Opinion

Cole v. Farris

Court: District Court, N.D. Oklahoma
Filed: Oct 19, 2022
Cited by: 0 cases
Authority: More cited than 28.5%

“[I]t is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”

How later courts described this case

“[I]t is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”
discussing § 2254 review of state court merits decisions after Pinholster
discussing exhaustion requirement and noting that a habeas “petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court” (quoting Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006))

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

BENJAMIN COLE, )

)

Petitioner, )

)

v. ) Case No. 15-CV-0049-GKF-CDL

)

JIM FARRIS, Warden, )

Oklahoma State Penitentiary, )

)

Respondent. )

OPINION AND ORDER

Petitioner Benjamin Cole, an Oklahoma prisoner presently incarcerated at the Oklahoma

State Penitentiary (OSP), in McAlester, Oklahoma, is scheduled to be executed by the State of

Oklahoma on October 20, 2022, at 10:00 a.m. This matter is before the Court on Cole’s 28 U.S.C.

§ 2254 petition for writ of habeas corpus filed January 30, 2015 (Dkt. 2), Cole’s 28 U.S.C. § 2254

supplemental petition for writ of habeas corpus filed October 18, 2022 (Dkt. 62), and Cole’s

emergency motion for stay of execution filed October 18, 2022 (Dkt. 63). Cole asserts that because

he presently is incompetent to be executed, his execution will violate the Eighth and Fourteenth

Amendments, as interpreted in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v.

Quarterman, 551 U.S. 930 (2007). Dkt. 2. He further asserts that Oklahoma’s statutory and

administrative procedures violate the Eighth and Fourteenth Amendments because they are not

adequate to ensure that incompetent prisoners, like Cole, will not be executed. Respondent filed

a response in opposition to the petition on February 13, 2015 (Dkt. 6), a response in opposition to

the supplemental petition on October 19, 2022 (Dkt. 64) and a response in opposition to the

emergency motion to stay on October 19, 2022 (Dkt. 66). Cole filed replies to both responses the

same day (Dkts. 69, 70).

For the following reasons, the Court DENIES the original and supplemental petitions for

writ of habeas corpus and DENIES as moot Cole’s emergency motion for stay of execution.

I. Background

A. Underlying facts

Nearly two decades ago, on December 20, 2022, Cole brutally murdered his nine-month-

old daughter, Brianna Cole. Cole v. State, 164 P.3d 1089, 1092-93 (Okla. Crim. App. 2007). As

described by the Oklahoma Court of Criminal Appeals (OCCA), the state medical examiner

determined that “Brianna’s spine had been snapped in half, and her aorta had been completely torn

through due to non-accidental stretching. The official cause of death was described as a fracture

of the spine with aortic laceration.” Cole, 164 P.3d at 1092. Cole “eventually admitted causing

the fatal injuries.” Id. In a statement to law enforcement, Cole explained that “he’d been trying,

unsuccessfully, to get [Brianna], who was lying on her stomach, to stop crying. [Cole] eventually

grabbed [Brianna] by the ankles and pushed her legs toward her head until she flipped over. This

action broke [Brianna’s] back and resulted in fatal injuries.” Id. Cole’s case ultimately proceeded

to a jury trial in the District Court of Rogers County, Case No. CF-2002-597, and, in October 2004,

the jury found Cole guilty of first-degree child abuse murder, found the existence of two

aggravating circumstances, and sentenced him to death. Id. In 2007, the OCCA affirmed Cole’s

conviction and sentence on direct appeal. Id. at 1102. The United States Supreme Court (Supreme

Court) denied Cole’s petition for writ of certiorari. Cole v. Oklahoma, 553 U.S. 1055 (2008).

B. History of challenges to Cole’s competence

On two occasions before his trial, Cole’s attorneys questioned whether Cole was competent

to stand trial. First, in July 2003, Cole’s attorney, Silas Lyman, informed the trial court that he

and co-counsel, John Dalton, “had several occasions, numerous occasions, over the period of time

since [they] were appointed to represent Mr. Cole, to confer with him, to discuss his case, to advise

him of matters in the case, and it has progressively gotten worse, as far as, in our opinion, [Cole’s]

ability to assist us and to understand what we’re talking about.” Dkt. 2-15, at 1-3.1 The trial court

stayed the case and ordered a mental health evaluation. Dkt. 2-15, at 4-5; Dkt. 2-16. In August

2003, following an evaluation by Dr. Samina Christopher, Cole’s attorneys stipulated that Cole

was competent to stand trial. Dkt. 2-17, at 1-3. Second, in July 2004, Cole’s attorneys filed a

written application for determination of competency. Dkt. 2-18. The trial court ordered that Cole

undergo a second mental health evaluation and, later, scheduled a jury trial on the competency

issue for September 13, 2004. Dkt. 2-19. During opening statements of the competency trial,

Cole’s attorney, Jim Bowen, argued that Cole was “not mentally ill” or “delusional” but instead

was “in such a state of religious fervor” that he could not “rationally assist his attorneys” in making

critical decisions regarding his defense. Dkt. 2-18, at 1; Dkt. 2-20, at 3. Following a two-day trial,

the jury found that Cole was competent to stand trial. Dkt. 6, at 1.

