus action he filed in 1997 seeking to challenge the state trial court's like other inmates serving terms of imprisonment, could choose whether or not to anyone convicted of first degree murder, and defined first degree murder as us, and selsor's own brief, when referring to these proceedings, contains no court's rejection of post-furman, mandatory death penalty schemes adopted by a that weighed heavily in favor of imposition of the death penalty. as for selsor's 5 the store clerk wounded by dodson during the robbery. all three of these first, the death of a human; "[b]oth by suggesting, absent a shred of evidentiary support, that [his] mitigation 71 crim. app. 1995)), and "was also consistent with the guilt phase instructions [his] merits." id. in other words, the court held, "an acquittal on the merits bars "[wa]s no longer similarly situated to those defendants subject to oklahoma's scott, 437 u.s. 82, 91 (1978)). "this concern with protecting the finality of did not alter the definition of first degree murder. in contrast, oklahoma's 1976 missouri "issued a preliminary writ of prohibition" and, "[a]fter argument, . . . 10. intentional murder by the unlawful and malicious use of a florida would seek to impose on him if he were convicted of first-degree its citation to riggs, makes it necessary to examine riggs in some detail. as the supreme court's decision in payne and our own post-payne cases that leaves only the occa's implicit conclusion that selsor failed to prove statute in that he was awaiting retrial, with no existing conviction or sentence in to determine the status of those defendants either charged or having argument, the prosecution argued that knott and the other odc witnesses were occa again concluded that no due process violation occurred, stating as follows: served to place the case within "an important exception . . . to the [clean slate] court decisions at the outset of riggs and in turn concluded that its task was "to differently from all other defendants convicted of murders occurring between may id. at 372. after deliberating, the jury found selsor guilty of both of these claim, the decision is on the merits to the extent that the state court finds the the elements of robbery with firearms, combined with the jury's findings of guilt selsor points to a trio of supreme court cases in support of his claim: findings denying the existence of each of the seven statutory aggravating at 69. in support, selsor notes that the jury at the penalty phase "was instructed "[a]pplication of the bullington principle render[ed] [defendant]'s death sentence store, each armed with a .22 caliber handgun. employee clayton conviction set aside." bullington v. missouri, 451 u.s. 430, 438 (1981) (citing contrary to petitioner's arguments, there was a death penalty same system. they've worked next to long-term offenders. how is capital murder. at the ensuing penalty phase of the trial, the prosecution construction. effectively stricken from [the] statute, which [itself had been] repealed." id. at oklahoma legislature in 1976 changed the burden of proof to the detriment of of death in the particular case," id. at 166, survived eighth amendment scrutiny. circuit rather than a supreme court decision, was decided long after the occa § 2254(d)(1), or "was based on an unreasonable determination of the facts in light selsor cannot obtain federal habeas relief unless we determine that the occa prosecutor's remarks did not ultimately impact selsor's right to a fair sentencing basis of five aggravating circumstances. on appeal, the idaho supreme court this. selsor, citing payne v. tennessee, 501 u.s. 808 (1991), and booth v. fact from their testimony -- except perhaps in the case of knott, who, as noted, change in the role of the judge and jury in the imposition of the death sentence in comparison group, selsor obviously "regards . . . as immaterial to the similarly- did not cite either of the two supreme court cases in the appellate brief he filed money aforesaid, contrary to the form of the statutes in such cases severe sentence upon reconviction." id. at 723. in other words, the court held, there is no indication that the oklahoma legislature intended for the then shot chandler several times in the chest killing him. upon trial court's instructions, i.e., that the murder occurred "while in the commission" attaches particular significance to an acquittal.'" id. (quoting united states v. widow. both of these witnesses were allowed to read into the record written the `especially heinous, cruel, or depraved' aggravating circumstance amounted to court decides that the prosecution has not proved its case" against the defendant, contends that "riggs held that even if someone in [his] position were retried for kidnapping, escape from lawful custody, first degree burglary or first because of their contact with him during his post-trial incarceration. all four of b) clearly established federal law applicable to the claim on direct appeal. the state district court's denial of post-conviction relief was "result[] in `actual prejudice'"? id. at 637. "[t]here can be no doubt that a deprivation of the right of fair warning can result door at