Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grant v. Royal

United States Court of Appeals, Tenth Circuit

March 30, 2018

DONALD ANTHONY GRANT, Petitioner - Appellant,
v.
TERRY ROYAL, Warden, Oklahoma State Penitentiary, [*] Respondent - Appellee.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:10-CV-00171-F)

          Patti Palmer Ghezzi, Assistant Federal Public Defender (Michael Lieberman, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

          Caroline E.J. Hunt, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

          Before HOLMES, BACHARACH, and MORITZ, Circuit Judges. [**]

          HOLMES, Circuit Judge.

         Petitioner Donald Anthony Grant, an Oklahoma state prisoner on death row, appeals from the district court's denial of his 28 U.S.C. § 2254 habeas petition. Additionally, Mr. Grant filed a motion to expand the certificate of appealability ("COA"). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's denial of Mr. Grant's § 2254 petition and deny Mr. Grant's motion to expand the COA.

         I. BACKGROUND

         A. Facts

         "The OCCA outlined the facts of Mr. [Grant's] crimes, and '[w]e presume that the factual findings of the state court are correct' unless Mr. [Grant] presents clear and convincing evidence otherwise." Clayton Lockett v. Trammel, 711 F.3d 1218, 1222 (10th Cir. 2013) (quoting Fairchild v. Workman, 579 F.3d 1134, 1137 (10th Cir. 2009)); see also 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.").

The OCCA provided the following factual summary:
The essential facts of the crimes are not disputed. On July 18, 2001, [Mr. Grant] entered a LaQuinta Inn in Del City, ostensibly to fill out an employment application. In reality, [Mr. Grant] had planned to rob the hotel in order to obtain money to post bond for a girlfriend, Shlonda Gatewood (who was in the Oklahoma County Jail at the time), and was prepared to kill any witnesses to the crime. [Mr. Grant] may have been motivated to strike this particular business because another girlfriend of his, Cheryl Tubbs, had been fired from employment there a few months before; in any event, [Mr. Grant] was familiar with the layout of the property and the location of video surveillance equipment.
When [Mr. Grant] saw the hotel manager, Brenda McElyea, he approached her with a pistol in his hand and ordered her to walk to a storage room, where he fatally shot her once in the head, and slashed her neck and back with a box knife to make sure the knife was sharp enough to use on his next victim. [Mr. Grant] then left the storage room and approached another employee, Suzette Smith, in the break room. [Mr. Grant] ordered Smith at gunpoint to give him the money from the hotel register, which she did. [Mr. Grant] then ordered Smith to walk back to the manager's office, where he shot her three times in the face. Smith continued to struggle to escape, so [Mr. Grant] brutally beat her and cut her numerous times with his knife. He hit Smith in the head with his pistol, attempted to break her neck, and threw a computer monitor on her head in an effort to stop her struggling. Eventually, Smith succumbed to her wounds and died in the office. Before leaving the office, [Mr. Grant] took personal property from Smith's purse.
[Mr. Grant] then left the hotel and walked to a nearby discount store, where he abandoned his pistol and some traveler's checks he had taken in the robbery. He then called a cab to take him to the home of Cheryl Tubbs. Later that day, [Mr. Grant] used money from the robbery to pay Shlonda Gatewood's bond, which was about $200. [Mr. Grant] and Gatewood then used a stolen car to drive from Oklahoma City to New York City, where [Mr. Grant] had family. About a month after the murders, [Mr. Grant] was arrested in New York and returned to Oklahoma.

Grant v. State, 205 P.3d 1, 7 (Okla. Crim. App. 2009) (numeric paragraph notations and footnote omitted).

         B. Procedural History

         In August 2001, Mr. Grant was charged with two counts of first degree murder and two counts of robbery with a firearm for the murders of Brenda McElyea and Suzette Smith during the robbery of the La Quinta Inn in Del City, Oklahoma. With respect to the murder counts, the State sought the death penalty. It charged several aggravating circumstances to support such a sanction:

(1) that the defendant knowingly created a great risk of death to more than one person; (2) that the murders were committed for the purpose of avoiding arrest or prosecution; (3) that the murders were committed by a person serving a sentence of imprisonment on conviction of a felony; and (4) that a probability existed that the defendant would pose a continuing threat to society. As to one of the murder counts (Count 2) [relating to Ms. Smith], the State also alleged that the murder was heinous, atrocious, or cruel.

Grant, 205 P.3d at 6 n.1.

         In November 2001, Mr. Grant's counsel moved for a determination of his competency to stand trial. The parties litigated Mr. Grant's competency for the next four years, culminating in a February 2005 trial, at which a jury found Mr. Grant competent to stand trial.

         Mr. Grant's eight-day jury trial began on November 14, 2005. The jury found Mr. Grant guilty on all counts. "As to each of the murder counts, the jury found the existence of all aggravating circumstances alleged, and recommended punishment of death on each count." Id. at 6-7. Mr. Grant filed a direct appeal and an application for an evidentiary hearing with the Oklahoma Court of Criminal Appeals ("OCCA"). The OCCA affirmed Mr. Grant's conviction and death sentence and denied his request for an evidentiary hearing. In 2008 Mr. Grant filed an application for post-conviction relief with the OCCA. The OCCA again denied relief.

         In October 2012, Mr. Grant filed the instant 28 U.S.C. § 2254 petition with the United States District Court for the Western District of Oklahoma. Mr. Grant raised numerous propositions of error, five of which are relevant to the present appeal. First, he argued that he was denied procedural due process because the trial court failed to hold a second competency hearing in response to Mr. Grant's alleged manifestations of incompetence leading up to and during trial. Second, he raised several ineffective-assistance-of-counsel claims relating to trial counsel's failures to investigate and present evidence regarding his competence and other mitigating circumstances. Third, Mr. Grant challenged the constitutionality of a jury instruction and related prosecutorial statements concerning mitigation evidence. Fourth, Mr. Grant raised a constitutional challenge to the peremptory strike of a potential juror on the basis of race. Finally, Mr. Grant argued that he was prejudiced by cumulative error. The district court denied Mr. Grant's petition and granted a COA on the single issue of procedural competency.

         Mr. Grant filed a timely appeal. In our December 12, 2014 Case Management Order, we granted a COA on Mr. Grant's additional claims concerning (1) ineffective assistance of trial counsel, (2) the challenged jury instruction and related prosecutorial statements, (3) the peremptory strike of a minority (i.e., African-American) juror, and (4) cumulative error. On December 29, 2014, Mr. Grant filed a motion to expand the COA to include one additional issue. This motion is still pending before us.

         II. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings." Hooks v. Workman ("Victor Hooks II"), 689 F.3d 1148, 1163 (10th Cir. 2012). "Under AEDPA, a petitioner is entitled to federal habeas relief on a claim only if he can establish that the state court's adjudication of the claim on the merits (1) 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law'; or (2) 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Littlejohn v. Trammell ("Littlejohn I"), 704 F.3d 817, 824 (10th Cir. 2013) (quoting 28 U.S.C. § 2254(d)(1), (2)); see Kernan v. Cuero, ___U.S. ___, 138 S.Ct. 4, 5 (2017) (per curiam); Byrd v. Workman, 645 F.3d 1159, 1166 (10th Cir. 2011).

         The AEDPA standard is "highly deferential [to] state-court rulings [and] demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation omitted) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)); accord Littlejohn I, 704 F.3d at 824; Victor Hooks II, 689 F.3d at 1163. "A habeas petitioner meets this demanding standard only when he shows that the state court's decision was 'so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Dunn v. Madison, ___U.S. ___, 138 S.Ct. 9, 11 (2017) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). As the Court explained in Harrington, "If this [AEDPA] standard is difficult to meet, that is because it was meant to be . . . . It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further." 562 U.S. at 102 (citations omitted).

         "In applying the legal inquiry under § 2254(d)(1), we ask at the threshold 'whether there exists clearly established federal law, an inquiry that focuses exclusively on holdings of the Supreme Court.'" Littlejohn I, 704 F.3d at 825 (quoting Victor Hooks II, 689 F.3d at 1163); see Cuero, 138 S.Ct. at 8 ("[W]e still are unable to find in Supreme Court precedent that 'clearly established federal law' demanding specific performance as a remedy. To the contrary, no 'holdin[g] of this Court' requires the remedy of specific performance under the circumstances present here." (alteration in original) (quoting Harrington, 562 U.S. at 100). "The absence of clearly established federal law is dispositive under § 2254(d)(1)" and results in the denial of habeas relief. Victor Hooks II, 689 F.3d at 1163 (quoting House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008)).

         If clearly established federal law exists, a state-court decision is contrary to it only if the court "applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Id. (alteration in original) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). "A state court decision unreasonably applies federal law if it 'identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies the principle to the facts of the prisoner's case.'" Littlejohn I, 704 F.3d at 825 (alteration in original) (quoting Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006)).

         Finally, "[h]abeas relief is also warranted if the state court's adjudication of a claim on the merits 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Victor Hooks II, 689 F.3d at 1163 (quoting 28 U.S.C. § 2254(d)(2)). "We will not conclude that a state court's determination of the facts is unreasonable unless the court plainly and materially misstated the record or the petitioner shows that reasonable minds could not disagree that the finding was in error." Michael Smith v. Duckworth, 824 F.3d 1233, 1250 (10th Cir. 2016) (citing Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016)), cert. denied, 137 S.Ct. 1333, reh'g denied, 137 S.Ct. 2153 (2017).

