*1 principle that because no of law “differen-

tiates a federal agency such as the Leroy EEOC BRYAN, Robert Petitioner- ” itself,’ from ‘the United States tribal sov- Appellant, ereign immunity does apply in suits brought by the EEOC. Gary GIBSON, Warden, Oklahoma hour, At the eleventh the EEOC moved Penitentiary, State Respondent-

to intervene in an salvage effort to Dawav- Appellee. endewa’s possibly case and combine it with other No. pending litigation. Although we de- 00-6090. nied that motion, we note that nothing United States Appeals, Court of

precludes from refiling Dawavendewa Tenth Circuit. conjunction suit with the EEOC.12 Dec. 2001.

Recognizing the resources and aggrava- tion however, consumed in relitigating, we

determine that factor four equi- remains in

poise. Balancing factors, these four we

find the indispensable, Nation is

“equity good conscience,” this action proceed

should not in its absence.

Dawavendewa is not entitled to attor-

ney’s fees.

CONCLUSION affirm

We the district court’s decision to

dismiss complaint Dawavendewa’s for fail- join

ure to indispensable Nation as an

party.

AFFIRMED. Moreover, may officials, i.e., Dawavendewa Navajo follow al Supreme Court Jus- procedural posture suggested by tices, Aspaos. 77 sustain action. National may F.3d at bring 1133-34. He suit Indians, in tribal Farmers Union Ins. v. Crow Tribe of decision, court and 845, 856-57, after an adverse Dawav- endewa allege could sufficient actions trib- L.Ed.2d 818 *3 Neal, A. Riggs,

Robert Nance of Abney, (F. Turpén, Orbison & Fug- Lewis Andrew itt, briefs), him with City, Oklahoma OK, for Petitioner-Appellant. Humes,

William L. Attorney Assistant (W.A. Edmondson, General Drew Attorney Oklahoma, General of him on with briefs), OK, Oklahoma City, Respon- for dent-Appellee. KELLY, HENRY, legal trict determinations de novo court’s

Before MURPHY, Judges. its error. findings Circuit factual clear Thomas v.

MURPHY, Judge. Circuit Cir.2000). appeals the denial Leroy Bryan

Robert relief, see 28 U.S.C. of habeas Sufficiency of I. convict murder degree first malice his Oklahoma deyree first malice murder. appeal, and death sentence. On conviction argues primarily the State’s Bryan challenges sufficiency sup circumstantial case was insufficient to him, retrospective to convict degree malice convic port first murder competent to that he was determination *4 appropriate inquiry here is tion. The attorney’s representa- and his stand “whether, viewing the in the after affirm. tion. We prosecution, light most favorable to the Bryan murdering jury The convicted trier of could rational fact have found finding Bryan had his aunt. After beyond the essential elements of the crime of a felo previously been convicted violent v. Virginia, a reasonable doubt.” Jackson continuing society, ny and was a threat to 307, 319, 443 U.S. 99 S.Ct. Bryan to the sentenced death. (1979). Jackson, Applying L.Ed.2d 560 af Appeals of Criminal Oklahoma Court Appeals the Oklahoma Court of Criminal sentence, firmed the conviction and death sup held there sufficient evidence post-conviction and relief. See denied Bryan’s capital port murder conviction. State, (Okla.Crim. 338 Bryan v. 935 P.2d Bryan, 58, P.2d at n. 935 358 358-59. State, Bryan App.1997); P.2d 1230 948 See, That determination was reasonable.1 denied, (Okla.Crim.App.), cert. Romano, e.g., (reviewing 239 at 1164 (1997). 957, 383, 139 L.Ed.2d 299 sufficiency-of-the-evidence court’s de state then Bryan filed his federal habeas reasonableness). termination for Ef petition. Under Antiterrorism Jackson, law, 443 Under Oklahoma see (AED- Act of Penalty fective Death “ 16, 2781, U.S. 324 n. ‘[a] PA), if he Bryan only is entitled to relief person degree commits murder the first can that the state resolution show court’s person unlawfully and mal when that with to, “contrary claims was or involved aforethought ice causes the death of anoth of, clearly es application an unreasonable being. human er Malice is deliberate precedent, Supreme Court or tablished” unlawfully take life away intention represented “an unreasonable determina being, aof human which is manifested light tion of the facts in of the evidence ” 2254(d). capable proof.’ external circumstances § presented.” We U.S.C. (Okla.Crim. State, Bland v. P.3d presume findings state court factual are omitted) (emphasis correct, App.2000) (quoting convincing proof absent clear and denied, 2254(e)(1). 21, 701.7(A)), § tit. contrary. § If the Okla. Stat. cert. Id. merit, not state did address claim’s S.Ct. 148 L.Ed.2d court (2001). however, this court then the dis- reviews - whether, denied, (10th Cir.), yet has n. 1. This court determined cert AEDPA, -, it court’s -, under reviews state 151 L.Ed.2d sufficiency-of-the-evidence as a determination case, we would In this 2254(d)(1), legal § under or a issue 28 U.S.C. either reach the same result under standard. 2254(d)(2) (e)(1). finding factual under See id. See, Romano most to the Bryan Viewed favorable owed millions of dollars as a result Jackson, State, 443 U.S. at 99 of her investment faded busi- the trial evidence established nesses.' A handwriting expert testified following: Bryan’s aunt, widowed Ina- Bryan had agreements written those Bryan, disappeared bel from her home on forged had signatures. victim’s Saturday, September A neigh- Additionally, police found several of the found bor tire skid left in marks both the personal victim’s among Bryan’s checks yards. victim’s front and back The width papers. According to the handwriting ex- between those tracks matched that of pert: signed The victim had one Bryan 1986 Lincoln blank had rented for that check; Bryan weekend. had forged sig- victim’s another; nature and the victim had The victim’s family friends signed others, four which had made found a potted plant fresh in her home. payable to himself in varying amounts. bought plant Saturday af- Police also found the victim’s ternoon, checkbook September 11. Police would later just home, outside find, near burned in a body, the victim’s a receipt for can of purchase. ashes. *5 Police found the victim’s body on Thurs- September On Wednesday the before day, September Bryan’s parents’ on the victim’s disappearance, Bryan had rural property, quarter about a of a mile rented the 1986 Lincoln from a local car from the home Bryan where lived with his dealership. making When arrange- these parents. The victim a pillowcase had duct- ments, requested he had a car with a large taped over her head had died from a trunk. He returned the Lincoln on Mon- gunshot wound to the forehead. There day, September 13. Although he could not single was a through vehicle’s tracks pay time, for the car’s rental at that he did field. A tire track a across mushroom show the car dealership’s owner one of the there had the pattern same tread as the signed checks by the victim and made right rear on Bryan’s tire rented Lincoln. payable Bryan. Authorities had decided to search that particular field on Bryan property the be- hair, Police found a similar to the vic- cause, earlier, years several Bryan had tim’s, in that rental car’s They trunk. also solicited an police undercover officer to grass found vegetation, like found kidnap and kill a local That banker. failed Bryan on the property, throughout scheme had involved the same location undercarriage. car’s lining And the fibers police Bryan’s where found Ms. body. the car’s trunk were similar to those found previous The kidnapping scheme had on tape the victim’s clothes and found on also plans included to force the banker to or near body. the victim’s sign notes, a number of promissory which addition, In police found a roll of duct Bryan intended to against enforce tape in Bryan’s room was the which same banker’s estate after Bryan his murder. type as tape pieces near found the victim’s planned further to have the banker body, as tape holding well the duct sign checks, personal several making them pillowcase over the victim’s An head. ex- payable Bryan. Likewise, police in pert edges testified that the Bryan’s tape case found of that bedroom several Bryan’s handwritten roll taken promissory bedroom agree- notes and matched ments purportedly edges pieces between the victim and the of one of tape Bryan, wherein agreed the victim she found near body. retrospective competency mine a the victim was whether that killed bullet It a .22 caliber bullet. The trial court probably hearing