Cole did not raise any competency issues on direct appeal in the OCCA. He did, however,

raise those issues in an application for postconviction relief. In its order denying post-conviction

relief, the OCCA performed a merits review of Cole’s competency claim when it denied his claim

that appellate counsel was ineffective for failing to raise the competency issue on direct appeal2

and found as follows:

Accordingly, we find, first, that his claim has been waived, as it certainly could

have been raised on direct appeal. Secondly, we find that, to the extent that the

claim was raised on direct appeal. . . , it was rejected and is res judicata. Third, we

find that, to the extent that any of the claim survives, it fails. Both a jury of

Petitioner’s peers and health professionals found he was competent to stand trial,

and the fact that appellate counsel may not have directly raised this claim on appeal

1 The Court’s citations refer to the CM/ECF header pagination.

2 The OCCA looks to the merits of the omitted issue when it determines appellate counsel

effectiveness. Hooks v. State, 902 P.2d 1120, 1123 (Okla. Crim. App. 1995).

would not on this record amount to ineffective assistance. While Petitioner’s

extreme religious views may be difficult to appreciate to the common man and may

have led to some decisions that few would make, we are not prepared to say

counsels’ decision to forego review of this claim – that Petitioner’s religious beliefs

rendered him incompetent – was ineffective, or for that matter even wrong, based

upon this record. Nor do the exhibits attached to the post conviction application

convince us that an evidentiary hearing is needed on this issue.

See Cole v. Workman, 2011 WL 3862143, at *8 (N.D. Okla. 2011) (unpublished)3 (quoting Cole

v. State, Opinion Denying Application for Post Conviction Relief at 4, Case No. PCD-2005-23).

On May 15, 2009, Cole filed his first federal petition for writ of habeas corpus in N.D.

Okla. Case No. 08-CV-328-CVE-PJC. Cole’s attorney for that habeas proceeding, Kenneth Lee,

provides an affidavit (Dkt. 2-34), describing his interactions with Cole over a five-year period.

Lee states that:

As part of our representation of Mr. Cole, we retained Dr. Raphael Morris to

conduct an evaluation. The evaluation was conducted over a period of several

hours on December 15, 2008. Part of Dr. Morris’s evaluation included observing

my attempts to communicate with Mr. Cole and Mr. Cole’s reaction. Based on

these observations and the results of efforts to test Mr. Cole, Dr. Morris concluded

Mr. Cole suffers from paranoid schizophrenia, with grandiose delusions. Mr.

Cole’s mental illness manifests itself, among other things, in his hyper-religiosity.

Dr. Morris concluded that as [a] result of his mental illness, Mr. Cole is unable to

rationally assist his attorneys.

. . .

After Dr. Morris’s evaluation [on December 15, 2008], Mr. Cole began to isolate

himself further. This was particularly troubling since Mr. Cole never left his cell

to go to the yard or to go shower. By the end of December 2008 and continuing

into the following years, Mr. Cole began refusing meeting with members of his

team.

The investigators, the other attorneys, and I continued to try to meet with Mr. Cole.

I believe I met with him a total of three times in 2009, for a total of about two hours.

After 2009, a distinct pattern developed. If Mr. Cole came out to meet with any of

the team, he would refuse to sit down, or would sit for only a few minutes. Mr.

Cole was emaciated, and hair and beard were long and somewhat unkempt. Most

of our meetings were very brief lasting less than five minutes. During these rare

3 The Court cites unpublished decisions in this opinion either for their historical or persuasive

value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

occurrences, Mr. Cole barely spoke, and appeared distracted and disheveled -- in

that he did not seem to understand what was being said to him, and could only focus

on the one thing he needed (i.e., obtaining a “Jew bag,” or an indigent bag). In

addition, he spoke softly and mumbled when he spoke.

. . .

During the five years I represented Mr. Cole, I was never able to have a substantive

conversation with him about his case, the death of his daughter, his personal history,

or any other relevant topic. He has never been engaged at all about his case, and

he never assisted us in the legal proceedings. This was entirely frustrating. After

reviewing all of the information we could find about Mr. Cole and his case, I believe

he wanted us to continue with the defense he gave his trial attorneys -- that unto

God all things are possible. See Matthew 19:26 (KJV).