         "[W]e review the district court's legal analysis of the state court decision de novo, " Byrd, 645 F.3d at 1165 (alteration in original) (quoting Bland, 459 F.3d at 1009), and "the factual findings of the state court are [presumed] correct unless the petitioner rebuts that presumption by 'clear and convincing evidence, '" id. (quoting 28 U.S.C. § 2254(e)(1)). Moreover, our review "is limited to the record that was before the state court that adjudicated the claim on the merits." Victor Hooks II, 689 F.3d at 1163 (alteration in original) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).

         "Our standard of review changes if there has been no state-court adjudication on the merits of the petitioner's claim." Byrd, 645 F.3d at 1166. That is, "[t]he [deferential] § 2254(d) standard does not apply to issues not decided on the merits by the state court." Welch v. Workman, 639 F.3d 980, 992 (10th Cir. 2011) (emphasis added) (quoting Bland, 459 F.3d at 1010). For such claims, "we exercise our 'independent judgment' and 'review the federal district court's conclusions of law de novo, '" and its factual findings for clear error. Victor Hooks II, 689 F.3d at 1163-64 (quoting McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir. 2001)). And, even in the setting where we lack a state court merits determination, "[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by 'clear and convincing evidence.'" Id. (quoting 28 U.S.C. § 2254(e)(1)).

         "Finally, we may not consider claims that have been 'defaulted in state court on adequate and independent state procedural grounds'" absent the petitioner's demonstration of "cause for the default and actual prejudice as a result of the alleged violation of federal law, or [that] failure to consider the claims will result in a fundamental miscarriage of justice.'" Byrd, 645 F.3d at 1167 (quoting Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009)); see also Davila v. Davis, ___U.S. ___, 137 S.Ct. 2058, 2064 (2017) ("[A] state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court. The exhaustion requirement is designed to avoid the 'unseemly' result of a federal court 'upset[ting] a state court conviction without' first according the state courts an 'opportunity to . . . correct a constitutional violation[.]'" (alteration in original) (citation omitted) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982))).

         We now turn to assessing Mr. Grant's claims.

         III. MERITS

         A. Procedural Due Process Competency Claim

         Mr. Grant argues that the trial court violated his procedural due process rights by allowing his trial to proceed while he was incompetent. The district court deemed this claim to be procedurally barred, finding that Mr. Grant failed to exhaust the claim in state court. Because we agree with the district court that Mr. Grant failed to exhaust his procedural due process competency argument before the OCCA, we uphold this aspect of the district court's ruling.

         1. Legal Framework

         "A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition." Bland, 459 F.3d at 1011; see 28 U.S.C. § 2254(b)(1)(A); accord Thacker v. Workman, 678 F.3d 820, 838-39 (10th Cir. 2012); see also Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017) ("More specifically, AEDPA prohibits federal courts from granting habeas relief to state prisoners who have not exhausted available state remedies."). "Exhaustion requires that the claim be 'fairly presented' to the state court, which 'means that the petitioner has raised the "substance" of the federal claim in state court.'" Fairchild, 579 F.3d at 1151 (quoting Bland, 459 F.3d at 1011); accord Jeremy Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015), cert. denied sub nom. Williams v. Warrior, ___ U.S. ___, 136 S.Ct. 806 (2016). Put another way, "a federal habeas petitioner [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1983); accord Picard v. Connor, 404 U.S. 270, 277 (1971).

         "[T]he crucial inquiry is whether the 'substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim." Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (citing Picard, 404 U.S. at 278). "A petitioner need not invoke 'talismanic language' or cite 'book and verse on the federal constitution.'" Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)); accord Picard, 404 U.S. at 278. But, a "'[f]air presentation' requires more than presenting 'all the facts necessary to support the federal claim' to the state court." Bland, 459 F.3d at 1011 (emphasis added) (quoting Anderson, 459 U.S. at 6).

         Nor is citing the relevant legal principles, absent the relevant facts, sufficient to fairly present a claim. See Picard, 404 U.S. at 277 (finding no fair presentation where state court had no "opportunity to apply controlling legal principles to the facts bearing upon [the federal] claim"); Anderson, 459 U.S. at 6 ("[A] federal habeas petitioner [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim."); Jeremy Williams, 782 F.3d at 1210 (noting that the substance of the claim "includes not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief").

         Furthermore, a "petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court." Bland, 459 F.3d at 1011. That is, there is no fair presentation if the claim before the state court was only "somewhat similar" to the claim pressed in the habeas petition. Duncan v. Henry, 513 U.S. 364, 366 (1995); see also Bland, 459 F.3d at 1012 (finding failure to exhaust "[b]ecause presentation of a 'somewhat similar' claim is insufficient to 'fairly present' a federal claim"). Indeed, "mere similarity of claims is insufficient to exhaust." Id. And the assertion of a general claim before the state court is insufficient to exhaust a more specific claim asserted for habeas relief. See Gray v. Netherland, 518 U.S. 152, 163 (1996) ("[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the 'substance' of such a claim to a state court."); see also Thomas v. Gibson, 218 F.3d 1213, 1221 n.6 (10th Cir. 2000) (holding petitioner's "generalized" state-court ineffective-assistance claim was insufficient to exhaust his later, more specific federal habeas claim).

         Indeed, in order to be fairly presented, the state-court claim must be the "substantial equivalent" of its federal habeas counterpart. Picard, 404 U.S. at 278. There is no such substantial equivalency where the claim raised in habeas proceedings is "in a significantly different and stronger posture than it was when the state courts considered it." Jones v. Hess, 681 F.2d 688, 694 (10th Cir. 1982). To satisfy exhaustion, then, the habeas petition's focus-as well as the alleged error that it identifies-cannot depart significantly from what the petitioner had presented to the state court. See, e.g., Bland, 459 F.3d at 1012 (noting that the habeas "challenge to the actions of the prosecution differs significantly from" the state-court "challenge to the instructions given by the court, " even where both concerned the propriety of a given jury instruction). Nor is it acceptable for the habeas petitioner to "shift" the "basis for [his or her] argument" away from what was previously raised in state court. Gardner v. Galetka, 568 F.3d 862, 872 (10th Cir. 2009) (claims were not "substantially the same" where petitioner's state-court ineffective-assistance claim was predicated on counsel's inaccurate description of petitioner's injury, but where his habeas claim was grounded on counsel's failure to undertake a thorough investigation of the murder weapon); Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (holding a claim for ineffective assistance of counsel not exhausted where petitioner "based [his state-court claim] on different reasons" and on different "bases [than those] upon which his current ineffective assistance of counsel claims rely").

         There are consequences for failing to properly present a claim. "Generally, a federal court should dismiss unexhausted claims without prejudice so that the petitioner can pursue available state-court remedies." Bland, 459 F.3d at 1012; see 28 U.S.C. § 2254(b)(1)(A). "However, dismissal without prejudice for failure to exhaust state remedies is not appropriate if the state court would now find the claims procedurally barred on independent and adequate state procedural grounds." Smallwood, 191 F.3d at 1267 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). Where the relevant state courts "would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review." Bland, 459 F.3d at 1012 (quoting Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992)); see also Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002) ("'Anticipatory procedural bar' occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.") (citing Hain v. Gibson, 287 F.3d 1224, 1240 (10th Cir. 2002)). A petitioner may overcome the procedural bar only if he can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

         2. Analysis

         We conclude after thorough review that Mr. Grant presented only a substantive due process competency argument to the OCCA on direct appeal. In short, he failed to present the substance of his procedural due process competency argument to the state court. Mr. Grant's argument to the contrary depends on the inherent similarities between the two types of competency challenges. We conclude, however, that Mr. Grant's presentation of a "somewhat similar" claim, Duncan, 513 U.S. at 366, on direct appeal[1] was insufficient to have put the state courts on notice of the procedural competency claim he now urges, Jones, 681 F.2d at 694.

         a

         We begin the analysis by delineating the differences between claims of procedural due process competency and claims of substantive due process competency.

         "[C]ompetency claims can raise issues of both substantive and procedural due process." Walker v. Attorney Gen., 167 F.3d 1339, 1343 (10th Cir. 1999). Although "sometimes there is overlap, " procedural competency and substantive competency are distinct claims. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). "A procedural [due process] competency claim is based upon a trial court's alleged failure to hold a competency hearing, or an adequate competency hearing, while a substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent." Allen v. Mullin, 368 F.3d 1220, 1239 (10th Cir. 2014) (quoting McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001) (en banc)).

         "The distinction between substantive and procedural claims is significant because courts have evaluated these claims under differing evidentiary standards." Walker, 167 F.3d at 1344. To make out a procedural competency claim, a defendant must demonstrate that "a reasonable judge should have had a bona fide doubt as to [the defendant's] competence at the time of trial, " McGregor, 248 F.3d at 954, but the claim does "not require proof of actual incompetency, " Allen, 368 F.3d at 1239. Further, procedural competency imposes on the trial court a continuing duty to monitor the defendant's behavior. See Drope v. Missouri, 420 U.S. 162, 181 (1975) ("Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.").

         "A substantive competency claim, on the other hand, requires the higher standard of proof of incompetency by a preponderance of the evidence." Allen, 368 F.3d at 1239 (emphasis added) (citing Cooper v. Oklahoma, 517 U.S. 348, 368-69 (1996)). A petitioner alleging a substantive claim must demonstrate that he actually lacked a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and] a rational as well as a factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). Thus, a petitioner alleging a substantive competency claim must show that he was convicted during a period of incompetency, McGregor, 247 F.3d at 953, whereas a procedural competency petitioner "states a procedural competency claim by alleging the trial court failed to hold a competency hearing after the defendant's mental competency was put in issue." Valdez v. Ward, 219 F.3d 1222, 1239 (10th Cir. 2000).

