On September 4, 2012, the Tenth Circuit (Gorsuch with Murphy and O'Brien) affirmed the denial of Anthony Banks' habeas petition. Banks v. Workman
. The panel ruled: (1) a Confrontation Clause violation concerning Banks' alleged confession to his brother that Banks was the shooter did not have a substantial and injurious effect on the jury's guilt or penalty determinations; (2) prosecution's failure to disclose an ambiguous note from an interview with the co-defendant's mother suggesting that Banks' brother was the one who committed murder was immaterial at both phases of the trial; (3) Banks was not entitled to an evidentiary hearing in order to demonstrate that he might have been able to uncover admissible evidence implicating his brother in the capital murder; (4) Banks procedurally defaulted his claim that his due process right to a competent mental health expert and his Sixth Amendment right to effective assistance of counsel were violated by the defense expert appearing at trial intoxicated and disheveled and his attorneys failing to request a continuance; (5) the failure of post-conviction counsel to allege trial counsel's ineffectiveness in failing to object to the expert's condition and request a continuance did not provide cause under Martinez
to overcome the default given that Oklahoma law permitted Banks to raise trial counsel's ineffectiveness on direct appeal; (6) the state court's rejection of Banks' challenge to allegedly improper comments by the prosecutor was not unreasonable; (7) the panel did not harbor grave doubt about the effect of the prosecutor's comment on Banks' silence; and (8) the cumulative impact of the errors in the case did not create a grave doubt about the outcome of the case..