Andrew v. Tinsley and the “Central Jury Issues” Limitation on Due-Process Challenges to Irrelevant, Prejudicial Evidence in Federal Habeas Review

1. Introduction

This published Tenth Circuit filing arises from a capital habeas case brought by Brenda Evers Andrew (Petitioner–Appellant) against Scott Tinsley, Warden (Respondent–Appellee). The immediate “Opinion Text” contains (i) an administrative order correcting a clerical error in a dissent from denial of rehearing en banc and reissuing the dissent nunc pro tunc, and (ii) the revised dissent itself authored by Circuit Judge Federico.

The dissent addresses the consequences of the panel’s post-remand decision, Andrew v. Tinsley, 164 F.4th 789 (10th Cir. 2026) (Andrew IV), issued after the Supreme Court’s per curiam remand in Andrew v. White, 604 U.S. 86 (2025) (Andrew III). The key issue is how federal courts, under AEDPA, should evaluate whether the “mistaken admission of irrelevant evidence” became so “unduly prejudicial” that it rendered a state capital trial “fundamentally unfair” under the Due Process Clause.

Judge Federico’s dissent focuses on three disputed constraints the panel applied on remand: (1) narrowing the evidentiary record to “ten testimonial passages” preserved in state appellate briefing, (2) treating the petitioner’s cumulative error theory as abandoned on remand, and (3) articulating a constitutional prejudice test that, in the dissent’s view, improperly requires the irrelevant evidence to “concern the central jury issues” to be constitutionally significant.

2. Summary of the Opinion

2.1 The court’s order

The court (per curiam) denied panel rehearing and rehearing en banc, granted pending motions for leave to file amicus briefs, and noted that a poll of active, non-recused judges did not carry. It then issued a separate order (also per curiam) correcting a clerical error on page 4 of the August 14, 2026 dissent and directed the Clerk to replace the original dissent with a revised version effective nunc pro tunc.

2.2 The revised dissent (Judge Federico)

The dissent argues en banc review was warranted because the panel’s post-remand approach conflicts with the Supreme Court’s direction in Andrew v. White, 604 U.S. 86 (2025) (Andrew III) and misconceives how irrelevant, sex-stereotyping evidence can render a trial fundamentally unfair. The dissent contends the panel’s “central jury issues” framing effectively inverts the due process principle: irrelevant evidence is dangerous precisely because it diverts jurors from lawful factfinding and can invite decisions on impermissible grounds (here, sex-based character judgment), including at the mitigation-weighing stage of a capital sentencing.

3. Analysis

3.1 Precedents cited (and their roles)

Foundational due-process “fundamental unfairness” principle

• Perry v. New Hampshire, 565 U.S. 228 (2012) and Dowling v. United States, 493 U.S. 342 (1990): Cited for the proposition that the Constitution constrains admission of evidence when it is “so extremely unfair” that it violates “fundamental conceptions of justice.” These cases supply the general due-process “backstop” for extreme evidentiary unfairness.
• Payne v. Tennessee, 501 U.S. 808 (1991): Central because Andrew III treats Payne as clearly establishing that unduly prejudicial evidence can violate due process by making a trial fundamentally unfair. The dissent also invokes Justice O’Connor’s concurrence (as quoted) to emphasize “inflam[ing]” juror passions as a due-process concern.
• Andrew v. White, 604 U.S. 86 (2025) (Andrew III): The Supreme Court’s remand instruction frames the AEDPA question: whether a fairminded jurist could disagree that the “mistaken admission of irrelevant evidence” was so “unduly prejudicial” as to render the trial “fundamentally unfair.”

Prior iterations of this litigation

• Andrew v. White, 62 F.4th 1299 (10th Cir. 2023) (Andrew II): Cited for Judge Bacharach’s dissent describing the trial as portraying Andrew as a “scarlet woman” and suggesting the sex-life focus undercut meaningful consideration of her narrative.
• Andrew v. State, 164 P.3d 176 (Okla. Crim. App. 2007) (Andrew I): The state court acknowledged difficulty finding relevance for much of the sex-based evidence and deemed it harmless; the dissent uses this to show the “irrelevant” character of the evidence was not meaningfully disputed, and to argue the penalty decision (“live or die”) was plausibly affected.
• Andrew v. Moham, 2015 WL 5254525 (W.D. Okla. Sept. 9, 2015): Background for the federal habeas trajectory (district court denial).
• Andrew v. Tinsley, 164 F.4th 789 (10th Cir. 2026) (Andrew IV): The dissent’s direct target: (i) limiting review to “ten testimonial passages,” (ii) finding cumulative error abandoned, and (iii) denying due-process relief because the irrelevant evidence did not “concern the central jury issues” and because the state’s evidence was “overwhelming.”