         Moreover, the two claims rest on different evidentiary bases. In evaluating a procedural competency claim, "[o]ur review is limited to the evidence that was made available to the state trial court." Lay v. Royal, 860 F.3d 1307, 1314 (10th Cir. 2017) (citing Allen, 368 F.3d at 1239). However, post-conviction evidence can often be relevant to establishing substantive incompetency. See, e.g., Nguyen v. Reynolds, 131 F.3d 1340, 1345-47 (10th Cir. 1997) (considering post-conviction behavior in prison in the context of a substantive competency claim). In further juxtaposition, competency claims based on substantive due process are subject neither to waiver, nor to procedural bar, whereas their procedural counterparts are susceptible to both. See id. at 1346; Barnett, 174 F.3d at 1133. Further, because procedural competency and substantive competency guard against distinct harms, it should come as no surprise that their corresponding remedies are also different. Since the error asserted in a procedural claim is the court's failure to provide adequate procedures-i.e., the failure to conduct a competency hearing-a defendant who prevails on a procedural competency claim is entitled to the procedures (i.e., a competency hearing) that he should have received in the first instance. See McGregor, 248 F.3d at 952 (noting that "[a] procedural competency claim is based upon a trial court's alleged failure to hold a competency hearing, or an adequate competency hearing"); id. at 962 ("Our conclusion that McGregor's procedural due process rights were violated does not end the analysis. We next consider whether a retrospective competency hearing can be held."); see also Barnett, 174 F.3d at 1133-34 (noting that a petitioner pursuing a procedural competency claim alleges that he was deprived of the right "to an adequate state procedure to insure that he is in fact competent to stand trial, " which he should have received in the first place); see also United States v. Grist, 299 Fed.Appx. 770, 775, 778 (10th Cir. 2008) (unpublished) (finding no error in the magistrate judge's assessment that no relief was due to the petitioner, as he "ha[d] been afforded . . . the only relief to which [he] would be entitled for a procedural due process competency violation: a retrospective competency determination").[2]

         Thus, the issuance of the habeas writ is not mandated in situations where the procedural competency claimant is successful; it is resorted to only where a retrospective competency hearing would not be feasible. Compare McGregor, 248 F.3d at 962 ("[W]e conclude that a meaningful retrospective competency determination can not be made in this case. As such, McGregor's due process rights can not adequately be protected by remanding to the state court for such a determination . . . . Accordingly, we GRANT McGregor's request for habeas corpus relief."), and Pate v. Robinson, 383 U.S. 375, 387 (1966) (rejecting the option of remand for a "limited hearing as to Robinson's mental competence at the time he was tried"), with Bryan v. State, 935 P.2d 338, 347 n.4 (Okla. Crim. App. 1997) ("The [Robinson] Court did not, however, rule that retrospective hearings may not be held where such hearings are feasible, and has never so held despite the opportunity in subsequent cases."), and Walker, 167 F.3d at 1347 n.4 ("In these circumstances, we are not persuaded Mr. Walker was deprived of due process by the retrospective competency hearing."). Such a hearing would be infeasible where-due to the passage of time, the unavailability of contemporaneous medical evidence, the lack of defendant's statements on the trial record, or the absence of eyewitnesses to the defendant's behavior during trial-the examination would no longer be meaningful. See McGregor, 248 F.3d at 962 (citing Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 1999)).

         As noted, the right at issue in a substantive competency claim is the right not to be tried while incompetent; therefore, in the habeas context, the remedy must involve the issuance of the writ because the conviction cannot constitutionally stand. See, e.g., id. at 952 (noting that "a substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent"); see also Godinez v. Moran, 509 U.S. 389, 396 (1993) ("A criminal defendant may not be tried unless he is competent.").

         It falls upon us to determine whether Mr. Grant actually presented a procedural competency claim to the OCCA on direct appeal, in addition to a substantive competency claim; we have undertaken analogous inquiries. See, e.g., Walker, 167 F.3d at 1343 (disagreeing with the district court's characterization of competency claim as procedural, rather than substantive); Barnett, 174 F.3d at 1134 (holding that the district court erred in construing the claim as substantive when it was in fact procedural). In so doing, we parse the pleadings of Mr. Grant's direct-appeal brief and proceed with "care[] not to collapse the distinction between procedural and substantive due process [claims]." McGregor, 248 F.3d at 953.

         b

         Mr. Grant argues that he presented a procedural competency claim on direct appeal: more specifically, he says that he cited the relevant caselaw, set forth the relevant facts, and "correctly argued . . . that the trial judge independently had a duty, based on all the information available to him prior to and during trial, to halt the trial for additional competency proceedings." Aplt.'s Opening Br. at 30. We are not persuaded.

         Our contrary view is supported by an independent examination of Mr. Grant's direct-appeal briefing: this review makes clear that the unwavering focus of Mr. Grant's arguments was on establishing his actual incompetence at the time of trial-that is, on mounting a substantive competency claim, and not a procedural one. We also find validation for our conclusion by juxtaposing Mr. Grant's state-court claim with the one filed for habeas relief; this side-by-side view reveals that Mr. Grant's original competency claim bears little resemblance to the one he now advances.

         We are thus left with a firm conviction that Mr. Grant's direct-appeal competency claim was "based . . . on different reasons, " and grounded on different legal "bases [than those] upon which his current . . . claim[] rely." Smallwood, 191 F.3d at 1267. We accordingly hold that Mr. Grant did not fairly present a procedural competency claim to the OCCA. Furthermore, for reasons explicated infra, this claim is subject to an anticipatory procedural bar. Therefore, we are precluded from considering it.

         i

         Several aspects of Mr. Grant's direct-appeal brief contradict his argument that he fairly presented a procedural competency claim to the OCCA. Indeed, we discern that the focus of Mr. Grant's direct-appeal briefing-and therefore, the substance of the claim before the OCCA-was on whether Mr. Grant was in fact incompetent at the time of his November 2005 trial.

         At the outset, we note that the heading to Proposition I-the section under which Mr. Grant contends he raised his procedural competency claim-did nothing to put the OCCA on notice of any such claim. In fact, the heading neatly set out the standard-not for a procedural claim-but for proving a violation of substantive due process. Compare Aplt.'s Direct Appeal Opening Br. at 3 ("Mr. Grant Was Incompetent When He Stood Trial, In Violation of Due Process"), with Allen, 368 F.3d at 1239 ("[A] substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent.").[3] We also observe that Mr. Grant himself characterized Proposition I as setting out "Appellant['s] complain[t] that he was tried while incompetent." Aplt.'s Direct Appeal App. for Evidentiary Hr'g. on Sixth and Fourteenth Amendment Claims (filed Oct. 11, 2007), at 1.[4]

         Nor would the body of the direct-appeal brief have put the OCCA on notice that the competency claim was anything other than substantive in nature. Proposition I was devoted to establishing Mr. Grant's actual incompetency: the unalloyed thrust of the facts presented there was that Mr. Grant was incompetent in November 2005, when he stood trial. The argument opened by asserting that the reason for the four-year delay in Mr. Grant's trial was due to his incompetence. It proceeded to lay out the lengthy chronology of Mr. Grant's history with his lawyers, the court, and the psychological experts they appointed to assess his competency to stand trial, who had found him to be incompetent. It is evident from the brief that Mr. Grant's quarrel was with the fact of his conviction while incompetent.

         Consistent with the requirements of a substantive claim, the brief alleged facts showing that Mr. Grant "lack[ed] the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense." Drope, 420 U.S. at 171. Specifically, it noted Mr. Grant's "understanding of the charges and criminal proceedings was 'fleeting at best, '" Aplt.'s Direct Appeal Opening Br. at 4 (quoting from the underlying state court record). Furthermore, it recounted how Mr. Grant "was agitated and [the] presence [of his counsel] aggravated him." Id. at 5. And the brief observed that Mr. Grant's lawyer was "concerned because" Mr. Grant was "making statements that may hurt him in the future." Id. (quoting from the underlying state court record).

         Conversely, Mr. Grant's direct-appeal briefing does not similarly bear the trappings of a procedural competency claim, which would have alleged that a "reasonable judge should have had a bona fide doubt as to [petitioner's] competence at the time of trial." McGregor, 248 F.3d at 954. For one, the direct-appeal brief never mentioned the established "bona fide doubt" standard of proof. For another, the scope of the information presented on direct appeal exceeded the bounds of evidence relevant to a procedural claim. For example, in order to demonstrate that Mr. Grant was not taking his medications, Mr. Grant's direct-appeal brief requested that the OCCA consider Mr. Grant's medical records for the period leading up to trial. See Aplt.'s Direct Appeal Opening Br. at 11. However, these medical records were neither part of the trial record; nor were they at any point before the trial judge.[5] As such, they were irrelevant to a procedural due process claim, because "[o]ur review [as to such a claim] is limited to the evidence that was made available to the state trial court." Lay, 860 F.3d at 1314 (citing Allen, 368 F.3d at 1239); see also McGregor, 248 F.3d at 954 ("We view the evidence in the record objectively, from the standpoint of a reasonable judge presiding over petitioner's case at the time of trial.") (emphases added). Therefore, Mr. Grant's reliance on evidence that was never before the trial court, nor part of the record, is inconsistent with his assertion now that he was presenting a procedural due process claim to the OCCA.