Over the course of five years, Mr. Cole’s condition has deteriorated significantly.

Initially, he could write letters with full sentences. As Mr. Cole began to

decompensate, his letters disintegrated into abrupt, incomplete notes on scraps of

paper, usually asking for spare change and wanting us to pick up papers that were

never left for us.

Dkt. 2-34, at 2-3. In Cole’s first habeas corpus action, United States District Judge Claire V. Eagan

denied relief on fourteen claims, including Cole’s claims that he was incompetent to stand trial

and to assist in his appeal. Cole, 2011 WL 3862143. Cole appealed, and the United States Court

of Appeals for the Tenth Circuit (Tenth Circuit) denied relief. Cole v. Trammell, 755 F.3d 1142

(10th Cir. 2014). The Supreme Court denied certiorari review. Cole v. Trammell, 135 S. Ct. 224

(2014).

Cole, appearing through counsel, commenced the instant habeas action in January 2015,

claiming that he was incompetent to be executed and that his execution, then scheduled to take

place in March 2015, would have violated the Eighth and Fourteenth Amendments, as interpreted

in Ford and Panetti. Dkt. 2, at 1, 38-43. On January 28, 2015, the Supreme Court stayed Cole’s

execution pending final disposition of a case challenging Oklahoma’s lethal injection protocol.

Dkt. 11, at 1. On July 8, 2015, following disposition of the case challenging the injection protocol,

the OCCA rescheduled Cole’s execution date for October 7, 2015. Id. Also on July 8, 2015, this

Court issued an order finding that Cole failed to exhaust available state remedies as to his Ford

claim and ordered this matter stayed while Cole pursued that claim through a mandamus action in

Pittsburg County District Court (hereafter, “the 2015 mandamus action”).4 Id. at 8.

The record provided by Cole reflects that on August 28, 2015, an evidentiary hearing was

conducted in Pittsburg County District Court, Case No. CV-2015-58. Dkt. 13-1. On September

8, 2015, Pittsburg County District Judge James Bland entered a written order denying Cole’s

petition for writ of mandamus, finding that the OSP’s former warden, Anita Trammell, did not

abuse her discretion in refusing to initiate proceedings pursuant to Okla. Stat. tit. 22, § 1005. Dkt.

13-2.

Cole then filed a petition for writ of mandamus in the OCCA. Dkt. 14-1. In an order filed

October 2, 2015, the OCCA denied Cole’s petition for writ of mandamus. Cole v. Trammell, 358

P.3d 932 (Okla. Crim. App. 2015). Citing Ford and Panetti, the OCCA concluded that the state

4 The Tenth Circuit recognizes that mandamus provides a state judicial remedy for an Oklahoma

prisoner challenging his competence to be executed. See Ochoa v. Trammell, 504 F. App’x 705,

709 (10th Cir. 2012) (unpublished) (citing Allen v. Workman, 500 F. App’x 708, 710-12 (10th Cir.

2012) (unpublished)). Under Oklahoma law, if a defendant’s competency to be executed is

properly called into question, the issue is presented to a jury. The governing statute provides as

follows:

If, after his delivery to the warden for execution, there is good reason to believe

that a defendant under judgment of death has become insane, the warden must call

such fact to the attention of the district attorney of the county in which the prison

is situated, whose duty is to immediately file in the district or superior court of such

county a petition stating the conviction and judgment and the fact that the defendant

is believed to be insane and asking that the question of his sanity be inquired into.

Thereupon, the court must at once cause to be summoned and impaneled from the

regular jury list a jury of twelve persons to hear such inquiry.

Okla. Stat. tit. 22, § 1005. When the warden communicates his or her opinion that the defendant

is competent to be executed, the defendant may file a petition for writ of mandamus in Pittsburg

County District Court requesting the court to direct the warden to act. In addition, should the state

district court deny mandamus relief, the defendant may file a mandamus appeal in the OCCA. The

OCCA then independently determines the existence of “good reason to believe” that the defendant

has become insane.

district court did not abuse its discretion when it found that Cole did not meet his burden to show

“that [Trammell] had refused to carry out a legal duty” to initiate competency proceedings because

Cole did not make a “substantial threshold showing of insanity.” Cole, 358 P.3d at 939. The

OCCA reasoned, in relevant part,

that the trial court’s determination that Petitioner had not met his burden of a

substantial threshold showing of insanity was not clearly against the logic and effect

of the facts presented. It is clear from the record that Petitioner was aware of the

nature of the proceedings against him, what he was tried for, the purpose of his

punishment, and his impending fate. Respondent, [Investigator] Gardner, and Dr.

