Lewis Eugene Gilbert, an Oklahoma state prisoner sentenced to death, appeals the district court’s denial of his petition for a writ of habeas corpus. This court has granted Gilbert a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) with respect to three of his claims of legal error: (1) that his right to a fair trial was violated by a coerced verdict at the sentencing stage of the trial; (2) that he was improperly denied his request for a competency evaluation in state court; and (3) that there was insufficient factual support for the jury’s finding of the existence of the “avoid arrest” and “continuing threat” aggravating circumstances. We have independently reviewed the record and conclude that Gilbert is not entitled to habeas relief on any of these claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.
I
Gilbert and a cо-defendant were convicted of the 1994 murder of Roxanne Ruddell, a security guard at Lake Stanley Draper in Oklahoma. 1 Prior to this murder, Gilbert and his co-defendant had killed an elderly woman in Ohio, stolen her car, and driven it to Missouri. In Missouri they had killed an elderly couple, stolen their car, and driven it to Oklahoma. The two took the second stolen car to Lake Stanley Draper, where they saw Ruddell fishing alone. Intending to steal her pickup, they tied Rud-dell’s hands and made her walk a short distance to sit in the “vee” at the base of a tree. Gilbert then shot her three times in the head. Approximately three days later, Gilbert and his co-defendant were apprehended in New Mexico sleeping in a ditch. Ruddell’s pickup was found nearly a mile away.
During the sentencing stage of the trial the prosecutor argued, and the jury found the existence of, two aggravating circumstances: that there was a probability that Gilbert would commit criminal acts of violence such that he constituted a “continuing threat to society,” and that the murder was committed for the purpose of “avoiding or preventing a lawful arrest or prosecution.”
Gilbert v. State,
Gilbert appealed, raising thirteen propositions of error, but his convictions and death sentence were affirmed by the Oklahoma Court of Criminal Appeals (“OCCA”). He subsequently filed an application for post-conviction relief before the OCCA, urging eight grounds and requesting an evidentiary hearing, but this application was denied. In September 1999, Gilbert filed a petition for a writ of habeаs corpus in federal district court, seeking relief on seven grounds. The petition was denied and this appeal followed.
II
Because Gilbert filed his habeas petition after the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the provisions of that act are applicable to his case.
See Lindh v. Murphy,
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law under § 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.”
Williams v. Taylor,
A
Gilbert contends that he was denied due process of law when the trial court, at the sentencing phase of his trial, coerced the jury into recommending a death sentence by delivering a supplemental jury instruction that was intended to urge the jurors to achieve a unanimous decision. Whether a jury has been improperly coerced by a judge is a mixed question of law and fact.
Rodriguez v. Marshall,
Jury deliberations for the sentencing phase of Gilbert’s trial began at 4:40 p.m. on a Thursday. At approximately 10:00 p.m., the trial court sua sponte called the jury to the courtroom “to inquire as to their progress.” (7 Tr. at 1692.) The following exchange then took place between the court and the jury’s foreperson:
THE COURT: I want to ask you two or three or four questions, but listen to it carefully before you answer it, because it’s important that you not give any information other than what is asked for. The first question is: Have you reached a-has the jury reached a verdict on any of the charges?
THE FOREPERSON: Yes, we have.
THE COURT: Are you making progress on the one or more that you have not reached a verdict on?
THE FOREPERSON: I don’t think so.
THE COURT: Do you think you will be able to reach a verdict on the one or more charges that you have not reached a verdict on?
THE FOREPERSON: No, sir, I don’t.
THE COURT: Do not disclose the numerical division — excuse me — do not disclose which way you are leaning. Just tell me, if you would, please, on the — is there one charge or more that you have not reached—
THE FOREPERSON: Yes. sir. One charge.
THE COURT: That you have not reached a verdict on?
THE FOREPERSON: Yes.
THE COURT: Without disclosing which way the vote is leaning, tell me what the numerical division is.
THE FOREPERSON: Half and half.
*1172 THE COURT: I would like for you to go back and try a little longer. We won’t leave you in there this long without inquiring further. But at this time I would ask you to go back and try again on the remaining chаrge.