most was feasible. ammunition with CCI also more consistent and, it anoth- found that was held In one it other brands. than towas jury again That competency er trial. home, police in the found bedrooms had been found one round of rifle loaded with a .22 caliber Here, Bryan in January trial stand And, Saturday night, ammunition. CCI feasibility retrospec- of that challenges the 11, a witness had seen what September hearing tive and asserts that weapon in the appeared to same be incompetent in fact the time found, in Lincoln’s trunk. Officers trial. bedroom, .22 spent caliber Bryan’s two shells, one in coveralls CCI-brand Feasibility retrospective compe- A. That in his dresser drawer. and another tency hearing. rifle both those rounds. addi- had fired a process Due mandates that state found, bedroom, tion, a officers provide adequate prevent procedures fifty .22 caliber bul- full box of Winchester de prosecuting incompetent an criminal lets, .22 partial a box of caliber CCI See, e.g., California, fendant. Medina police .22 And recovered a ammunition. the rental ear’s caliber bullet from CCI (1992). “Although retrospec L.Ed.2d 353 metallurgy study floor. A indicated that disfavored, competency hearings tive are one all the .22 caliber CCI bullets—the they permissible court can are whenever victim, one found in the that killed the car, meaningful hearing found in the conduct evaluate rental ones manufactured at competen home were defendant’s retrospectively” the *6 could come same time and from Gibson, cy. v. 199 Clayton F.3d same box. (10th omitted); 1169 (quotation Gibson, McGregor see also v. F.3d evidence, circumstantial, although

This (10th Cir.2001) (en banc). “A mean support Bryan’s certainly sufficient to ingful” retrospective competency “determi murder See Ro degree first conviction. (10th 1130, 1141 jem v. 245 F.3d possible nation the state of where Cir.2001) (in dicta, determining circum record, together evi with such additional to support stantial was sufficient available, may as be relevant and dence conviction); Romano, murder 239 permits the de an accurate assessment of appellate F.3d at 1164-65. The state origi condition time of the fendant’s at the court, therefore, reasonably denied Clayton, nal proceedings.” state relief on this claim. omitted). Here, (quotation af Appeals Oklahoma Court of Criminal Competency. II. trial determination that firmed the court’s trial, Prior murder the state court to the hearing a retrospective competency Bryan’s com- jury held trial determine Bryan, P.2d at feasible. See petency. Although found See That determination was reasonable. competent, it did so an under unconstitu- 2254(d). 28 U.S.C. proof. Cooper tional of See v. burden considering feasibility of a In Oklahoma, 348, 350, 355-56, 369, 517 U.S. hearing, such a a federal habeas court L.Ed.2d passage four criteria—the considers therefore, appeal, On direct the Oklahoma time, contemporaneous medical available Appeals remanded Court of Criminal Bryan’s prior competency court to records and determina- case for trial deter- tions, Mexico, during the defendant’s statements v. New Barefield who Cir.1970); available witnesses interact- McGregor, 248 cf. See, him e.g., with at the time trial. ed F.3d at 963 (noting “disturbing lack of McGregor, 248 962-63. In F.3d at this contemporaneous medical evidence” where case, support these factors the state only psychiatrist one testified for the State a meaningful, courts’ determination that previous competency hearing and he yet retrospective, competency hearing was defendant, had not personally evaluated possible. but rather from testified another doctor’s notes). five-year-old experts Those also

The trial court conducted the retro records, access to medical spective competency hearing August well as records a brief hospi- 1996, just years one and one-half after talization in early lengthier and a See, Bryan’s January 1995 trial. (almost eight-month stay in 1989. Clayton, 199 1168-69 F.3d at six years retrospective between trial and com Further, retrospective at the competen- “troubling,” petency hearing was but did cy hearing, Bryan able to preclude feasibility retrospective testimony of the defense attorneys four case); determination who represented him during before and Missouri, cf., e.g., Drope sister, trial. His acquaintance, an (1975) L.Ed.2d 103 physician as to testified condi- (determining meaning there could not be tion at addition, the time of trial. retrospective ful competency determina presented testimony State of two Robinson, after six years); tion Pate guards and a sheriff who were around 375, 377, 387, Bryan during time. (1966) (same); L.Ed.2d 815 McGregor, 248 factors, In light of these there was clear- meaningful 963 (determining retro ly sufficient evidence available at the time spective competency hearing could not be of the retrospective hearing provide years held after and in eleven meaningful with a competency hear- contemporaneous minimal medical evi dence). ing. Clayton, 199 F.3d at 1169-70. appellate The state court’s up- decision Moreover, is,” passage of “[t]he time *7 holding retrospective the trial court’s com- event, “not any an insurmountable obstacle therefore, petency hearing, was not unrea- if contemporaneous sufficient information 2254(d). § sonable.2 See 28 U.S.C. Clayton, is available.” 199 F.3d at 1169 omitted). Here, (quotation it was. Four process B. Substantive due claim. health experts, personally had who Bryan a also asserts Bryan year before, examined substantive within the or after, trial, claim, process alleging months due that a few his were he was in available testify to at retrospective hearing. incompetent the fact See at the time of trial. See State, Bryan appears argue spective hearing. 2. that the competency to "[I]t is event, however,] any present enough[, failed to of this the State that affords the hearing available evidence at to plea the determine criminal whose behalf a defendant on feasibility retrospective competency incompetence oppor- the a a is asserted reasonable and, therefore, hearing tunity state competent trial court to that he is not demonstrate Medina, 451, determining hearing erred in a such was feas- to stand trial.'' 505 U.S. at 112 According Bryan, (addressing ible. to because of the S.Ct. 2572 whether State can present constitutionally require State's failure to sufficient at criminal defendant to feasibility hearing, incompetence). should never bear proving burden of his prove incompetence his at the retro- This the state court did. 1170 Despite significant evidence “A defendant 248 F.3d 952.

McGregor, ill, at the retro Bryan mentally is ‘has trial unless he put not be may found that spective competency hearing ability to with consult sufficient trial. Bryan competent to stand remained a of ration- lawyer degree with reasonable Appeals of Criminal The Oklahoma Court as understanding [and] ... a rational al Bryan, 935 P.2d at 348-49. affirmed. See pro- understanding factual as well ” issue, see, is a competency factual Because against Cooper, him.’ 517 U.S. ceedings Keohane, 99, Thompson v. 516 U.S. 354, Dusky v. (quoting 116 1373 (1995) 457, 111, 133 383 116 S.Ct. L.Ed.2d United, States, 111, Fulford, 462 U.S. (citing Maggio v. curiam)). (1960) (per (1983) 2261, 76 L.Ed.2d 794 Bryan dispute no is real here There curiam)), very is (per this court’s review above-average intelligence possesses jury’s com presume must limited. We legal factually proceedings understood correct,3 is see Demosth petency finding him. fact a against “[t]hat The defendant Baal, enes [him], against list charges can recite the (1990) curiam) (per L.Ed.2d witnesses, terminology!, how- legal and use law), pre-AEDPA absent clear (applying ever, that he insufficient to demonstrate is] was in convincing factual, rational, under- had a as well incompetent at the time of his fact standing McGregor, proceedings.” 2254(e)(1). also, e.g., See U.S.C. (further quotation omit- Wallace, at 1243-44. has ted). here, therefore, question showing. a failed make such under- had such rational whether Bryan did evidence at the retro Lafferty standing at time of trial. trial that he suffers spective competency (10th Cook, n. F.2d 1550 & paranoid delusional condition re from Cir.1991). requi- defendant lacks the “[A] sulting from dam significant organic brain understanding rational if his mental site Nonetheless, long “this has age. circuit precludes him perceiving condition presence some recognized that the de accurately, responding interpreting, and/or defendant gree of mental disorder the world around him.” appropriately to necessarily he is in does not mean that at 1551. contact with reali- Id. “[Sufficient assist in own defense.” is, thus, “touchstone for ascertain- ty” Markovich, States v. F.3d United Cir.) (direct of a rational understand- criminal ing ap the existence (further omit- peal) quotation, alteration ing.” Id. Waldron, (5th Cir.1987) Bryan appears court to assert this presume finding (pre-AEDPA affording presumption case should *8 also, competency finding); e.g., jury's court Wal appellate is correct the state because Ward, 1235, (10th wrong legal direct v. 1242-43 employed the standard on lace Cir.1999) (focusing Lafferty, habeas review on state appeal. See 949 F.2d at 1549-50 decision); Bryson (noting inquiry determining competency whether trial v. first in court's Ward, 1193, finding presumed be correct is 1203-04 Cir. factual should Mata, 1999). legal generally U.S. at 592- employed correct whether factfinder 93, pre making (noting finding). in that While this 102 S.Ct. 1303 correctness standard applicable findings sumption equally when a state presumes made "is court correct factual see, court, court, appellate appellate opposed a state trial trial or to either state court, Mata, 591, finding (emphasis makes the of fact” Sumner v. U.S. here, added)). And, (1982) Bryan any in (per does not 71 L.Ed.2d 480 curiam), case, legal way challenge with which in our review focuses standard jury. jury's competency finding, the trial court instructed the see Profitt ted), denied, cert. part system. delusional That (2000); system centered on his belief that he had Gibson, Walker very had a lucrative idea or invention that — (10th Cir.2000), denied, U.S.-, cert. would have revolutionized food processing, (2001), L.Ed.2d 725 people that but had stolen this idea or abrogated grounds by on other Neill v. him, invention from causing Bryan’s busi- (10th Cir.2001). 278 F.3d 1044 nesses to Bryan fail. contends that he was unable assist his attorneys rationally at mental health Dr. experts, Philip

Two the time of trial because he was mired Murphy, Smith, M.D., Ph.D. and Dr. John delusions, these within which colored Bryan testified that probably incompe- was communications way and the processed tent at the time of he trial. And four differ- information. ent attorneys Bryan defense testified that was rationally unable assist them be- Despite however, this testimony, there cause he believed and asserted facts in his supporting was the jury’s that could defense never be verified and competency finding. Kahoe, Dr. Richard apparently were untrue. Specifically, Ph.D., evaluated in Bryan December Bryan that, attorneys told his at the time just year trial, over a before and found murder, he had been involved with Bryan that competent. Dr. Kahoe three other individuals in negotiating with time, determined that Bryan, at that Bryan victim settle her owed to debt delusional, addition, nor psychotic. as a result of her in Bryan’s investment Smith, Ph.D., Dr. Frederick prison psy- men, failed businesses. It was these ac- chologist, Bryan saw professionally from cording Bryan, who directed him had to April 1994 through trial, the time of in rent Lincoln that pur- weekend January During time, Bryan potted chase plant found the victim’s significant exhibited no abnormalities. home. Nor did Dr. Smith any note evidence of had, fact, previously been in- hallucinations or detect delusions. in two enterprises volved business which Psychological testing supported further fail, eventually did after enjoying initial Dr. Smith’s Additionally, observations. was, however, There success. no evidence two corrections and a county jail officers that the victim had ever been involved in administrator all Bryan, testified any way in these business ventures. Nor time of able to understand anyone could ever locate three individ- jail procedures, them, communicate with Bryan implicated uals in these events sur- and understand their directions. Even rounding the murder. attorneys Bryan’s Smith, expert, own Dr. John tes- asserted, however, that, despite ap- their tified when examined parent falsity, Bryan genuinely believed December eleven months after his these facts were true. sentencing, conviction and Bryan was

According competent.4 And, to Murphy, Bryan’s although Dr. psychiatric men- tal experts illness focused on previously these failed busi- deemed in- doctor, therefore, opined nesses. trial stand on earlier this unfounded Bryan consistently charges, defense in March he did regain his *9 asserted to his attorneys probably competency was in late 1989 and again was did, post-conviction Smith Dr. in later state mination. proceedings, question competency this deter- par Bryan’s because psychiatrie trial to stand

deemed attorney, did ents, paying the who were charges. on those ill Bryan’s mental of want evidence not compe- concerning Bryan’s The evidence at trial. Because presented to be ness And re- thus, was, controverted. tency this conflict-of-interest raise Bryari did not depended question solving the relief post-conviction until his state claim of “appraisal factfinders’ heavily on the however, the Oklahoma Court application, demeanor.” credibility witness him to have Appeals deemed of Criminal 457; 111, 116 at U.S. Thompson, 516 Bryan, 948 P.2d claim. See this defaulted 117-18, 103 at Maggio, default,5 this excusing As cause at 1232-33. accepted “apparently 2261. Jurors attorney appellate that his Bryan asserts a crimi- that” argument prosecution’s failing to raise this for ineffective was blame to seeking to shift defendant’s nal See, e.g., Sherrill appeal. claim on direct was fictitious individuals other, perhaps (10th Cir. F.3d Hargett, 184 v. illness so Bryan’s mental of product not a inef 1999). will be Direct-appeal counsel avoid crimi- attempt to it an much as was unrea “objectively if counsel was fective Mackovich, at 1232 209 F.3d liability. nal the conflict-of- failing to raise sonable” that, (direct appeal). light criminal if appeal and there claim on direct interest rebut, by clear Bryan has failed that, probability” had a “reasonable evidence, factual find- jury’s convincing claim, Bryan this “would raised counsel trial. competent to stand ing that v. appeal.” Smith prevailed on his 2254(e)(1). Nor can we § See 28 U.S.C. Robbins, jury’s factual determination say the (2000). The Okla 145 L.Ed.2d pre- unreasonable, the evidence “in rejected Appeals homa Court Criminal Id. proceeding.” court State sented ineffective-appellate-assistance 2254(d)(2). claim, underlying without discussion of trial coun- assistance III. Ineffective P.2d Bryan, 948 merit. See claim’s sel. court, following an district 1232-33. The factual hearing,6 made relevant evidentiary pres- failed to counsel At defense only review for clear findings, which we avail- any of the substantial ent 1220; Thomas, see error. See illness. concerning able Migliaccio, v. F.3d States trial United argues Bryan now Cir.1994) (10th (on direct crimi failing constitutionally ineffective un findings reviewing factual appeal, nal to do so. only for clear conflict claim derlying actual of interest. A. Conñict error). Bryan’s conflict-of- conclude We clear merit. The state claim lacks interest that his Bryan first contends rejecting decision this appellate court’s attorney did not retained trial de- court, pleads affirmative quacy, State once does not appeal to this 5. On fense). adequacy or challenge procedural bar's See, e.g., law. independence from federal its 722, 729-30, Thompson, Coleman challenge the district 6. The does State (1991); 115 L.Ed.2d evidentiary hearing. conducting an court’s also, Smallwood Romano, 1174 n. 9 generally that, (holding al- petition- (declining habeas address whether proof, ultimate burden though bears State hearing, evidentiary when er was entitled spe- to set forth petitioner has burden habeas one). already conducted district court challenging bar's ade- allegations state cific *10 1173 claim, therefore, U.S.-, 2608, was not 121 unreasonable. S.Ct. 150 L.Ed.2d 764 2254(d); § Aycox (2001). See 28 see also U.S.C. And certainly there are “inherent (10th 1174, Lytle, 196 F.3d 1177-78 Cir. dangers that arise when a criminal defen- 1999) deference, AEDPA, (affording under represented dant is by lawyer a hired and rejection merit, to state court’s of claim’s paid by party....” a third v.Wood Geor- despite that court’s failure express its 261, gia, 268-69, 1097, U.S. 101 S.Ct. reasoning). Where, here, L.Ed.2d 220 as however, Bryan objection “raised no

Bryan’s parents initially retained trial,” Cuyler, 348, 446 U.S. at attorney Raymond represent Munkres to prevail he cannot now withdrew, however, unless he dem- Bryan. Munkres after actively onstrates “that counsel represent- the initial trial. Two court- appointed attorneys, conflicting ed Wesley first Gibson interests and that an actual Hess, and then subsequently repre Steven conflict of adversely interest affected his Bryan. preparation trial, sented lawyer’s performance,” Burger v. Kemp, Hess filed notice that pres he intended to 776, 783, insanity ent an defense and listed several (1987) (further L.Ed.2d 638 quotation experts mental health expected trial omitted). If he showing, can make that we just witnesses. Within few weeks of presume will prejudice to his defense. See trial, however, Bryan replaced Hess with id.; Cuyler, 446 U.S. at attorney, another retained Jack Freeman. 100 S.Ct. 1708. The possibility mere of a Bryan’s parents paid Freeman’s fees. conflict, however, is insufficient. represented Freeman Bryan at his first Cuyler, 446 U.S. 100 S.Ct. 1708. trial, which in first-stage resulted mistri start, al. At that trial’s Freeman with “An actual conflict of interest re insanity drew the defense. At the second if sults counsel was forced to make choices later, four months Freeman did not advancing other interests to the detriment present any concerning Bryan’s Alvarez, of his client.” United States v. problems, at either the or first (10th Cir.1998) (28 stage. Bryan second now contends that Here, proceeding). U.S.C. Freeman failed to do so because has failed to demonstrate that there was parents pre did not want such evidence an actual conflict of interest. sented. First, the district court found that A criminal defendant has a Bryan’s parents had not hired Freeman on Sixth Amendment right to conflict-free express condition that he not representation. Massey, See Smith v. any psychiatric evidence. See District Ct. (10th (citing 77-78; Order at making see id. at 68. In Sullivan, Cuyler finding, this factual the district court cred- (1980)), cert. — ited defense testimony Freeman’s denied, -, to this effect. court further noted this (2001), L.Ed.2d 169 abrogated on other testimony was bolstered Freeman’s tes- Neill, grounds by 278 F.3d at 1044 timony that he had Dr. Murphy pres- Cir.2001). right That “extends any situ ready ent and testify on the eve ation in which a defendant’s counsel owes sentencing. Conversely, See id. at 78. conflicting duties to that defendant and Gibson, district court person.” some other third discounted mother’s Hale v. (10th Cir.2000) (fur agreed, affidavit that Freeman had at the — omitted), denied, quotation outset, ther cert. evidence of *11 however, “clearly in- is reasoning, court’s Mrs. problems. Bryan’s mental view Supreme with the Court’s doctors consistent after this affidavit had executed relationship.... attorney-client moderate the suffering from of her diagnosed ‘a client con- id. noted that [has] dementia. See Court [T]he to severe cardiovascular concerning never re- Furthermore, significant mother decisions Bryan’s trols In- accuracy. ‘fire his for can thus affidavit representation’ her own viewed attorneys attor- stead, post-conviction with his Bryan’s if he is attorney dissatisfied ” Smith, review the affidavit at sister Bryan’s ney’s performance.’ accuracy. Teamsters & Chauffeurs, (quoting Terry, 494 U.S. 391 v. Helpers, Local No. witnesses, credibility of “[t]he Because L.Ed.2d 558, 568-69, evidence, and the given to be weight (1990)). earlier Bryan’s In evi- from the inferences drawn reasonable court-appointed attor- replacing his second of the dis- province fall dence within evi- to preparing present ney, who was Browning, court,” States United trict problems, Bryan’s mental (direct dence testimony that he Bryan’s post-conviction omit- quotation further appeal; criminal any present clearly not want are not did ted), findings factual these evidence, unwilling to Romano, are “we also, psychiatric erroneous. See allowed” [Bryan] that would have to district court’s assume (deferring at F.3d determination). pertain- evidence present Freeman credibility (hold- Id. Bryan’s problems. ing to however, clear, district It is also existed). Further, ing no actual conflict found, Freeman that court further that “a court noted although district want parents did not Bryan’s aware illness or suffering from mental person at mental-illness him to is not may that he believe delusions well at For 78. District Ct. Order trial. See make mentally may ill and be unable reason, presumed court the district a realistic evaluation based on decisions between actual conflict an there was interests,” at District Order Ct. his best best Bryan’s parents’ wishes competent fact found to the asserting such interest Cooper, generally trial.7 to stand so, doing In id. at 77. jury. See (“Competence 116 S.Ct. 1373 disregarded fact district court upon it rudimentary, for trial is to stand attorney to defense not want his Bryan did rights part the main those depends See Oc- evidence. present any psychiatric trial, including to a fair essential deemed 36; 21, 22, Hr’g Tr. at tober of coun- assistance right effective Br. at Opening Appellant’s omitted)). (further “Clear- quotation sel.” that, despite reasoned district court trial is competent to stand ly who is one nevertheless, would, wishes, it as to the to make decisions for defense in his best interest have been Bennett, Evans course of his future.” Dis- evidence. See such counsel 68, 77. The district trict Ct. Order Nonetheless, Lafferty distinguishable. court, is Lafferty,

7. This case, presume the permit assum- refused to process due does court held that suffering paranoid de- ing "a defendant court's determination state deci- competent to make to be held applied an lusions state court had because the correct state present his mental best to sions how when it de- standard constitutional incorrect though that mental judge and even to a at 1551. competence. See id. termined ability to realis- may strip him of illness problem is no similar here. There lie.” tically where his best interests determine *12 (1979) J., (Rehnquist, fore, L.Ed.2d C. nev- precludes further habeas review of granting capital ertheless defendant’s his conflict-of-interest claim.8 execution, mother’s stay motion for of representation. B. Ineffective executed). sought

where defendant to be record, therefore, that, argues even if establishes that Freeman was Bryan, parents, like his did not laboring not de- under an want actual conflict of put any fense counsel to psychiatric interest, was, nevertheless, constitution evidence. Because “[a] conflict does not ally ineffective for failing present any arise” unless “the interests of [the third mental health evidence at either the trial’s party] and divergent defendant in [are] first or stage. Bryan second will be enti current litigation, such that the par- [third tled to relief habeas on this only claim if he ty] has an interest the outcome of the can establish both that trial per counsel’s particular case at issue that is adverse to formance was deficient and that he was defendant,” Hale, that of the 227 F.3d at thereby prejudiced. See Strickland v. 1313, Bryan failed to has that establish Washington, 668, 687, 466 U.S. 104 S.Ct. there actual conflict here. (1984). 80 L.Ed.2d 674 Because we assume, Even if we as did the district resolve this ineffective-assistance claim court, that conflict, there was an actual addressing performance, Freeman’s we af however, Bryan prove has failed to that firm the denial of habeas relief without the conflict adversely affected defense addressing prejudice Strickland’s inquiry. representation. See, counsel’s e.g., Burg- See at id. S.Ct. 2052. er, (deter- 107 S.Ct. 3114 scrutiny “Judicial of perfor- counsel’s that, mining if even there was an actual mance highly must be deferential.... A conflict, it did not harm counsel’s advoca- fair assessment of performance cy). Freeman testified that Bryan’s par- requires every that effort be made to elim- ents’ wishes did dictate his defense inate the distorting effects hindsight, of strategy. 27,1999 See October Hr’g Tr. at reconstruct of circumstances counsel’s 89,108. The district court found this testi- conduct, challenged and to evaluate the mony “highly credible and convincing.” conduct from counsel’s perspective at the 79; District Ct. Order at see Burger, 483 time.” Id. 104 S.Ct. 2052. And 3114; U.S. at Smith, 107 S.Ct. there is a “strong (dicta). presumption de- F.3d at 1269 n. 4 That credibility fense counsel’s conduct falls within finding clearly See, is also not erroneous. e.g., wide Browning, 1157; Romano, range professional reasonable 252 F.3d at as- Id.; 239 F.3d at sistance.” 1175. see also Kimmelman v. Morrison, 106 S.Ct. Even had Bryan’s direct-appeal counsel (1986). 91 L.Ed.2d 305 prevail, To raised this conflict-of-interest claim on di- therefore, Bryan must pre- “overcome appeal, therefore, rect there is not a rea- that, sumption circumstances, under the probability sonable would have challenged action might considered prevailed. Robbins, be See 528 U.S. at 285- Strickland, strategy.” sound trial appellate 746. His attorney, thus, U.S. at was not constitutionally (quotation ineffective omitted). for failing to “[Strategic raise this claim on direct choices made after appeal. Bryan’s procedural default, thorough there- investigation of law and facts rel- 8. Delo, does 298, 314-15, not assert that Schlup our failure review this further claim will result a fun- See, miscarriage justice. damental of Criminal Court The Oklahoma virtually un- 43-44. options are plausible

