from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:10-CV-00171-F)
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.
HOLMES, BACHARACH, and MORITZ, Circuit Judges. [**]
HOLMES, Circuit Judge.
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
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).
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.
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.
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
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.
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.
STANDARD OF REVIEW
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).
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).
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)).
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)).
"[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).
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)).
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. §
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))).
turn to assessing Mr. Grant's claims.
Procedural Due Process Competency Claim
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.
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
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).
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").
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).
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").
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.
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 was insufficient to have put the state
courts on notice of the procedural competency claim he now
urges, Jones, 681 F.2d at 694.
begin the analysis by delineating the differences between
claims of procedural due process competency and claims of
substantive due process competency.
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)).
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
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.
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").
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)).
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.").
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.
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.
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.
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.
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
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."). 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.
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
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).
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. 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.
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
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
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.
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).
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."
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.
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
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.
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
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.").
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
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.
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))).
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.
we reject Mr. Grant's arguments opposing our conclusion
that he failed to present a procedural due process competency
claim to the OCCA.
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). 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. Spears v. Mullin, 343 F.3d 1215,
1251 (10th Cir. 2003).
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.").
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)).
Ineffective Assistance of Counsel Claims
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.
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)).
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.
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))).
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").
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.
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.
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.").
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.").
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.
Misstatement of Strickland Standard
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.
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.
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).
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.
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.
Failure to Monitor Competency
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).
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.
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.
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.
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.
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
[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)).
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.
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)).
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.
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.
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.
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.
third alleged unreasonable factual determination warrants a
brief discussion. 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.
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.
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
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.
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.
undisputed-as the district court found-that the OCCA did not
"expressly address [Strickland's] second
prong." 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).
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
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"
question then becomes what AEDPA standards govern this
question: viz., AEDPA's standards pertaining to
issues of fact (notably, § 2254(e)(1)) 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).
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
Id. at 100 (citation omitted) (citing Wainwright
v. Witt, 469 U.S. 412, 429 (1985), and quoting
Miller, 474 U.S. at 114).
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.
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.
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.
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 ...