En Banc Denial Leaves in Place a Restrictive AEDPA Due-Process Framework for “Irrelevant and Prejudicial” Evidence

I. Introduction

Andrew v. Tinsley (10th Cir. Aug. 14, 2026) is a published order denying panel rehearing and rehearing en banc after a remand from the U.S. Supreme Court in Andrew v.  White, 604 U.S. 86 (2025) (per curiam) (“Andrew III”). The petitioner, Brenda Evers Andrew, is an Oklahoma capital defendant who contended that her trial was rendered constitutionally unfair by the admission and prosecutorial use of concededly irrelevant, highly prejudicial evidence that portrayed her through sex-based stereotypes (including repeated testimony about clothing and sexualized characterizations and the State’s use of her underwear in closing argument).

The key post-remand issue was not whether the evidence was erroneous under ordinary evidentiary rules, but whether—under clearly established federal law and the deferential habeas standard of 28 U.S.C. § 2254(d)(1)—the Oklahoma Court of Criminal Appeals unreasonably applied due process principles governing evidence so “unduly prejudicial” that it renders a trial “fundamentally unfair.” The en banc denial leaves standing the panel’s remand decision in Andrew v.  Tinsley, 164 F.4th 789 (10th Cir. 2026) (“Andrew IV”), while Judge Federico’s dissent from the en banc denial sharply disputes the panel’s approach.

II. Summary of the Opinion (Order and Dissent)

The court (per curiam) granted pending motions for leave to file amicus briefs, denied panel rehearing, and denied rehearing en banc after the active judges’ poll did not carry. Judge Federico dissented from the denial of en banc rehearing.

Judge Federico’s dissent argues that Andrew IV failed to implement the Supreme Court’s directive in Andrew III by (1) constricting the reviewable record to a small subset of preserved excerpts, (2) treating the petitioner’s cumulative-error argument as abandoned on remand, and (3) adopting or applying a due-process test that effectively requires the challenged irrelevant evidence to “concern the central jury issues,” a formulation the dissent views as reversing the logic of why irrelevant prejudice can be constitutionally intolerable—especially when it invites decision on prohibited bases like sex stereotypes.

III. Analysis

A. Precedents Cited

1. The Supreme Court’s due-process “fundamental unfairness” line

  • Perry v. New Hampshire, 565 U.S. 228 (2012), quoting Dowling v. United States, 493 U.S. 342 (1990): The dissent begins with the general constitutional constraint that certain evidence can be “so extremely unfair” that its admission violates “fundamental conceptions of justice.” This frames the case as one of constitutional magnitude rather than mere evidentiary error.
  • Payne v.  Tennessee, 501 U.S. 808 (1991): Payne is central because the Supreme Court in Andrew III held it clearly established that due process provides relief when evidence is “so unduly prejudicial that it renders the trial fundamentally unfair.” The dissent emphasizes that this is the governing rule the panel was required to apply under AEDPA.
  • Andrew v.  White, 604 U.S. 86 (2025) (per curiam) (Andrew III): The dissent treats Andrew III as rejecting the Tenth Circuit’s earlier “no clearly established law” position and as directing a record-specific inquiry: whether a fairminded jurist could disagree that the mistaken admission of irrelevant evidence was so unduly prejudicial as to render the trial fundamentally unfair.
  • Buck v. Davis, 580 U.S. 100 (2017): The dissent criticizes the panel’s reliance on Buck to support a “central jury issues” requirement. In the dissent’s reading, Buck stands for the opposite proposition: even “small doses” of certain kinds of prohibited-basis prejudice (there, race) can be constitutionally deadly depending on context, and it does not license admission of irrelevant prejudice merely because it does not track a central factual issue.
  • Furman v. Georgia, 408 U.S. 238 (1972) (Douglas, J., concurring): Invoked to stress that capital sentencing procedures cannot “give room” for prejudices based on class-like characteristics; the dissent extends that logic to sex-based stereotyping evidence used to inflame or distort moral judgment in a death case.
  • Eddings v. Oklahoma, 455 U.S. 104 (1982): Cited to emphasize that capital sentencing is not merely finding aggravators; it requires weighing aggravating circumstances against mitigating factors—an analytical step the dissent says the panel underemphasized when assessing prejudice at the penalty phase.
  • Tehan v. United States ex rel. Schott, 382 U.S. 406 (1966): Used for the premise that a criminal trial’s task is “the determination of truth,” which irrelevant, inflammatory evidence can derail.
  • Harrington v. Richter, 562 U.S. 86 (2011), quoting Jackson v. Virginia, 443 U.S. 307 (1979) (Stevens, J., concurring): The dissent frames the case as an “extreme malfunction” that federal habeas review is meant to police even under AEDPA deference.