evant relief, that coun- denying held Appeals, Id. challengeable.” of the and was aware investigated sel had case that in this question is no There illness, but Bryan’s mental well investigated trial counsel chal- instead to strategic decision made of evi amount significant aware guilt. lenge the State’s Bryan’s mental concerning available dence (holding also P.2d at 363 Bryan, any question *13 there Nor is condition. any Bryan). prejudice men not strategy not such did counsel’s decision stage, evidence, to, trial at either nor an contrary not tal health That denial first took Freeman strategic. When of, clearly estab- application unreasonable within one Bryan’s representation, over 28 See precedent. Supreme Court lished trial, ap he inherited the first month of 2254(d)(1). § U.S.C. for a defense preparation pointed counsel’s defense, insanity “Okla an To assert By evidence. psychiatric this relying upon show defendant to requir[es] the ... homa no had time, counsel filed appointed the crime he suffered the time that at of insanity an rely on intent tice of his rendering disease or defect a mental from evi garnered substantial and defense right to differentiate between him unable illness, Bryan’s mental establishing dence to understand wrong, or unable and scan, previous mental including a brain actions.” of his consequences nature records, reports from hospitalization (10th 543, Gibson, 553 v. James who were experts health several omitted), Cir.2000) (further cert. quotation Yet, witnesses. expected trial listed 886, 1128, denied, S.Ct. evi Freeman, mental health aware this in Murphy, Dr. L.Ed.2d experts, these having met with dence and “Mr. report, did indicate May 1994 chose, of the first beginning at the disor a serious mental to de insanity suffers defense withdraw trials, ... question in places and second serious fend, the first der which at both any such evidence. introducing for which the crimes legal culpability without 1215, Gibson, Nonetheless, v. at 270. O.R. charged.” he is Battenfield Cf. made (holding counsel Murphy Dr. later testified Freeman [he] all because strategic decision “no not Bryan was to Freeman indicated ... other strate of various ignorant 27, Hr’g October legally insane. See rele employed”). “The could have gies any other was there Nor Tr. 83-85. [here, not whether question then] vant in legal supporting specifically evidence strategic, but were choices counsel’s 83-85, See id. sanity defense. v. Roe they reasonable.” were whether 96, 106. Flores-Ortega, 528 U.S. law, addition, second Oklahoma In under also, (2000); perpetrat ‘[w]hen murder degree “occurs 7,n. U.S. at 789 e.g., Burger, 483 to an imminently dangerous an act ed by 3114. depraved evincing person other life, although stage. human mind, 1. First regardless to effect design premeditated without that his Bryan contends defense individual.’” any particular the death evidence have presented should (Okla.Crim. State, 8 P.3d Gilson first during the trial’s illness his mental tit. Stat. Ann. (quoting Okla. App.2000) insanity de of either an support stage denied, 701.8(1)), § cert. second-degree murder instruc fense or a (2001). The 149 L.Ed.2d Br. at Opening Appellant’s tion. See case, however, suggest facts do not facts, In of these the state appel- a premeditated the lack of intent to kill the late court’s denial of relief was not con- Rather, victim. the victim was abducted to, trary nor an unreasonable application shot, having from her home and had a of, clearly Supreme established pre- Court pillowcase taped Further, over her head. 2254(d)(1). cedent. See 28 U.S.C. there was little specifically indi- cating Bryan capable was not of forming stage. 2. Second requisite intent degree first malice that, argues regardless of 27,1999 murder.9 See Hr’g October Tr. at whether trial counsel 72-73, 85-86, reasonably decided psychiatric available contrast, case, the State’s albeit during the trial’s stage, first strong, entirely was almost circumstantial. counsel should presented it in miti Smith 461-62 *14 gation during capital sentencing pro (10th Cir.1999) (holding defense counsel’s ceeding. The Oklahoma Court of Crimi argument was in strategy light reasonable Appeals nal held trial that counsel had nature). of State case’s circumstantial investigated and was And aware of the there was avail indicating evidence that psychiatric evidence, able Bryan’s physical had so but made condition deterio- a murder, plausible rated at the time of the strategic due to his decision not to use diabetes, that physically evidence, he was incapable that relying instead re of carrying out this crime. sidual doubt the might have had as to guilt. Bryan, See 935 P.2d at

Moreover, Bryan did not want his attor- 363. appellate The state court further ney to suggesting evidence he was determined trial mentally reasonably ill. counsel be presume And we must Bryan presenting was lieved that rationally any psychiatric to assist evi defense 11(B). supra counsel at trial. See section dence would undermine that defense. “The actions[, reasonableness of counsel’s See id. The state appellate court’s deci therefore,] may be determined or substan- to, sion again contrary was not nor an tially by influenced the defendant’s own of, unreasonable application clearly estab statements or Counsel’s actions. actions Supreme lished precedent. Court See 28 based, are usually quite properly, on in- 2254(d)(1). U.S.C. strategic formed choices made the de- “ recognized ‘[R]esidual doubt has been fendant and on supplied by information extremely as an argument effective for Strickland, 691, defendant.” 466 U.S. at ” Smith, in capital defendants cases.’ 2052, also, Romano, 104 S.Ct. see McCree, F.3d at 462 (quoting Lockhart v. 1181, F.3d at citing “Although cases. trial 1758, 106 S.Ct. counsel independent has an duty to investi- (1986) (further L.Ed.2d 137 quotation gate [defense], and make a case in counsel omitted)). strategy Such a here was rea- also has to responsive be to the wishes of light in entirely sonable of the circumstan- Romano, his client.” 1181; 239 F.3d at tial supporting Bryan’s case guilt and the Wallace, see also at (holding existence of some attorney’s suggesting evidence acquiesce decision to petition- Bryan er’s was not physically carry wishes that present any not able out mitigating 457-58, 462, evidence per- not deficient murder. See id. was formance). S.Ct. 1758. reasons,