(7 id. at 1693-94.)
At approximately 11:05 p.m., the trial court recalled the jury to the courtroom and the ensuing exchange took place:
THE COURT: Ms. Cross, may I inquire of you further.
THE FOREPERSON: Your Honor, we have not reached a decision.
THE COURT: Has the numerical division changed?
THE FOREPERSON: Yes, your Hon- or, it has. But there is at least one person on each side that has no intention of changing their mind and reaching a compromise.
THE COURT: Ladies and gentlemen of the jury, this case has taken approximately seven days of trial túne counting the voir dire. You have deliberated, I believe, over six hours. You report to me that you are experiencing difficulty in arriving at a verdict. This is an important case and a serious matter to all concerned. You are the exclusive judges of the facts, the Court is the judge of the law.
Now, I most respectfully and earnestly request of you that you return to your jury room and resume your deliberations. Further open and frank discussion of the evidence and the law submitted to you in this case may aid you in arriving at a verdict. This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
No juror should ever agree to a verdict that is contrary to the law and the Court’s instructions nor find the fact or concur in a verdict which in good conscience he or she believes to be untrue. This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in the spirit of fairness and candor.
If at all possible, you should resolve any differences and come to a common conclusion that this case may be completed. Each juror should respect the opinion of his or her fellow jurors as he or she would have them respect his or hers in an earnest and diligent effort to arrive at a just verdict under the law and the evidence. You may be as leisurely in your deliberations as the case may require and take all the time necessary.
The giving of this instruction at this time in no way means that it is more important than any other instruction. On the contrary, you should consider this instruction together with and as part of the instructions which I have previously [given] you.
In stating the foregoing, I again repeat: You are the judges of the facts, the Court is the judge of the law. In making all statements made to you, I have not nor do I now express or intimate nor indicate in any way the conclusion to be reached by you in this case. Nor do I intend in any manner — or any way or manner to coеrce a verdict not directly or indirectly to force a verdict in this case. I only ask that you return to your jury room and, again, diligently and earnestly under your oaths resume your deliberations.
I want you to know that I’m conscious of the hour; we all are. And we would *1173 like for you to try one more time. We’ll talk to you again.
(7 id. at 1698-1701.) At 12:36 a.m., the jury returned to the courtroom with a verdict recommending a death sentence for Gilbert on the murder charge, along with life sentences on the two non-capital charges.
Gilbert contends that the statements quoted above demonstrate that the trial court was “unconstitutionally coercive.” (Appellant’s Br. at 22.) Specifically, he argues the impropriety of the court (1) sua sponte calling the jury to the courtroom to inquire about its progress, (2) inquiring about the jury’s numerical division, (3) refusing to accept as final the foreperson’s statements that the jury could not reаch a verdict as to the sentencing decision, and (4) twice giving an
Allen
instruction
2
to the jury. Gilbert raised his coercion claims before the OCCA on direct appeal and the court rejected them on the merits.
Gilbert,
In United States v. Smith, we noted that the use of a supplemental charge has long been sanctioned, explaining that the purpose of an Allen instruction is
to encourage unanimity (without infringement upon the conscientious views of each individual juror) by urging each juror to review and reconsider the evidence in the light of the views expressed by other jurors, in a manner evincing a conscientious search for truth rather than a dogged determination to have one’s way in the outcome of the deliberative process.
Looking first at the language of the
Allen
charge given by the trial court in the present case, we observe that the court made admirable efforts to assure that its instructions would not unduly pressure members of the jury. The court noted the serious nature of the jury’s task, but urged
*1174
“open and frank discussion” of the evidence and law, emphasized that no juror should “surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision,” and insisted that no juror should concur in a verdict “which in good conscience he or she believes to be untrue.” (7 Tr. at 1700.) In this regard, we note that the type of instruction given by the trial court has been referred to as a “modified”
Allen
charge, and that it differs from a traditional
Allen
charge in that the court asks each juror, rather than only those in the minority, to carefully reconsider their views.
See Arney,
Ideally, a trial court’s instruction to jurors that they should listen to each other would be given at the same time that all other jury instructions are given; such a practice would avoid having the jury give disproportionate weight to the new charge.
