Billy Keith McGregor v. Gary Gibson, Warden, Oklahoma State Penitentiary

justify аrgument cannot complex This McGREGOR, Billy Petitioner- Keith

relief. Appellant, that the crime have held repeatedly We after in” the United States being “found v. offense which continuing a“is deportation remains as the alien long so continues Gary GIBSON, Warden, Oklahoma States v. Guzman- country.” United Penitentiary, Respondent- State Cir.1994). (9th Bruno, 420, 422-23 27 F.3d Appellee. is, with the offense “commences That until completed is not illegal entry, but 99-7038. No. Ruelas-Arre States v. discovery.” United Appeals, Court of United States (9th Cir.), 1056, cert.

guin, 219 F.3d — 594, U.S. -, Tenth Circuit. denied, (venue (2000) in either proper L.Ed.2d 508 11, April 2001. defendant commenced the district where by entering in” the “found offense completed he

country the district where or found); by being United States

the offense Pacheco-Medina, 1162, Cir.2000)

(9th (“entry” into United States offense”). in’ in the ‘found “embedded April began offense

Reyes-Pacheco’s February and lasted until

2000. Sentencing Application Notes for 4Al.l(d) (e) pro-

Guidelines sections history points that additional criminal

vide added “if the defendant commit-

should be (ie., any

ted of the instant offense part conduct)” parole while on or

any relevant from years following than two release

less continuing na-

imprisonment. Given offense, “part “found in”

ture at issue here occurred on

instant offense”

April Reyes-Pacheco 1996. Because and had been parole

was on time years than two prison

released from less

earlier, application we hold 4Al.l(d) (e) proper.4

sections

AFFIRMED. 4Al.l(d) he was light holding, crease under section because of our we do not reach the In February argument serving government’s a sentence on alternative two-point was found the INS. Reyes-Pacheco qualified for a in- when he Werneke,

Vicki Ruth Adams Assistant Defender, Federal Public City, Oklahoma OK, for Petitioner-Appellant. report Humes, McGregor police went to the Attorney Assistant L. Wilbam check.” the “bad (WA. Edmondson, Attorney Drew General Oklahoma, him with on the General of following days, McGregor In related Oklahoma, City, brief), Oklahoma State about people several different stories OK, the victim. He told Respondent-Appellee. his interactions with had taken her to her broth-

some he that he had taken TACHA, Judge, er’s home and others Chief Before he to a convenience store and when BALDOCK, BRORBY, her SEYMOUR, After pick up gone. came to her she was BRISCOE, KELLY, EBEL, LUCERO con- police, interviews MURPHY, Judges. Circuit leaving her killing fessed to Plumb in a rural area. body wooded LUCERO, Judge. Circuit jury McGregor was convicted convicted un McGregor was Billy Keith murder and sentenced to first-degree first-degree murder der law of Oklahoma Supreme Court’s death. Pursuant panel A of this and sentenced to death. Oklahoma, in Ake v. decision court’s denial of Court affirmed district (1985), 84 L.Ed.2d McGregor. subse relief to We habeas McGregor’s conviction and death sentence rehearing banc to re en quently granted by the of were reversed Oklahoma Court assessing procedural view our standard for McGregor v. Okla Appeals. Criminal This standard is of competency claims. homa, 1216, P.2d 754 1218 of in the aftermath particular importance (Okla.Crim.App.1988) entitled (holding McGregor was decision unanimous Supreme the Court’s because a court-appointed psychiatrist to a Oklahoma, 348, 116 Cooper v. 517 U.S. showing ... made to [was] “[s]ufficient (1996), 1373, holding L.Ed.2d 498 S.Ct. 134 appellant’s sanity reflect that the time requir law the Oklahoma unconstitutional [might] significant fac of the offense be incompe prove criminal ing trial”). defendants tor at convincing tency by trial clear and to stand 1989, again tried McGregor In evidence. murder of Plumb and raised the de- the guilty by insanity. of

fense of not reason Background I. and, rejected his defense for the jury The time, first-degree convicted him of second an by Okla- McGregor was convicted sentencing, jury At the found murder. Plumb, Virgie murdеring jury homa and sentenced aggravating circumstances was a board- a home in which he owner of McGregor appeal, to death. On direct 22, May disappeared er. The victim af- Appeals Court of Criminal Oklahoma 1983, passenger as a and was last seen and death McGregor’s firmed conviction by McGregor. her car driven own Oklahoma, v. McGregor sentence. (Okla.Crim.App.1994). P.2d 1366 disappearance, day The after Plumb’s antique sell an McGregor attempted to trial, a com- Before second car, belonged and a of which clock both jury petency proceeding was held and following day The he cashed victim. trial. ‍‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​​‌‌​‌‌​‌‌‍McGregor competent found to stand him the vic- allegedly check written to proceeding, jury At that was instruct- day, incompe- tim. Later a second similar McGregor prove ed that had to funds, tency by convincing clear and evidence.1 rejected for insufficient check was State, convincing evi- closing arguments, on the clear and 1. The read instruction its subsequently held the II. Supreme The Court Standard of Review convincing clear evidence standard McGregor Because filed his ha pro- the dictates of due “incompatible with petition beas after the effective date of the “put it a state to cess” because allowed Penalty Antiterrorism Effective Death likely who more [was] a defendant 1996, provisions Act of of that Act incompetent.” Cooper, than not 517 U.S. govern appeal. this Tay See Williams v. 369, Accordingly, 116 S.Ct. 1873. lor, 362, 402, 1495, brought McGregor post-conviction state (2000). L.Ed.2d 389 Inasmuch as the state alia, proceedings challenge, inter court did not hear petition the merits of him the application to unconstitutional er’s claim and the federal district court Oklahoma, McGregor proof. burden made its own determination the first His (Okla.Crim.App.1997). P.2d 332 instance, we review the district court’s con Cooper challenge proeedur- was denied as clusions of law de novo and its factual barred, ally McGregor see id. at findings for clear error. See LaFevers v. relief in federal sought habeas court. Gibson, (10th Cir.1999). 182 F.3d district court also held that “If the findings distriсt court’s factual are barred, procedural competency claim was only based on a review of the state court Ward, CIV-97-120-B, McGregor v. No. record, we conduct an independent re (E.D.Okla. 1999) (unpub- 12-16 Feb. Gibson, view.” Walker v. order), lished but assessed the merits and (10th Cir.2000) (citation omitted). found not meet burden did raising a bona doubt to his fide as Competency III. to Stand Trial competency during his criminal id. at Background A. appeal, panel On a of this af- Court It is well-settled that the “criminal