Morris all agreed on this fact. (Evid. Hrg. Tr. 57, 144-51, 225). Petitioner verified

this circumstance with his testimony at the hearing. (Evid. Hrg. Tr. 25-26).

Even though Petitioner has shown minor signs of mental illness, the record reveals

that Petitioner’s mental state is not so distorted by delusions or mental illness that

his awareness of the crime and punishment has little or no relation to the

understanding of those concepts shared by the community as a whole. Petitioner’s

lengthy conversations with Respondent exhibit the mental state requisite for

competence to be executed.

Citing to the testimony of Dr. Morris, Petitioner argues that his understanding is

not rational because of certain delusions. However, Morris failed to relate any

definitive delusions to the Court but, instead, admitted that Petitioner’s fervent

religious statements were similar to those held by other members of organized

religion. (Evid. Hrg. Tr. 167-70, 185, 221-22). Thus, we find that Petitioner has

not overcome the presumption of sanity.

. . .

Petitioner further cites to Gardner’s allegation that Petitioner stated that God made

him kill his daughter as part of a prophecy. However, we find that the District

Court did not abuse its discretion when it failed to put any weight in Gardner’s

testimony. Gardner admitted that she had no understanding of Petitioner’s religious

beliefs and could not follow his line of thought. (Evid. Hrg. Tr. 64). She had not

communicated any of Petitioner’s alleged statements to Respondent. Gardner had

never made an affidavit in the case and had not revealed any of her thoughts to the

prison staff. (Evid. Hrg. Tr. 65, 68). None of the other witnesses shared Gardner’s

opinions.

Petitioner’s conversations with Respondent about religion and his quotations of

scripture were not radical. (Evid. Hrg. Tr. 136). Petitioner had never informed

Respondent that there was any other reason for his execution other than the fact that

he had murdered his daughter. (Evid. Hrg. Tr. 146). As there is no credible

evidence in the record which connects Petitioner’s fervent religious statement with

a lack of understanding of his crime and punishment as shared by the community

as a whole, we find that the District Court did not abuse its discretion.

Considering the record in its entirety, we find that there is not a reasonable

probability that Petitioner lacks the competency to be executed. As such, we

conclude that Respondent did not have a clear legal duty to act under § 1005.

Accordingly, Petitioner’s Petition for Writ of Mandamus is DENIED.

Cole, 358 P.3d at 939-41 (footnotes omitted).

On October 2, 2015, the OCCA also issued an order indefinitely staying Cole’s execution

date for reasons unrelated to his alleged incompetency. Dkt. 18, at 1. Based on the indefinite stay

of his execution date, this Court determined that Cole’s Ford claim, as asserted in his original

petition, was not ripe and, on November 24, 2015, ordered this matter administratively closed.

Dkt. 31.

C. Recent developments

On February 17, 2022, this Court granted Cole’s request to reopen this matter and reinstate

his original petition, finding that Cole’s execution date could no longer be described as indefinite.

Dkt. 38. In May 2022, Cole’s counsel contacted Farris, the OSP’s current warden, and provided

Farris with updated materials relevant to Cole’s competency to be executed, including “2016,

2018, and 2022 reports from psychologist Dr. George Hough, Ph.D., ABPP, detailing Mr. Cole’s

severe mental illness, decompensated mental condition, and incompetency for execution, and a

2022 report from neuroradiologist Dr. Travis Snyder, D.O., regarding Mr. Cole’s abnormal MRI

and brain lesion.” Dkt. 62, at 15; Dkt. 62-10, at 4-6. Cole’s counsel requested that Farris initiate

proceedings under Okla. Stat. tit. 22, § 1005. Dkt. 62, at 15.

On June 13, 2022, this Court granted the parties’ joint request for a court-ordered mental

health evaluation under terms agreed upon by the parties. Dkt. 54. Per the parties’ agreed upon

terms, Cole was transported to the Oklahoma Forensic Center and evaluated by the Center’s chosen

forensic examiner, Scott Orth, Psy. D., a forensic psychologist, on July 5, 2022. Dkts. 54, 57; Dkt.

62, at 15-16. Dr. Orth submitted his report to the Court on July 14, 2022, opining that Cole is

competent to be executed. Dkt. 57; Dkt. 62, at 16.

Meanwhile, on July 1, 2022, the OCCA granted the State’s request to set execution dates

for several death-row inmates and established October 20, 2022, as Cole’s execution date. Dkt.

62, at 7. Cole’s counsel contacted Farris again on August 1, 2022, and provided Farris with Dr.

