Under the auspices of Payne v. Tennessee, 501 U.S. 808 (1991), victim Marcus Smith's life mattered more to the State of Oklahoma in capital sentencing proceedings if he was seen as a hard-working, virtuous Church member, not a cruel and violent gang member. So the State painted a deceptive picture of Mr. Smith and prevented the defense from cross-examining the State's three victim-impact witnesses or presenting evidence to correct and counter the State's one-sided, inaccurate portrayal. On federal habeas, the district court denied all relief and found the excluded defense evidence was "irrelevant" and did "not fit either category" of mitigating evidence from Lockett v. Ohio, 438 U.S. 586, 604 (1978), i.e., (1) evidence of the defendant's character or record, or (2) evidence of the circumstances of the offense. Appendix C at 25-27. No certificate of appealability (COA) was given on victim-impact related issues. The following questions warrant this Court's review:

1. Is evidence countering State victim-impact evidence relevant, mitigating evidence eligible for protection by the Sixth, Eighth, and Fourteenth Amendments?

2. In light of the Court's oft-repeated ruling that "States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty . . . [and] must allow it to consider any relevant information offered by the defendant," should the Court resolve the confusion surrounding its Lockett-and-progeny jurisprudence and lay to rest the persistent misperception that mitigating evidence must connect to the offense or the defendant's character or record? Payne, 501 U.S. at 824 (quoting McCleskey v. Kemp, 481 U.S. 279, 305–06 (1987)).

3. Could reasonable jurists debate whether these issues from Mr. Davis's habeas petition could have been resolved in a different manner and whether they were adequate to deserve encouragement to proceed further? Are generic one-size-fits-all COA denials inconsistent with federal law and the exacting and "painstaking" care required in capital cases? Burger v. Kemp, 483 U.S. 776, 785 (1987).

Victim-impact-evidence-exclusion