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PHILLIPS v. WORKMAN

No. 08-7043.

604 F.3d 1202 (2010)

Ernest Eugene PHILLIPS, Petitioner-Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

United States Court of Appeals, Tenth Circuit.

May 12, 2010.

Attorney(s) appearing for the Case

Gregory W. Laird, Foshee & Yaffe, Oklahoma City, OK (James L. Hankins, Ogle Law Office, PLLC, Oklahoma City, OK with him on the briefs), for Petitioner-Appellant.

Jennifer J. Dickson, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), for Respondent-Appellee.

Before HENRY, MURPHY, and O'BRIEN, Circuit Judges.

HENRY, Circuit Judge.

After hearing evidence regarding the tragic death of Jason McFail, a jury in the District Court for Bryan County, Oklahoma convicted Eugene Phillips on one count of first-degree malice aforethought murder and sentenced him to death. The trial court denied his request to instruct the jury regarding the non-capital lesser-included offense of second-degree depraved mind murder. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed Mr. Phillips...

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