Where a state, through operation of its laws, requires some capital defendants to be represented by the same public defender at both trial and on their first appeal of right, does that system implicate Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2018), thus providing that ineffective assistance of first post-conviction counsel would constitute cause to overcome the procedural bar imposed when the non-independent direct-appeal counsel fails to raise an ineffective-assistance-of-counsel claim against trial counsel from the same office?

QUESTIONS PRESENTED 1. By operation of Oklahoma law, indigent defendants in Tulsa and Oklahoma Counties (the State’s two most populous counties) are required to be represented both at trial and on direct appeal by the respective county’s public defender office. That is not true of capital defendants in any other county in the state. Given this unique setup, Tulsa and Oklahoma County capital defendants do not receive the benefit of truly independent counsel on direct appeal. With this context, the critical question warranting this Court’s review is: Where a state, through operation of its laws, requires some capital defendants to be represented by the same public defender at both trial and on their first appeal of right, does that system implicate Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2018), thus providing that ineffective assistance of first post-conviction counsel would constitute cause to overcome the procedural bar imposed when the nonindependent direct-appeal counsel fails to raise an claim against trial counsel from the same office? 2. Oklahoma juries were once instructed that mitigating circumstances were “those, which in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame.” Oklahoma Uniform Jury Instructions CR(2d) 4-78. Oklahoma prosecutors consistently exploited this instruction in closing arguments to impermissibly narrow the scope of evidence the jury could consider mitigating and argue there had to be a connection between the mitigating circumstances and the crime. Troubled by prosecutors’ constant attempts to limit jurors’ consideration of mitigating evidence, the Oklahoma Court of Criminal Appeals (OCCA) warned 1 prosecutors not to argue mitigating circumstances were limited to those that extenuate a defendant’s moral culpability or guilt for the capital offense. Harris v. State, 164 P.3d 1103, 1113-14 (Okla. Crim. App. 2007). Further, the court referred the matter to the Oklahoma Uniform Jury Instruction Committee “for promulgation of a modified jury instruction defining mitigating circumstances in capital cases.” Jd. at 1114. Mr. Cuesta did not receive the modified instruction and the prosecutor made the same arguments OCCA found “egregious” in Harris. Id. OCCA reversed itself and found such arguments proper in Mr. Cuesta’s case. Cuesta-Rodriguez v. State, 241 P.3d 214, 243 (Okla. Crim. App. 2010). With this background in place, the following question warrants this Court’s review: When ajury instruction defines mitigating circumstances as “those which in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame” and prosecutors deliberately and repeatedly rely on such instruction to argue the defendant’s evidence must reduce the moral culpability or blame of the defendant for that murder to be considered mitigating, is a state court’s conclusion such prosecutorial argument is proper contrary to Lockett v. Ohio, 438 U.S. 586 (1978) and its progeny? il