Hough’s declaration critiquing Dr. Orth’s evaluation and report. Dkt. 62, at 16; Dkt. 62-10, at 8.

The next day, Farris advised Cole’s counsel that he would not initiate proceedings under § 1005.

Dkt. 62-10, at 9.

On August 15, 2022, Cole thus initiated a mandamus action in Pittsburg County District

Court (hereafter, “the 2022 mandamus action”). Dkts. 62-8, 62-9. The record provided by Cole

reflects that on September 30, 2022, an evidentiary hearing was conducted in Pittsburg County

District Court, Case No. CV-2022-140. Dkt. 62-5, at 1. On October 4, 2022, Pittsburg County

District Judge Michael Hogan entered a written order denying Cole’s petition for writ of

mandamus. Dkt. 62-4. Citing Ford and § 1005, the state district court reasoned that Cole did not

make a “substantial threshold showing of insanity,” that Farris thus did not have “good reason to

believe” Cole “has become insane,” and that Farris therefore did not abuse his discretion in

refusing to initiate proceedings pursuant to Okla. Stat. tit. 22, § 1005. Dkt. 62-4, at 1-4.

Cole then filed a petition for writ of mandamus in the OCCA and moved for a stay of his

execution. Dkts. 62-3, 62-2. In an order filed October 17, 2022, the OCCA denied the petition

and the motion to stay the execution. Dkt. 62-2. The OCCA reasoned, in part, that Cole’s

“competence has been litigated throughout this case,” and that “[m]ost of his competence claims

concern his lack of communication with counsel or those associated with counsel, his

disagreements with counsel, his refusal to assist counsel and his dedication to his religious beliefs.”

Id. at 8-9. After detailing the evidence submitted at the hearing and discussing Ford, Panetti, and

§ 1005, the OCCA concluded that the state district court did not abuse its discretion when it found

that Cole did “not meet the required ‘substantial threshold’ showing of insanity.” Id. at 9-16. The

OCCA reasoned, in relevant part, that “[b]ecause the threshold was not met, the warden did not

abuse his discretion in refusing to make the notification pursuant to Section 1005.” Dkt. 62-2, at

16-17. The OCCA further stated,

Reviewing the evidence adduced at the hearing, it is clear that [Cole] while

exhibiting some peculiar behaviors, completely and rationally understood the

nature of the proceedings against him, what he was tried for, and that his execution

was imminent. [Dr.] Orth, a neutral evaluator selected by the Oklahoma Forensic

Center to evaluate [Cole], pursuant to the Northern District’s order, interviewed

[Cole] at length in July 2022. He opined that [Cole] did not suffer from any

delusions and exhibited no “evidence of substantial, overt signs of mental illness,

intellectual impairment, and/or neurocognitive impairment that would preclude his

ability to rationally understand that he is to be executed and that his execution is

imminent.” Moreover, Orth quoted [Cole] in his report as spontaneously stating

the following: “they want to make sure I’m competent, and that I realize first that

I killed my daughter and I went through a trial for taking my daughter’s life and a

jury found me guilty; they found me guilty of murder and I was given the death

penalty for that, and I accept responsibility for that.” [Cole] also told Orth he was

“third on the list [to be executed]” and he believed his execution date was October

20, 2022. Orth had no difficulties in communicating with [Cole]. While [Cole]

spoke about his religious beliefs during this evaluation, Orth stated those beliefs

did not affect [Cole’s] understanding of his crime, punishment or his impending

execution.

Dkt. 62-2, at 19-20. The OCCA also considered the expert reports Cole admitted at the hearing,

and stated,

The most striking aspect of these reports is that none of them were based upon the

experts’ personal interactions with [Cole]. A recurring theme in these materials is

tha t[Cole] holds strong religious beliefs and generally refuses to communicate with

counsel, or anyone associated with counsel. The first expert, Raphael Morris, M.D.,

who prepared his initial report prior to the 2015 hearing, diagnosed [Cole] with

schizophrenia, despite his minimal interaction with him. Morris admitted,

however, that “[Cole] was aware of the nature of the proceedings against him, what

he was tried for, the purpose of his punishment, and his impeding fate.” Cole, 2015

OK CR 13, ¶ 29, 358 P.3d at 939. In his updated report admitted at this hearing,

again absent any personal contact with [Cole], Morris’s opinion is that he has

learned nothing about [Cole] which causes him to change his initial opinion.

