Thornburg v. Mullin (2005)

See Hanson, 797 F.3d at 852 (“Because the OCCA considered the merits of the cumulative error claim, we review its decision through the deferential lens of AEDPA.”); Thornburg, 422 F.3d at 1137 (“We must defer to [the OCCA’s cumulative error] ruling unless it constitutes an unreasonable application of the cumulative-error doctrine.”). 95 3.

And “it is not improper for a prosecutor to direct the jury’s attention to evidence that tends to enhance or diminish a witness’s credibility.” Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005).

Thus, this case is similar to Thornburg v. Mullin, where the petitioner challenged the admission of “six photographs depicting the charred remains of the victims’ bodies” on the basis “that he had no plans to dispute the manner of death.” 422 F.3d 1113, 1128 (10th Cir. 2005).

See Hanson , 797 F.3d at 852 ("Because the OCCA considered the merits of the cumulative error claim, we review its decision through the deferential lens of AEDPA."); Thornburg , 422 F.3d at 1137 ("We must defer to [the OCCA's cumulative error] ruling unless it constitutes an unreasonable application of the cumulative-error doctrine."). 3.

“Even if [the defendant] did not dispute the manner of death, the state still bore the burden to convince the jury that its witnesses, both eyewitnesses and-experts, provided an accurate account of events.’.’ Thornburg v. Mullin, 422 F.3d 1113, 1129 (10th Cir. 2005).

See Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (“Inquiry into fundamental fairness requires examination of the entire proceedings, including the strength of the evidence against the petitioner, 19 Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 20 both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase.”); Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (rejecting an argument that the admission of…

Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005).

Defendant relies on our case law stating that a prosecutor cannot suggest that a jury has a civic duty to convict, Bland v. Sirmons, 459 F.3d 999, 1027 (10th Cir. 2006) (citing Thornburg v. Mullin, 422 F.3d 1113, 1134 (10th Cir. 2005)), because such comments are “offensive to the dignity and good order with which all proceedings in court should be conducted,” Viereck v. United States, 318 U.S. 236, 248 (1943).

We have held, however, that “even structural errors are subject to state procedural bars.” Thornburg v. Mullin, 422 F.3d 1113, 1141 (10th Cir. 2005).

Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005).

ROA Vol. I at 248 (quoting Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005)).

See Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (“Matheson’s . . . isolated comment regarding the results of his polygraph exam did not infect the trial”) (emphasis added)); United States v. Blaze, 143 F.3d 585, 594 (10th Cir. 1998) (stating that a “single unsolicited mention of a poly- graph” did not warrant a new trial); United States v. Tedder, 801 F.2d 1437, 1445 (4th Cir. 1986) (indicating that a “lim- ited, inadvertent reference” to a polygraph test did n…

Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005).

In addition, even in capital cases, the Tenth Circuit “has expressly and repeatedly held that ‘a state prisoner seeking federal habeas relief may not prevail on a Beck claim as to a lesser included instruction that he or she failed to request at trial.’” Grant v. Trammell, 727 F.3d 1006, 1012 (10th Cir. 2013) (quoting Thornburg v. Mullin, 422 F.3d 1113, 1126-27 (10th Cir. 2005), and gathering cases).

And whether evidence was improperly admitted under state rules of evidence “is no part of a federal court’s habeas review of a state conviction.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Lisenba v. California, 314 U.S. 219, 228 (1941) (noting that federal habeas courts “do not sit to review state court action on questions of the propriety of the trial judge’s action in the admission of evidence”); Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005) (noti…

The OCCA further 5 The Tenth Circuit has found “no practical distinction” between the formulations of plain error used by the OCCA and the federal due-process test, requiring reversal when an error “so infused the trial with unfairness as to deny due process of law.” Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005); see also Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015) (“Oklahoma’s formulation of the plain-error standard is virtually identical to the co…

Thornburg, 422 F.3d at 1132 (citation and internal quotation marks omitted).

On the other hand, “it is not improper for a prosecutor to direct the jury's attention to evidence that tends to enhance or diminish a witness's credibility.” Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005).

Mr. Gravitt also argues that the OCCA unreasonably applied Thornburg v. Mullin, 422 F.3d 1113, 1126 (10th Cir. 2005) and Taylor v. Workman, 554 F.3d 879, 893-94 (10th Cir. 2009).8 Doc.

Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (“Because the OCCA applied the same test we apply to determine whether there has been a due-process violation, we must defer to its ruling unless it ‘unreasonably appli[ed]’ that test” (alteration in original) (quoting 28 U.S.C. § 2254 (d))).

As to the second ineffective assistance claim for failure to object to the prosecutor’s comments, Respondent sets forth the following argument: The Tenth Circuit holds, “‘[A] prosecutor may comment on and draw reasonable inferences from evidence presented at trial.’” Bland v. Sirmons, 459 F.3d 999, 1028 (10th Cir. 2006) (quoting Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005)).

The Tenth Circuit has found that the OCCA’s “formulation of the plain-error standard is virtually identical to the constitutional test for due process.” Hancock v. Trammel, 798 F.3d 1002, 1011 (10th Cir. 2015); Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (finding “no practical distinction between the formulations of plain error . . . and the federal due-process test, which requires reversal when error so infused the trial with unfairness as to deny due process …

July 10, 2025); Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005) (explaining that there is “no practical distinction between [the OCCA’s] formulations of plain error” and “the federal due-process test”).

See Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005) (“Oklahoma’s plain-error test is rooted in due process.”).

Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005) (“Oklahoma's plain-error test is rooted in due process” and there is “no practical distinction between [the OCCA’s formulation] of plain error . . . and the federal due-process test . . . .”).

Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005). [the petitioner] is arguing that the joinder is improper under state law, such a claim is not a basis for federal habeas relief.”).

So we defer to the OCCA’s ruling unless it unreasonably applied that test.” Andrew, 62 F.4th at 1338 n.38 (citing Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005)). 3.

In rebuttal, the prosecutor responded 2 See Thornburg v. Mullin, 422 F.3d 1113, 1141 (10th Cir. 2005) (“even structural errors are subject to state procedural bars.”); Ward v. Hinsley, 377 F.3d 719, 725-26 (7th Cir. 2004) (“the procedural default doctrine does not seek to distinguish claims of trial error from claims of structural error.

Similarly, in a case where a state prisoner argued “that his due-process right to a fundamentally fair trial was violated by testimony,” the Tenth Circuit quoted Estelle and explained that “[t]he issue here is whether the challenged evidence ‘so infused the trial with unfairness as to deny due process of law.’” Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005).

Here, the prosecutor’s remarks do not indicate to the jury that “he knew something more about the witness’s credibility than could be deduced from the evidence at trial.” Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005) (declining to find impermissible vouching where prosecutor stated witness had “no reason to lie”).

See Donnelly v. DeChristoforo, 416 U.S. 637, 639 (1974) (explaining that federal courts evaluate general allegations of prosecutorial misconduct by considering whether, on examination of the entire proceedings, the prosecutor’s allegedly improper questions or remarks, “so infected the trial with unfairness as to make the resulting conviction a denial of due process”); Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (finding “no practical distinction” between the OC…

It does not contain “explicit personal assurances of [V.J.’s] …veracity or” implicitly “indicat[e] that information not presented to the jury supports the witness’ testimony.” Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005) (defining impermissible vouching).

Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005). for a number of claims, thereby rendering them moot.”).

Thornburg v. Mullin, 422 F.3d 1113, 1128-29 (10th Cir. 2005).

Id. “[I]t is not improper for a prosecutor to direct the jury's attention to evidence that tends to enhance or diminish a witness's credibility.” Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005).

The Tenth Circuit Court of Appeals has found “no practical distinction” between the formulations of plain error used by the OCCA and the federal due process test, requiring reversal only when an error ‘“so infused the trial with unfairness as to deny due process of law.”’ Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (quoting Estelle v. McGuire, 502 U.S. 62, 75 (1991)).

Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005).

Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (internal brackets and citation omitted); see also Eizember v. Trammell, 803 F.3d 1129 , 1138 n.1 (10th Cir. 2015) (holding the court would apply deference to the OCCA's plain error analysis).

On federal habeas review the sole inquiry is “whether the admission of the [challenged] photographs rendered the proceeding fundamentally unfair.” Thornburg v. Mullin, 422 F.3d 1113, 1129 (10th Cir. 2005).

“A prosecutor may comment on and draw reasonable inferences from evidence presented at trial.” Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005) (quoting Hooper, 314 F.3d at 1172 ).

Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005).

The attorneys are then permitted closing Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005).

Nevertheless, the Court will consider whether the alleged evidentiary and instructional errors “so infused the trial with unfairness as to deny due process of law.” Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005) (quoting Estelle v. McGuire, 502 U.S. 62, 75 (1991)). 1.

Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005).

“A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000). 10 “A prosecutor may comment on and draw reasonable inferences from evidence presented at trial.” Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005).

Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (internal brackets and citation omitted); see also Eizember v. Trammell, 803 F.3d 1129 , 1138 n.1 (10th Cir. 2015) (holding the court would apply deference to the OCCA’s plain error analysis). during an initial line-up and that the second line-up contained more pictures of Petitioner than other individuals.

See Wilson v. Sirmons, 536 F.3d 1064, 1115 (10th Cir. 2008) (“The photographs, while gruesome … allowed the examiner to show where the baseball bat caused various injuries,” and in any event, the “evidence at the guilt phase was particularly strong”); Thornburg v. Mullin, 422 F.3d 1113, 1129 (10th Cir. 2005) (denying habeas relief where photographs corroborated witness accounts and there was strong evidence of guilt); Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999)…

See Wilson v. Sirmons, 536 F.3d 1064, 1115 (10th Cir. 2008) (“The photographs, while gruesome … allowed the examiner to show where the baseball bat caused various injuries,” and in any event, the “evidence at the guilt phase was particularly strong”); Thornburg v. Mullin, 422 F.3d 1113, 1129 (10th Cir. 2005) (denying habeas relief where photographs corroborated witness accounts and there was strong evidence of guilt); Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999)…

The Tenth Circuit defers to the OCCA’s cumulative error determination “unless [the ruling] constitutes an unreasonable application of the cumulative-error doctrine.” Thornburg v. Mullin, 422 F.3d 1113, 1137 (10th Cir. 2005); Simpson v. Carpenter, 912 F.3d 542, 603 (10th Cir. 2018).

See, e.g., Thornburg v. Mullin, 422 F.3d 1113, 1141 (10th Cir. 2005) ("[E]ven structural errors are subject to state 3 Batson v. Kentucky, 476 U.S. 79 (1986).