2. Tenth Circuit and evidentiary prejudice decisions referenced

  • Hanson v. Sherrod, 797 F.3d 810 (10th Cir. 2015) and Duvall v. Reynolds, 139 F.3d 768 (10th Cir. 1998): Cited to illustrate the long-recognized danger that inflammatory, irrelevant material can prompt verdicts based on passion or improper bases—supporting the dissent’s view that irrelevance is precisely what makes such material constitutionally risky.
  • Andrew v. White, 62 F.4th 1299 (10th Cir. 2023) (Andrew II) (Bacharach, J., dissenting): Quoted to describe the trial record as saturated with sex-life evidence portraying Andrew as a “scarlet woman” and undermining the jury’s ability to fairly evaluate her defense.
  • Andrew v.  Tinsley, 164 F.4th 789 (10th Cir. 2026) (Andrew IV): This is the operative panel decision the en banc court declined to rehear. As described by Judge Federico, it (i) limited review to “ten testimonial passages,” (ii) treated cumulative error as abandoned, and (iii) rejected fundamental-unfairness relief in part because the evidence did not “concern the central jury issues” and because the remaining evidence of guilt/aggravation was strong.

3. AEDPA record limits and remand/mandate doctrine

  • Cullen v. Pinholster, 563 U.S. 170 (2011), and Wellmon v. Colo. Dep't of Corr., 952 F.3d 1242 (10th Cir. 2020): The dissent accepts that AEDPA review is confined to the record before the state court, but argues it does not follow that a federal court must ignore portions of that state-court record merely because a state appellate brief cited only select excerpts.
  • Jamerson v. Runnels, 713 F.3d 1218 (9th Cir. 2013), and Higgins v. Cain, 720 F.3d 255 (5th Cir. 2013): Used to argue that other circuits do not restrict review to evidence expressly discussed by the state appellate court (or to record citations in briefs) so long as the material was part of the state record—suggesting a potential circuit split created or deepened by Andrew IV.
  • Estate of Cummings  ex rel. Montoya v. Cmty. Health Sys. Inc., 881 F.3d 793 (10th Cir. 2018), quoting Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (1939): Cited to contest the notion that the remand briefing order justified deeming cumulative error abandoned and to discuss limits of the mandate rule on remand.

4. State-court decisions and proceedings in this litigation

  • Andrew v. State, 164 P.3d 176 (Okla. Crim. App. 2007) (Andrew I): The dissent highlights that the Oklahoma Court of Criminal Appeals itself “struggl[ed] to find any relevance” to much of the evidence and that there were separate writings disagreeing about harmlessness—facts cutting against confidence in the fairness of the proceeding.
  • Andrew v. Moham, 2015 WL 5254525 (W.D. Okla. Sept. 9, 2015): Noted as the district court’s denial of habeas relief that preceded the Tenth Circuit’s affirmance and the subsequent Supreme Court reversal in Andrew III.

5. Older evidence-law authorities invoked for fairness principles

  • State v. Lapage, 57 N.H. 245 (1876): Quoted for the foundational fairness concern: irrelevant “blackening” character evidence can reduce juror care and invite condemnation of the person rather than adjudication of the charged offense.
  • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (O'Connor, J., concurring): Cited by analogy for sex-stereotyping as a recognized, impermissible mode of reasoning—supporting the dissent’s view that such stereotyping can constitute an improper basis for judgment in criminal adjudication as well.

B. Legal Reasoning (What the Order Does—and What the Dissent Says Is Wrong with the Panel’s Approach)

1. The practical “rule” left in place by denying en banc rehearing

Although the per curiam order contains no extended reasoning, its legal significance is institutional: it leaves Andrew IV as binding Tenth Circuit precedent. As characterized by Judge Federico, that precedent reflects three restrictive moves in applying the Supreme Court’s Payne-based due-process standard under AEDPA on remand:

  • Record narrowing: limiting the due-process analysis to a small number of preserved passages rather than the broader trial record of sex-stereotyping evidence the State introduced and emphasized.
  • Issue narrowing: treating cumulative error as abandoned on remand because it was not re-briefed in the court’s post-Andrew III supplemental briefing.
  • Merits narrowing: treating “fundamental unfairness” as not established where the evidence did not “concern the central jury issues,” especially when other evidence of guilt/aggravation is described as overwhelming.