George Hough, Ph.D., never received cooperation from [Cole] despite numerous

attempts to evaluate him beginning in 2016. However, Hough gave his opinion,

based upon other records and observations of [Cole], that [Cole] is mentally ill and

not competent to be executed. Hough’s most recent attempt to evaluate [Cole]

occurred in April of 2022. [Cole] refused to leave his cell to speak with Hough or

counsel, so the men observed him through an opening in his cell door. Based upon

this, Hough reiterated his same opinion about [Cole’s] competence, referencing

[Cole’s] refusal to interact with him as evidence of his incompetence. In [Cole’s]

prior mandamus proceeding, this Court found [Cole’s] refusal to cooperate with

these medical professionals and his counsel “appeared to be a choice on his part.”

Cole, 2015 OK CR 13, 358 P.3d at 936.

Yet another expert, radiologist Travis Snyder, D.O., never met with [Cole], but

reviewed an MRI scan of [Cole’s] brain taken on March 30, 2022. He observed

some physical changes in [Cole’s] brain which he believes may have worsened

[Cole’s] alleged schizophrenia. Despite never having met [Cole] or examined him,

Snyder opined that the MRI scan supports other opinions that [Cole] is incompetent.

[Cole] attempted to discredit Orth’s evaluation by submitting Hough’s critique of

it. However, the main thrusts of his critique are that Orth’s report is based upon a

single interview with [Cole], rather than a series, and his skepticism that [Cole]

would communicate so freely with Orth. Given the fact that Hough’s opinions

about [Cole’s] competence are based upon not even one interview with him, such

a critique is incredible. Moreover, in Cole, 2015 OC CR 13, ¶ 12, 358 P.3d at 936,

this Court determined that [Cole] was initially willing to speak with his defense

team; but after reading a report prepared by Morris during federal habeas

proceedings, disparaging [Cole’s] beliefs as “primitive coping mechanism,” he

refused to interact with them. It seems clear that [Cole] viewed Orth, not a member

of [Cole’s] defense team, but a neutral evaluator, as someone who held no pre-

conceived notions about him.

[Cole] has provided no new evidence regarding his competence, other than Orth’s

report which finds him to be competent to be executed. Based upon the entire

record, we find there is not a reasonable probability that [Cole] lacks the

competence to be executed. Accordingly, we conclude neither [Farris] nor the

District Court abused their discretion in finding [Cole] failed to meet the required

“substantial threshold” showing of insanity. [Cole’s] Petition for Writ of

Mandamus is DENIED. [Cole’s] Motion for Stay of Execution is DENIED.

Dkt. 62-2, at 20-23.

II. Discussion

In the original petition, Cole claims that because he presently is incompetent to be

executed, his execution will violate the Eighth and Fourteenth Amendments, as interpreted in Ford

v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007). Dkt. 2, at

38. In the supplemental petition, Cole further claims (1) that his execution will violate the Eighth

and Fourteenth Amendments, as interpreted in Ford and Panetti, because the State of Oklahoma

deprived him of procedural due process when it determined he failed to make a substantial

threshold showing required by Okla. Stat. tit. 22, § 1005, that would, in turn, require Respondent

Jim Farris, the OSP’s warden, to initiate further proceedings to determine whether Cole presently

is competent to be executed; (2) that Okla. Stat. tit. 22, § 1005 violates the Eighth Amendment, as

interpreted in Ford, because it “plac[es] the warden in the position of gatekeeper of whether to

seek a competency trial”; and (3) that the Oklahoma Department of Corrections’ execution

protocol violates the Eighth and Fourteenth Amendments because it contains no specific

provisions requiring the warden to determine a prisoner’s competency to be executed “at the time

of his execution.” Dkt. 62, at 18, 35, 42.

Farris urges the Court to deny both petitions because 28 U.S.C. § 2254(d) bars relief as to

those claims that Cole fairly presented to the OCCA through the 2022 mandamus action and

because 28 U.S.C. § 2254(b)’s exhaustion requirement and the doctrine of procedural default bars

relief as to those claims that Cole did not fairly present to the OCCA.

A. Legal Framework

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits a federal

court’s authority to grant federal habeas relief to state prisoners in three ways that are relevant in

this case. First, a federal court may grant habeas relief to a prisoner in custody pursuant to a state-

court judgment “only on the ground that [the prisoner] is in custody in violation of the Constitution

or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1,

5 (2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment

susceptible to collateral attack in the federal courts.”). Second, a federal court may grant habeas

relief only if the prisoner has either (1) exhausted available state-court remedies, 28 U.S.C.

§ 2254(b)(1)(A), by “fairly present[ing] the substance of his federal habeas claim[s] to state

courts,” Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002), or (2) demonstrated a complete

absence of available state remedies or an absence of effective state remedies, § 2254(b)(1)(B).