9. For Bryan's other, these same claim also evidence supported could have lesser arguing fails to the extent he is Appellant's Opening offenses. See Br. at 40. evidence, rath- that this reasonably feared trial nonetheless, argues that Bryan, jurors basis providing considered be er than strategy cannot counsel’s upon death, might instead it founded because sentence reasonable that this mental mistaken belief contention counsel’s the State’s actually support sen- be useful at could not evidence health and de- continuing threat Bryan was establish it would tencing unless Burger, 483 U.S. to die. served stand incompetent was either 3114; Darden 793-94, the time of legally insane trial or 184-87, Wainwright, primarily Freeman Although murder. L.Ed.2d in- legal incompetence with concerned is so even This Tr. at Hr’g sanity, see October might medication indicating antipsychotic 108-09, further be- 96-97, 105-06, he his During condition. improve Bryan’s this evi- lieved, presenting reasonably, that 1989, Bryan commitment eight-month his residual undermine dence would after treatment regained defense, see id. at doubt Al- daily doses Navane. that included And, while discharged Bryan on hospital though legitimate ill been mentally would have record indicates Navane evidence, Burger, 483 U.S. mitigating medication immediate- taking that stopped defense counsel n. at 789 He, nonethe- release. upon hospital ly that, here, actually it further would feared *15 that. competency after less, his retained Bryan rep- that State’s claim support the that Navane testimony indicated And society, to continuing threat a resented Bryan’s organic brain correct not would to sentence more reason jurors giving helpful in might it be although syndrome, 27, 1999 October death. See to in- secondary symptoms, its suppressing ap- 85-86, The state 105-06. Hr’g Tr. at delusions. cluding was his trial counsel determined pellate court belief, Bryan, too. See in that reasonable importantly, most Lastly, perhaps but evidence psychiatric P.2d at 363. Such defense counsel Bryan did not want sword. See double-edged present does See, evidence. any psychiatric present at 30 Hr’g Tr. also October Smith, 1181; Romano, F.3d at Further, although (Bryan’s legal expert). Wallace, at 1278; 191 F.3d at explained might have that evidence case, pre we must And this 1247-48. aunt, killing his abducting and Bryan, in make competent to sume that was belief acting- under delusional section supra See that determination. of his money him as a result aunt his owed “[cjounsel’s 11(B). usu are Again, actions business, mental health failed Freeman’s defen based, on quite properly, [the ally he testified that also have experts would choices.” strategic informed dant’s] ca- and right from remained wrong knew 2052; Strickland, at S.Ct. U.S. id. to kill. forming the intent See pable of Wallace, (holding F.3d at 1246-47 see Thus, 83-85, 87, 96, 26, 70-73, at in ac not ineffective trial counsel was might have been able although Freeman capital defendant’s quiescing to irrationally believed explain why Bryan mitigating present not wish others, him aunt, money, owed and aggra challenge or State’s circumstances killed Bryan had still indicated evidence Smith, evidence); vating aunt, plotted to abduct earlier attorney’s second- (holding defense at 1278 banker, with under- a local murder reasonably shaped strategy was stage doing standing what testify not decision therefore, capital defendant’s Freeman, could wrong. that she was under influence drugs and his decision must have been simply “not murder). alcohol at time she committed wrong, but instead ... completely unrea- Hale, generally 227 F.3d at 1315 sonable”). (“[T]he failure to mitigat- available Because we are able resolve this ha- ing per se ineffective assis- beas claim on performance Strickland’s counsel.”) omitted). tance of (quotation prong, we need not further any address Therefore, we say, cannot under these resulting prejudice. facts, that strategic counsel’s choice not to psychiatric during IV. Conclusion. capital sentencing proceeding was For these reasons and having consid- completely Burger, unreasonable. Cf. ered all arguments, we affirm the U.S. 3114 (holding district court’s denial habeas relief and counsel had reasonable basis for his strate deny pending all motions. gic decision that explanation of petitioner’s troubled history would not have minimized HENRY, J., concurring part sentence). his risk receiving death dissenting part. way “There are provide countless effec This case is troubling tive assistance in given case.” several levels. Strick land, 2052; But the U.S. most troubling problem is that the Whiteside, also Nix v. defendant suffered from clearly And unreasonably ineffective assistance of his we are mindful that it easy is “all too for a counsel, Mr. Freeman. Mr. Freeman’s court, examining counsel’s defense after it failure during the sentencing to in- stage proved unsuccessful, has to conclude that a troduce evidence that Mr. Bryan —who particular act or omission of counsel was had found incompetent been to stand trial Strickland, unreasonable.” for a previous long crime—had a and diffi- *16 689, 104 2052; Nix, S.Ct. cult illness, battle with mental a battle Instead, 106 S.Ct. 988. “in consid made all the more difficult disabling ering claims of ineffective of assistance diabetes, no prejudice doubt caused to the counsel, address prudent ‘[w]e not what is light In defendant. of Mr. Bryan’s previ- or appropriate, [even] only but what is history, ous I cannot conclude that his constitutionally compelled.’” Burger, 483 attorney’s failure to this evidence 794, 107 U.S. at (quoting United at the sentencing hearing, and more even Cronic, States v. n. egregious, his attorney’s failure under- (1984)). stand that these mental defects could be Here, Bryan has failed to establish “in considered as mitigating circumstances, is circumstances, of ah the [counsel’s] anything less than unreasonable ineffective identified acts or omissions were outside such, assistance of As I counsel. must the wide range of professionally competent respectfully dissent. Strickland, assistance.” 466 U.S. at 2052; also, Kimmelman, I. Background Additional 382, 106 477 U.S. at S.Ct. 2574 only (noting on Competence petitioners those habeas attorneys’ whose First, majority opinion notes, as the “gross Mr. incompetence” has denied fair them Bryan severely is trial relief); are entitled to afflicted with diabetes habeas Gon McKune, presented zales v. and significant evidence at a that, (holding “procedurally for per counsel’s retrospective disfavored” formance ineffective, to be constitutionally competency hearing that he suffered from Bryan that Mr. attorneys testified resulting defense condition delusional paranoid

a irra- to his them due also to assist unable damage. He was brain organic from ob- incompe- example, he was to be For tional beliefs. been determined previously separate in a “revolu- fictional completely his counsel a tent to assist sessed with Bryan’s writ- Mr. investigation. that he processing criminal for food tionary” idea re- and statements correspondence pre- ten did in consistently argued he—as stories, implausible offer count incredible had stolen people as well—that case vious events, gravity indicate and accounts him. addition, are us before In of his dementia. experts. its own introduced The state evidence, including Mr. reams Ph.D., Kahoe, Mr. evaluated Dr. Richard reports from records hospitalization concluded, trial and year a before detailing Mr. experts, illness interview, compe- that he after brief grave awith continuing battles con- prison psychologist The tent. appar- disorder His mental disorder. In competent. Bryan was Mr. cluded that expert that one in fact grave ently so evidence, it is difficult state’s spite of the his question serious “place[d] it into stated Mr. jury could find imagine how his well as as to stand Yet, stan- under our competent. he crimes which in the culpability legal review, held to agree I we are dard of charged.” O.R. is under a reasonableness this reviewing itself manifested Bryan’s illness Mr. good I standard, although cannot in the case tragic actions his deluded reached, result imagine how the faith the most repeated hand. Mr. review as to the standard I must defer attempt- earlier significant portions However, as it. majority applied has to con- location crime, using the same ed under of counsel assistance we evaluate had revealed body that he ceal the circumstances, must we totality of the the same crime and his earlier police in troubling evi- eyes not close our unsigned seeking to use tactic of dence. busi- repay so-called forged checks forged agreements ness losses. of Review Standards II. unbelievable, stating that his literally were above, some of stated Although, spite of dollars. him millions aunt owed troubling, quite are majority’s conclusions claims, Mr. of his impossible nature requires remand major issue *17 one displayed point proudly Bryan at one of coun- assistance Bryan’s ineffective Mr. the car dealer checks to of these ineffective that counsel was I sel. believe the car. rented whom he on I concentrate phase, will guilt in the but admittedly re- citing our majority, he re- argument: Bryan’s best Mr. review, argu- says the standard of strictive assistance unreasonably ineffective ceived defer to made that we must be ment can or “sentenc- “second” all-important the in. in what competence finding jury’s of the ing phase.” disfa- “procedurally call our the cases hearing. of review retrospective our standard vored” I realize that suggest hearing Yet, results of the entitled is strict. Mr. again why are they disfavored. claim of ineffective relief habeas can estab- only if he counsel of assistance relates, majority two As the (1) performance Freeman’s Mr. lish Smith, Murphy and experts, health Drs. (2) that constitutionally deficient and procedurally Bryan was that Mr. testified that, but probability there is a reasonable Four time trial. incompetent at the

1181 errors, counsel’s the outcome of the precluded or be from considering ‘any rel ” would proceedings different. been evant mitigating evidence.’ Skipper v. See Strickland v. Washington, 466 U.S. Carolina, 1, South 476 1669, U.S. 106 S.Ct. 668, 687, 2052, 80 L.Ed.2d 674 (1986) L.Ed.2d (quoting Eddings v. Mr. “must overcome the Oklahoma, 104, 114, 455 U.S. 102 S.Ct. that, presumption under circum 869, (1982)). 71 L.Ed.2d 1 Accordingly, stances, the challenged might action be “the imposed sentence at the penalty stage considered strategy.” sound trial Id. at should reflect a reasoned response moral (internal 689, 104 S.Ct. 2052 quotation to the background, character, defendant’s omitted). marks and “[Strategic citation Brown, crime.” 479 U.S. California choices made thorough investigation after 538, 545, 107 S.Ct. 93 L.Ed.2d 934 of law and facts relevant to plausible op (1987) (emphasis in original) (O’Connor, J., virtually tions are unchallengeable.” Id. at concurring); Mayes 690, 104 S.Ct. 2052. (stating As to his claims that Mr. Freeman was that mitigation evidence oppor “affords an ineffective for not presenting evidence of tunity to explain humanize and individ —to organic damage brain at the sentenc- ualize a defendant outside the constraints ing, this by issue was decided the state evidence”). the normal rules of “Con merits, court on the so we must determine sideration of such evidence ais ‘constitu adjudication the state court’s of those tionally indispensable part process “(1) claims in a resulted decision that ” inflicting the penalty of death.’ to, contrary involved or an unreasonable Brown, U.S. 107 S.Ct. 837 of, application clearly established Federal (quoting Carolina, Woodson v. North law, as determined the Supreme Court 280, 304, U.S. 96 S.Ct. 49 L.Ed.2d States; (2) of the United or resulted in a (1976) (plurality)). decision that was based on an unreason- Thus, a criminal defendant who is able determination of facts charged with a capital has offense presented in the State court right virtually any 2254(d). proceeding.” 28 U.S.C. Ulti- mitigation penalty phase. See mately, there “a prob- must be reasonable Dugger, 393, 399, Hitchcock v. ability that the result of sentencing (1987) (cit- 107 S.Ct. proceeding would have been different if ing Skipper, presented counsel had and ex- 1). L.Ed.2d “We are compelled therefore plained significance of all the available sentencing jury insure the makes an evidence.” Taylor, See Williams v. individualized equipped decision while with 146 L.Ed.2d possible ‘fullest concerning information (2000) (internal quotation marks omit- ted). characteristics,’ defendant’s life and

and must carefully any scrutinize decision *18 III. Discussion deprives counsel capital which defen- dant of mitigation all Mayes evidence.” “The sentencing stage is the most criti- Ohio, 210 F.3d at (quoting 1288 Lockett v. phase cal of a death penalty Any case. 438 98 counsel knows importance the (1978)). L.Ed.2d 973 thoroughly examining of When the investigating and presenting investigation counsel’s mitigating Gibson, presentation evidence.” and v. of Romano (10th Cir.2001). mitigation evidence, 239 F.3d recognized The we have Supreme consistently right Court that “the present has held that to mitigating evi- “the may sentencer to consider refuse dence to the jury constitutionally pro- First, and his mother. Bryan, his sister correspond id., there is

tected,” and that explanation to an scrutiny testified offer Mr. even closer apply “need to ing while dur took attorney performance alleged place an assault that for reviewing when Next, capital case.” Mr. of a sentencing phase incarcerated. the he was ing 236 F.3d that Mr. v. testified and sister mother Battenfield Ward, Cir.2001) nonviolent, (10th (quoting Cooks standards, was moral high Cir.1998)). (10th 1283, 1294 165 F.3d This is family member. caring and was a that Mr. Freeman of evidence the extent admonitions, ex- I will these of the counter to he could believed First performance. Mr. Freeman’s amine aggravators. of evidence government’s perfor- Mr. Freeman’s consider I shall (trial VII, 1695-1734 tran- Vol. overall, I address then shall mance script). performance deficient why Mr. Freeman’s client.

prejudiced plays an over- “Mitigating ‘just im- the whelmingly important role Sen- A. ” Performance Deficient Romano, penalty.’ the death position of tencing Phase 210 F.3d Mayes, (quoting at 1180 239 F.3d “ performance exhibited Freeman’s Mr. matter, 1288). practical ‘As a deficiencies, importantly most several little or no chance probably has defendant (1) mitigation prepare failure unless avoiding the death sentence history of mental relating to Mr. something gives counsel defense for, mitigation evi- or illness of the crime the horror both counter (2) at, com- sentencing phase; dence prosecu- limited information and the compelling and the nature prehend ” the defendant.’ introduced about tion has in the rec- mitigation evidence substantial Tomes, Damned P. (quoting Jonathan Id. (3) ord; correspondingly, articulate Do, The Use Don’t: Damned You You If If purpose that client the explain to his Penalty in Death Mitigation Experts history Bryan’s mental of Mr. presentation L. 24 Am. J.Crim. Litigation, sentencing stage. at the would serve (1997)). is consis- our case law Similarly, amount- factors effect of these cumulative circuits that of our sister tent with part of on performance to deficient ed strategic deci- that a rejecting the notion Freeman. Mr. when can be reasonable sion options and investigate his has failed Evidence Related Mitigation a. them.1 choice between make a reasonable Illness History of Mental that he did Here, admits Mr. Freeman sentencing stage, Mr. Free- During the preparation or investigation no other testimony Mr. presented man brief Cir.1997) (6th (stating Ward, fail- F.3d Williamson 1. See Tate, mitigating evidence "because put on Cir.1997); ure to (10th Glenn v. any do it would not think that Cir.1995) did (6th (reversing [counsel] sentence ") (em- advocacy good” was an "abdication virtually "jury given no where information added). importance, character, light of its "In background phasis history, [defendant's] a case in preparation of investigation and damage,” "counsel organic because brain begin prior to well it”) should (emphasis mitigation develop took the time never guilt at the first Zant, determination added); before Horton v. Romano, (citing 239 F.3d at stage.” (court "reject[ed] notion Williams, 120 S.Ct. 1495 U.S. at 'strategic' can be decision reasonable that a preparation for (noting counsel's deficient investigate *19 attorney his has failed when the prior begin week sentencing until one did not be- a reasonable choice options and make Bell, trial)). them”). also Austin tween stage apart talking second from to Mr. mitigation other strategies he could have Bryan, Bryan’s Mr. family and a doctor employed”). Bryan

who had treated Mr. for diabetes. Mr. Freeman’s own testimony makes incorrectly Mr. Freeman believed “that’s this clear. Mr. Freeman admitted that he all sought [he] had” and out nothing he Bryan’s characterized Mr. stories and Hr’g further. Evid. Tr. at 108. regarding events the farm and business Bryan’s Mr. testimony unrefuted like- ventures as fantastic and delusional. He wise just confirms that “there any” wasn’t does not dispute the conclusions of the preparation made penalty phase. for the reports various medical that state Mr. Bryan Mr. was told minutes before he was Bryan confused, depressed, delirious, called to the witness chair that he would paranoid, psychotic and delusional and that be testifying. Mr. never discussed he had suffered atrophy brain organic with Mr. Freeman possibility using damage. brain He multiple admits that mental health evidence the second stage medical records there indicated was sub- of the trial. Id. at 36-37. stantial evidence profes- sionals regarding his organic client’s