firmed the district court’s denial of habeas trial of incompetent an defendant violates § relief 28 under U.S.C. process.” California, due Medina v. 505 (10th Cir.2000). Gibson, v. 219 F.3d 1245 437, 453, 2572, 112 U.S. S.Ct. 120 L.Ed.2d divided; The panel Judge Murphy (1992). 353 “prohibition This is fundamen dissenting opinion expressing filed a his justice.” tal to an adversary system of disagreement “majority’s with the resolu- Missouri, 162, 172, Drope v. 420 U.S. 95 tion of procedural competency (1975). 896, 43 103 S.Ct. L.Ed.2d The claim.” granted Id. 1257. We en banc rule, law, likely rooted in the common is a important review to consider this issue: “by-product against ban trials may competent When a defendant found absentia; mentally incompetent defen trial stand under an unconstitutional “clear dant, though physically present in the convincing proof evidence” burden of courtroom, reality oppor is in afforded no 171, and then convicted succeed in on a habeas tunity to defend himself.” Id. at 95 Foote, competency claim? A procedural (quoting S.Ct. 896 Comment on proof: dence or burden is unmistakable and free from serious evidence, substantial doubt as to its correctness. say convincing When I clear and at, 232.) (Comp. Trial Tr. The State then persuaded, you I mean that must be consid- case, assuming opined that law is correct in ering “[t]he all evidence in that the incompetent competent placing Petitioner is as defined him the burden ” (Id.) present these Instructions and that the conclusion him to the evidence.... 952 process, pro- tent violates due states must Criminal

Pre Trial Commitment of Defen (1960)).2 832, dants, 834 adequate procedures protect U.Pa.L.Rev. vide ac- 108 Robinson, cused individuals. See Pate determining compe The test 375, 836, 378, 383 86 S.Ct. 15 L.Ed.2d U.S. trial is well-established. tency to stand (1966). providing The burden of these consider of fact must “whether trier thus, trial; procedures persists throughout ability to present has [defendant] sufficient competent when a defendant is “[e]ven lawyer with a consult reasonable the commencement of his a understanding rational degree of —and always court must be alert to circum- a rational as well as factual whether he has suggesting change stances that would against understanding proceedings of the render the accused unable to meet States, Dusky him.” v. United competence standards of to stand trial.” 788, 402, 402, 4 L.Ed.2d 824 181, Drope, U.S. at 95 S.Ct. 896. (1960). can “That defendant recite [him], witnesses, charges against list terminology are insufficient” to legal

use Incompetency B. Procedural rational, that he had a as well demonstrate Cooper Claims After factual, understanding proceed as many claim is one of Williams, States v. F.3d ings. United procedural incompetency claims this Court (10th Cir.1997). 1155, 1159 Supreme has reviewed the wake of the “[C]ompetency can claims raise See, Cooper. decision in e.g., Court’s procedural issues of both substantive and Gibson, 1226-29; Wаlker v. F.3d Gen., process.” Att’y due Walker v. Ward, 1222, Valdez v. 219 F.3d 1239-41 (10th Cir.1999). 1339, proce F.3d A (10th Cir.2000); Woudenberg Van ex rel. upon dural claim is based (10th Gibson, Foor v. 211 F.3d 567-68 alleged trial court’s failure to hold a com Gibson, Cir.2000); Clayton v. 199 F.3d hearing, petency adequate competen or an (10th Cir.1999); 1168-72 Barnett v. cy hearing, while a substantive competency (10th Hargett, 174 F.3d 1133-36 Cir. claim founded on allegation that an 1999); Gibson, Rogers v. while, individual was tried and convicted (10th Cir.1999); 1289-91 Att’y Walker v. fact, incompetent. Id. at 1343-44. Ac Gen., 167 F.3d at 1342-47. We have held cordingly, an individual raising procedur repeatedly that when a criminal defen competency al claim is held to a lower competency dant’s was determined under proof burden of than raising one a sub an unconstitutional burden of proof, competency stantive claim. at See id. prior competency determination no merits See, presumption e.g., of correctness. Gibson, 1227; v.

At Walker 228 F.3d at Van appeal issue this is McGre 5; 211 gor’s procedural competency Woudenberg, Clay F.3d at 567 n. claim rooted ton, 1171; Barnett, in his F.3d at right Fourteenth Amendment to due 199 174 F.3d at 1135; Gen., process Att’y of law. Because the v. conviction Walker 167 F.3d at an person legally circumstances, accused while incompe- 1345. Under such this witnesses, criminologist incompe- 2. One project has stated that hostile confront and to to trial; persons really present tent "are not at the trier of facts a sense of their innocence.” Medina, 437, 457-58, they may properly play not be able to the role J., (1992) (Blackmun, person, of an accused to recall relevant 120 L.Ed.2d 353 events, witnesses, Morris, produce dissenting) to (quoting evidence and to N. Madness and behalf, (1982)). testify effectively help on their own to the Criminal Law 37