See Porter,
With respect to the timing of the
Allen
charge, Gilbert contends in part that the trial court’s instruction was coercive because it was given to the jury after the jury indicated that it was deadlocked, because the court inquired sua sponte as to the status of the jury before he gave the instruction, and because of the late hour at which it was given. Although we have noted that there is an “inherent danger” in giving a supplemental instruction to an “apparently deadlocked jury,”
Munroe v. United States,
Of more concern to us is the fact that the court issued the Allen charge so lаte in the evening, after 11:00 p.m., and that the jury was kept deliberating well past midnight. Under such circumstances there is a real danger that jurors in the minority camp will feel significant pressure to switch their votes. In the present case, our concern is somewhat enhanced due to the fact that a number of jurors had indicated to the court, before closing arguments, that their preference would be to start deliberations the next morning rather than late that day. Nonetheless, although courts should be wary of the potentially coercive effect of holding jurors late into the night and even into the early morning hours, we remain unconvinced that the court’s giving of the Allen charge at such a late hour was, under the circumstances of this case, in and of itself coercive. Key to our conclusion is the fact that the court ended its charge tо the jury by noting that it was “conscious of the hour,” (7 Tr. at 1701), thereby clearly signaling to the jury that it would not be held indefinitely.
We next turn to the length of the jury deliberations following the
Allen
charge. The Supreme Court has noted that the jury’s return of a verdict very soon after the giving of an
Allen
instruction “suggests the possibility of coercion.”
Lowenfield,
Gilbert also argues that the trial court effectively gave multiple
Allen
charges to the jury, heightening the level of coercion. At least one circuit court has held that the giving of multiple
Allen
charges in a federal prosecution is improper and coercive.
See United States v. Seawell,
Gilbert finally argues that the court’s
Allen
charge was improperly coercive when viewed in light of its prior polling of the jury regarding their numerical division as to the verdict.. In
Brasfield v. United States,
the Supreme Court held that this type of polling was automatic grounds for reversal because such polling almоst always brings to bear “in some degree, serious, although not measurable, an improper influence upon the jury.”
The
Lowenfield
Court emphasized that its finding of no coercion was “not mean[t] to be understood as saying other combinations оf supplemental charges and polling might not require a different conclusion.”
Id.
Moreover, it is clear that
Lowenfield
is factually distinguishable in some ways from the instant case. In
Lowenfield,
for example, the trial court’s inquiry as to the jury’s numerical division was limited to whether the individual jurors felt that additional deliberation would be useful, and it did not elicit information with respect to the jury’s division on the merits of the charge itself.
Id.
at 234,
Nonetheless, the trial court in the present case garnered only information concerning the numerical division of the jury and carefully avoided eliciting information concerning the direction in which the jury was leaning.
5
At most, the impression left with the jurors would have been that the trial court was anxious for them to reach a verdict; the jurors could not have labored under the impression that the court was interested in what them actual decision would be. Although Gilbert clearly had an interest in having the jury fail to reach a unanimous verdict,
6
the Supreme Court has specifically noted that an
Allen
charge in such circumstances is permissible under the Due Process Clause because the state “has in a capital sentencing proceeding a strong interest in having the jury ‘express the conscience of the community on the ultimate question of life or death.’ ”
Id.
at 238,
We have considered the totality of the circumstances in which the Allen instruction was given in the present case, and conclude that it was nоt coercive in a way that denied Gilbert a fair trial and due process of law. Accordingly, the OCCA’s determination that he was not entitled to relief on his coercion claim was not unreasonable under the standards of AEDPA, *1177 and his petition for habeas relief will not be granted on this ground.
B
Gilbert’s second claim is that the trial court violated his due process rights by-refusing to provide him with a competency hearing despite a request from his trial counsel.
Before the trial began, Gilbert’s counsel filed an application for a competency hearing. As part of that application, counsel stated that Gilbert was having difficulty understanding the court procedures, that he seemed unable to focus his attention, and that he might behave inappropriately during trial.
Pursuant to Okla. Stat. tit. 22, § 1175.2, the trial court then held a hearing to determine whether Gilbеrt’s application for a competency hearing should be granted. During that hearing, Gilbert’s counsel called Luther Grisso, an investigator for the Oklahoma Indigent Defense System (“OIDS”), to testify about Gilbert’s competency. Grisso, who specialized in capital cases, had spoken with Gilbert on a number of occasions and had reviewed his psychiatric records, some of which pertained to Gilbert’s “level of intellectual function.” (Oct. 12, 1995 Tr. at 14.) Grisso indicated some concern about Gilbert’s ability to understand the courtroom procedures, noting that Gilbert himself had told him that “he didn’t understand anything that was said. He didn’t understand what was going on.” {Id. at 15.) In particular, Grisso testified that Gilbert was unable to comprehend the concept of a jury or why it would be present in the courtroom:
[A]t first he didn’t indicate that he knew the jury was going to be in the courtroom. After eventually convincing him that it would be, he didn’t see any reason for the jury. He didn’t think the jury should be judging him.... He didn’t understand why or what their function was.
(Id. at 15-16.) Grisso also testified that after this discussion Gilbert “became completely non-responsive,” that “[h]is face just went blank,” and that he “started talking about something else completely off the subject.” (Id. at 16.) According to Grisso, on other occasions during his conversations with Gilbert there were times when “his mind seem[ed] to be someplace else.” (Id. at 19.) As a result, Grisso concluded that he did not believe that Gilbert “will be able to go through the whole trial and be able to pay attention to everything that’s going on.” (Id. at 20.) He added that Gilbert had indicated that if he felt someone was not telling the truth during the trial, “he would object out loud to it.” (Id at 21.)
Although Grisso conceded that he had found no records indicating that Gilbert had previously been medicated for аny mental illnesses, he noted that Gilbert’s family members indicated that he had been treated with medication in the past. He also stated that a doctor had diagnosed Gilbert with attention deficit disorder, that he had been placed in special-education classes at school, and that although Gilbert was not mentally retarded, he was not of “very high intelligence.” {Id. at 18-19.) Based on this information, Grisso felt a further investigation into Gilbert’s competency was required. On cross-examination, however, the investigator conceded that no defendant whom he had concluded was incompetent was ultimately found to be incompetent to stand trial.
Having heard this testimony, the trial court rejected Gilbert’s application for a competency hearing. It concluded there was no doubt as to Gilbert’s competency to stand trial, in part based on the court’s own observation of Gilbert at various pretrial hearings.
*1178
The leading case in this circuit with respect to evaluating the need for a competency hearing is our recent en banc decision in
McGregor v. Gibson,
where we noted that it is “well-settled that the ‘criminal trial of an incompetent defendant violates due process,’”
A competency claim by a criminal defendant may implicate both substantive and procedural due process.
Walker v. Attorney Gen.,
In
McGregor,
we noted that the procedural due process right to a competency hearing is grounded on the obligation of the state to provide adequate procedures to protect accused individuals from being tried while incompetent.
Id.
(citing
Pate v. Robinson,
In determining whether there was a “bona fide doubt” as to competence, there are
no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluatе is suggested by *1179 the varying opinions trained psychiatrists can entertain on the same facts.
Drope,
Finally, we note that our review of the factual findings made by the state court in the course of its determination of the need for a competency hearing is subject to AJUDPA’s “unreasonable determination” of the facts standard of § 2254(d)(2).
8
The state court’s ultimate determination that a competency hearing was unnecessary is, however, a question of law to be reviewed pursuant to § 2254(d)(l)’s “contrary to, or ... an unreasonable application of, clearly established federal law” standard.
See Wright v. Sec’y for the Dep’t of Corr.,
Gilbert’s claim that he was unable to understand court procedures and to comprehend the proper role of the jury could, if established, qualify as incompetence under the standard that the defendant must have “a rational as well as fаctual understanding of the proceedings against him.”
McGregor,
In order to succeed on a procedural competency claim, however, the burden is on the petitioner to present facts that “establish that a reasonable judge should have had a bone fide doubt as to his competence at the time of trial.” Id. at 954. Thus, the crucial question in the present *1180 case is whether-either at the time of the request for a competency hearing or at any later point during the proceedings-there was evidence in support of the above claims that would have been sufficient for a reasonable judge to have had a bona flde doubt as to Gilbert's competency.
As noted above, Gilbert's trial counsel did indicate that he had concerns about Gilbert's lack of competence. Although "the concerns of counsel alone are insufficient to establish doubt of a defendant's competency," Bryson,
Having reviewed the material in the record, we conclude that the state court did not reach an unreasonable determination of the facts when it concluded that the evidence, viewed objectively, did not raise a bona fide doubt as to Gilbert’s competency. The trial court based its decision in part on its observation that Gilbert was acting normally throughout the pre-trial proceedings.
Cf. Sanchez v. Gilmore,
Gilbert has not presented us with the same quantum of evidence that we have found sufficient in other cases to establish that a due-process violation has occurred.
See, e.g., Barnett v. Hargett,
We therefore conclude that Gilbert has failed to meet his burden under AEDPA to show that the OCCA rendered a “decision that was based оn an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). 9
C
Gilbert’s final claim is that the evidence was insufficient to support a finding by the jury of the two aggravating circumstances in this case-that the murder was committed to avoid arrest and that Gilbert was a continuing threat to society. As we recently noted in
Hogan v. Gibson,
“our precedents have not been consistent in their treatment of whether a question of sufficiency of the evidence represents a legal conclusion or a factual determination.”
The Supreme Court has stated that a jury’s finding on an issue will be upheld if, “after viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia,
Under Oklahoma law, the focus of the aggravating circumstance that the murder was committed to avoid lawful arrest or prosecution is on the state of mind of the murderer; it is he who must have the purpose of avoiding or preventing lawful arrest or prosecution.
See Carter v. State,
admitted to killing one woman in Ohio and stealing her car, driving it to Missouri where an elderly couple was killed for them car, driving that car to Oklahoma where Mrs. Ruddell was killed and her pickup taken by [Gilbert] and his co-defendant to New Mexico. This is ample evidence to support the jury’s finding the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution.
Gilbert,
In order to support the “continuing threat” aggravating circumstance, the State must demonstrate a defendant will continue to present a threat to society after sentencing.
Cudjo v. State,
Ill
The district court’s dismissal of Gilbert’s petition for a writ of habeas corpus is AFFIRMED.
Notes
. The facts are taken from the opinion of the Oklahoma Court of Criminal Appeals affirming Gilbert’s convictions and sentence. See Gilbert v. State, 951 P.2d 98, 103 (Okla.Crim. App.1997). Gilbert was also convicted of kidnapping and robbery with a firearm.
. An
Allen
charge — sometimes referred to as a "dynamite charge" — derives its name from the supplemental jury instruction approved by the Supreme Court in
Allen v. United States,
. Although Amey sets forth the factors under which a federal appellate court reviews the supplemental jury instructions used by a federal district court, we note that this standard is higher than our more deferential review pursuant to AEDPA. Because we conclude below that the trial court's Allen instruction was proper under the heightened federal standard, the OCCA's determination that the instruction did not abridge Gilbert's due process rights was not an unreasonable determination under AEDPA.
. In its instruction, the trial court also underscored that it did not intеnd “in any manner” to "coerce a verdict.” (7 Tr. at 1701.) While such language certainly does no harm, we note that it alone will not immunize an otherwise coercive Allen charge from the scrutiny of a reviewing court.
. Moreover, the court never learned which specific jurors were in the minority, nor did it learn the precise numerical division amongst the jurors.
. In a capital sentencing proceeding in Oklahoma, if the jury "cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment for life without parole or imprisonment for life.” Okla. Stat. tit. 21, § 701.11.
. In
McGregor,
the full court of this circuit took under consideration the analysis that should apply to a procedural incompetency claim where the original competency hearing had proceeded under an unconstitutional burden of proof.
. Gilbert argues that we are “not bound by the state trial judge’s conclusion regarding Mr. Gilbert's competency” (Appellant's Br. at 53), citing
Sena v. N.M. State Prison,
. We note that the burden of providing adequate procedures to protect accused individuals from being tried while incompetent "persists throughout trial; thus, ‘[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.’"
McGregor,