morris. morris was shot in the head, neck and shoulder, but 76 jury to consider what selsor's life was like and would be like in conviction relief," believing he could not again be subjected to a sentence of notice that the death penalty might be imposed. "[a] trial judge is not constitutionally prohibited . . . from imposing a new couldn't even function, ladies and gentlemen. it took years and years (raymond p. moore, federal public defender, denver, colorado; dean 88 resulted in actual prejudice at the guilt phase of his trial. instead, he argues that 20 on september 15, 1975, in tulsa county, oklahoma. the occa for a writ of mandamus and asserted a number of constitutional from debbie huggins, chandler's daughter, and anne chandler, chandler's situated in relevant respects." bd. of trs. of univ. of ala. v. garrett, 531 u.s. 54 "on remand the district [court] concluded that selsor's objection to the selsor's new trial 4 alleged to have occurred" in late 1971 and early 1972. id. at 288. "during that amendment claim, id. at 1033, and thus remanded the case to the district court to together, the challenged victim impact statements did not "so clearly sway[] the subjected to any punishment authorized by law, including death. warning of the conduct that it makes a crime . . . ." id. in turn, the court held court's interpretation of the due process clause in bouie can be read more was also objectively unreasonable." id. "this standard does not require our a) clearly established federal law on the elements of robbery with firearms. the essential elements of direct appeal: assistance of counsel was violated, flies in the face of due process. selsor ii, 2 p.3d at 349-50. 17, 1973 and july 24, 1976, by obtaining a death sentence against him alone." id. prove at the first trial, but also "a second aggravating circumstance, petitioner's proceeding at which the sentencing authority is apprised of the information [selsor] is charged, increase the punishment prescribed therefore, or and the trial judge that it would not be seeking the death penalty. consequently, penalty from what[] the law provided when [selsor] acted," johnson, 529 u.s. at majority of the jury." id. "[o]n july 17, 1972, . . . the florida supreme court although there was no affirmative evidence tendered that the similarly situated [for equal protection analysis purposes] depends substantially recommended sentence of death for selsor. the final relevant piece of procedural history occurred in 1997. at that out their trash, dressed okay, painted their house, and said good approved of the admission during second-stage capital proceedings of a "victim's without pity, without hesitation, without any concern for human life. structural error that warranted reversal without a showing of prejudice. the apparently took that pronouncement at face value, and conducted [his] trial under vindictiveness was not violative of § 2254(d)(1). sanderford, research & writing attorney, appellate division, denver, colorado; court concluded that the trial judge's "silence following the [prosecution]'s 90 situated analysis," united states v. moore, 543 f.3d 891, 897 (7th cir. 2008), the the florida statute at issue in dobbert and the oklahoma statute at issue before it. the united states of america, any official in the line of succession to in addressing selsor's arguments, the occa noted at the outset that elements of proof than the 1973 murder statute, the state trial court's instructional 11 the supreme court has "observed . . . that limitations on ex post facto affirmed. was both unforeseeable and indefensible" because "riggs had stood unchallenged before the supreme court, petitioners argued, in pertinent part, "that they date of our new statute; they cannot be tried under the new statute, as rejected petitioner's claim that the trial judge violated the due process clause by 843, title 21 of the oklahoma statutes; and indictment, relief should be granted. consistent with pearce, any preliminary hearing, trial or grand jury proceeding against the in proposition three of his appellate brief, selsor contends that at his 1998 statute. as such, the defendant was not convicted under a lesser be dismissed based upon double jeopardy because all the elements of robbery imprisonment. thus, there was never any determination by the occa that the neighbors, where are they gonna go if they don't receive a sentence kill conviction and related sentence of life imprisonment, but reversing the conduct, the effect is to deprive him of due process of law in the sense of fair murder statute cannot be applied retroactively by judicial whatever proof it could assemble," the court held, "the state [wa]s not entitled to application, noting that selsor's claim had previously been rejected by the occa 2000, there was an ex post facto clause violation, and that the violation was a citing the supreme court's post-woodson and roberts reversal of the six pending evidence by arguing facts outside the record. the prosecutor's circumstances and denying defendants automatic modification of a although the jury did not find that selsor represented a continuing threat to


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