953 1171; Gen., if no at compe Att’y will review the trial as F.3d Walker v. 167 Court at all. Van tency hearing was held Woud Addressing procedural F.3d at 1345. com- (“Because 211 at 567 n. 5 enberg, F.3d petency claims not Cooper induced er- an [petitioner] state trial court held i.e., allegation claims based on the rors — in proving unconstitutional standard for that the trial court should have held a decision is not entitled to a competency, its competency hearing but did not—we have and it as if presumption of correсtness is stated “we must determine whether a competency hearing no was held at all.” judge, reasonable situated as trial (citations Barnett, omitted)); see also 174 judge court whose failure to an conduct 1135; Gen., Att’y F.3d at Walker v. 167 reviewed, evidentiary hearing being F.3d at 1345. experienced should have doubt with re- Although prevail it is clear spect to competency stand trial.” Unit- procedural process competency on a due Crews, (10th ed v. States 781 F.2d petitioner claim a must raise bona fide Cir.1986) (internal omitted); quotation see regarding competency doubt his to stand Williams, also United States v. 113 F.3d conviction,3 scope trial at the time of 1160; Nguyen Reynolds, cf. that standard is less clear. We have vari (10th Cir.1997) (“In F.3d order fide ously stated bona doubt standard. doubt, ... to raise such [petitioner] must enunciated, tersely, In some cases we have present positively, facts sufficient to un- prevail procedural one can on a due real, equivocally clearly generate if process claim he a bona “establish[es] legitimate substantial and doubt сoncern- fide doubt as trial.” competency to his (internal ing capacity” quotation his mental Barnett, 1135; 174 F.3d at see also Wal omitted)). (10th Ward, lace v. 191 F.3d Cir.1999). In required pe others we have Today we are faced with the task of judge ig titioners to show that the “trial enunciating single meaningful standard raising nored facts a ‘bona fide doubt’ re assessing procedural competency for garding petitioner’s competence claims cases which the trial court Woudenberg, stand trial.” Van attempted protect failed—to an ac- —but 567; Rogers, see also 173 F.3d at 1290. rights by due process assessing cused’s Yet in others we have stressed that a an to stand under uncon- petitioner court ig must show “the trial stitutional In proof. doing, burden so evidence, objectively, nored which viewed careful to collapse we must be raised a ‍‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​​‌‌​‌‌​‌‌‍regarding [peti bona fide doubt procedural distinction between and sub- competency to stand trial.” tioner’s] Val dez, process by raising stantive due the level of 1240; F.3d see also Walker v. Gibson, 1227; Clayton, proof required procedural competency 228 F.3d at See, Gibson, 1227; e.g., require inquiry 3. Walkerv. 228 F.3d at stand trial further on the to to Valdez, 1240; Reynolds, Woudenberg, question”); Nguyen 219 F.3d F.3d at Van 131 567; 1171; 1340, (10th Cir.1997) Clayton, (requiring peti at 211 F.3d 199 F.3d at 1346 Ward, 1235, (10th "showing by Wallace v. 191 F.3d 1242 tioner to make a clear and con Barnett, 1135; .1999); Rogers, vincing Cir 174 F.3d at evidence to raise threshold doubt 1290; Gen., (internal Att’y competency” quotation at 173 F.3d Walker v. 167 about his 1345; Crews, Williams, omitted)); F.3d at States v. 113 States v. United United 1160; 826, Cir.1986) 180, (10th (“To Drope, a F.3d at 420 U.S. at 95 833 raise substan cf. (reversing question requiring competency hearing S.Ct. 896 the trial court on the tial a presented by petitioner basis that the evidence there must be some evidence to create doubL issue.”). competence "created a sufficient doubt of his on the 954 competency presented during, the evidence the com- that of substantive