Third, a federal court may grant habeas relief to a state prisoner on a federal claim that was

adjudicated on the merits in state court only if the prisoner first demonstrates that the state court’s

adjudication of that claim “resulted in a decision that” either (1) “was contrary to . . . clearly

established Federal law,” 28 U.S.C. § 2254(d)(1), (2) “involved an unreasonable application of

clearly established Federal law,” id. § 2254(d)(1), or (3) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,” id.

§ 2254(d)(2).5 Federal courts must apply a “highly deferential standard” under 28 U.S.C.

§ 2254(d), one that “demands that state court decisions be given the benefit of the doubt.” Cullen

v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 US. 19, 24 (2002) (per

curiam)). And, when § 2254(d)’s framework applies, the federal court’s review “is limited to the

record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563

U.S. at 181, 185; 28 U.S.C. § 2254(d)(2); see also Black v. Workman, 682 F.3d 880, 895 (10th Cir.

2012) (discussing § 2254 review of state court merits decisions after Pinholster).6

Moreover, if the state court’s decision “‘identifies the correct governing legal principle’ in

5 As used in § 2254(d)(1), the phrase “clearly established Federal law” means “the governing legal

principle or principles” stated in “the holdings, as opposed to the dicta, of [the Supreme Court’s]

decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63,

71-72 (2003) (quoting Terry Williams v. Taylor, 529 U.S. 362, 412 (2000)).

6 As further discussed in the analysis section, Cole either cannot satisfy § 2254(d)’s preconditions

to relief or cannot show that his unexhausted claims are properly before the Court. The Court thus

denies Cole’s request for an evidentiary hearing.

existence at the time,” the only question under § 2254(d)(1) is “whether the decision ‘unreasonably

applies that principle to the facts of the prisoner’s case.’” Pinholster, 563 U.S. at 182 (quoting

Terry Williams, 529 U.S. at 413). An “unreasonable application of” clearly established federal

law under § 2254(d)(1) “must be ‘objectively unreasonable,’ not merely wrong; even clear error

will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer, 538 U.S. at 75-

76). Thus, to support a claim that the state court unreasonably applied clearly established federal

law, a petitioner “must show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562

U.S. 86, 103 (2011).

Under § 2254(d)(2), the federal court’s focus is on the state court’s factual determinations.

To show that § 2254(d)(2) does not bar relief, a petitioner must demonstrate that the state court’s

decision is based on “an unreasonable determination of the facts” that were developed in the state

court proceeding. “A state-court decision unreasonably determines the facts if the state court

‘plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the

misapprehension goes to a material factual issue that is central to petitioner’s claim.’” Wood v.

Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (quoting Byrd v. Workman, 645 F.3d 1159, 1170-

72 (10th Cir. 2011)). The Supreme Court has “held that under § 2254(d)(2) “a state-court factual

determination is not unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Instead,

Richter’s “fair-minded disagreement” standard applies when a petitioner alleges a state court

decision is based upon on an unreasonable determination of the facts. Dunn v. Madison, 138 S.

Ct. 9, 11 (2017).

Together, both subsections of § 2254(d) “stop[] short of imposing a complete bar on

federal-court relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102.

Congress made § 2254(d)’s standards “difficult to meet” for a reason: “to confirm that state courts

are the principal forum for asserting constitutional challenges to state convictions.” Id. at 102-03.

In contrast, federal habeas courts provide a forum for state prisoners to obtain relief from “extreme

malfunctions in the state criminal justice systems.” Id. at 102.

B. Analysis

1. Substantive and Procedural Ford claims

In claim one of his original petition, Cole presents a substantive Ford claim, asserting that

he presently is incompetent to be executed and, as a result, his execution will violate the Eighth

and Fourteenth Amendments, as interpreted in Ford and Panetti. Dkt. 2, at 38-51. In claim one

of his supplemental petition, Cole presents a procedural Ford claim, asserting that the State of

Oklahoma deprived him of procedural due process required by the Eighth and Fourteenth

Amendments, as interpreted in Ford and Panetti because, contrary to the OCCA’s decision, Cole

made a “substantial threshold showing of insanity” sufficient to cause Farris to initiate further

proceedings to determine Cole’s competency to be executed. Dkt. 62, at 18. In support of both

claims, Cole cites expert reports created between 2004 and 2022 and observations of his current

and former attorneys, Cole contends he presented evidence to Farris, and to the state courts through

the 2022 mandamus action, establishing that Farris had “good reason to believe” that Cole had

become insane. Dkt. 2, at 17-38; Dkt. 62, at 19-25. According to Cole, that “[e]vidence from a

board-certified psychiatrist, clinical psychologist, and neuroradiologists has established both the

nature of Mr. Cole’s organic brain disorder and the connection between the disorder and Mr. Cole’s

mental illness.” Dkt. 62, at 19-24. Thus, Cole argues, the OCCA unreasonably applied Ford and

Panetti and unreasonably determined the facts presented in state court when the OCCA concluded

that Cole did not make the substantial threshold showing under Okla. Stat. tit. 22, § 1005’s “good

reason to believe” standard that is necessary to show that Farris should have initiated further

proceedings to determine Cole’s competency to be executed. Id. at 25-35.