2. The dissent’s core doctrinal critique: irrelevance is the danger, not the safe harbor

The dissent argues that the panel’s “central jury issues” formulation inverts the constitutional logic. In its view, irrelevant evidence is uniquely capable of diverting jurors from lawful fact-finding into moral condemnation, passion, or prohibited-basis reasoning (here, sex stereotypes). On that account, the constitutional question is not whether the irrelevant material tracked a central issue; it is whether, in context, its prejudicial character and deployment so distorted the jury’s task that confidence in a law-governed verdict (or capital sentence) is undermined.

3. The dissent’s penalty-phase critique: aggravators are not the whole constitutional inquiry

Relying on Eddings v. Oklahoma and Oklahoma’s statutory weighing scheme (Okla. Stat. tit. 21 § 701.11), the dissent contends the panel over-weighted the presence of evidence supporting aggravating factors and under-analyzed how the State’s irrelevant, stereotyping evidence could have skewed the jury’s mitigation calculus—precisely where “arbitrary factor, passion, or prejudice” concerns are most acute in a death case.

C. Impact

By denying rehearing en banc, the Tenth Circuit cements Andrew IV as the circuit’s operative approach for AEDPA due-process challenges to the admission of irrelevant, inflammatory evidence after Andrew III clarified that Payne supplies clearly established law. The likely effects include:

  • More formalized preservation constraints: petitioners may face heightened risk that federal courts will examine only the specific record excerpts emphasized in state appellate briefing, even when broader portions of the state record contain similar or more extensive prejudice.
  • Remand briefing trap risk: parties may feel compelled to re-brief every previously preserved issue after a Supreme Court remand—even if the remand order focuses on a single question—lest issues be deemed abandoned.
  • Narrower “fundamental unfairness” findings: if the “central jury issues” lens is applied broadly, it could insulate certain kinds of character/sexuality/gender-coded prejudice from due-process relief precisely because it is not probative of the charged elements—despite its potential to drive verdicts through stigma rather than evidence.
  • Potential inter-circuit tension: the dissent suggests tension with approaches reflected in Jamerson v. Runnels and Higgins v. Cain on what constitutes the relevant “record before the state court” under Cullen v. Pinholster.

IV. Complex Concepts Simplified

  • “Clearly established Federal law” (AEDPA): In federal habeas, a state prisoner gets relief only if the state court’s decision was contrary to or an unreasonable application of Supreme Court holdings. Andrew III held that Payne v.  Tennessee clearly established a due-process rule against evidence so prejudicial it makes a trial fundamentally unfair.
  • “Fundamentally unfair” trial (Due Process): Not every evidentiary mistake violates the Constitution. The threshold is crossed when the error so infects the proceedings that the trial cannot be trusted as a fair, law-governed adjudication.
  • “Cumulative error”: Even if individual errors might be deemed harmless alone, their combined effect can deprive a defendant of a fair trial.
  • “Pinholster record limitation”: Under Cullen v. Pinholster, federal habeas review under § 2254(d)(1) is limited to the record that was before the state court—generally meaning no new evidence introduced for the first time in federal court to show unreasonableness.
  • Capital “weighing” of aggravation and mitigation: Many death-penalty schemes require the jury to balance aggravating factors against mitigating evidence. Prejudicial stereotypes can matter not only to guilt, but to whether jurors give meaningful weight to mitigation.

V. Conclusion

The published order in Andrew v. Tinsley is brief, but its consequence is substantial: it preserves Andrew IV as binding circuit law governing how Payne-based due-process challenges to irrelevant, prejudicial evidence will be evaluated under AEDPA in the Tenth Circuit. Judge Federico’s dissent crystallizes the controversy: whether “fundamental unfairness” analysis should be narrowed to preserved snippets and filtered through whether the prejudice “concern[ed] the central jury issues,” or whether due process requires a broader, context-sensitive assessment of how irrelevant, stereotype-laden evidence can divert jurors into prohibited, passion-driven decision-making—especially in a capital case where mitigation must be fairly weighed.