b. Counsel’s Comprehend Failure to problems. mental See Evid. Hr’g Tr. at Compelling and Substantial 90-93, 100-03, 112. He Mitigation acknowledges that Evidence Dr. Murphy concluded “Mr. suffers remotely It is conceivable that the deci from a serious mental disorder which sion not to investigate extensively a defen places into serious question his compe- be, dant’s background may in exceptional tence to stand well as legal cases, However, tactical. before an attor culpability in the crimes for which he is ney can insulate “strategic” behavior charged.” Id. at 95. from review It almost claiming that a unbeliev- decision to forego mitigation tactical, able that Mr. Freeman did not seek to “an must have chosen not pres evaluation, introduce this append- which is mitigating ent evidence after having inves ed to this dissent. See at 90-99. id. tigated the background, defendant’s important Most is not what Mr. Free- that choice must been have reasonable un knew, man admitted he but what he admit- der the circumstances.” Brecheen v. ted he did not mitigation. know about Mr. Reynolds, Cir. clearly Freeman testified that he “saw no 1994) (quoting Bolender v. Singletary, use for experts’ testimony, ex- mental (11th Cir.1994) (emphasis cept prove insanity either or incom- in original)). Mr. Freeman could not have petence.” Id. at 105. Mr. Freeman “ethi- weighed the risks and present benefits of cally honestly” believed that he could ing testimony regarding Bryan’s Mr. not evidence of mental defects at capacity where he did not even the sentencing stage simply because the realize could that testimo experts going “were not to say [Mr. ny. He apparently unable to articu Bryan] was insane.” Id. at 86-87. Be- late to Mr. any purpose mitigation experts cause he believed the could not might serve and never considered testify as to Mr. insane or incom- any impact the mitigating evidence would state, petent Mr. Freeman did not consid- upon Mr. moral culpability. er other use he could have made from Battenfield, 236 F.3d at (holding Cf. testimony. performance simply counsel’s Rather he assumed ineffective and not ing strategic testimony “there was no that the decision at all “would have been because ignorant 106,108. [counsel] was of various relevant at all.” Id. at *20 of ‘residual’ the to sow seeds opportunity Explain to Failure c. Counsel’s guilt, en- defendant’s concerning the doubt to of Evidence Importance life sentence.” of a hancing the chances His Client Rep- Act: Lawyer’s Doyle, The M. James if Mr. that also admits Freeman Mr. Cases, Yale J.L. Capital in resentation and damaged brain organically Bryan was may Counsel & Human. might he time of at the mentally ill any lingering attempt stir up to further penalty. See the death have received not of the defen- concerning guilt the doubt unsound Freeman’s Mr. at 110. id. Given hoping sentencing phase during the dant turn, his “which, hampered in

investigation against the jury to decide the to cause regarding strategic choices ability However, to make penalty. of the death imposition compe- and proceedings Freeman’s second-stage strategy into Mr. the such a to read no There was those not reasonable. regarding client actions is his tently advise Bryan’s potential Mr. testimony regarding F.3d at Battenfield, 236 proceedings,” argu- closing Freeman’s innocence. Mr. informed deci- 1234,1 was no there believe that the cir- ment, suggesting than rather case. client or counsel sion may point not to his cumstantial evidence counsel conducted defense held that OCCA not client, “Leroy should stated but concluded investigation a reasonable (trial tr.), VII, and killed,” at 1753 Vol. psychiatric present to the failure that the death impose to jury not asked so, If it tactical. was mitigating evidence underlying crime because penalty here was I believe this tactical surrender. id. at penalty. See not warrant did Supreme application an unreasonable 1748-1754. Williams, 120 S.Ct. precedent. See Court majority, I would hold to the In contrast at 1522. to under- first that Mr. Freeman’s failure Freeman’s upon relied Mr. The OCCA evi- mitigating purpose of such stand the strategy: to doubt purported residual to his client persuade dence and second might focus the evidence only him let than moral rather dangerousness sentencing phase on future him at the help could I question no believe There is under Strickland.2 culpability. was deficient overwhelming evi- presentation provide ... may guilt phase “[t]he Wainwright, 787 F.2d Thompson v. part Mr. Free- so based I would hold Cir.1986) ("The lawyers reviewing (11th reason recognize, after inability man's pointing to blindly of evidence commands may client’s] and reams” [a "reams not follow Hr’g Evid. problems, see his client's mental to use although decision whether is that duty faced Mr Freeman Tr. at ... the client in court is for such evidence consider, only explain investigate, not potential avenues lawyer must evaluate first Bryan's of Mr. presenting evidence risks offering possible client of those and advise the sentencing stage, but history at the (internal merit”) and citation quotation marks presenting such potential benefits also the omitted); Maggio, 711 F.2d also Martin v. Battenfield, F.3d at evidence. (noting that defen- (counsel's investigate [defendantl's "failure lawyers obtain an that his dant’s "instruction explore other background, his failure to justify penalty did not acquittal the death or mitigation ren- possibilities, readily apparent investigate the intoxi- lawyers’ failure alleged penalty-phase dered unreasonable "[u]ncounselled that such cation defense” strategic decision no strategy.... [T]here more, bravado, should without jailhouse vari- ignorant of all [counsel] because right to counsel’s of his deprive a defendant strategies could have mitigation ous other advice”); Hopper, Gaines better-informed ("The at 1179 employed”); Romano ("[M]ean- (5th Cir.1978) phase of sentencing stage most critical is the one client” is ingful with one’s discussion Any competent counsel penalty death case. assistance of of effective the "cornerstones thoroughly investi- importance of knows the counsel.”). evidence.”); mitigating gating presenting

H85 Bryan’s of Mr. dence mental defects would mitigating factors underlying the jury’s rebutted have that Mr. evidence sentencing decision. The pres failure to might “commit acts of criminal violence ent deprived the evidence jury of a would a continuing constitute threat “vehicle for expressing its ‘reasoned moral ” society.” Okla. Stat. tit. 701.12. response’ to the substantial evidence of Bryan’s

Mr. mental illnesses when it ren dered sentencing its Penry decision. v. B. Prejudice Lynaugh, Having concluded that Mr. Freeman’s According deficient, performance was I would next ly, I conclude there is a substantial proba determine whether deficiency caused bility jury would have determined the Bryan prejudice. Mr. “Because the OCCA mitigating outweighed circumstances issue, never addressed this we ... exercise aggravating Williams, circumstances. See independent our judgment.” Battenfield, 529 U.S. at 1495 (holding petitioner 236 F.3d at 1234. A preju- that, in evaluating a claim of ineffective if diced “there is a probability reasonable assistance of counsel premised alleged errors, that absent the the sentencer ... failure evidence, to adduce mitigation would have concluded that the balance of courts must totality “evaluate of the aggravating mitigating circum- mitigation available evidence—both that stances did not warrant death.” Strick- adduced at and the evidence adduced land, 466 U.S. at 104 S.Ct. 2052. in the proceeding habeas reweighing it —in Psychiatric mitigating evidence “has the against the aggravation”); evidence in see potential totally change evidentiary v. Walker 228 F.3d picture.” Middleton Dugger, (10th Cir.2000) (holding that in determin Cir.1988); Stephens ing petitioner prejudiced whether (11th Cir.1988) Kemp, counsel’s failure to additional miti (stating that “prejudice is clear” where evidence, gation this court considers the failed to evidence strength case, the aggrava state’s spent defendant time in mental hospital). ting found, circumstances the mit I conclude compelling that the and exten- igation pres evidence defense counsel did sive evidence of Mr. mental histo- ent, mitigation and the additional ry continuing rebuts the aggravator threat defense counsel might presented); might also be viewed in a mitigating generally Mayes, 210 F.3d at 1288 past as to behavior. violent And (noting “overwhelming importance” here, speculate we do not have to as to mitigation humanizing evidence in a crimi effects calming drugs what and other conduct). nal defendant and explaining have, might treatment because the record I would judgment therefore reverse indicates that when Mr. maintains the district court and remand with instruc anti-psychotic regimen, drug his delu- grant tions that the district court the writ sions—and therefore his likelihood to be a sentence, as to subject Mr. death significantly threat other inmates —are conducting the state district court a new reduced. Therefore, sentencing respectfully trial. I sum, could dissent from the have materi- Court’s decision to affirm ally altered the of aggravating balance and the order of the court. district *22 RELATIONS LABOR

NATIONAL BOARD, Plaintiff-Appellant, Council No. Local Union Western Workers, Intervenor- of Industrial Appellant,