Farris does not appear to distinguish between these two claims. Regardless, Farris

persuasively argues that the OCCA’s decision is neither contrary to nor based on an unreasonable

application of Ford and Panetti and is not based on an unreasonable determination of the facts.

Dkt. 64, at 23-34.

a. Clearly established federal law

In Ford, the Supreme Court held that “[t]he Eighth Amendment prohibits the State from

inflicting the penalty of death upon a prisoner who is insane.” 477 U.S. at 409-10. Procedurally,

a prisoner’s sanity to be executed must be judged as to his present mental state when execution is

imminent. Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998). Thus, “[p]rior findings of

competency do not foreclose a prisoner from proving he is incompetent to be executed because of

his present mental condition.” Panetti, 551 U.S. at 934. Nonetheless, Ford permits states to

“presume” that a prisoner is competent to be executed and to require a “substantial threshold

showing” of incompetence before the state provides the prisoner an opportunity to be heard on the

merits of his claim that he is not competent to be executed. Ford, 477 U.S. at 426 (Powell, J.,

concurring).7 The Panetti Court offered further guidance, stating,

Under Ford, once a prisoner makes the requisite preliminary showing that his

current mental state would bar his execution, the Eighth Amendment, applicable to

the States under the Due Process Clause of the Fourteenth Amendment, entitles him

to an adjudication to determine his condition. These determinations are governed

7 As the Supreme Court has already determined, because there was no majority opinion in Ford,

Justice Powell’s concurrence, “which also addressed the question of procedure, offered a more

limited holding,” and therefore controls. Panetti, 551 U.S. at 949.

by the substantive federal baseline for competency set down in Ford.

551 U.S. at 934-35 (emphasis added). Thus, a prisoner must first make the necessary preliminary

showing of his incompetency to be executed before he is entitled to any adjudication to determine

his condition. And the prisoner’s burden to make a threshold showing is a “high” one. Ford, 477

U.S. at 417. Further, even when a prisoner satisfies this burden, “a constitutionally acceptable

procedure may be far less formal than a trial.” Panetti, 551 U.S. at 549. At a minimum, a prisoner

who makes a substantial threshold showing is entitled to “a fair hearing in accord with fundamental

fairness” and the “opportunity to be heard.” Id. at 949 (quotation marks omitted).

Substantively, the existence of “a psychotic disorder” may provide “[t]he beginning of

doubt about competence,” Panetti, 551 U.S. at 960, but the existence of a mental illness is not

determinative of whether a prisoner is incompetent to be executed. Rather, “[t]he critical question

is whether a ‘prisoner’s mental state is so distorted by a mental illness’ that he lacks a ‘rational

understanding’ of ‘the State’s rationale for [his] execution.’” Madison v. Alabama, 139 S. Ct. 718,

723 (2019) (quoting Panetti, 551 U.S. at 958-59). “Or similarly put, the issue is whether a

‘prisoner’s concept of reality’ is ‘so impair[ed]’ that he cannot grasp the execution’s ‘meaning and

‘purpose’ or the ‘link between [his] crime and its punishment.’” Id. (quoting Panetti, 551 U.S. at

958, 960). The Madison Court clarified two points from Panetti. First, that the Panetti “standard

focuses on whether a mental disorder has a particular effect: an inability to rationally understand

why the State is seeking execution.” Madison, 139 S. Ct. at 728 (emphasis in original). And,

second, that the Panetti “standard has no interest in establishing any precise cause: Psychosis or

dementia, delusions or overall cognitive decline are all the same under Panetti, so long as they

produce the requisite lack of comprehension.” Madison, 139 S. Ct. at 728 (emphasis in original).

b. The OCCA’s decision is objectively reasonable

Based on this Court’s review of the evidence submitted by the parties and presented to

the state courts, the Court finds, for two reasons, the record does not support Cole’s position that

it was objectively unreasonable for the OCCA to determine (1) that Cole did not make the

substantial threshold showing required to initiate further competency proceedings, and (2) that

Cole did not show that his execution will violate the Constitution.

First, as Farris argues, Oklahoma’s statutory scheme for determining competency to be

executed is consistent with Supreme Court law. Dkt. 64, at 25. As previously noted, see supra

n.4, the governing statute provides as follows: