Grant v. Royal

FILED

United States Court of Appeals

Tenth Circuit

March 30, 2018

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD ANTHONY GRANT,

Petitioner - Appellant,

v. No. 14-6131

TERRY ROYAL, Warden, Oklahoma

State Penitentiary, *

Respondent - Appellee.

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. 5:10-CV-00171-F)

Patti Palmer Ghezzi, Assistant Federal Public Defender (Michael Lieberman,

Assistant Federal Public Defender, with her on the briefs), Oklahoma City,

Oklahoma, for Petitioner-Appellant.

Caroline E.J. Hunt, Assistant Attorney General (E. Scott Pruitt, Attorney General

of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-

Appellee.

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

*

In 2016 Mr. Terry Royal became the Warden of the Oklahoma State

Penitentiary. Accordingly he has been substituted per Fed. R. App. P. 43(c)(2).

**

The Honorable Neil M. Gorsuch heard oral argument in this appeal,

but has since been confirmed as an Associate Justice of the United States

Supreme Court; he did not participate in the consideration or preparation of this

opinion. The Honorable Nancy L. Moritz replaced him on the panel.

HOLMES, Circuit Judge.

Petitioner Donald Anthony Grant, an Oklahoma state prisoner on death

row, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. Additionally, Mr. Grant filed a motion to expand the certificate of

appealability (“COA”). Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the district court’s denial of Mr. Grant’s § 2254 petition and deny

Mr. Grant’s motion to expand the COA.

I. BACKGROUND

A. Facts

“The OCCA outlined the facts of Mr. [Grant’s] crimes, and ‘[w]e presume

that the factual findings of the state court are correct’ unless Mr. [Grant] presents

clear and convincing evidence otherwise.” Clayton Lockett v. Trammel, 711 F.3d

1218, 1222 (10th Cir. 2013) (quoting Fairchild v. Workman, 579 F.3d 1134, 1137

(10th Cir. 2009)); see also 28 U.S.C. § 2254(e)(1) (“[A] determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.”).

The OCCA provided the following factual summary:

The essential facts of the crimes are not disputed. On July

18, 2001, [Mr. Grant] entered a LaQuinta Inn in Del City,

ostensibly to fill out an employment application. In reality,

2

[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).

3

B. Procedural History

In August 2001, Mr. Grant was charged with two counts of first degree

murder and two counts of robbery with a firearm for the murders of Brenda

McElyea and Suzette Smith during the robbery of the La Quinta Inn in Del City,

Oklahoma. With respect to the murder counts, the State sought the death penalty.

It charged several aggravating circumstances to support such a sanction:

(1) that the defendant knowingly created a great risk of death to

more than one person; (2) that the murders were committed for

the purpose of avoiding arrest or prosecution; (3) that the

murders were committed by a person serving a sentence of

imprisonment on conviction of a felony; and (4) that a

probability existed that the defendant would pose a continuing

threat to society. As to one of the murder counts (Count 2)

[relating to Ms. Smith], the State also alleged that the murder

was heinous, atrocious, or cruel.

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

In November 2001, Mr. Grant’s counsel moved for a determination of his

competency to stand trial. The parties litigated Mr. Grant’s competency for the

next four years, culminating in a February 2005 trial, at which a jury found

Mr. Grant competent to stand trial.

Mr. Grant’s eight-day jury trial began on November 14, 2005. The jury

found Mr. Grant guilty on all counts. “As to each of the murder counts, the jury

found the existence of all aggravating circumstances alleged, and recommended

punishment of death on each count.” Id. at 6–7. Mr. Grant filed a direct appeal

and an application for an evidentiary hearing with the Oklahoma Court of

4

Criminal Appeals (“OCCA”). The OCCA affirmed Mr. Grant’s conviction and

death sentence and denied his request for an evidentiary hearing. In 2008

Mr. Grant filed an application for post-conviction relief with the OCCA. The

OCCA again denied relief.

In October 2012, Mr. Grant filed the instant 28 U.S.C. § 2254 petition with

the United States District Court for the Western District of Oklahoma. Mr. Grant

raised numerous propositions of error, five of which are relevant to the present

appeal. First, he argued that he was denied procedural due process because the

trial court failed to hold a second competency hearing in response to Mr. Grant’s

alleged manifestations of incompetence leading up to and during trial. Second, he

raised several ineffective-assistance-of-counsel claims relating to trial counsel’s

failures to investigate and present evidence regarding his competence and other

mitigating circumstances. Third, Mr. Grant challenged the constitutionality of a

jury instruction and related prosecutorial statements concerning mitigation

evidence. Fourth, Mr. Grant raised a constitutional challenge to the peremptory

strike of a potential juror on the basis of race. Finally, Mr. Grant argued that he

was prejudiced by cumulative error. The district court denied Mr. Grant’s

petition and granted a COA on the single issue of procedural competency.

Mr. Grant filed a timely appeal. In our December 12, 2014 Case

Management Order, we granted a COA on Mr. Grant’s additional claims

concerning (1) ineffective assistance of trial counsel, (2) the challenged jury

5

instruction and related prosecutorial statements, (3) the peremptory strike of a

minority (i.e., African-American) juror, and (4) cumulative error. On December

29, 2014, Mr. Grant filed a motion to expand the COA to include one additional

issue. This motion is still pending before us.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

“circumscribes our review of federal habeas claims that were adjudicated on the

merits in state-court proceedings.” Hooks v. Workman (“Victor Hooks II”), 689

F.3d 1148, 1163 (10th Cir. 2012). “Under AEDPA, a petitioner is entitled to

federal habeas relief on a claim only if he can establish that the state court’s

adjudication of the claim on the merits (1) ‘resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established

Federal law’; or (2) ‘resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” Littlejohn v. Trammell (“Littlejohn I”), 704 F.3d 817, 824 (10th

Cir. 2013) (quoting 28 U.S.C. § 2254(d)(1), (2)); see Kernan v. Cuero, --- U.S. ---

-, 138 S. Ct. 4, 5 (2017) (per curiam); Byrd v. Workman, 645 F.3d 1159, 1166

(10th Cir. 2011).

The AEDPA standard is “highly deferential [to] state-court rulings [and]

demands that state-court decisions be given the benefit of the doubt.” Woodford

v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation omitted) (quoting Lindh

6

v. Murphy, 521 U.S. 320, 333 n.7 (1997)); accord Littlejohn I, 704 F.3d at 824;

Victor Hooks II, 689 F.3d at 1163. “A habeas petitioner meets this demanding

standard only when he shows that the state court’s decision was ‘so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.’” Dunn v. Madison, ---

U.S. ----, 138 S. Ct. 9, 11 (2017) (per curiam) (quoting Harrington v. Richter, 562

U.S. 86, 103 (2011)). As the Court explained in Harrington, “If this [AEDPA]

standard is difficult to meet, that is because it was meant to be . . . . It preserves

authority to issue the writ in cases where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with this Court’s

precedents. It goes no further.” 562 U.S. at 102 (citations omitted).

“In applying the legal inquiry under § 2254(d)(1), we ask at the threshold

‘whether there exists clearly established federal law, an inquiry that focuses

exclusively on holdings of the Supreme Court.’” Littlejohn I, 704 F.3d at 825

(quoting Victor Hooks II, 689 F.3d at 1163); see Cuero, 138 S. Ct. at 8 (“[W]e

still are unable to find in Supreme Court precedent that ‘clearly established

federal law’ demanding specific performance as a remedy. To the contrary, no

‘holdin[g] of this Court’ requires the remedy of specific performance under the

circumstances present here.” (alteration in original) (quoting Harrington, 562

U.S. at 100). “The absence of clearly established federal law is dispositive under

§ 2254(d)(1)” and results in the denial of habeas relief. Victor Hooks II, 689 F.3d

7

at 1163 (quoting House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008)).

If clearly established federal law exists, a state-court decision is contrary to

it only if the court “applies a rule different from the governing law set forth in

[Supreme Court] cases, or if it decides a case differently than [the Supreme Court

has] done on a set of materially indistinguishable facts.” Id. (alteration in

original) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). “A state court

decision unreasonably applies federal law if it ‘identifies the correct governing

legal principle from [Supreme Court] decisions but unreasonably applies the

principle to the facts of the prisoner’s case.’” Littlejohn I, 704 F.3d at 825

(alteration in original) (quoting Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.

2006)).

Finally, “[h]abeas relief is also warranted if the state court’s adjudication

of a claim on the merits ‘resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” Victor Hooks II, 689 F.3d at 1163 (quoting 28 U.S.C. §

2254(d)(2)). “We will not conclude that a state court’s determination of the facts

is unreasonable unless the court plainly and materially misstated the record or the

petitioner shows that reasonable minds could not disagree that the finding was in

error.” