McGregor v. Gibson

decide which the correct in determining we need not is sonable that the evidence approach support because we conclude the OCCA did not á second degree murder applica- not unreasonable in either its instruction. Nor was the OCCA unreason- in applying tion of the law or its determination of able Strickland to determine facts. that Mr. Valdez’s trial counsel was not failing request ineffective for in- Mr. Valdez asserts that the evi struction. dence he was “on one of worst drunks reasons, For these Mr. Valdez has not supported voluntary of his life” intoxi shown he is entitled to relief under section testimony cation own un instruction. His claim for his of ineffective assistance argument. dermines this To be entitled to of trial counsel. voluntary an instruction on the defense of intoxication, present Mr. Valdez had to CONCLUSION evidence sufficient to raise a reasonable Mr. Valdez is not entitled to habeas concerning ability doubt his to form the relief based on the OCCA’s determination See, requisite e.g., criminal intent. Fonte (1) that: July his 25 and 26 statements (Okla.Crim. State, not v. 881 P.2d were not obtained in violation of Fifth However, App.1994). Mr. Valdez testified (2) rights; Amendment July 26 interro- going that he kill Mr. knew he was gation did not violate his Sixth Amend- beforehand, and in fact Barron told Mr. (3) counsel; right proved ment the State Moreover, Barron so. he was able to re doubt; beyond he was sane a reasonable the evening’s member and describe events (4) (5) trial; he was to stand detail, explicit and his were recollections trial court’s failure to instruct the corroborated all of the witnesses who degree second did murder not violate his present night were on the of the murder. (6) process rights; due his trial coun- State, 840 P.2d Crawford ineffectiveness, any, preju- sel’s if not (defendant’s (Okla.Crim.App.1992) detailed dicial to his case. description of the crime the surround ing circumstances that he “demonstrate[d] AFFIRM We the district court’s denial inwas control of his mental faculties and of Mr. request Valdez’s for writ of habe- in the not advanced state of intoxication he corpus. assert”).

attempted] OCCA determining

therefore not unreasonable in Valdez was not so intoxicated as night

to be unable to form intent on the requirements

the murder. Because the voluntary for intoxication instruction were Billy McGREGOR, Keith Petitioner- met, unreasonably the OCCA did not Appellant, apply in determining Strickland that Mr. Valdez’s was not for counsel ineffective failing request Gary GIBSON, Warden, such an instruction. Oklahoma State Penitentiary; Edmondson, Drew At- argues Mr. Valdez also the evi torney General State Okla- supported a degree dence second murder homa, Respondents-Appellees. instruction because the murder occurred No. 99-7038. fight. a drunken Under Oklahoma law, degree requires second murder a lack Appeals, Court of States See, State, intent. e.g., Palmer v. Tenth Circuit. P.2d (Okla.Crim.App.1994). Once Aug. again, his argument is undermined own admission that he intended to kill Mr. fighting.

Barron before the two started

Consequently, the OCCA was not unrea- Werneke, Ruth Adams Assistant

Vicki Defender, Penalty Death Federal Public Division, Corpus Okla- Federal Habeas Oklahoma, Petitioner-Ap- City, for homa pellant. Humes, Attorney

William L. Assistant (W.A. Edmondson, Attorney General Drew l Oklahoma, with on the him Genera Oklahoma, brief), for Re City, Oklahoma spondents-Appellees. BRORBY, TACHA,

Before MURPHY, Judges. Circuit BRORBY, Judge. Circuit appeals the denial Billy Keith § see 28 U.S.C. relief, from of habeas degree malice murder first Oklahoma affirm. sentence. We conviction and death of murder- was convicted Plumb, widow in whose Virgie ing cruel; cious or Mr. McGregor had been a boarder for a short committed home he disappeared victim period of time. The prosecu- avoid murder to arrest and last evening May 1983. She was tion; presented continuing and he a threat at 7:00 P.M. that neighbor, seen society. found the existence of in her own evening, riding passenger as a aggravators, the first two but found Mr. car, driving. which Mr. continuing was not a threat. evening, jury again At 10:00 P.M. that Mr. McGre- The sentenced him to death. antique clock be- gor attempted to sell The Oklahoma Ap Court Criminal victim, car. longing to the as well as her peals affirmed the conviction and death day, purport- The next he cashed check sentence, post-conviction and denied relief. him victim. That edly written to State, McGregor v. 885 P.2d 1366 day, attempted to cash a second same denied, (Okla.Crim.App.1994), cert. check, rejected such which was for insuffi- 133 L.Ed.2d 50 days Two after the victim’s cient funds. (1995); State, McGregor v. 935 P.2d 332 disappearance, McGregor went denied, (Okla.Crim.App.), cert. report that the victim had police station 138 L.Ed.2d 996 written him a bad check. days immediately following In the disappearance, victim’s re- I. STANDARDS OF REVIEW reported lated two different stories. He to Because Mr. filed people that had taken the victim several petition federal habeas after the effective Later, he to her brother’s home to visit. date of the Antiterrorism and Effective dropped people told that he had the victim (AEDPA), Penalty ap Act that Act Death that, off at a convenience store and when plies appeal. to v. Taylor, this See Williams pick up, gone. he went to her she was —, , 120 S.Ct. —U.S. — police, After a number of interviews with (2000). 1486, 146 L.Ed.2d 435 Mr. McGre the vic- killing confessed therefore, gor, will not be entitled to habe- in fight leaving body tim a her adjudica as relief unless the state court’s a wooded rural area. in of the merits of his claim “resulted tion jury A convicted Mr. of first to, contrary a decision that was or involved degree murder and sentenced him to of, application clearly an unreasonable es The Court of death. Oklahoma Criminal Supreme precedent or tablished” Court Appeals reversed conviction and death “resulted in a decision that was based on Oklahoma, sentence, holding, under Ake determination of the facts unreasonable 470 105 84 L.Ed.2d 53 U.S. presented in in light of the evidence (1985), that Mr. was entitled to proceeding.” State court 28 U.S.C. court-appointed psychiatrist. a 2254(d). § State, McGregor v. 754 P.2d 1218

(Okla.Crim.App.1988). That reversal came clause, “contrary to” a federal Under the an evidentiary hearing after revealed Mr. if may grant habeas court the writ long history had a and extensive oppo- at a conclusion state court arrives of mental illness. See id. Supreme] by [the site to that reached remand, question on a of law or if the state Court jury On found competent At than differently [the to stand trial. his second court decides a case in Mr. McGregor murder did of materi- Supreme] Court has on a set murder, deny pled instead not but ally facts. indistinguishable Under insanity. guilty jury reason of The clause, application” a fed- “unreasonable rejected again convicted defense may court the writ if grant eral habeas him degree of first murder. gov- the state court identifies the correct erning legal principle [the from Su- sentencing, charged At the State heinous, preme] decisions but unreason- especially the murder was atro- Court’s of Criminal principle to the facts of Oklahoma Court ably applies that The decided Mr. direct Appeals case. prisoner’s 1994; appeal criminal — —, —, Taylor, U.S. Williams certiorari in Supreme States Court denied 1495, 1523, L.Ed.2d The 1995 amendments to October 1995. (2000). procedure be post-conviction Oklahoma’s If state court has not addressed November 1995. See came effective claim, and “the federal the merits of a Gibson, n. Rogers v. own determination court made its district denied, Cir.1999), cert. instance,” court re in the then this first 944, 145 L.Ed.2d 820 “the district court’s conclusions views Supreme did not de Court fact, findings any, if law de novo and its April Because Cooper cide until 1996.1 Gibson, clear error.” LaFevers v. for statutory amend “[t]he Oklahoma (10th Cir.1999). 705, 711 F.3d court’s greatly ments circumscribed the granted The district court Mr. McGre- power apply intervening changes all of appealability a certificate of gor post-conviction applicants” law and be following issues. See 28 U.S.C. expected “a cannot be cause defendant 2253(c). § rule that comply procedural with a did purported the time of the not exist at II. TO STAND TRIAL COMPETENCY default,” procedural state bar is not adequate preclude federal habeas re A. Burden of Proof Unconstitutional view. James v. Following the reversal of his first con (10th Cir.2000) omitted); (quotation viction, Mr. McGregor determined also, e.g., Clayton, see 199 F.3d at 1171. to stand trial. At that however, Supreme the trial competency proceeding, Clearly established unconstitutionally provides him to criminal required precedent court Court that the prove incompetence by clear and con violates incompetent trial of one who is 354, vincing Cooper process. evidence. See v. Okla 517 at Cooper, due See U.S. homa, 348, 350, 369, 1373, 517 116 S.Ct. citing U.S. 116 S.Ct. cases. Because (1996). 1373, 134 L.Ed.2d 498 in this case determined Mr. McGre- gor’s competency under an unconstitution ap challenged pre proof, al burden of this court cannot plication proof of that burden of for the competency finding sume its to be correct. post-conviction proceed first time state See, 211 F.3d at e.g., Woudenberg, Van 567 ings. Applying the 1995 amendments to Rather, n. 5. this court must review his procedures, the post-conviction Oklahoma’s competency claim if there had no been Appeals of Criminal de Oklahoma Court See, e.g., competency hearing at all. id. to consider his claim. See Cooper clined 333, competency “A claim based McGregor, Respon 935 P.2d at 334. upon procedural process that Mr. due involves a dents assert has thus a procedurally Cooper right, claim. defendant’s constitutional once defaulted his has raised as to procedural process claim is sub bona fide doubt been This due See, ject procedural e.g., competency, adequate proce default. Van to state Gibson, competent 211 is in fact Woudenberg ex rel. v. dure to insure Foor (10th Cir.2000). 560, Hargett, trial.” Barnett v. 174 F.3d 567 to stand Respondents challenge applica plied appeal where was final 1. do to cases direct not case, Cooper prior Cooper, State did not raise tion of to this where the direct when 20, issue), (U.S. filed, May appeal prior petition Court's cert. became final to the Coo for 2000) (No. 99-9630). Teague Clayton generally v. per v. See decision. Lane, 288, 1060, 1162, (10th Cir.1999) (pre-AED- 103 & n. 2 489 U.S. 109 S.Ct. PA; (1989). declining Cooper ap to decide whether Cir.1999). court, though prior the trial his second F.3d therefore, is whether a presented, found “initial doubt” suffi issue as to Mr. McGre- psychiatric bona fide doubt exists cient to a necessitate evalua trial. tion, at the time of his gor’s subsequent examining psycholo See, at e.g., Woudenberg, F.3d Van report, gist’s concluding competent, dispelled that initial con Ward, competent deemed cern. Foster v.

A defendant will be (10th Cir.1999), denied, trial if at the time of trial he U.S. —, to stand cert. ability (2000). to consult present had “sufficient 146 L.Ed.2d 326 degree a reasonable lawyer with his Although these determinations ... a ra- understanding of rational did rest on Mr. continued —and understanding tional as well as factual medication, antipsychotic treatment with Dusky him.” v. proceedings against any signifi the evidence fails to indicate States, disruption cant in his medication (1960). Although 4 L.Ed.2d 824 Gen., Attorney trial.2 See Walker factors, limited these a court conduct- (10th Cir.) (competency F.3d competency inquiry a should consid- ing if, change among determination could oth trial, any at er defendant’s demeanor things, petitioner er failed to continue tak , of irrational behavior defen- evidence — medication), ing his cert. denied dant, perhaps important, any most 145 L.Ed.2d 366 opinions regarding medical any The record does not indicate tency. occasion when mental health official has F.3d at 1171. Clayton, 199 was, found ever that Mr. time, incompetent to stand trial. See review of the record fails Careful (no Clayton, 199 F.3d at 1171-72 bona fide persuade us that there was a bona fide petitioner’s competence as to doubt existed McGregor’s competency doubt as to trial, in light unequivocal to stand testi trial. Mr. does have the time of mony experts peti of three medical long history of mental illness and treat trial). tioner was to stand psychotropic ment with medication. That alone, however, is insufficient to establish During defense counsel raise did incompetent that he was to stand trial. McGregor’s competen- concerns about Mr. See, Mackovich, e.g., United States cy. Although represen- defense counsel’s (10th Cir.2000). 1227, 1233 compe- concerning tations defendant’s considered, they are not tency

A should be treating psychiatrist deemed him com- trial, petent prior dispositive. to his first in 1983: Al- of counsel alone “[C]oncerns concerning trial directed to 2. The information in the record court defense counsel medication, straighten McGregor's McGregor's out Mr. Mr. medication at the time of his officials, trial, apparently jail the issue representa- and second in comes from again. was never raised tions made to the trial court defense prosecutor. counsel and the That informa- McGregor Mr. did refuse to take his medi- thought tion indicates defense counsel Mr. trial, and, morning during one cation receiving McGregor mg. should be morning, jail delayed officials admin- another that, day, according Thorazine each but to they istering because had run his medication McGregor, prison Mr. officials had increased he a dose out. In both instances received dosage mg. per day to 500 one week instance, judge noon. In the second the trial prior prosecutor, apparently to trial. The delayed trial until the medication took effect. officials, having prison the next checked with McGregor’s morning dosage appar- Mr. was day McGregor asserted to the court that Mr. evening dosage. ently much smaller than his actually supposed mg. was to receive 50 in the that Mr. There is no indication record noon, morning again in the at evening Thorazine McGregor take med- ever failed to Further, mg. evening, and 150 in the for a total of according prosecu- ication. tor, to the mg. day. prison of Thorazine each At that take officials told him that it would point, prose- change dosage objected to the to affect defense counsel two weeks for a in information, having McGregor’s cutor’s this medical Mr. behavior. Competency [pe doubt of a B. Trial are insufficient to establish Mackovich, competency,” titioner’s] trial challenging In addition to (further omitted); quotation at 1233 F.3d burden of court’s use of unconstitutional Ward, Bryson v. see also proof, McGregor argues Mr. that his com- (10th denied, Cir.1999), cert. be- fundamentally trial was unfair petency 1566, 146 L.Ed.2d 469 improperly the trial court admitted cause However, hearsay opinion testimony. this court reviews Mr. because ample opportu- judge, The trial who if competency claim as there had never daily McGregor during Mr. nity to observe see, competency e.g., Van been a express any concerns that he did not n. do Woudenberg, F.3d at 567 we Woudenberg, incompetent. See Van these addition- not need to address most of 568; Foster, 182 F.3d at 1191. F.3d com- challenges propriety al to the trial, in during several occasions re- On petency proceedings. sponse to defense counsel’s assertions that trial Mr. does assert having mental difficul- Mr. representa- attorney provided ineffective trial particular day, judge ties on a by failing trial tion Mr. specifically noted that he had observed present psychiatric to obtain and evidence occa- McGregor on a different number support incompetence. in of his claim of that Mr. sions to trial and argument because it could We address always he day seemed the same that might evidence that implicate additional addition, the trial had the did. fide to create a bona doubt as Mr. tes- opportunity observe tency. tify during suppression an in camera hear- The Oklahoma Court of Criminal which Mr. was able ing, during to have Appeals deemed posed understand the and re- questions procedurally defaulted this claim because spond accordingly. appeal, noting he failed to raise it on direct depend this claim did not on facts outside Further, conduct and McGregor, 935 appellate record. See demeanor at trial were not so bizarre and represented P.2d 335. Because he was irrational as to a bona fide doubt that raise attorneys ap at trial and on by different incompetent. States v. Cf. peal, adequacy procedural of this state Williams, preclude habeas review turns on bar Cir.1997) ap criminal (holding, federal could have devel whether peal, failing inquire trial court erred oped the factual basis of this claim on competence, into defendant’s where her English Cody, appeal. direct hysteria, disruptive behavior outbursts (10th Cir.1998). 1257, 1263 Review of fide throughout course of raised bona prejudice prong of this ineffective as competence). doubt as her claim, v. of counsel see Strickland sistance Despite McGregor’s lengthy history Mr. 668, 687, 695, 104 Washington, 466 U.S. psychiatric treat- (1984), of mental illness and 2052, L.Ed.2d 674 requires S.Ct. 80 ment, therefore, he is unable to establish a of the evidence trial counsel consideration incompetent presented. bona fide doubt that he was at could have obtained and See — Walker, Williams, at —, trial. 167 F.3d at the time of his See U.S. 120 S.Ct. Ward, 1515; also, e.g., v. 165 at 1346-47.3 see Cooks interpreted 3. we Mr. case is also not sufficient to meet the more Even if assert a substantive due applicable claim to onerous standard substantive process argument that he tried while he process Woudenberg, Van 211 due claim. See incompetent, was in fact he would still not be F.3d at 569. evidence in this entitled to habeas relief. The

1253 (10th Cir.1998), 1283, presume cert. de court must these factual findings F.3d 1296 , — —, 2254(e)(1); § 120 S.Ct. 145 U.S. are correct. See 28 U.S.C. nied (1999). Because that informa L.Ed.2d 80 Woudenberg, see also Van 211 F.3d at trial rec would have been outside the tion 571-72 (applying presumption of correct- ord, procedural bar is not ade claim). this state underlying ness to facts Brady preclude federal habeas review. quate McGregor Mr. fails to assert clear and at English, 146 F.3d See convincing contrary. evidence to the See 2254(e)(1); § 28 U.S.C. see also Van the merits of this Addressing Woudenberg, 211 at light 572. In claim, however, McGregor Mr. fails to as findings, any those evidence of this conver- any specific additional evidence coun sert between sation Mr. and Hamil- presented. sel could have obtained and ton would have been neither material nor has, therefore, He failed to establish the therefore, exculpatory. Mr. McGregor, requisite prejudice stemming any from de prejudiced by suppression. was not its performance. ficiency counsel’s Ward, Wallace v. Mr. alleges also denied, (10th Cir.1999), & 1244 n. cert. State faded to disclose his inaccurate state — —, U.S. police body ment to that the victim’s (2000). L.Ed.2d 253 Wetumka, Oklahoma; fact, west of au body thorities found the east of Wetumka. III. STATE’S FAILURE TO DIS- government’s failure disclose excul CLOSE EXCULPATORY EVI- if patory evidence is immaterial Mr. DENCE independent knowledge has Mr. contends the State Quin that evidence. v. See United States exculpatory failed to di disclose evidence Cir.1999), tanilla, rectly pertaining to this murder and evi denied, rt. U.S. ce supported that would have further dence (2000). S.Ct. 146 L.Ed.2d 330 defense, in insanity Brady violation addition, this not mate misstatement was 1194, 10 Maryland, is, rial to his defense—that there is no (1963). L.Ed.2d 215 To obtain habeas re that, probability reasonable had the State lief, he must establish that the withheld defense, disclosed this evidence accused, evidence was “favorable to the of the trial have result would been differ exculpatory, it or either because is because See, Strickler, e.g., ent. U.S. impeaching; it is that evidence must have 119 S.Ct. 1936. State, suppressed by been either will fully inadvertently; prejudice or must Supporting B. Evidence Further In- Greene, have ensued.” Strickler sanity Defense 263, 281-82, Mr. contends the State failed to disclose to him his confessions to other crimes. He made these confessions Directly Concerning A. Evidence approximately time he con same Murder killing Authorities fessed Ms. Plumb. asserts State no investigated, but found evidence to veri tape recording failed to disclose a of a fy accuracy of the other confes conversation about murder between now sions. asserts Hamilton, him and Edwin friend of these false confessions could have bol at the behest acting who insanity stered his defense. Following of law enforcement officials. indicates that coun- The record defense evidentiary the state trial court hearing, aware, prior to this that Mr. sel tape found that the was inaudible and that McGregor had made such statements. See any reveal conversation failed to Tr., 4, Apr. thing investigation. Hr’g relevant to the This 1989 Mot. 31. There 1254 illness, mental cigarettes. Mr. suppression by the state of

can be “no coercion, any police and available evidence of is already known without evidence to trial.” invol prior United to render his confession [defendant] insufficient Hernandez-Muniz, 164, 170 F.3d v. untary. Connelly, States 479 U.S. Cir.1999) (10th 1007, omit (quotation 515; also, 167, e.g., 1011 Nickel v. 107 see S.Ct. ted). Further, government’s (10th failure to Hannigan, 97 F.3d Cir. immaterial exculpatory evidence is 1996). disclose might suscep be more Although he independent knowl if Mr. has to his government coercion due tible Quintanilla, that evidence. See edge of illness, only if there mental that is relevant at 1149. 193 F.3d coercion. See police has been L., 147 1249 Erving v. States event, the Oklahoma Court Cir.1998). post-conviction in state Appeals, Criminal Mr. had failed proceedings, held Ap The Oklahoma Court Criminal that these other confessions to establish that did not peals determined the record exculpatory or material. See were either any police indicate coercion. See McGre McGregor, 935 P.2d at 337. That determi gor, P.2d at 1377-78. This determina 885 application not an unreasonable nation was tion was reasonable. See 28 U.S.C. pre clearly Supreme Court established 2254(d). § Mr. testified in cedent, see Moore taking that he had not been camera denied, (10th Cir.1999), cert. 1165 medication to his arrest. The record — —, U.S. S.Ct. police provided him does not indicate (2000), light in of the detail L.Ed.2d 239 any medication as a result of his confession to Ms. accuracy of his evidence, there confession. There is no murder, significant Plumb’s and the fore, police withheld his medication presented to the amount of evidence an effort to coerce confession. Cf. concerning his mental illness. Wisconsin, 390 U.S. Greenwald (1968) 519-21, 1152, 20 L.Ed.2d 77 88 S.Ct. MR. McGREGOR’S INCULPATO- IV. curiam) (under (per totality of circum RY STATEMENTS where, stances, police confession coerced A. Admission circumstances, ac among other coercive required high pressure cused blood medi that his asserts daily police held accused cation twice voluntary, and confession was not hours, without medication for over twelve rights waiver of his Miranda4 confessed). until he voluntary. knowing, intelligent, and whether, inquiry voluntariness turns on that he is further asserts circumstances, totality under the a chain smoker who confessed due to his product confession of a free and desperate cigarette. for a But need cf. intimidation, choice rather than deliberate Palmer, 55, 61- United States v. deception. coercion or See Moran v. Bur (1st Cir.) (rejecting claim that confes bine, 412, 421, 106 S.Ct. U.S. sion made heroin addict was involun (1986). The focus of this L.Ed.2d tary suffering he was withdrawal because police overreaching. inquiry is on See Col denied, cert. symptoms), 157, 170, Connelly, orado v. 479 U.S. (2000). 2756, 147 L.Ed.2d 1018 (1986). 515, 93 L.Ed.2d 473 dispute jail’s policy There is no smoking. The sheriff testified that forbids asserts that his police inmates could interviewing officials involuntary confession was because of cigarettes. illness, give and did sometimes inmates light mental and in of the conduct court’s appellate him The Oklahoma determina police refusing give his medi tion, him officers permitting assuming cation and not to smoke that even would Arizona, 4. Miranda v.

1255 when he that the trial court had “inappropri- to smoke held permit Mr. statements, “nothing suggests and ately the gave presenta- inserted standard for argument the support does not defense,” the record insanity tion of resulting the level of police activity that this rises to ambiguous jury McGregor, an instruction. 1378, coercion,” McGregor, 885 P.2d Nonetheless, 885 P.2d at 1380. that court reasonable. further held that instructions nei- “[t]he reasons, ther denied a constitutional or the state

For these same statutory nor right courts’ determination Mr. went the foundation rights was voluntarily waived his Miranda Id. the case.” however, asserts, He further reasonable. proceedings, In these habeas Mr. rights waiver of his was not McGregor argues that these instructions intelligent. clearly knowing and Under deprived process, him of due at both the precedent, the Supreme established Court stages by depriv first and second inquiry is whether Mr. relevant ing him of a state law right to have the consequences of his ac- appreciated jury consider his mental illness in deter tions, circum- totality based on a mining the voluntariness of his statements. See, Illinois, e.g., Patterson v. stances. errors, however, State law grounds are not 285, 296-97, 2389, 101 487 U.S. for federal habeas relief. See Estelle v. (1988); Moran, L.Ed.2d 261 475 U.S. McGuire, 62, 67-68, U.S. S.Ct. appel- 1135. The Oklahoma S.Ct. 116 L.Ed.2d 385 Nor did this that the record “did late court determined instruction trial fun otherwise render his suggest that he could not understand damentally unfair. id. at See S.Ct. what he did when he made these state- McGregor, 885 at 1378. In ments.” P.2d record, light of the this determination was Y. PRECLUSION OF INMATES’ TES- reasonable. TIMONY Jury B. Instructions that the asserts deprived trial court him of his constitution law,

Pursuant once to Oklahoma compulsory process al and to rights trial court determines a defendant’s present mitigating by refusing evidence an “additional voluntary, confession was he compel presence of three inmates safeguard!],” question “the of voluntari jury, together sought testify is submitted to the to have on his behalf. ness prece with all the facts and circumstances sur “Clearly Supreme established Court rounding Hopper the confession.” that a to due right dent holds defendant’s (Okla.Crim. State, P.2d 539-40 process compulsory process includes App.1987). generally See Jackson v. Den in his de right present witnesses no, & 378 n. Ward, Boyd fense.” (1964) 1774, 12 (noting L.Ed.2d 908 (10th Cir.1999) cases), (citing cert. de procedure pose not ... hazards” “does nied, rights). to defendant’s (2000). To obtain habeas challenges the trial court’s instructions to however, relief, must show jury concerning its consideration of the ren the exclusion of his witnesses inculpatory voluntariness of his statements fundamentally dered his unfair. weight and the to be afforded them. inquiry id. That turns on whether particular, argues the instructions re is, excluded evidence was material —that quired jury perform analysis “might it have affected the trial’s whether applicable insanity similar to that to his omitted). (quotation outcome.” Id. defense, before the could consider the Further, “clearly established Su mental on the volun effects of his illness precedent requires that preme Court inculpatory tariness of his statements. precluded not be from Appeals capital Court of sentencer Oklahoma Criminal any imprisonment parole, without and death. mitigating factor, a considering, as jury, during sentencing The its delibera- character or rec- aspect of the defendant’s tions, happens ord, inquired of the court “what circumstances of the any of the and parole?” The court’s re- on life without proffers as a offense that the defendant In- sponse jury directed the to “read the than death.” Id. basis for a sentence less structions, cases). they speak for themselves.” omitted; As (quotations citing McGregor urges Mr. that the trial court’s evidence is within long mitigating as the response violated Simmons v. South Car- however, reach, the sentencer’s effective olina, 512 U.S. Eighth Amendment is satisfied. See disagree. We id. “three-way choice fulfills the instruction’s that re McGregor argues Mr. he jury requirement Simmons that a be noti- Johnny testimony of inmates quired if parole ineligible.” fied the defendant is testify and Omar White to to his Garrison Mayes v. at the time of trial. mental condition this Cir.2000). specify He not to what these inmates does would have testified. The Oklahoma VII. PROSECUTORIAL MISCON- Appeals that Court of Criminal held this DUCT testimony McGregor, irrelevant. McGregor challenges following Mr. light P.2d at 1379. In of his failure to prosecutorial prosecutor, comments: concerning establish a bona fide doubt law, contrary to Oklahoma indicated to competency appel to stand the state prospective jurors McGregor that Mr. that late court’s determination this testi would walk out of the courtroom free mony was irrelevant was reasonable. Nor jury guilty by man if the found him not sentencing was this evidence material for insanity; being reason of referred to his purposes, in amount light significant of protective custody; held in elicited testi- present of evidence Mr. did con mony peni- had that the that he indicated cerning his mental illness. tentiary good; do him would no insinuated malingering faking Mr. and required

He asserts he the testi illness; testimony his mental elicited mony concerning inmate of James Winters found twice been his mental condition the time of the trial; stand made irrelevant attacks on a crime. Winters shared a cell with Mr. expert; Mr. defense asserted in June 1983. Mr. fraud, experts was a insanity defense contends could have testified to Winters worthless, were and he was a liar and a time, Mr. at that McGregor’s mental state artist; attempted jurors’ con to evoke the including his claims that he corroborating sympathy eliciting testimony concern- medication, requested cigarettes and financial ing the victim’s difficulties interrogation he once returned from rent; pay failure to cigarettes pockets. light in his McGregor’s family noted Mr. had come to of the state courts’ de reasonableness life, that, if beg court to for his but termination denial medication have, they family victim’s could would have coercion, cigarettes did not amount to life; begged spare her proffered testimony ma Winters’ was not photo and referred to a of the victim’s any first-stage Nor would terial issues. her, picture response remains as their testimony have been relevant picture to the admission of a of Mr. sentencing. young boy. LIFE VI. MEANING OF SENTENCE prosecutorial these mis Because PAROLE WITHOUT implicate any specif conduct claims do law, right, Pursuant to Oklahoma ic must constitutional trial court instructed the on its three establish that the conduct or remark ren unfair, fundamentally options imprisonment, life dered the trial see sentencing —life (citing Donnelly McGregor’s procedural id. DeChristofo 637, 643, ro, particular, claim. -In majority misap- (1974)). comments, L.Ed.2d 431 These prehends both the nature import of and did separately together, considered or not bearing McGregor’s the record ability do so. The Oklahoma Court Criminal to assist trial counsel and understand on these Appeals’ denying decision relief judicial procéedings. the my Because as- claims, therefore, reasonable. sessment relevant evidence leads me to conclude that a bona fide doubt about Mr. also contests sever McGregor’s competence to stand trial was might implicate spe al other remarks that trial, during raised I dissent. Paxton v. rights. cific constitutional See (10th Cir.1999). Ward, 199 F.3d articulates, majority correctly As the alleges prosecutor improperly He de McGregor’s procedural competency claim dire, voir during fined reasonable doubt presents following issue: whether the jury sentencing by at and confused evidence circumstances known to the arguing McGregor’s mitigating evi court, throughout trial both before and really an aggravating dence was factor. trial, raise a bona in fide doubt the mind do warrant habeas These comments not jurist of a reasonable about The trial court instructed the relief. ability either to attorneys consult with his Clayton, on reasonable doubt. See degree with a reasonable of rational un- Further, prosecutor F.3d at 1173-74. is derstanding possess or to a rational' and weight entitled to comment on the to be understanding the'judicial pro- factual mitigating afforded evidence. See Fox v. (10th 1250-51; ceedings. Majority Op. Ward, at 200 F.3d Cir. 2000). Williams, The state court’s denial United States appellate was, thus, Cir.1997); Dusky of relief on these claims reason v. United States, 402, 402, able. 80 S.Ct. (1960). Importantly, L.Ed.2d 824 a trial VIII. DISCOVERY responsibility court has thé to insure that that the district asserts is throughout defendant in denying court abused its discretion dis- Missouri, Drope entire trial. See covery concerning photo- crime scene 162, 171-72, 181, graphs, physical evidence and the results This court must polygraph of a test believes the State grant therefore relief if a bona A may given have him. federal habeas competence fide doubt about at existed petitioner discovery only will be entitled to any time if no his second even “if, that, and to the extent the [district prior or through- such doubt raised in court] the exercise of his discre- out the balance of the trial. good tion and for cause grants shown leave majority properly The notes that in as- so, 6(a), do not but otherwise.” Rule certaining whether a fide doubt about bona Governing Rules Section 2254 Cases. exists, McGregor’s competence this court district court did not abuse its discretion in “ considers ‘defendant’s demeanor at denying McGregor discovery. this by evidence of irrational behavior de- IX. CONCLUSION fendant, perhaps important, any most opinions regarding compe- medical Having carefully parties’ considered ” tency.’ Majority Op. (quoting at 1251 record, arguments and the AFFIRM we Clayton v. the district denial court’s of habeas relief.

(10th Cir.1999)). Additional factors for MURPHY, Judge, Dissenting Circuit court’s consideration include evidence any representations I mental separately express my write dis- of illness agreement majority’s with the resolution made defense counsel before and dur- prescribed heavy doses treatment and was the defendant’s ing regarding medication. Around that psychotropic 178 n. Drope, 420 U.S. tence. See time, four times in bear- was also shot 896. The record evidence head; sup- fragments lodged remain on these relevant factors does bullet ing later, majority’s years that no bona while port the conclusion in his brain. Several Texas, diag- about in fide doubt incarcerated trial. Par- any point during character- existed with a seizure disorder nosed failure troubling majority’s is the ticularly periods of blackouts and violent ized defense counsel’s adequately consider prison Oklahoma outbursts. While during McGregor’s trial about McGregor statements was between 1980 despite Tenth and Su- competence, Circuit paranoid schizo- with a severe diagnosed emphasizing the preme precedent Court potent anti- phrenic disorder and received represen- importance of defense counsel’s conducting a psychotic After medications. concerning competence. tations prior McGregor’s competency evaluation to 1983, psychiatrist diagnosed in a first trial majority opinion acknowledges first schizophrenic McGregor paranoid as a McGregor court was aware that the trial personality anti-social disorder with long history “a of mental illness suffered per day of mg four 100 doses prescribed psychotropic with medi- and treatment Mellaril, powerful antipsychotic drug. a cation,” majority the states that though per- who Finally, psychologist a clinical does not create a mental illness alone such competency evaluation of McGre- formed a compe- McGregor’s doubt about bona fide to his second gor almost ten months history, Majority Op. at 1251. The tence. mentally McGregor trial that was stated nature, severity of mental McGregor’s ill, schizophrenic symptoms that but his to According deserves elaboration. illness medi- appeared be in remission due to Hans testimony psychiatrist the trial of short, In the trial court was well cation. Brauchitsch, was McGregor’s birth Von from severe McGregor that suffered aware in complications resulting both marked injury throughout mental illness and brain inability regularly to breathe for sever- his entire lifetime. possible deprivation. oxygen al hours and further testified that as Von Brauschitsch the evidence concluding despite that child, tendency a young McGregor a had there exists McGregor’s mental illness things himself and other on fire and set no bona fide doubt about during attacks which he suffered seizure trial, majority principal places stand McGregor’s consciousness. fa- would lose by upon opinions offered reliance compe- ther testified at the October 1988 performed the experts mental health who three, hearing age that at the tency trials. competency before both evaluations began experiencing one-to-two- McGregor ex Majority Op. at 1251-52. Both periods and started hour of disorientation compe perts opined was at the of seven or suffering age delusions opinion pre trial. Even the tent to stand eight. hearing, competency at the second sented however, months nearly was rendered ten placed consequence, McGregor As a was which de mid-teens, prior to the actual a fact hospital in in a mental “ weight from the this court should tracts diagnosed a ‘border- where he was with Robinson, Pate v. opinion.1 afford that (psychotic) type line’ and schizoid condi- Cf. 383-85, There, tion.” received shock McGregor’s compe- opine psychologist would not as 1. The who conducted the hearing competency time of the tency trial did so on tence at the evaluation for the second murder 31. The trial on the July whether itself on October 1988. The trial to determine nearly began April ten charge competent was held on Octo- was July after 1988 assessment psychologist months ber 1988. At that psychologist deemed only which testified July, competent. day but on the he was evaluated in (1966) trial, McGregor’s a fide second (concluding bona medication had from Mellaril competency changed the defendant’s been to Thorazine. doubt about raised, psychiatrist According psychiatrist who to a who though even testified McGregor’s the defendant several months October 1988 evaluated him compe- hearing, though trial had found Thorazine is the same prior to the tent). however, Mellaril, drugs importantly, family More both as its sedative than experts, majority recognizes, hinged stronger effect is that of Mellaril. On dire, degree day on the third their evaluations to some voire attorney informed the continued treatment anti- Majority Op. McGregor was now a total of 500 psychotic ingesting medication.2 See Despite qualified mg day. McGregor’s nature of of Thorazine each at 1251. opinions, majority attorney defers indicated to the trial court that expert these mg them because “the evidence fails to indi- this 500 dose of Thorazine exceeded any significant disruption mg the amount which [McGre- cate prescribed, raising question trial.” Id. The been as to gor’s] medication record, however, type being properly that the and whether reveals prescribed changed medicated.3 dosage of medication competency McGregor’s from the time of further that an The record indicates for trial, of evaluations to the time his second trial, morning McGregor entire of the was trial questions during that arose about day unmedicated. On the fifth of two receiving he was inconsistent and

whether days following represen- defense counsel’s improper dosages of his medi- perhaps of elevated levels of Thorazine ad- tations cation, took no medi- McGregor and that government and after the had ministration morning an entire cation at all for least statement, opening its the trial court given trial. during the judge stated on the record that the Sheriff just him experts McGregor McGregor both evaluated had informed was re- When determination, take that competency they fusing morning. not- his Thorazine for Mellaril, stated, pro- “I taking judge ed that he was then an The then intend to the ceed with the trial whether he takes his antipsychotic Although medication. medication,” any inquiry without into the dosage record does not indicate the The prescribed McGregor medicating McGregor.4 at the effects of not Mellaril evaluation, proceed morning, when he was trial did that even time of the second McGregor did not take his medi- taking mg though first evaluated he was of the sum, though inception the cation until lunchtime.5 In drug day. By each the McGregor McGregor pate doubt about whether was psychiatrist 2. The who evaluated the being compe- properly to his first trial concluded that he was medicated and thus Instead, "competent psycholo- dosage suggests with medication.” The the tent. it that both gist performed the who assess- drug changed the time and the from opined preceding the trial ment second that McGregor competence was first evaluated for McGregor’s had caused schizo- medication receiving signifi- may and that he have been go phrenic symptoms to into remission. drugs during cantly his trial than that more Moreover, psychologist that he this conceded prescribed. Certainly judge a reasonable truly the effects of the did not understand inquired would have into the administration taking. which was medication powerful antipsychotic drug during tri- the al. infra, majority improperly the As discussed importance representa- discounts the judge the when the learned 4. Later in made defense counsel to the trial tions morning yet taken one that had not judge. Majority Op. at It 1251-52 n. 2. arriving, because it was late in his medication McGregor’s that should also be noted after delay proceedings judge did until counsel informed the trial court about and it took received the medication prosecutor dosage, stated that increased effect. McGregor's medical records from the state only penitentiary to receive indicated recognizes question exists day. prosecu- 5. This court that a mg each The of Thorazine not, however, voluntarily representation whether a defendant can does dissi- as to tor’s pool expert opin tainting the entire should majority concedes the two made, disruption; inquiry no that cause ions however, competence. At the recog concerning qualified by trial were stand him, day, after the in- properly medicate it end of that first nized need to attorneys they would acknowledge significant ques structed the fails to process the follow- at trial he was continue the voire dire tions arose as to whether apparently ing morning, McGregor, ad- consistently receiving type then stated, you “Do want a necessary dressing judge, to main amount of medication leave, before we one on competence.6 game tain his Walker v. Attor basketball Cf. General, cryptic, inexplicable inquiry This ney one?” Cir.1999) did not under- (concluding suggests no bona fide doubt competence perhaps stand the seriousness or even the about defendant’s was raised judicial proceedings nature of the which expert when a mental health testified that Williams, he was involved. See hinge defendant’s could on his cryptic that a (noting lithium treatment and there was at 1160 defendant’s continued responses trial court should have any disruption no evidence of that treat ment). alerted the court to the need for a tency hearing). behavior the trial ability following day, the trial court ad- questions also raises about his journed early because was ex- proceedings understand assist headache and dis- attorneys. periencing In the afternoon of the first extreme dire, day deputy day, McGregor’s orientation. On the third of voire the court that his client had a judge attorney counsel informed the trial that dur- told day temper morning. blackout that On the fifth of ing McGregor lunch had thrown trial, McGregor did not have a when refused to take his tantrum because his shirt session, tri- pocket morning counsel described Thorazine for the the defense extremely judge rational.” al allowed to leave the as “not They that courtroom twice. When he did take Tho- also indicated lunchtime, if disrupt the trial. The trial razine at asked he threatened to until P.M. judge’s response sleep was to initiate voire dire could be allowed to 2:30 continued, juror though while the trial ultimate- potential individually of each to avoid by refusing potentially tak incompetent render himself medi- would take two weeks of not type suspend ing any of for it to show cation either to the trial or to create medication this appeal proceeds up problems of the defen an issue on if the trial court in behavioral Nevada, Riggins Majority Op. with the trial. See v. 1251 2. The dant.” See at n. majority’s U.S. 118 L.Ed.2d substantial reliance on this bare however, (1992) "question (declining to address the by prosecutor, is im assertion the may whether a criminal defendant proper. precedent, Under this court’s the antipsychotic medication if cessation of refuse prosecutor’s statement is irrelevant to our incompetent medication trial”). render him at would procedural competency analysis if the re question We need not resolve this in fide mainder of the evidence creates a bona however, case, the because the record instant McGregor’s doubt about " why raised, court the does not inform this of reason the doubt is the court '[O]nce trial. medication, part in be- refused contrary dispel simply by relying it cannot the never a hear- cause trial court conducted protections adversary evidence. The of an ” ing McGregor’s to ascertain motive or the proceeding must be afforded the defendant.' effect of his refusal to take medication on his Williams, States competence. (10th Cir.1997) (quoting 1160-61 Sena New Prison, F.3d Mexico State true, notes, (10th Cir.1997)). prosecutor's represen majority It is the that at one The highlighted necessity point questions the for in the when arose about tations least medication, explore proble McGregor’s prosecutor judge the trial the effect of stated people antipsychotic that a trial "the matic administration of the few months before drug probe legitimacy prose State and to of the from the medical services at Oklahoma representations. Penitentiary medical ... informed ... that it cutor's [me] in to remain counsel came to the attention of the trial McGregor decided ly, representations afternoon. The fol- from by the entire court means courtroom attorney stated on day, McGregor’s Regarding repre counsel. lowing defense these sentations, “has not assist- majority simply the record states that me, day me from the he has'hindered representa ed “[although defense counsel’s very second. trial started until this concerning tions defendant’s in to this case regards hindered me considered, He has ... should be ‘concerns I the whole time. talked nonsense alone are insufficient to establish counsel ” crazy.” judge think he’s The still Id. [petitioner’s] competency.’ doubt of a not hear what McGre- indicated he could (quoting at 1251-52 United States v. spoke with his saying when gor was (10th Mackovich, Cir. later, day of days eighth Two counsel. 2000) Ward, Bryson v. citing attorney informed the McGregor’s Cir.1999), cert. de experienc- had been court that nied, morning. and blackouts that ing flashbacks (2000)). litany of evi absented day, McGregor again That once vividly dence detailed above indicates the courtroom for a short himself from expressions defense counsel’s of concern proceedings. of the portion ability in about his client’s to assist his own proceedings defense and understand the multiple are at odds incidents These to create doubt about did not stand alone majority’s statement that McGre- competence. important More at trial were gor’s “conduct and demeanor however, majori ly, as to raise a the cases on which the not so bizarre and irrational incompetent.” dismissing significance ty that he was relies bona fide doubt representations actually Majority Op. at 1252. His behavior defense counsel’s eyebrow of importance repre should have raised the of such emphasize least who was informed two stating the trial Prior to that “the con sentations. competence was experts alone are insufficient to cerns of counsel proper affected administration competen of a defendant’s establish doubt light expert opinions noted, medication. cy,” Bryson “defense the court proper about the admin- questions and the position in the to counsel is often best during medication the istration of compe a defendant’s determine whether the court- McGregor’s decision to leave at 1201- tency questionable.” is portions of his trial should cause room for Mackovich, 02; 209 F.3d at 1233 see also concern reasonable sufficient (same).7 Court has also rec Supreme The at- McGregor’s ability to assist his about representations of ognized significance gravity torneys and understand attorney about the made a defendant’s proceedings suggest charges and stating, “Al competence, defendant’s explore con- hearing for a those need not, course, that suggest of though we do cerns. law question without a accept courts must the com concerning yer’s representations some, all, not of though It is true that client, doubt in expressed his petence bi- of concerning McGregor’s information with the closest contact regard by that one inability and his to assist zarre behavior Mackovich, Id. competency.” (quotation upon In United States v. defendant’s relied omitted). of defense That the mere concerns majority, presented to this the issue finding of overcome a factual factual counsel cannot court was whether a district court’s compe- proper following competen- competence rendered after a finding competence of entirely no-bearing tency hearing on the See clearly has cy hearing was erroneous. (10th Cir.2000). of whether a trial question in this case In con- distinct F.3d hearing de- to hold such a cluding demon- court’s failure the defendant had failed to procedural pro- prived McGregor due finding of his court's factual strate the district erroneous, inapposite Mackovich rights. is thus cess competence clearly stated, McGregor’s proce- this court’s resolution Mackovich court "concerns of counsel competency claim. of a dural are insufficient to establish doubt alone record, however, a fac stated on the that he was unquestionably with the defendant is be Drope, tor which should considered.” the substance of McGre- unable hear (cita 420 U.S. at 178 n. 95 S.Ct. 896 attorneys gor’s conversations with his omitted). Moreover, quotation tions and throughout judge’s the trial. The trial consistently emphasized this court has McGregor’s appear- statements limited to importance attorney’s of a defense non-disruptive failure ance and behavior at to raise the issue trial when if any bearing the trial have little on it has concluded that no bona fide doubt whether he was able to communicate with See, competence e.g., about exists. Small attorneys degree his with reasonable (10th wood understanding. rational Walker, 1346; Cir.1999); 167 F.3d at Wolf sum, States, judge, In a reasonable aware of v. United Cir.1970). history McGregor’s long of serious mental injury cognizant illness and brain and case, In McGregor’s counsel re- expert opinions about peatedly expressed opinion that his contingent being proper- tence were on his defense, unable to in his client was assist medicated, ly would harbor a bona fide dealt, forcefully stating, “I have not ever doubt about career, my with someone like this [defen- when, stand trial serious particular, defense in- dant].” counsel questions were raised about the consisten- dicated that could not communi- cy appropriateness of the administra- rationally attorneys. cate That medication, tion of his his behavior at entirely characterization is consistent with bizarre, attorney re- times was representations earlier made to the court peatedly informed the court that his client by McGregor’s appel- both father and his wholly late counsel from the first trial. unable to assist his defense. Because representations case, defense majority counsel’s about his This is not a as the indi- inability client’s to assist in his defense cates, history in which a of mental illness repeated, powerful, were and corroborated suggests alone a bona fide as to doubt law controlling empha- because case competence. Majority Op. 1252. I importance representa- sizes the of such majority’s therefore dissent from the con- tions, majority’s discounting dismissive clusion that the trial court’s failure to con- representations appro- counsel’s is not competency hearing deprive duct a did priate in this case. procedural process of his due rights. appellate Because the record is majority’s emphasis insufficient to allow this court to determine expressions judge’s concerning own feasibility retrospective competen- of a McGregor’s competence is somewhat mis- I cy hearing, would remand for that deter- placed.8 Majority Op. See at 1252. Clayton is, mination. See v. large degree, claim to a (10th Cir.1999) (setting out fac- he was unable to communicate ration-

ally attorneys. judge resolving The trial tors for a to consider in court stales, State, majority judge, (Okla.Crim.App.1986) 8. The "The trial who 730 P.2d (noting statutory that under the scheme in ample opportunity to observe Mr. McGre- place trial, McGregor's competency at the time of gor express daily during did not only a trial court could hold a incompetent.” Majority concerns that he was tency trial if that court first determined a Op. Although at 1252. it is true the trial doubt was raised about the defendant's com- judge express did not concerns about McGre- Moreover, petence). it is ironic that the ma- gor's competence during his second jority rely judge’s would on the trial failure to judge’s competency decision to hold a express a concern about when necessarily to the second trial means very inquiry our whether that trial is that he then a doubt McGre- harbored about should have been more concerned about com- gor's competency. generally petence apparently was. Scott than retrospective deter- meaningful whether possible). is

mination America,

UNITED STATES

Plaintiff-Appellee, RAMSTAD, Lee Defendant-

Howard

Appellant.

No. 99-3277. Appeals, States Court of

Tenth Circuit. 2, 2000.

Aug.

Case Details

Case Name: McGregor v. Gibson

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 1, 2000

Citation: 219 F.3d 1245

Docket Number: 99-7038

Court Abbreviation: 10th Cir.