AEDPA record-scope and reasonableness review

• Cullen v. Pinholster, 563 U.S. 170 (2011) and Wellmon v. Colo. Dep't of Corr., 952 F.3d 1242 (10th Cir. 2020): Cited for the rule that AEDPA reasonableness review focuses on what the state court knew and did and is confined to the record before the state court.
• Jamerson v. Runnels, 713 F.3d 1218 (9th Cir. 2013) and Higgins v. Cain, 720 F.3d 255 (5th Cir. 2013): Cited to support the dissent’s claim that Pinholster does not limit review to the specific record citations mentioned in state appellate briefs (as opposed to the broader state-court record).

Mandate rule / abandonment on remand

• Estate of Cummings ex rel. Montoya v. Cmty. Health Sys. Inc., 881 F.3d 793 (10th Cir. 2018) and Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (1939): Quoted for the mandate rule: lower courts must execute the appellate mandate and cannot revisit matters “laid at rest.”

Improper-basis decisionmaking, stereotypes, and capital sentencing

• Furman v. Georgia, 408 U.S. 238 (1972) (Douglas, J., concurring): Invoked to ground the proposition that capital punishment procedures cannot permit the “play” of prejudices (the dissent extends this logic to sex-based prejudice).
• Hanson v. Sherrod, 797 F.3d 810 (10th Cir. 2015) and Duvall v. Reynolds, 139 F.3d 768 (10th Cir. 1998): Cited to illustrate that irrelevant evidence can be prejudicial because it invites decisions on improper bases, not because it proves a central issue.
• Tehan v. United States ex rel. Schott, 382 U.S. 406 (1966): Cited for the notion that the jury’s role is “the determination of truth,” which irrelevant, prejudicial evidence can undermine.
• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (O'Connor, J., concurring): Used by analogy to highlight how stereotyping can operate as an impermissible decision driver.
• Buck v. Davis, 580 U.S. 100 (2017): Central to the dissent’s critique of the panel’s reliance on “central question” language. The dissent reads Buck as emphasizing that even small “doses” of certain prejudices can be constitutionally toxic, rather than creating a safe harbor when prejudicial evidence does not map onto a “central” issue.
• Eddings v. Oklahoma, 455 U.S. 104 (1982): Cited to emphasize the constitutional requirement that sentencing consider mitigation; the dissent argues sex-stereotyping evidence can distort the aggravation–mitigation weighing process.

Historic evidence-law framing and AEDPA’s “extreme malfunction” language

• State v. Lapage, 57 N.H. 245 (1876): Quoted for the classic articulation that fairness requires juries not be “prejudiced” by evidence unrelated to the issue, especially character-blackening.
• Harrington v. Richter, 562 U.S. 86 (2011) and Jackson v. Virginia, 443 U.S. 307 (1979) (Stevens, J., concurring in the judgment): Used for AEDPA’s high bar—federal habeas as a guard against “extreme malfunctions” in state justice systems.

3.2 Legal reasoning (what the dissent says went wrong)

(i) Record limitation to “ten testimonial passages”

Judge Federico argues the panel adopted an unduly narrow conception of what counts as the “record before the state court” under AEDPA. Relying on Cullen v. Pinholster, the panel confined review to passages Andrew specifically cited in her state appellate briefs. The dissent counters that AEDPA’s focus is what the state court “knew and did,” and where the state appellate court (especially on capital sentencing review) examines “the entire record,” federal courts are not restricted to pinpoint citations in briefing. The dissent flags potential tension with approaches described in Jamerson v. Runnels and Higgins v. Cain.

(ii) Cumulative error treated as abandoned on remand

The dissent contends the panel’s abandonment finding was unfair given the court’s supplemental briefing order asked for the “impact” of Andrew III. In the dissent’s view, Andrew complied by addressing the Supreme Court’s remand issue; she should not be deemed to have abandoned a previously litigated cumulative error theory merely by not re-arguing it in a targeted remand brief—especially where the panel did not rely on the mandate rule as its rationale.

