Appellate Case: 15-6190 Document: 010110830293 Date Filed: 03/21/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS March 21, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ BRENDA EVERS ANDREW, Petitioner - Appellant, v. No. 15-6190 TAMIKA WHITE, Acting Warden, Mabel Bassett Correctional Center, Respondent - Appellee. _________________________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:08-CV-00832-R) _________________________________ John T. Carlson, Assistant Federal Public Defender (Virginia Grady, Federal Public Defender, and Mark Henricksen of Henricksen & Henricksen, Oklahoma City, Oklahoma, with him on the briefs), Denver, Colorado, for Petitioner-Appellant. Joshua Lockett, Assistant Attorney General (Mike Hunter, former Attorney General of Oklahoma, with him on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee. _________________________________ Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________ PHILLIPS, Circuit Judge. _________________________________ Pursuant to Fed. R. App. P. 43(c)(2), Aboutanaa El Habti is replaced by Tamika White as Acting Warden of the Mabel Bassett Correctional Facility. Appellate Case: 15-6190 Document: 010110830293 Date Filed: 03/21/2023 Page: 2 Petitioner Brenda Evers Andrew, an Oklahoma state prisoner convicted of first- degree murder and sentenced to death, appeals the district court’s denial of her habeas petition seeking a new trial or resentencing under 28 U.S.C. § 2254. We granted Ms. Andrew a Certificate of Appealability (“COA”) on ten issues. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm. BACKGROUND I. Factual Background We begin with the Oklahoma Court of Criminal Appeals’ (“OCCA”) recitation of some orienting facts, as contained in its order affirming on direct appeal: [Ms. Andrew]’s husband Robert (“Rob”) Andrew was shot to death at their Oklahoma City home sometime around 7:00 p.m. on November 20, 2001. [Ms. Andrew] was also shot in the arm during this incident. The Andrews were separated at the time and Rob Andrew was at the home to pickup [sic] the two minor children for visitation over the Thanksgiving holiday. The custom was that [Ms. Andrew] would bring the children out to the car and Rob would take them from there. However, on this night, [Ms. Andrew] asked Rob Andrew to come into the garage to light the pilot light on the furnace because it had gone out. [Ms. Andrew]’s version of the events from that point on was that as Rob was trying to light the furnace, two masked men entered the garage. Rob turned to face the men and was shot in the abdomen. He grabbed a bag of aluminum cans to defend himself and was shot again. [Ms. Andrew] was hit during this second shot. Undisputed facts showed that after that, [Ms. Andrew] called 911 and reported that her husband had been shot. Emergency personnel arrived and found Rob Andrew’s body on the floor of the garage; he had suffered extensive blood loss and they were unable to revive him. [Ms. Andrew] had also suffered a superficial gunshot wound to her arm. The Andrew children were found in a bedroom, watching …
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