claims to hearing.5 claims.4 petency Accordingly, pre we hold that to We realize that competency claim af procedural vail on a ... are no fixed or immutable [t]here petitioner in which a was found ter a trial signs invariably which indicate the need under an unconstitutional bur competent inquiry for further to determine fitness must proof, petitioner den of establish diffi- proceed; question is often a judge a should have had a reasonable range cult one in which a wide of man- at competence bona fide doubt as to his and im- ifestations subtle nuances are view the evidence in the time of trial. We they plicated. That are difficult objectively, from the standpoint the record suggested by varying evaluate is judge presiding peti of a reasonable over opinions psychiatrists trained can enter- peti at the time of trial. A tioner’s case tain on the same facts. a bona fide doubt if he tioner establishes judge a have shows that reasonable should 180, Drope, 420 U.S. at 95 S.Ct. 896. That petitioner doubted whether had “sufficient said, longstanding precedent we look to lawyer consult with present ability to guidance regarding the factors to be con degree of rational under with a reasonable assessing a petitioner’s proce sidered (cid:127) standing” petitioner and whether had “a competency dural claim. “[E]vidence understanding as factual rational as well behavior, ... irrational ... demeanor at proceedings against Dusky, him.” 362 trial, any prior opinion medical U.S. at We stress competence to stand trial are all relevant process requirement continuing; the due is determining further inquiry whether is competent a must be defendant Drope, required.” 95 Drope, the entire trial. See U.S. Gibson, 896; see also Walker v. S.Ct. 171-72, 181, 95 S.Ct. 896. 1227; Valdez, 1240; F.3d at 219 F.3d at 567; Woudenberg, Clay Van F.3d prevail procedural To on a ton, (emphasizing 199 F.3d at 1171 competency petitioner claim need not es opinions prior regarding petition medical tablish facts sufficient to show he was competency “perhaps impor er’s are most actually incompetent or to show he was Wallace, tant”); 1243; Rogers, 191 F.3d at incompetent by preponderance a 1290; Gen., However, Att’y F.3d Walker v. evidence. the mere fact that 167 F.3d at 1346. “Other relevant factors granted competency the trial court any include evidence of mental illness and hearing will not suffice to demonstrate representations of dеfense counsel about Although bona fide doubt. we treat incompetence.” if no the defendant’s Walker v. competency hearing as (citation held, Gibson, omitted); Woudenberg, see Van 211 F.3d at 228 F.3d at of, Drope, 567 n. we n. consider the record see also 420 U.S. at 177 reject unsupported respondent’s competency hearing 4. We as ar- 5. Because the was held opportunity before the trial court had an gument "only that the true difference between testimony presented hear evidence procedural and substantive during competency hearing as well as procedural may claim that the claim be observe the defendant and to hear additional presump- waived and there is no 'rebuttable during relevant evidence trial. All this incompetence tion' of with a substantive assessing petition- evidence is considered in (Appellee’sSupp.Br. claim.” at procedural competency er's claim under today. we announce standard ... (“Although sug McGregor properly we do not was medicated S.Ct. 896 trial, accept quеs without gest repeated that courts must counsel’s lawyer’s representations concerning a tion vehement contentions that his client was his client ... an ex competence defense, of unable to assist in his own regard by in that one with pressed doubt and, McGregor’s odd behavior at trial ... contact with the defendant course, the closest McGregor’s substantial history of unquestionably a factor which should be is mental illness. Our conclusion is based on (interal quotations and cita considered.” circumstances, of the totality and we Barnett, omitted)); 174 F.3d at 1135- tions opinion do not state an as to petitioner’s standing one of “[E]ven 36. these factors competency actual trial. Al- stand circumstances, inmay, alone some be suffi though the state successfully argue could 180, Drope, at cient.” 420 U.S. petitioner properly or medicated Pate, 896; 384-85, at see also 383 U.S. 86 provide plausible explanation a for his (holding petitioner’s rights S.Ct. 836 were trial, seemingly odd at we recog- behavior violated the trial court’s failure to con hindsight nize that and that our 20/20 heаring competency despite duct a on evi job is to view the record from the stand- petitioner dence that was lucid of a point judge reasonable at the time of testimony because of the “uncontradicted not, not, trial who could and did benefit [petitioner’s] history pronounced irra from such post explanations. ex behavior”). tional emphasize We that assessment of 1. Proper Mental Health: Medication. procedural competency requires a claim us The judgment aggregate unquestionably to form a evidence shows that on segment. totality long history examine the has a We tortured (See, the circumstances: all evidence should be e.g., of mental illness. VIII Second no together, single considered factor Testimony Trial Tr. at of Dr. Brau (“The Drope, records, “stand[s] alone.” exception, chitsch without omitted). (quotation 95 S.Ct. 896 very gave thorough very serious not, question is as we have sometimes history of mental illness. As a matter of stated, “ignored whether the trial court fact, ill probably more than one mental faсts,” see, e.g., Woudenberg, 211 Van F.3d But, they ness. one seemed all but rather whether the trial court agree, patient that the did seem to suffer give proper weight to the infor “fail[ed] psychosis, type from a severe of mental mation suggesting incompetence which delusions, illness in which he suffered from during Drope, came to trial.” light U.S. hallucinations, voices, hearing imaginary S.Ct. feeling in a people could read his mind way delusional ‍‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​​‌‌​‌‌​‌‌‍and could influence his ac McGregor’s Competency C. like.”).) tions and the At Dr. Brau- to Stand Trial chitsch, psychiatrist, testified that likely mental illness was relat After careful review of the record complications during ed to his birth involv McGregor’s procedural we conclude that ing oxygen deprivation which process rights due A resulted were violated. rea damage. McGregor diag brain has been judge sonable should have fide had bona consistently schizophrenia, par concerning McGregor’s doubt continued nosed type, personality trial in anoid and with anti-social light stand concerning inconsistent evidence whether disordеr. competency trial held in stand trial on the date of the competency