(iii) “Central jury issues” as a constitutional filter

The dissent’s primary doctrinal objection is to the panel’s constitutional framing: denying due-process relief because the irrelevant, sex-stereotyping evidence did not “concern the central jury issues.” The dissent argues this “flips” evidentiary logic. Precisely because irrelevant evidence does not help resolve the lawful issues, it risks steering jurors toward passion, moral condemnation, or prohibited considerations (here, sex-based stereotypes about being “unwomanly” or “unmotherly”). That risk becomes acute in a capital case, where the sentencing decision requires careful moral judgment constrained by law.

(iv) Overreliance on “overwhelming evidence” and underattention to mitigation weighing

The dissent also disputes the panel’s emphasis on the “strength” of guilt and aggravation proof. It argues the due-process inquiry is not simply outcome-counterfactual (“would the jury have convicted anyway?”). Instead, it asks whether improper evidence so distorted the decision process that confidence in the fairness of the verdict and sentence is undermined. At sentencing, the dissent stresses, Oklahoma jurors must weigh aggravators against mitigating evidence (citing Eddings v. Oklahoma and the Oklahoma weighing statute quoted). Flooding the “decision-making zone” with sex-stereotyping evidence could bias jurors against mitigation even if aggravators are well-supported.

3.3 Impact (doctrinal and practical)

• Habeas record-scope disputes: If the panel approach in Andrew IV (as described by the dissent) is followed, petitioners may face a heightened burden to preserve not only an issue but the specific transcript passages cited in state appellate briefs, even where the state court reviewed broader portions of the record—raising recurring litigation over what materials are legitimately part of the AEDPA “record.”
• Remand-briefing forfeiture risk: Treating issues not re-briefed post-remand as abandoned (despite earlier full briefing) could encourage defensive, omnibus remand briefing and create traps in high-stakes cases.
• Substantive due-process standard in evidentiary unfairness claims: The “central jury issues” gloss—if treated as a meaningful limit—could narrow due-process relief for inflammatory but “collateral” character attacks (including sex-stereotyping) by recharacterizing the problem as peripheral. The dissent signals that future litigants will contest this framing, especially where the improper evidence targets protected or prohibited grounds (race, sex) and the sentencing function is moral and discretionary.
• Capital sentencing integrity: The dissent’s mitigation-centered critique, if taken up later, would push courts to analyze how prejudicial evidence distorts the aggravation–mitigation weighing process—not merely whether aggravators were strongly proven.

4. Complex Concepts Simplified

• “Nunc pro tunc”: A procedural device meaning “now for then”—the court reissues a corrected document as if it had been correct on the original filing date.
• Panel rehearing vs. rehearing en banc: Panel rehearing asks the same three-judge panel to reconsider. En banc rehearing asks the full active court (minus recusals) to reconsider because of exceptional importance or conflict.
• AEDPA / 28 U.S.C. § 2254(d)(1): Federal courts reviewing state convictions on habeas generally cannot grant relief unless the state court’s decision was contrary to, or an unreasonable application of, clearly established Supreme Court law—an intentionally demanding “reasonableness” standard.
• “Fundamentally unfair” trial: Not every evidentiary error is constitutional. Due process is violated only when the error is so unfair and prejudicial that it undermines basic justice.
• Irrelevant vs. unfairly prejudicial evidence: “Irrelevant” evidence does not make a legally important fact more or less likely. “Unfairly prejudicial” evidence risks causing a decision for an improper reason (emotion, stereotypes, moral condemnation), rather than lawful proof.
• Cumulative error: Multiple errors, each perhaps insufficient alone, can collectively deprive a defendant of a fair trial.
• Aggravation–mitigation weighing (capital sentencing): Even when aggravating factors are proven, the jury must weigh them against mitigating evidence; a death sentence is improper if mitigation outweighs aggravation under the governing scheme.

5. Conclusion

This published filing does not itself announce a new merits rule; it memorializes the Tenth Circuit’s denial of rehearing and corrects a clerical error in the dissent. Its legal significance lies in Judge Federico’s revised dissent, which crystallizes a sharp dispute about the post-Andrew III due-process framework for irrelevant, prejudicial evidence in capital trials and the procedural mechanics of AEDPA record review and remand preservation.

The dissent warns that the panel’s “central jury issues” framing risks under-protecting defendants where the state’s tactic is to introduce irrelevant, stereotype-laden character evidence that diverts jurors from lawful decisionmaking—particularly in capital sentencing, where jurors must fairly weigh mitigation. Whether future panels (or the Supreme Court) will embrace the dissent’s process-focused conception of “fundamental unfairness,” or adhere to the panel’s narrower approach described in Andrew IV, will materially shape how evidentiary prejudice claims are litigated in federal habeas, especially when the prejudice tracks prohibited bases such as sex or race.