          Quite significant, moreover, is the stark lack of fit between the remedy requested from the OCCA on direct appeal and the procedural competency claim Mr. Grant purports to have raised. Nowhere in Mr. Grant's direct-appeal brief did he mention the possible relief of a retrospective competency hearing-though ordinarily, if feasible, this would be the relief available to him if he had prevailed. See McGregor, 248 F.3d at 962 ("Our conclusion that McGregor's procedural due process rights were violated does not end the analysis. We next consider whether a retrospective competency hearing can be held."); see also Grist, 299 Fed.Appx. at 775, 778; Bryan, 935 P.2d at 347 n.4 (noting that, in the procedural competency context, the OCCA "has remanded the issue for a determination of feasibility and a [retrospective] hearing"); Boltz v. State, 806 P.2d 1117, 1121 (Okla. Crim. App. 1991) ("It is the opinion of this Court that if a defendant's competency at the time of trial can be meaningfully determined at a subsequent time on the basis of credible and competent evidence, then error committed by a district court in failing to hold a hearing at the proper time can be cured. If the procedural defect is thereby cured, any due process attack based upon the defect must fail."). Nor did Mr. Grant ever allege that the trial court should have halted the trial to perform a competency hearing. See Valdez, 219 F.3d at 1239 ("[A] petitioner states a procedural competency claim by alleging that the trial court failed to hold a competency hearing."). The notable absence of a request for a (retrospective) competency hearing belies Mr. Grant's assertion that he sought to vindicate a procedural error on direct appeal.

         Indeed, Mr. Grant demonstrated in his direct-appeal brief that he knew how to ask for a hearing when he believed one was necessary to vindicate his rights. Specifically, he alleged such an entitlement just a mere moment after his competency arguments, in the context of Proposition II, which set out his Sixth Amendment self-representation claim. See Aplt.'s Direct Appeal Opening Br. at 12-13 ("It was thus incumbent upon the trial court to hold a hearing on the issue [of Mr. Grant's desire to dismiss his attorneys], at which the trial court should have evaluated [Mr. Grant's] competency to waive [representation by counsel] and warned him of the dangers of self-representation."). The fact that Mr. Grant did not ask for a hearing in Proposition I-which he now identifies as the source of his procedural due process competency claim-strongly indicates that he did not believe at that time that this remedy was material to the claim he was pursuing there. And that belief would have been correct-if, as we conclude-Mr. Grant was presenting there a substantive competency claim. Put another way, given Mr. Grant's demonstrated ability to challenge the court's failure to hold a hearing in the self-representation context, his silence regarding a hearing in the competency context is deafening and strongly suggests that the kind of competency claim that he actually was pursuing was not one that would have been satisfied by a hearing. See Duncan, 513 U.S. at 366 (noting that failure to raise a specific due process claim "is especially pronounced in that respondent did specifically raise a due process objection before the state court based on a different claim").

         Instead of requesting an additional hearing, Mr. Grant solely sought reversal; as discussed, this remedy is clearly appropriate in the context of a claim for substantive competency, but not a remedy at least of first resort in the setting of a procedural competency claim. See, e.g., McGregor, 248 F.3d at 962; Bryan, 935 P.2d at 347 n.4. And the concluding paragraph of Proposition I is particularly illuminating: there, Mr. Grant sought reversal based on the fact that he "was not competent when he was tried . . . . in violation of his Fourteenth Amendment due process right to be competent." Aplt.'s Direct Appeal Opening Br. at 11. This is paradigmatic language of a substantive due process competency claim.

         To be sure, throughout Proposition I, there are references to facts that could have been relevant to a procedural due process competency claim. But given the "blurred . . . distinctions" between substantive and procedural competency claims, Walker, 167 F.3d at 1344, this is entirely unremarkable. For instance, direct-appeal counsel quoted statements Mr. Grant made to the trial court, Mr. Grant's testimony during the penalty phase, and a letter Mr. Grant wrote to the prosecutor. Direct-appeal counsel asserted that these statements were "full of ramblings and delusions, " and that despite this, Mr. Grant's "competence to stand trial was never revisited, even though . . . he [showed] signs that his competence may have slipped." Aplt.'s Direct Appeal Opening Br. at 6-8. Yet the mere presentation of potentially-relevant facts is not enough. See Bland, 459 F.3d at 1011 ("'[F]air presentation' requires more than presenting . . . 'all the facts necessary to support the federal claim' to the state court) (quoting Anderson, 459 U.S. at 6).

         Similarly, in Proposition I, Mr. Grant also cited to legal principles that could have been relevant to a procedural due process competency claim. For instance, he cited Drope, 420 U.S. at 180, for the proposition that "[e]ven if the defendant is competent when the trial begins, the trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standard of competence to stand trial." Aplt.'s Direct Appeal Opening Br. at 11. And he cited Robinson, 383 U.S. at 385-86, for the proposition that "[e]vidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required." Id.

         However, recitations of caselaw-tethered neither to factual allegations nor directed argumentation-also fall short of fairly presenting a legal claim. See Gray, 518 U.S. at 163 ("[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the 'substance' of such a claim to a state court."); see also Thomas, 218 F.3d at 1221 n.6 (holding petitioner's "generalized" state-court ineffective-assistance claim was insufficient to exhaust his later, more specific federal habeas claim). Indeed, Mr. Grant's citations to Robinson and Drope came at the tail-end of Proposition I and were not connected, in any readily-discernible way, to the relevant factual allegations discussed some five pages before. See Burnett v. Hargett, 139 F.3d 911, *5 (10th Cir. 1998) (unpublished) (finding lack of exhaustion where petitioner belatedly made "stray citations to a pair of potentially relevant federal cases"). Because Mr. Grant failed to tie a legal theory grounded in procedural due process to the salient facts, we hold that he failed to fairly present such a claim to the OCCA.

         ii

         Finally, our conclusion is further bolstered by a brief comparison of the argument that Mr. Grant presented on direct appeal with the argument that he has presented in his habeas petition. The claim on direct appeal is not the "substantial equivalent" of the one asserted before us. Picard, 404 U.S. at 278. "[T]he basis for [the competency] argument . . . shifted" from Mr. Grant's alleged incompetency during trial to the trial court's failure to monitor his condition. Gardner, 568 F.3d at 872.

         Whereas the direct-appeal briefing made only fleeting references to the trial court's obligation to inquire into Mr. Grant's competency, the habeas petition is replete with assertions that the trial judge knew, was aware of, or otherwise ignored signs that ought to have instilled in him a "bona fide doubt regarding Mr. Grant's competency to stand trial." Aplt.'s Habeas Pet. at 11 (dated Jan. 25, 2011). Moreover, the petition explicitly identifies the procedural defect as the trial judge's "neglect [of] duty . . . to have a hearing on Mr. Grant's competency." Id. at 23. This specific allegation of error-the trial court's "failure to adopt a procedure to ensure Mr. Grant was competent, " id. at 12-13-is nowhere to be seen in Mr. Grant's direct-appeal brief before the OCCA. The juxtaposition between that brief and Mr. Grant's habeas petition strongly underscores the deficiencies of the former as an ostensible presentation of a procedural due process competency claim. The direct-appeal brief did not offer a fair presentation of such a claim.

         c

         In sum, in light of the foregoing, we cannot say that Mr. Grant "provide[d] the state court with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his" procedural due process competency claim. Anderson, 459 U.S. at 6.[6]

         Mr. Grant asks us to reach a contrary conclusion based in part on the contents of the State's direct-appeal response brief. Specifically, Mr. Grant contends that, though the State argues now for a lack-of-exhaustion determination, on direct appeal it sounded a different "tune" in that its response brief "acknowledged the procedural due process element of the claim" and responded to that element in its briefing. Aplt.'s Reply Br. at 3. Mr. Grant contends that the State's argument against a procedural due process claim is tantamount to a "concession" that Mr. Grant actually presented such a claim to the OCCA. Id. However, the State made no such concession, and certainly not the kind of explicit one that would be necessary under the law to remove the exhaustion-fair-presentation "issue from consideration." Fairchild, 579 F.3d at 1148 n.7 ("[T]he State also has not explicitly argued exhaustion but that fact does not remove the issue from consideration."); see 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.").

         Therefore, our focus properly remains fixed on whether Mr. Grant satisfied his burden to fairly present the argument to the OCCA. See Picard, 404 U.S. at 276 ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.") (emphasis added). And Mr. Grant cannot rely on the hypervigilence or extraordinary circumspection of others to demonstrate his satisfaction of this burden. See Baldwin v. Reese, 541 U.S. 27, 32 (2004) (holding that "ordinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material . . . that does so"). In Baldwin, the Supreme Court rejected the proposition that a petitioner could establish fair presentation as to the Oregon Supreme Court simply by relying on the fact that a "lower state trial court" had picked up on his federal constitutional violation, and that the Oregon Supreme Court "had had 'the opportunity to read . . . the lower [Oregon] court['s] decision.'" Id. at 30. A similar logic applies here. That the State's attorney elected to respond to an ostensible procedural due process competency claim-whether out of hypervigilence, prophylactic intent, or simple misunderstanding-does not relieve Mr. Grant of his burden of demonstrating that he actually fairly presented such a claim to the OCCA. And we conclude that he has not carried that burden.[7]

         Nor does Mr. Grant's reliance on Sanders v. United States, 373 U.S. 1, 16 (1963), give us pause. Mr. Grant points to the district court's characterization of this question as a "close" one, see R., Vol. I, at 1578, and argues that, under Sanders, we should resolve close calls in his favor and thus conclude that he fairly presented a procedural due process competency argument to the OCCA, Aplt.'s Opening Br. at 32. In Sanders, the Supreme Court explained: "Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant." 373 U.S. at 16. In Mr. Grant's view, because it is a close call whether the competency argument in his direct-appeal brief was based on substantive due process alone or substantive and procedural due process, we should resolve the question in favor of a determination that Mr. Grant fairly presented a procedural due process claim to the OCCA. We disagree.