At a October report McGregor on stat- 1988, proceeding. that His father testified he McGregor’s schizophrenic symptoms appear ed “[t]hat McGregor likely knew had a and his wife at time I that is remission this and feel McGregor disorder the time was three. of the medi- primarily due to effects McGregor experienced young age, At that (Id. 187) at cation.” periods to two-hour of dis- noticeable one- By eight McGregor orientation. seven or compe presented The evidence began having McGregor vivid delusions. tency proceeding and at sec objects By set and himself on fire. four- McGregor ond criminal trial was that was parents placed teen his him in a mental legally competent long so as he remained hospital given where he was shock treat- (See, properly e.g., medicated. id. at 150- unusually an severe ment —described as Testimony (finding of Dr. Lanier young treatment for a McGregor competent and traumatic to stand trial in 1983 began taking рsycho- taking milligrams where he if “he of eontinue[d child—and day] degree Mellaril a to tropic present medications. retain his stability”); Testimony of id. at of Dr. trial, competency As established at the Gentry (stating “schizophrenic symp McGregor experience to continues black- appear in I toms remission at this time and spells symptoms. out and delusional At primarily feel is due to the effects of telling times he hears voices him to do medication”); VIII Second Trial Tr. at things. Many years ago he was shot (“[W]hen 197, Testimony of Dr. Goodman frag- the head four times and some bullet structured, [McGregor] in a supervised lodged ments remain in his head. situation and takes his ... he’s medication presented The prosecution the testimo probably going any psychotic show a psychiatrist psychologist nies of and a signs.”).) Importantly, McGregor’s contin trial. competency psychia proper ued medication into was called trist, Lanier, Dr. testified McGregor was multiple day doubt times at trial. two On competent prior to stand trial first trial, McGregor complained of an ex Dr. testimony trial Lanier’s was headache, treme and counsel told the court solely drawn from the medical records of McGregor’s dosage of Thorazine had been doctor, (deceased), another Dr. Garcia three, changed. morning day On the whose of McGregor evaluation occurred again counsel informed the years prior testimony. five to Dr. Lanier’s court that McGregor’s dosage had been Dr. opinion Garcia’s 1983 medical stated changed and asked to call the penitentiary McGregor paranoid was schizophrenic, yet proper prescription. to find out the In the competent to long stand so as “he afternoon, for, McGregor’s counsel asked taking milligrams continue[d of Mel- granted, and was ex parte hearing an on laril a day] present degree to retain his (III McGregor’s “sanity.” Second Trial (Id. 150, 156.) stability.” The state’s later, Tr. at Two days morning on the witness, second Bill psychologist Gentry, day of the fifth the court noted on examined McGregor forty-five minutes him record the sheriff had told July three prior months McGregor refusеd to take his Thorazine. Gentry afternoon, trial. Dr. testified “I Later that did take day felt like on the that I him interviewed his medicine which he him claimed made (Id. he competent to stand trial.” drowsy. Accordingly, McGregor remained 179) He further testified that he had no in sleep requested his cell so he could opinion McGregor’s competence jailer p.m. as to to that the wake him at up 2:30 day eight, trial. On counsel did not find go rationally back to had been judge that his client was informed the consulting attorney with his required as “complaining problems of some sort of rather, demonstrate competency; the (VIII 6.) medically mentally.” or id. at only court seemed to find that McGregor stayed through the Although defendant engaged any had not inappropriate out- trial, he to leave in the part first asked times, bursts at trial. Several the trial afternoon because he did not feel well. judge implied he was unable to assess following the court told morning, McGregor’s behavior as well as counsel jail that the ran out of Thorazine so that “I because haven’t had to be seated next to received it later than defendant usual. (IX him the trial.” Second Although calling ques- each incident into (“He 125; Trial Tr. at see also v. id. tion continued medication any doesn’t seem different today to me it might explained be such that is not than any day he’s been other I’ve seen individually troubling, together, considered course, honestly say him. I can that. Of I all of the incidents call into doubt McGre- table; don’t sit next to him at I Counsel so gor’s receipt proper through- medication that.”).) can’t answer for ' testimony out his trial. the expert Given unconvincing We also consider the McGregor’s competency depended on state’s citation to its own statement the medication, his proper along with counsel’s record, hearsay based on from someone at McGregor’s competency assessment of that “it below, penitentiary, poten would take McGregor’s behavior discussed tially taking any [psycho two weeks of not judge experienced trial should have doubt ... petitioner’s competency tropic] up as to to stand trial. mеdication for it to show in any behavioral of the problems defendant.” the trial court’s failure We consider (III argument id. at The state’s in- changes McGregor’s notice behavior change petition there was no material conclusive. The test for dosage er’s Thorazine as evidenced pres- [defendant] “whether has sufficient counsel, parte fact that his in the ex hear ability lawyer ent consult with his with a ing McGregor’s “sanity,” focused on the degree reasonable of rational understand- jail’s failure to Motrin give McGregor for ing he a whether has rational as well —and However, weight.6 his headaches bears understanding proceed- as factual explanation “changed dosage” him.” ings against Dusky, 362 U.S. at waylay does not concerns that should have In finding McGregor’s 80 S.Ct. 788. be- arisen when the court was informed defen havior was not different as a result of the medications, and, alleged change in the court dant refused to take his Thorazine7 petitioner’s a 6. Our review of medical records 7. The trial court’s concern that criminal proper dosage establishes that at trial the defendant should not be able control mg morning, mg simply by refusing his medicine Thorazine was 50 in the trial to take afternoon, Nevada, mg night. open question. Riggins We in the and 100 is an See can records not conclude from medication U.S. (1992) petitioner actually dosag- (declining those L.Ed.2d 479 to consider the received "question competent appear criminal de- es. The medication records to be whether prison every antipsychotic signed by may fendant medication official time defen- refuse medicine; however, dant was administered if cessation of medication would render him However, (i.e., trial”). during they incompetent we are all initialed "OW" need outwitness), apparently question because the medicine not answer that here because we are concerned, case, by jail. We in this sheer number was sent to the do not have medi- jail. calling defendant’s cation records from the of incidents into doubt effects; namely, was informed that the different side it is more importantly, more (See, e.g., Tr. sedating. Comр. Trial jail supplies had of Thorazine.8 insufficient (“[Mellar 165-66, Dr. Testimony of Lanier problems The above-mentioned Thorazine], family is in the il] [as same but are exacerbated McGregor’s medications proper it has a whole lot of different change type psychotropic in the One, sedating ... it not ties. as as Tho The medications he took. record estab razine.”).) trial, At fur the court heard Dr. lishes that at the time of Garcia’s testimony drugs ther that the two are 17, 1983, on competency opinion October (See different. VIII Second Trial Tr. at trial,9 McGregor before the first was (“[Mel 248, Testimony of Dr. Brauchitsch competent mg deemed on 400 of Mellaril Thorazine], laril almost the same is] [as Gentry’s At the of Dr. per day. time effects.”).). just has less side somewhat 7, 1988, competency July evaluation on drugs differences between the two McGregor competent was also deemed on explained McGregor’s alleged could have appeal Mellaril. The record on reveals fifth day drowsiness on the of trial which McGregor taking that was 150 Mel mg of him to part caused be absent for Dr. Gentry’s laril the time of examina day. the judge’s While concern that tion taking mg but was 200 at the time of McGregor simply allege could drowsiness trial.10 At competency the time of thereby from his medications and control trial, McGregor taking mg was of Tho appropriate, the trial is absent additional Mellaril). (i.e., Frequent razine not expert testimony contrary to the there was in the dosages types psy switches and sufficient evidence in the record to indicate chotropic medications indicate that McGre- that behavior demonstrated condition, gor’s controllable, although must questionable competence. inability His be monitored and actively maintained. present be at trial him rendered unable to Thus, any alleged in variance his medi thus, conjunction assist his counsel and cations should have caused the trial court allegations with the other of error in medi reject doubt. We argument state’s cating McGregor, should have caused the type of psychotropic medication trial competency сourt doubt as to his petitioner’s was immaterial to' competency stand trial as well. During competency stand trial. 2. Demeanor at Trial Lanier,