         Even assuming arguendo that the fair-presentation issue was close, Mr. Grant's reliance on Sanders would be unavailing. Sanders arises in a distinct procedural context; it is not a fair-presentation case. The language Mr. Grant relies on appears in the Court's discussion of the principles that should determine whether prior and successive habeas petitions, or such motions under 28 U.S.C. § 2255, present the same ground for federal relief. See Sanders, 373 U.S. at 16. In other words, this language was offering guidance in resolving a distinct problem, and Mr. Grant has not explained why it should apply in the fair-presentation/exhaustion context, and we are not aware of any reason that it should, especially given the unique federalism concerns at stake here. See Picard, 404 U.S. at 275 (noting that "it would be unseemly in our dual system of government for a federal . . . court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation" (quoting Darr v. Burford, 339 U.S. 200, 204 (1950))).

         Indeed, Picard-which is a fair-presentation case-sheds useful light on Sanders. Picard describes Sanders as a "ready example" of one of those "instances in which 'the ultimate question for disposition' will be the same despite variations in the legal theory or factual allegations urged in its support." Id. at 277 (quoting United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th Cir. 1966)). And Picard then explains that the Sanders example was not applicable there because the claim that the petitioner pursued in federal court in Picard was not the "substantial equivalent" of the claim presented in state court. Id. at 278. This holds true here as well: the question for resolution in procedural and substantive competency claims is not the same, and it is clear to us that the competency claim that Mr. Grant presented in his direct-appeal brief to the OCCA is not a "substantial equivalent" of the claim he presented in his habeas petition. Id. In sum, Mr. Grant's reliance on Sanders is misplaced.

         Thus, we reject Mr. Grant's arguments opposing our conclusion that he failed to present a procedural due process competency claim to the OCCA.

         d

         All that said, we deem Mr. Grant's procedural due process competency claim unexhausted and-with an eye toward Oklahoma law-this claim is seemingly subject to an anticipatory procedural bar. Specifically, if Mr. Grant attempted to pursue this procedural competency claim in state court, that court would deem the claim procedurally barred under Oklahoma law because Mr. Grant could have raised it on direct appeal. Under Oklahoma's Uniform Post-Conviction Procedure Act, "only claims which '[w]ere not and could not have been raised' on direct appeal will be considered [in post-conviction proceedings].'" Conover v. State, 942 P.2d 229, 230-31 (Okla. Crim. App. 1997) (quoting Okla. Stat. tit. 22, § 1089(c)(1)); see also James v. Gibson, 211 F.3d 543, 550 (10th Cir. 2000) (citing cases in which the OCCA applied Section 1089(c)(1) to competency claims not raised on direct appeal); Walker v. State, 933 P.2d 327, 338-39 (Okla. Crim. App. 1997), superceded by statute on other grounds as recognized in Davis v. State, 123 P.3d 243, 245 (Okla. Crim. App. 2005) (holding capital petitioner's competency claim procedurally barred because he failed to raise the issue on direct appeal).[8] While it is true that "[t]o preclude federal habeas review, a state procedural bar must be adequate, " Mr. Grant makes no arguments relating to the adequacy of Oklahoma's procedural default rule, much less mount a challenge to the propriety of applying it here.[9] Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003).

         Therefore, we have no reason to question the rule's application to him. See id. at 1252 ("[B]ecause Powell does not address his alleged procedural default, let alone challenge the adequacy of Oklahoma's procedural rules, we conclude that Oklahoma's procedural bar is adequate to preclude our habeas review of these particular ineffective-trial-representation claims."). And so we hold that Mr. Grant's claim is subject to an anticipatory procedural bar. Cf. Thacker, 678 F.3d at 841 ("Were Thacker to now return to state court to attempt to exhaust a claim that trial counsel was ineffective in advising him to enter a blind plea and in failing to file a motion to withdraw the guilty plea, by filing a fourth application for post-conviction relief, it would be procedurally barred under Oklahoma law because Thacker failed to assert it in any of his applications for post-conviction relief."); Cummings v. Sirmons, 506 F.3d 1211, 1222-23 (10th Cir. 2007) ("Although the claim is technically unexhausted, it is beyond dispute that, were Cummings to attempt to now present the claim to the Oklahoma state courts in a second application for post-conviction relief, it would be deemed procedurally barred.").

         Furthermore, Mr. Grant makes no effort to overcome this bar by arguing cause and prejudice, or a fundamental miscarriage of justice. Consequently, we hold that we are precluded from considering Mr. Grant's procedural due process competency claim. See Coleman, 501 U.S. at 750; see also Thacker, 678 F.3d at 841-42 ("The only way for Thacker to circumvent this anticipatory procedural bar is by making either of two alternate showings: he may demonstrate 'cause and prejudice' for his failure to raise the claim in his initial application for post-conviction relief, or he may show that failure to review his claim will result in a 'fundamental miscarriage of justice.'" (quoting Anderson, 476 F.3d at 1140)).[10]

         B. Ineffective Assistance of Counsel Claims

         Mr. Grant argues that his trial counsel rendered ineffective assistance resulting in an "unfair trial and an unreliable death sentence in violation of the Sixth, Eighth, and Fourteenth Amendments." Aplt.'s Opening Br. at 50 (capitalization altered). We granted COAs regarding the following issues: whether trial counsel rendered ineffective assistance by failing to (1) monitor Mr. Grant's competency, (2) investigate and present evidence of the effects of Mr. Grant's frontal-lobe damage (i.e., organic brain damage), and (3) investigate and present evidence of (a) Mr. Grant's purported delusional belief system and (b) pertinent aspects of Mr. Grant's childhood. Because Mr. Grant has not shown that the OCCA's resolution of his ineffective-assistance claims is contrary to or an unreasonable application of clearly established federal law, or premised on an unreasonable determination of fact, we affirm the district court's denial of habeas relief regarding Mr. Grant's ineffective-assistance claims.

         1. Legal Framework

         We review claims of "ineffective assistance of counsel under the familiar framework laid out in Strickland [v. Washington, 466 U.S. 668 (1984)]." Byrd, 645 F.3d at 1167. Under Strickland, a petitioner "must show both that his counsel's performance 'fell below an objective standard of reasonableness' and that 'the deficient performance prejudiced the defense.'" Id. (emphasis omitted) (quoting Strickland, 466 U.S. at 687-88). "These two prongs may be addressed in any order, and failure to satisfy either is dispositive." Victor Hooks II, 689 F.3d at 1186; see Littlejohn v. Royal ("Littlejohn II"), 875 F.3d 548, 552 (10th Cir. 2017) ("These two prongs may be addressed in any order; indeed, in Strickland, the Supreme Court emphasized that 'if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'" (omission in original) (quoting Strickland, 466 U.S. at 697)).

         "[O]ur review of counsel's performance under the first prong of Strickland is a 'highly deferential' one." Byrd, 645 F.3d at 1168 (quoting Danny Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010)). "Every effort must be made to evaluate the conduct from counsel's perspective at the time." Littlejohn I, 704 F.3d at 859 (quoting United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Victor Hooks II, 689 F.3d at 1187 (quoting Byrd, 645 F.3d at 1168). And the "petitioner 'bears a heavy burden' when it comes to overcoming that presumption." Byrd, 645 F.3d at 1168 (quoting Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000)). "To be deficient, the performance must be outside the wide range of professionally competent assistance. In other words, it must have been completely unreasonable, not merely wrong." Danny Hooks, 606 F.3d at 723.

         "A state prisoner in the § 2254 context faces an even greater challenge." Victor Hooks II, 689 F.3d at 1187 (citing Byrd, 645 F.3d at 1168). "[W]hen assessing a state prisoner's ineffective-assistance-of-counsel claims on habeas review, '[w]e defer to the state court's determination that counsel's performance was not deficient and, further, defer to the attorney's decision in how to best represent a client.'" Id. (alterations in original) (quoting Byrd, 645 F.3d at 1168). "Thus our review of ineffective-assistance claims in habeas applications under § 2254 is 'doubly deferential.'" Id.; Harrington, 562 U.S. at 105 ("The standards created by Strickland and § 2254(d) are both 'highly deferential, ' and when the two apply in tandem, review is 'doubly' so . . . ." (citations omitted) (quoting first Strickland, 466 U.S. at 689, and then Knowles v. Mirzayance, 556 U.S. 111, 123 (2009))).

         "Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105 (emphasis added). And "because the Strickland standard is a general standard, a state court has . . . more latitude to reasonably determine that a defendant has not satisfied that standard." Byrd, 645 F.3d at 1168 (emphasis added) (quoting Knowles, 556 U.S. at 123); accord Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014); see also Harrington, 562 U.S. at 105 ("The Strickland standard is a general one, so the range of reasonable applications is substantial."); Acosta v. Raemisch, 877 F.3d 918, 925 (10th Cir. 2017) (noting that under AEDPA "our inquiry is informed by the specificity of the governing rule").

         Despite our strong presumption that counsel rendered constitutionally reasonable assistance, "we have recognized a need to apply . . . closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case." Cooks, 165 F.3d at 1294; see also Osborn v. Shillinger, 861 F.2d 612, 626 n.12 (10th Cir. 1988) ("[T]he minimized state interest in finality when resentencing alone is the remedy, combined with the acute interest of a defendant facing death, justify a court's closer scrutiny of attorney performance at the sentencing phase."). "We judge counsel's performance by reference to 'prevailing professional norms, ' which in capital cases include the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ('ABA Guidelines')." Victor Hooks II, 689 F.3d at 1201 (quoting Young v. Sirmons, 551 F.3d 942, 957 (10th Cir. 2008)). "Among the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences." Young, 551 F.3d at 957.

         "Counsel has a duty to conduct a 'thorough investigation-in particular, of mental health evidence-in preparation for the sentencing phase of a capital trial.'" Victor Hooks II, 689 F.3d at 1201 (quoting Michael Wilson v. Sirmons ("Michael Wilson I"), 536 F.3d 1064, 1083 (10th Cir. 2008)); accord Littlejohn I, 704 F.3d at 860. "[D]rawing on a trilogy of Supreme Court cases-[Terry] Williams v. Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla v. Beard, 545 U.S. 374 (2005)-involving ineffective assistance at capital-sentencing proceedings[, ]" Littlejohn I, 704 F.3d at 860, we divined the following three principles:

First, the question is not whether counsel did something; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence. Our own Circuit has emphasized this guiding principle. In Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004), we held that it was "patently unreasonable" for trial counsel to fail to present evidence of Smith's borderline mental retardation, brain damage, and troubled childhood, and stated that this type of mitigating evidence "is exactly the sort of evidence that garners the most sympathy from jurors."

Michael Wilson I, 536 F.3d at 1084-85 (citations omitted); accord Littlejohn I, 704 F.3d at 860.

         "Under the prejudice prong [of Strickland], a petitioner must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Littlejohn II, 875 F.3d at 552 (quoting Strickland, 466 U.S. at 694); accord Victor Hooks II, 689 F.3d at 1202. "When a petitioner alleges ineffective assistance of counsel stemming from a failure to investigate mitigating evidence at a capital-sentencing proceeding, 'we evaluate the totality of the evidence'" that AEDPA permits us to consider. Jeremy Williams, 782 F.3d at 1215; accord Littlejohn II, 875 F.3d at 552-53; see Cullen, 563 U.S. at 181 ("We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.").

         More specifically, "we 'reweigh the evidence in aggravation against the totality of available mitigating evidence, ' considering 'the strength of the State's case and the number of aggravating factors the jury found to exist, as well as the mitigating evidence the defense did offer and any additional mitigating evidence it could have offered[.']" Littlejohn II, 875 F.3d at 553 (quoting first Hooks, 689 F.3d at 1202, and then Knighton v. Mullin, 293 F.3d 1165, 1178 (10th Cir. 2002)). Furthermore, "we must consider not just the mitigation evidence that Defendant claims was wrongfully omitted, but also what the prosecution's response to that evidence would have been." Michael Wilson v. Trammell ("Michael Wilson II"), 706 F.3d 1286, 1306 (10th Cir. 2013); accord Littlejohn II, 875 F.3d at 553; see Michael Wilson II, 706 F.3d at 1305 ("To resolve whether there was prejudice, we do not consider omitted mitigation evidence in a vacuum.").

         "If there is a reasonable probability that at least one juror would have struck a different balance, . . . prejudice is shown." Littlejohn I, 704 F.3d at 861 (quoting Victor Hooks II, 689 F.3d at 1202). Put another way, in the capital-sentencing context, if the petitioner demonstrates that there is a reasonable probability "that at least one juror would have refused to impose the death penalty, " the petitioner has successfully shown prejudice under Strickland. Victor Hooks II, 689 F.3d at 1202 (quoting Michael Wilson I, 536 F.3d at 1124 (Hartz, J., concurring)); accord Littlejohn II, 875 F.3d at 553.

         2. Misstatement of Strickland Standard

         We first address Mr. Grant's overarching claim that the OCCA's rejection of his ineffective-assistance claims is contrary to clearly established federal law because the OCCA applied the incorrect legal framework-that is, the OCCA failed to apply Strickland's well-established rubric. When setting forth "the legal framework for evaluating [Mr. Grant's] ineffective-assistance claims, " the OCCA stated that "[Mr. Grant] must demonstrate that trial counsel's performance was so deficient as to have rendered [him], in essence, without counsel." Grant, 205 P.3d at 22. This statement of law, in Mr. Grant's view, "placed an extra burden on him which was contrary to law." Aplt.'s Opening Br. at 83. Mr. Grant thus argues that we must apply de novo review to his ineffective-assistance claims. We disagree.

         On habeas review, we properly eschew the role of strict English teacher, finely dissecting every sentence of a state court's ruling to ensure all is in good order. Cf. Renico v. Lett, 559 U.S. 766, 773 (2010) (noting that "AEDPA imposes a 'highly deferential standard for evaluating state-court rulings[]'" (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997))); Michael Williams, 529 U.S. at 411 ("Congress specifically used the word 'unreasonable, ' and not a term like 'erroneous' or 'incorrect.'"). Rather, our focus is on the reasonableness of the state court's decision-viz., whether that decision is contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts.

         Consequently, our inquiry relates to the overall substance of the state court's analysis and the conclusion it thereafter makes. The Supreme Court has emphasized § 2254's focus on the decision of the state court: "Avoiding [§ 2254's] pitfalls does not require [a state court's] citation of [Supreme Court] cases-indeed, it does not even require [a state court's] awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002) (emphases added).

         Viewed through this proper prism, there is no occasion here for us to apply de novo review based on the OCCA's language in a single sentence. Admittedly, that language-especially, the "rendered without counsel" phrase-deviates from the proper formulation of the Strickland standard. Cf. United States v. Cronic, 466 U.S. 648, 659 (1984) ("[I]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable."). But that is not material. The true question presented by Mr. Grant's challenge is simply whether the overall substance of the OCCA's analysis, as well as the result it reached, reflects that the court understood and decided the ineffective-assistance issue under the proper Strickland framework. And we answer that question with no difficulty in the affirmative.

         Virtually in the same breath-indeed, in the same paragraph on the same page as the language that Mr. Grant identified-the OCCA articulated the proper rubric of Strickland: it stated with respect to the performance prong-"We assess counsel's performance for reasonableness in light of prevailing professional norms"-and regarding the prejudice prong-"Appellant must also demonstrate that the allegedly deficient performance caused prejudice." Grant, 205 P.3d at 22. And the OCCA never repeated in its Strickland discussion the "rendered without counsel" linguistic formulation. Therefore, we have no difficulty concluding that the OCCA's analysis reflects that it understood and resolved the ineffective-assistance issue under the proper Strickland framework. We consequently reject Mr. Grant's call for the application of de novo review based on the (admittedly inaccurate) wording of a single sentence.

         3. Failure to Monitor Competency

         Mr. Grant argues that he is entitled to habeas relief based on the OCCA's rejection of his ineffective-assistance claim asserting that trial counsel's alleged unreasonable failure to monitor his competency-or, more precisely, his purported decline into incompetency-prejudiced him. The OCCA summarized the nature of Mr. Grant's argument:

[Mr. Grant] submits that in the months between the competency trial and the trial on guilt and punishment, his competency may well have deteriorated. He points to his statements at various pretrial and in camera hearings, pro se writings, and his testimony in the punishment stage of the trial in an attempt to support this claim. He also submits extra-record evidence to support a related claim, based on the Sixth Amendment right to counsel, that trial counsel was deficient for not challenging his competency at the time of trial. Specifically, he presents (1) an expert's retrospective opinion, based on evaluation of various materials, that [Mr. Grant] was not competent to stand trial in November 2005; and (2) documentary evidence suggesting that in mid-2005, Mr. Grant was not diligent about taking medications prescribed to treat his mental illness.

Grant, 205 P.3d at 8 (emphasis added).

         Regarding his pretrial statements, Mr. Grant highlights certain comments that he made during a hearing in May 2005, when he waived a possible conflict of interest involving one of his attorneys. After telling the court that he "underst[ood] conflict of interest" and was prepared to "fire all staff and represent myself once I feel that honestly [sic] matters are being taken out of proportion meaning I'm being plotted against with the DA, " Mr. Grant offered his "theory" in response to the court's assurances that no such plotting was taking place: "My theory plays my whole background. That's for one. My way of life is I'm going to leave this planet earth. That's my theory. My theory I stand on it and it don't have nothing to do with this. My theory is my theory, you see what I'm saying." Mot. Hr'g Tr. at 7-8 (dated May 2, 2005). However, in response to follow-up questioning, Mr. Grant indicated that he was not accusing the potentially conflicted attorney of plotting with the District Attorney, and his other attorney advised the court-without objection by Mr. Grant-that when Mr. Grant was speaking about such plotting, he was simply "expressing concern that lawyers sometimes do that." Id. at 9.