hearing, psychiatrist, Dr. a testi that although fied Thorazine and Mellaril Accompanying the doubts raised about family, are from the same McGregor’s proper Thorazine has medication proper continued report medication. His refusal to 9. Dr. Garcia’s w-as the basis of Dr. just take his medication is one such incident testimony competency hearing. Lanier's at the many, seemingly the rest of which were beyond his control. Interestingly, July days until three evaluation, competency before his he had 8.The state’s inconsistent assertions as to the prescribed only mg day. been a Mellaril dosage petitioner supposed of Thorazine was evaluation, September After the from 24 to concerning to receive added to the confusion again October his Mellaril was reduced to petitioner properly whether was medicated mg day. a From October 5 to November given judge and would have a reasonable 16, i.e., several weeks before his petitioner's even compe- more cause to doubt after, hearing dosage until several weeks tency (Compare to stand trial. III Second (state mg per day. Finally, was increased to 200 dosage Trial Tr. at 12 asserts of Thora- Thorazine, (state mg) zine says is 250 with id. at November 16 he was switched to proper dosage mg).) mg is 200 per day. medications, any one although As with ability to assist trial, about his thus post, ex the sum may explained be proceed incident understand his defense ques- acted demonstrates McGregor total of the evidence evidence that ings, for manner inappropriate McGregor’s competency unusual and tion as an likely capital sen facing a basket- argues, an individual The state trial, McGregor day of the first when surprising tence. On statement was ball shirt because his made, temper tantrum had in which it was viewed context it thought “he pocket not have did i.e., high of a school the voir dire after (I Trial shirt.” Second girl’s like a looked Moreover, argues it coach. аfter counsel Apparently,

Tr. I at joking. We propensity had a known it and pocket a on him a shirt with bought that the statement argument find the calmed candy to chew” he little “some trial in context of the made sense the 56-57.) (Id. McGregor Fearing at down. the light in of unconvincing, particularly taint thereby and disrupt voir dire might note, immediately after reporter’s court the court conducted juror pool, the entire statement, “[^hereupon, that McGregor’s juror individual potential dire of each voir proceed- the pause a brief there was the day, after of the first ly. At the end 227.) (I If at the statement ings.” id. who had been a football juror of a voir dire usual, a not have merited were it would you want coach, “Do McGregor stated report- the proceedings in the which pause leave, we one on before game of basketball record. The dubious necessary felt er (id. 227). of the At the end one?” concerning McGregor’s medi- evidence dire, demon McGregor day of voir second trial, McGregor’s coupled cation at asked He potential disorientation. strated behavior, concerns and his counsel’s odd going “Y’all going?” I and am “Where below, our conclusion augments discussed 321.) (Id. at On McAlester?” take me to have had a judge should that a reasonable three, McGregor’s counsel informed day ability to aid McGregor’s Me doubt about let jail the would not that the court na- the in his and to understand defense he “they thought shave because McGregor proceedings. ture of the allowed to not be a risk and should was 11.) Moreover, (III counsel id. shave.” Concerns 3. Counsel’s “had at least McGregor the court that told picture, piece The final (Id.) day morning.” On out this one black is Irven important, perhaps the most McGregor re five, which morning counsel’s—fre Thorazine, McGregor Box’s— to take his fused that record on the quent assertions and did not courtroom asked to leave the “Although incompetent. was McGregor until state afternoon back come courts must suggest ... we do not cell. up him in his wake insisted sheriff repre lawyer’s question accept without day eight, of beginning At the competence concerning sentations court immediately informed the counsel in that doubt expressed ... an his client some “complaining of McGregor was contact with by one with closest regard mentally” medically or problems sort a fac unquestionably ... is defendant had thought McGregor and that counsel Drope, be considered.” which should tor al and blackouts having flashbacks “been (internal 6.) at 178 n. (VIII morning.” id. ready [that] omitted). We citations quotations to leave day asked because That same he “the concerns although however, well; did, have stated he feeling he was to establish insufficient alone are counsel after lunch. come back competency,” trial, doubt of a defendant’s “[de At the competency Box testified fense counsel is often the best position McGregor was unable to assist his own to determine whether defendant’s com defense in large part because he un was Ward, petency questionable.” Bryson v. able to focus and he did not understand (10th Cir.1999), 1201-02 the nature of the charges against him.11 denied, cert. opinion U.S. S.Ct. Box’s was based on his considera (2000). 146 L.Ed.2d 469 pro Unlike оther experience ble with representing criminal cedural incompetency claims this Court defendants —he represented stated he considered, in only has this case not per did year” “[h]undreds well as his ex —as history have a officer, mental illness perience police as a an assistant strangely act but lawyer district attorney, and a judge. (Comp. 101.) was adamant trial that McGre Trial Tr. at explaining After McGre gor incompetent. gor’s flare-up Walker Gib wearing about a shirt with Cf. son, F.3d at (rejecting petition pocket, stated, no Box something “It’s procedural claim, er’s in part maybe my year five son might say. old Of course, because trial “explicitly counsel denied my theory is he’s like a year five raising (I [trial] to the court that [petitioner] old.” Second Trial Tr. at On the competent was not trial, to stand trial” and day third “[a]t of Box informed the court no request time did counsel a competency that McGregor had been “disoriented” the Clayton, evaluation or hearing”); previous day and was unable to assist him. (III (finding 100.) at 1171 no petitioner’s doubt as to id. аt In discussing possible competency at of time trial where consequences McGregor’s of refusal to express counsel declined to “serious” con take his day medication on the fifth of client); cerns trial, stated, about his Att’y Walker v. Box “We do still have to keep Gen., 167 F.3d at that, (rejecting peti 1346-47 in mind my opinion, dealing we’re procedural claim, tioner’s incompetency in with somebody incompetent, who is who part because trial counsel never raised the has exhibited incompetent behavior be trial). petitioner’s (V issue of competency 10.) fore.” id. at day, Later on that 11. Box testified competency as follows at the A. Several ques- occasions I would ask trial: tion and he something would answer that particular would have meaning no nor un- me, A. He could not relate to at least more derstanding to me ques- at all of what the two, any than minute or consistent tion was. It did not even relate to the thought pattern. go He would into a question. thought about the case and I started imme- diately asking background some and then Hе showed no concern nor [the interest in asked him about the case and he would charge possible range murder things start in on some and then he would punishment charge], that be person like he became a different change complete, would maybe over into a Q. period Out of you time total that two, year or time-thought different in visited with Mr. on that first oc-