         Mr. Grant also draws our attention to two letters that he wrote in September 2005 to the judge and prosecutor, respectively. The first letter-which Mr. Grant calls the "Eye" letter-refers to "electrons, " "eye, " "God, " and "Allah, " among other things, R., Vol. I, at 782-84, and the author of Mr. Grant's retrospective competency hearing-Dr. Antoinette McGarrahan, PhD-subsequently suggested that it "revealed incoherent ramblings and religious and grandiose delusions, " id. at 771. The second letter (directed to the prosecutor) amounted to a confession to the charged crimes which Mr. Grant wrote with the apparent hope of securing the release of another inmate whom Mr. Grant described as "a good man from the heart." Id. at 786.

         The OCCA's ineffective-assistance analysis implicated Strickland's first prong- viz., the performance prong. Considering the extra-record materials that Mr. Grant specifically marshaled with respect to this claim, the court held that the materials were "insufficient to overcome the presumption that trial counsel had a sound basis for believing [Mr. Grant] was competent at the time of trial." Grant, 205 P.3d at 10. And the OCCA offered the following comments regarding the underlying issue of competency:

[W]e find no reason to second-guess the judgment of those parties most familiar with [Mr. Grant's] history of mental problems before and during the trial-defense counsel, the trial court, and the defense experts retained at that time. The record supports a conclusion that [Mr. Grant] was competent at the time of his trial.

Id.

         In resolving this claim, we first address below Mr. Grant's contentions that certain specific legal and factual errors are embedded in the OCCA's analysis. Concluding that these contentions are without merit, we then turn to the substantive Strickland question. We determine that Mr. Grant's ineffective-assistance claim based on trial counsel's alleged failure to monitor his purported decline into incompetency fails under Strickland's second prong-that is, on the issue of prejudice. Accordingly, we affirm the district court's denial of habeas relief as to this claim.

         a

         First, Mr. Grant argues that the OCCA's rejection of his failure-to-monitor claim was contrary to clearly established federal law because it rested on a determination of competence that was legally flawed. The OCCA rejected Mr. Grant's failure-to-monitor claim in significant part because it determined that Mr. Grant was in fact competent when tried. Mr. Grant argues that the OCCA's competency determination was legally flawed because it addressed only one prong of the two-pronged test for competency. We disagree.

         "The [two-pronged] test for incompetence is . . . well settled. A defendant may not be put to trial unless he 'has [(1)] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and (2)] a rational as well as factual understanding of the proceedings against him.'" Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)); see also Drope, 420 U.S. at 171 ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." (emphasis added)).

         Mr. Grant argues that the OCCA's competence determination is legally flawed because it addressed only the second prong of the competency standard-i.e., whether Mr. Grant understood the proceedings-and, therefore, the OCCA's resultant rejection of his failure-to-monitor claim is contrary to clearly established federal law. Our review of the OCCA's direct-appeal opinion, however, reveals that the OCCA understood and also sufficiently considered the first prong of the competence standard-i.e., whether Mr. Grant was able to assist counsel in preparing his defense.

         The OCCA clearly recognized that the competence standard had two components and explicitly set them out. See Grant, 205 P.3d at 8 ("Under Oklahoma law, a person is competent to stand trial if he has the present ability to understand the nature of the charges and proceedings brought against him and to rationally assist in his own defense. These standards are consistent with federal constitutional requirements." (emphasis added) (citations omitted, including to the Supreme Court's seminal decisions in Cooper and Drope)).

         Furthermore, the OCCA's reasoning also reflects its awareness of the first prong of the standard and application of it. For example, the court reasoned that Mr. Grant was able to make decisions regarding his defense; during the pre-trial phase, for instance, the trial court "had several discussions with [Mr. Grant] about various matters" and "these exchanges show[ed that Mr. Grant] had a rather keen understanding of the legal process, and . . . was able to make important decisions." Id. at 9.

         In short, we are confident that all fairminded jurists would not agree that the OCCA misunderstood the appropriate federal standard for competency or misapplied it. Its decision in this regard was not contrary to or an unreasonable application of clearly established federal law.

         b

         Mr. Grant next argues that the OCCA's rejection of his failure-to-monitor claim and its related rejection of Mr. Grant's request for an evidentiary hearing were premised on an unreasonable determination of several facts. Specifically, he claims that the OCCA unreasonably determined that (1) Mr. Grant "had a rather keen understanding of the legal process . . . [and] was able to make important decisions, " Grant, 205 P.3d at 9; (2) Mr. Grant had an awareness and understanding of the "ramifications" of the "admission" in his confession letter, id.; and (3) Mr. Grant's purported "delusions" were actually "related to an unconventional philosophy, or religion of sorts, " id. at 9 n.6.

         We conclude that Mr. Grant has not preserved these three arguments for appellate review because he failed to raise them in his habeas petition. See Owens v. Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015) ("Because the argument was not raised in his habeas petition, it is waived on appeal."); Stouffer v. Trammell, 738 F.3d 1205, 1222 n.13 (10th Cir. 2013) ("We do not generally consider issues that were not raised before the district court as part of the habeas petition."); Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (deeming waived certain ineffective-assistance claims where petitioner "fail[ed] to assert them in his district court habeas petition"); see also Hancock v. Trammell, 798 F.3d 1002, 1021-22 ("But in the habeas petition, Mr. Hancock did not present this allegation as a separate basis for habeas relief. As a result, this issue has been forfeited." (footnote omitted)). Accordingly, we do not reach the merits of them.

         The third alleged unreasonable factual determination warrants a brief discussion.[11] Mr. Grant argues that the OCCA unreasonably determined that the "'delusions' found by experts in their diagnoses of schizophrenia were not delusions, but 'related to an unconventional philosophy, or religion of sort.'" Aplt.'s Opening Br. at 92 (quoting Grant, 205 P.3d at 9 n.6). Mr. Grant asserts that this factual determination was unreasonable in light of the OCCA's contrasting determination that "experts tended to agree that [Mr. Grant] had . . . a form of schizophrenia." Id. (quoting Grant, 205 P.3d at 8). As Mr. Grant sees things, these statements reflect "internally inconsistent determinations" and are, therefore, unreasonable. Id.

         The State contends that Mr. Grant waived this argument. In the State's view, Mr. Grant "never argued that the OCCA's findings were unreasonable because it made inconsistent findings." Aplee.'s Br. at 51 n.9 (emphasis added). We conclude that Mr. Grant has failed to preserve this argument for appellate review. To be sure, Mr. Grant did contend that the OCCA made an unreasonable determination of facts bearing on his delusions: "The OCCA also made an unreasonable determination of the facts in concluding comments Mr. Grant made in writings, colloquies with the court, and in his trial testimony are not 'delusions that sprang [from Mr. Grant's] own mind [because] they related to an unconventional philosophy, or religion of sorts.'" R., Vol. I, at 561 (quoting Grant, 205 P.3d at 9 n.6). And Mr. Grant bolstered this assertion by noting that the OCCA's finding was contrary to the evidentiary findings of others: "The wealth of evidence from all the experts indicate that his grandiose delusions, which have a religious element, are a significant symptom of his mental illness and not merely an unconventional philosophy." Id. In other words, Mr. Grant contrasted the OCCA's factual findings with the allegedly abundant contrary evidentiary findings of others and, on this basis, declared the OCCA's findings unreasonable.

         However, at no point did Mr. Grant contend that the OCCA's findings were unreasonable because they were at odds with themselves-i.e., internally inconsistent. More specifically, in seeking to establish their unreasonableness, Mr. Grant did not compare one set of OCCA findings with another. But this logically is what Mr. Grant would have done if he were attempting to demonstrate that the unreasonableness of the OCCA's findings was based on their internal inconsistency. And, not surprisingly, this is precisely the line of argument that Mr. Grant pursues on appeal.

         We do not understand the State-as Mr. Grant does-to be "essentially assert[ing] that by not using the word 'inconsistent' . . . Mr. Grant waived the argument." Aplt.'s Reply Br. at 18. That is because both the totality of the relevant language and structure of Mr. Grant's arguments in his habeas petition make patent to us that he did not advance this internal-inconsistency ground for declaring the OCCA's factual findings unreasonable in his habeas petition. Accordingly, he has failed to preserve this contention for appellate review.

         c

         Having rejected Mr. Grant's specific contentions of legal and factual error, we turn to the merits of his ineffective-assistance claim based on trial counsel's alleged failure to monitor his competency. We conclude that Mr. Grant cannot prevail on this ineffective-assistance claim under Strickland's (second) prejudice prong. That is, Mr. Grant cannot demonstrate that there is a reasonable probability that the result of the proceeding would have been different but for counsel's failure to monitor Mr. Grant's competency-or, as Mr. Grant views it, his "slide into incompetency." R., Vol. I, at 582.

         It is undisputed-as the district court found-that the OCCA did not "expressly address [Strickland's] second prong."[12] Id. at 1584. The parties joust about whether we should apply AEDPA deference or de novo review in our consideration of the prejudice prong. Advocating for de novo review, Mr. Grant has the better of this argument-but only up to a point. Because the OCCA did not-by the plain terms of its ruling-reach the prejudice question, we resolve this overarching question de novo. See, e.g., Wiggins, 539 U.S. at 534 ("In this case, our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis."); Rompilla, 545 U.S. at 390 (noting that "[b]ecause the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo" (citation omitted)); Victor Hooks II, 689 F.3d at 1188 ("[I]n those instances where the OCCA did not address the performance prong of Strickland and we elect to do so, our review is de novo."). But cf. McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 100 n.10 (3d Cir. 2012) (noting some "possible tension between" language in Harrington regarding the adjudication of habeas claims and the approach of Wiggins and its progeny where a portion of a Strickland claim is not reached by a state court, and collecting cases).

         However, in resolving the merits of Strickland's first prong (i.e., performance), the OCCA made a related, but distinct and independent, merits determination regarding Mr. Grant's substantive competency. See Grant, 205 P.3d at 10. We are obliged to take this ruling into account in our analysis of Strickland's prejudice prong. And it seemingly can be determinative regarding whether Mr. Grant can prevail under that prong. For instance, commenting on what constitutionally effective counsel would have done for him, Mr. Grant states:

Reasonably effective counsel, with a client whose competency was as mercurial as Grant's, would have investigated, checked medication records, interviewed the mental health professionals at [the Oklahoma County Detention Center] who were treating him daily, challenged Grant's mental capacity to make a written confession, and heeded the signs of decompensation noted by their own expert.

Aplt.'s Opening Br. at 64. But, even assuming arguendo the performance of Mr. Grant's trial counsel was constitutionally deficient for failing to take such steps-and, significantly, for failing to seek a second competency trial-if Mr. Grant was actually competent, their unconstitutional performance would not have prejudiced him. More specifically, any motion that Mr. Grant's purportedly effective counsel would have filed for a second competency proceeding would have been properly denied.

         AEDPA's deferential standards are appropriately applied to our review of the OCCA's distinct and independent merits determination of Mr. Grant's competency. And this is true even though-as Mr. Grant urges-we conduct a de novo review of the overarching and related question of whether Mr. Grant was prejudiced by trial counsel's assumed unconstitutional performance. Compare Spears, 343 F.3d at 1249-50 (using de novo review of petitioner's ineffective-assistance claim involving counsel's failure to object to a flight-from-the-crime instruction, but seemingly applying a deferential reasonableness standard of AEDPA to the OCCA's related determination of a mixed question of law and fact, specifically, that "the State had presented sufficient evidence to support giving the flight instruction"), with Victor Hooks v. Ward ("Victor Hooks I"), 184 F.3d 1206, 1223 (10th Cir. 1999) (applying de novo review where "the Oklahoma courts never considered Hooks' federal constitutional claim with regard to his requested instructions on lesser included offenses" but according AEDPA's presumption of correctness where "the Oklahoma Court of Criminal Appeals made some factual determinations that may bear on this issue" (emphasis added)).

         The question then becomes what AEDPA standards govern this question: viz., AEDPA's standards pertaining to issues of fact (notably, § 2254(e)(1))[13] or those relating to law-dependent mixed questions of fact and law (i.e., § 2254(d)(1)). Precedent from the Supreme Court and our court at least strongly suggests that, in determining that Mr. Grant was substantively competent, the OCCA resolved "a factual issue" that "shall be presumed to be correct"; Mr. Grant would thus bear the burden of rebutting that presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Thompson v. Keohane, 516 U.S. 99, 113 (1995) (noting that certain "practical considerations . . . prompted the Court to type questions like . . . competency" as "factual issues"); Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per curiam) ("We have held that a state court's conclusion regarding a defendant's competency is entitled to such a presumption [i.e., of correctness]."); Spitzweiser-Wittgenstein v. Newton, 978 F.2d 1195, 1197 (10th Cir. 1992) ("Competency is a question of fact subject to the rebuttable presumption of correctness established in § 2254."); 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedure § 20.3[d] at 1156 n.55 (noting that "[t]he lower federal courts are divided on the question of whether competency to stand trial is a factual issue entitled to a presumption of correctness or a mixed question of law and fact, " and citing Tenth Circuit cases in the former camp).

         The Supreme Court "typed" the competency issue as a factual one, even though it is not comprised solely of "simple historical fact[s], " Miller v. Fenton, 474 U.S. 104, 113-14 (1985), but, rather, is determined by applying legal standards to the subsidiary facts, see Thompson, 516 U.S. at 111 ("[T]he Court has classified as 'factual issues' within § 2254(d)'s compass [certain] questions extending beyond the determination of 'what happened.' This category notably includes: competency to stand trial . . . ."). The Thompson Court explained the "practical considerations" underlying this choice:

While these issues encompass more than "basic, primary, or historical facts, " their resolution depends heavily on the trial court's appraisal of witness credibility and demeanor. This Court has reasoned that a trial court is better positioned to make decisions of this genre, and has therefore accorded the judgment of the jurist-observer "presumptive weight."

Id. at 100 (citation omitted) (citing Wainwright v. Witt, 469 U.S. 412, 429 (1985), and quoting Miller, 474 U.S. at 114).[14]

         We recognize that the key cases cited supra-Thompson, Demosthenes, and its seminal Tenth Circuit progeny, Spitzweiser-Wittgenstein-were decided under a pre-AEDPA version of § 2254 that contained the presumption-of-correctness language that subsequently found a home in subsection (e)(1) of § 2254, with AEDPA's 1996 enactment. However, the presumption-of-correctness language before and after AEDPA is intended to effectuate federalism principles by "giv[ing] great weight to the considered conclusions of a coequal state judiciary, " Miller, 474 U.S. at 112. Compare Thompson, 516 U.S. at 108 (quoting Miller, in discussing the federalism principles underlying the presumption of correctness in the pre-AEDPA regime), with Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010) ("AEDPA in general and Section 2254(e) in particular were designed 'to further the principles of comity, finality, and federalism.' Section 2254(e)(1) plainly seeks to conserve judicial resources and reflects Congress's view that there is no reason for a do-over in federal court when it comes to facts already resolved by state tribunals. That section also reflects Congress's respect for principles of federalism, recognizing that a decision to set aside state court factual findings intrudes on the state's interest in administering its criminal law." (citation omitted) (quoting Michael Williams, 529 U.S. at 436)). Furthermore, we have no reason to believe that the "practical considerations" that Thompson cited, 516 U.S. at 113, do not remain in full effect in the post-AEDPA era. Cf. United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000) ("Competency to stand trial is a factual determination that can be set aside only if it is clearly erroneous." (quoting United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998))). Therefore, there is a strong suggestion in controlling precedent that competency should be treated as a factual issue in the habeas context-even in the post-AEDPA setting. If so, it would be subject to § 2254(e)(1)'s presumption of correctness.

         As it turns out, however, we need not definitively determine whether subsection (e)(1)'s standard applies here. That is because whether this standard applies or, alternatively, AEDPA's standard pertaining to law-dependent mixed questions-specifically, the standard of subsection (d)(1), see Michael Williams, 529 U.S. at 398; Gilson v. Sirmons, 520 F.3d 1196, 1233-34 (10th Cir. 2008) (holding that whether there is sufficient evidence to warrant giving a lesser- included-offense instruction is "a mixed question of law and fact and is thus reviewable under § 2254(d)(1)"); Cook v. McKune, 323 F.3d 825, 829-30 (10th Cir. 2003) (discussing Michael Williams and noting that § 2254(d)(1) "applies to errors of law and mixed questions of fact and law")-Mr. Grant cannot prevail. In the former scenario, § (e)(1)'s "standard is demanding but not insatiable." Miller-El v. Dretke ("Miller-El II"), 545 U.S. 231, 240 (2005); accord Danny Hooks, 606 F.3d at 721; House, 527 F.3d at 1019. But Mr. Grant would be hard-pressed to satisfy it here because he makes no effort to take up the cudgel by making specific arguments under § 2254(e)(1)'s framework to rebut the presumption of correctness. In the latter scenario, Mr. Grant cannot demonstrate that the OCCA's determination of competency was contrary to or an unreasonable application of clearly established federal law. See, e.g., Dusky, 362 U.S. at 402; Drope, 420 U.S. at 171. At the very least, "it is possible fairminded jurists could disagree" regarding whether the OCCA's competency determination conflicts with Supreme Court precedent. Harrington, 562 U.S. at 102.

         Relevant to both scenarios, specifically, the OCCA considered the totality of the evidence, including the supplemental materials that Mr. Grant submitted with respect to his purported incompetency, and found "no reason to second-guess the judgment of those parties most familiar with [Mr. Grant's] history of mental problems before and during the trial-defense counsel, the trial court, and the defense experts retained at that time." Grant, 205 P.3d at 10. This approach was not unreasonable. And, as the OCCA explained, these sources uniformly did not express doubt regarding Mr. Grant's competency to stand trial. See id. at 9.

Notably, the OCCA stated:
[Mr. Grant's] two-lawyer defense team was experienced and zealous, considering that the overwhelming evidence against their client limited their options. At no time did either of them express doubts about their client's competency during the trial. Their chief mental-health expert, Dr. Grundy, who spent many hours interviewing [Mr. Grant] over the lengthy course of the prosecution, attended at least part of the trial and testified for the defense. Yet, there is no indication that Dr. Grundy had doubts about [Mr. Grant's] competency, either at that time or on reflection afterward.

Id.

         The OCCA moreover called into question the adequacy of Mr. Grant's supplemental medical records that supposedly "suggest[ed] that in mid-2005, [Mr. Grant] was not diligent about taking medications prescribed to treat his mental illness." Id. at 8. Mr. Grant contends that these "psychiatric medications . . . . [were] required to keep him competent." Aplt.'s Opening Br. at 65. And Dr. McGarrahan's report underscored the point: "Most all of the mental health professionals who evaluated Mr. Grant, including court-ordered experts and State's experts ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.