patterns change over into different casion, your how much of conversation was thoughts or conversation me. That you worthwhile preparation of this of, persisted point thought to the at times I defense? getting that he was even out of control. In A. None of it help was worthwhile to me fact, actually couple I became fearful a realistically prepare the defense of the times in I was that —when locked in the crime itself. All of was it worthwhile in me room with him. being type person able to see what of a he Q. give unresponsive Did he ever answers thought was and what I he was. questions you propounded that 104-07.) to him? (Comp.Trial Tr. at signifi- undermine the McGregor was The state tries to cleаr that again Box made cance of Box’s assessment of stand trial.” to assist or “competent brief, In argues its the state competency. 131.) seven, (Id. “I Box stated day On McGregor’s competency was demon- that that ... he has not put in the record would testimony, his own be- by strated his on me, hindered me from the he has assisted half, suppression hearing. at a Even were very until this sec- trial started day this interpretation credit the state’s we to regards me in He has hindered ond. event, process requirement of that the due nonsense the whole case and talked this trial; competency continues (VII crazy.” think he’s id. time. I still instant of demonstrable competency one 207.)12 Finally, day on the last McGregor’s part does not overshadow jury that the be removed requested Box occasions, occurring the numerous before officially rest- courtroom when he from the McGregor’s testimony, and after which He informed the court of ed the case. called into The competency doubt. repeated threats to become testimony that argues state аlso Box’s once the verdict was read. disruptive “effectively trial was re- adamant- just my feeling, he has It’s not during butted the State’s witnesses every single day me that of this ly told hearing compe- and Petitioner was found days. He has told me that Supp. trial for nine Br. at (Appellee’s tent.” aspect argument penitentiary, competent” with him at “found visiting it would have that, is circuitous us credit jury if the does what he is compe- an unconstitutional the outcome of himself, actually, has going to do. He and, moreover, Box’s state- tency trial out, going verbatim what he is written to McGregor’s competency ments about jury when that verdict is read. say to the in trial are examined the context of stand told me that. I have no reason He has incompetency the further evidence of do. That going to doubt what he is during trial. The state writes off arose him, absolutely kill statement to me will petitioner’s disrupt threats to trial because kill him literally figuratively, when one incident “the record is devoid of even he does. disruptive was or en- petitioner where (IX 126-27.) Finally, id. at Box stated (Id. at gaged outrageous in conduct.” dealt, career, my that “I have not ever But continued threats of dis- (Id. at person.” with someone like this fruition, although never carried ruption, 124.) Although the court noted defendant inability must be read as evidence of during disruptive had not been Moreover, the threat in his defense. assist library put court had defendant the law phase- interrupt reading at the he could hear the to un- open with the door so verdict demonstrates a failure one jury’s not a scene in the nature of the role verdict read but could make derstand phase at two of the determining his fate jury. front of the 205-06.) response, the prior ond Trial Tr.. at In 12. The conversation to Box’s statement McGregor that it was obvious reporter court stated concerned whether .or not the court talking jury he and the was to Box but that to write down loud statements had failed of their conversa- jury could not hear the contents McGregor made that Box feared the similarly the state stated a the fact tions. Counsel for could hear. Box made record of and, thought they could not hear conversations that he the defendant had been "con- opinion that inexplicably, stated their tinually has made also ... loud and verbal and assisting McGregor actually his law- had been we think that could even be heard comments (VII yer trial. by jurors particular Sec- in this case.” Finally, trial. we reiterate that the court’s find the court’s McGregor statements that anything peti- notice odd acting failure to about any diflferently was from one tioner’s behavior is not determinative. day to probative McGregor’s the next The court admitted Box was in a better ability to aid his counsel his own de- position petitioner to assess because he fense. Moreover, sitting next to him at trial. Remedy IV. Dr. testimony Brauchitsch’s established Our conclusion that apparent proce

that it would not be from limited dural due process rights were interactions that he was violated analysis. does not end the incompetent. Dr. next con testimony Brauchitsch’s We sider whether a supports proposition retrospective competency that someone who hearing аnalysis had can be held. Our opportunity guid much to interact with counsel, by Supreme ed McGregor, precedent, Court might such as his be Circuit precedent, and the better able to considered assess his condition than decisions See, the other merely Appeal. someone who him Circuit Courts of observed from e.g., Drope, 896; bench. U.S. at 95 S.Ct. Pate, 386-87, 836; U.S. 86 S.Ct. Doctor, can [Box]: someone who has Dusky, 788; U.S. schizophrenic, who is can they func- 1168-70; Clayton, 199 Reynolds F.3d tion in society say, and walk around and Norris, (8th Cir.1996). 802-03 nut, not be readily say, observed as crazy something or of that nature? Retrospective ... Many [Dr. Brauchitsch]: of them hearings generally are “disfavored” but can, so, superficially certainly a few “permissible are whenever a court can con somebody would encounter in the street meaningful duct a hearing to evaluate ret and, know, you carry he doesn’t a sign, rospectively the competency of the defen “I’m schizophrenic” you and unless ask (internal dant.” Clayton, 199 F.3d at 1169 like, him very specifically questions do omitted); Pate, ‍‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​​‌‌​‌‌​‌‌‍quotation see also you imaginаry hear voices or you do 86 S.Ct. 836 (emphasizing “the think people your can read mind or difficulty retrospectively determining an this, something you like probably which trial”). accused’s competence to stand In do, know, you you just wouldn’t if meet the context deciding of whether a state him in just him, the street or you talk to court’s retrospective pe determination of a out, might know, you never find what is competency titioner’s violated that peti wrong just by seeing him and talking to process tioner’s due rights, we announced him briefly. you Unless know'what kind factors to be in assessing considered ask, questions of you get wouldn’t the whether a meaningful retrospective deter you answers that would allow to realize mination can be made: how patient really sick the is. (1) time, (2) passage [T]he of the avail- (VII Second Trial Tr. at The state’s ability contemporaneous evi- medical reliance dence; on the court’s failure to notice including medical records and changes in McGregor’s (3) behavior is there- prior competency determinations, fore misplaced. Review of the record any by statements the defendant in the although (4) shows that op- record, court had an and the availability of portunity McGregor, to see very witnesses, the court individuals and trial both ex- rarely interacted McGregor verbally. perts and non-experts, who in were interaction, Absent such verbal we do not position to interact with defendant be- temporaneous regarding medical evidence including the trial during fore and government both the counsel for at the judge, competency competency defendant, jail officials. and proceeding light must be viewed of the questions regarding serious raised at trial 199 F.3d at 1169. Clayton, McGregor’s proper medication to our assessment of pertinent The facts lack of corresponding record evidence com meaningful retrospective whether a questions. help available to answer those determination can be made petency Finally, although emphasize we that time are discussed McGregor’s case is not an insurmountable barrier to a ret- thus, only wе them opinion; this revisit determination, rospective competency greatly by briefly now. We are influenced arising difficulties from the lack of contem- contemporaneous lack of medical evi poraneous evidence are amplified medical regarding McGregor’s in the record dence by necessarily the further difficulties that See, e.g., of trial. the time significant arise from the of time. (con passage 403, Dusky, 362 U.S. S.Ct. retrospective competency determination A cluding retrospective competency no deter great have to place would reliance on could be held view of the “[i]n mination testimony currently lay available wit- legal ambiguities regarding doubts and concerning nesses their recollections of psychiatric testimony”); of the significance Norris, any 86 F.3d at 803 observations of more than Reynolds cf. (holding petitioner’s procedural pro due years ago. eleven violated the trial rights cess were our the factors Based on assessment of additional court’s failure to conduct an totаlity Clayton set forth and the competency hearing concluding but a suffi us, record before we conclude that a mean retrospective existed for the cient basis ingful retrospective competency determi petitioner’s competency determination not made in this As nation can be case. the “unusual amount of contem because of such, McGregor’s rights due can process specifically relating evidence poraneous protected by remanding be adequately competency at the time of [petitioner’s] to the state court for such a determination. trial”). above, only psy As discussed one in the first We make this determination chiatrist testified for the state at McGre- instance, Supreme as Court did gor’s competency hearing. That doctor’s 896, Pate, Drope, 420 U.S. S.Ct. expe his own testimony not based on Dusky, 383 U .S. at rather, McGregor; it was riences with Although we 80 S.Ct. 788. solely five-year-old on then notes— based federal dis remanding considered to the seventeen-year-old notes—of another now hearing trict court to hold a on the issue McGregor’s first trial. doctor taken before retrospective com meaningful whether a psychologist appeared who McGre- made, can be we petency determination proceeding present also gor’s competency reject partic because of the approach He refused severely testimony. ed limited circumstances in this case. ular balance of McGregor’s competency as to opine to day proceeding of the and limited V. Conclusion McGregor’s competency to assessment McGregor’s re- Accordingly, we GRANT during forty-five minute interview that relief, we RE- quest corpus for habeas prior compe to the occurred three months court, judgment of the district VERSE tency which itself occurred proceeding, va- and we REMAND directions McGregor’s about seven months before judgment McGregor’s lack of cate sentence disturbing second trial. This con- conviction. The State Oklahoma is free Majority such doubt. op. at 962. This try McGregor only but if he again, gаme unfortunate, is numbers an reveals in- competent determined under a herent shortcoming constitu- our capital case ha- proof. corpus tional burden of beas jurisprudence. Some death

row inmates present whose cases “close garner enough calls” appellate votes to BRORBY, Judge, dissenting. Circuit secure federal relief. Some do not. habeas respectfully I dissent. carefully record, After reviewing the I The legal analysis McGregor’s of Mr. continue to believe Mr. has procedural competency claim as set forth failed carry his burden of establishing a majority opinion en banc is essen bona fide doubt in the mind of a reason- tially applied the same as that by the jurist able that he competent to stand majority dissenting panel members in trial. The totality of the circumstances Gibson, (10th McGregor v. 219 F.3d 1245 suggest evidence strongly to this rea- Cir.2000). At stage each we asked wheth jurist sonable McGregor deftly Mr. toyed er the evidence and circumstances known with defense counsel and the trial court. the trial court have shоuld raised a bona circumstances, Under these I believe the fide doubt the mind of a reasonable observations and judgment reasoned of the jurist about Mr. ability either judge carry significant weight. I attorneys to consult with his with a reason would affirm the court’s district order de- degree able of rational understanding or to nying grounds. habeas relief on all possess a rational and factual understand ing judicial proceedings. major See TACHA, BALDOCK, Chief Judge, and ity 954-55; en banc op. at McGregor, 219 Senior Judge, Circuit joining 1250-52; F.3d at (Murphy, id. 1257-58 dissent. dissenting). J. To question answer this we looked at relevant factors such Mr. as demeanor at evidence of behavior,

irrational medical prior opinions

regarding competency, evidence of mental

illness, defense representations counsel’s judge’s and the trial Majori observations. America, UNITED STATES of 954;

ty op. at McGregor, 219 F.3d at 1251- Plaintiff-Appellee, 52; id. at (Murphy, 1257-58 dissenting). J. here, then, The issue is not what law to Rather,

apply. it is how established law Bryan TISDALE, E. Defendant- applies to the facts of record in this case. Appellant. Two of panel members, the three exer- No. 99-3379. cising their best judgment, determined Mr. United Appeals, States Court of

McGregor failed to show bona fide doubt Tenth Circuit. existed concerning his competency at the time of his second trial. McGregor, 219 April Now, F.3d at 1252. after exercising their ‍‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌​‌​​‌‌‌‌‌​​‌‌​‌‌​‌‌‍judgment, best six members —a majority—

of the en banc court have determined a jurist

reasonable would have harbored

Case Details

Case Name: Billy Keith McGregor v. Gary Gibson, Warden, Oklahoma State Penitentiary

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 11, 2001

Citation: 248 F.3d 946

Docket Number: 99-7038

Court Abbreviation: 10th Cir.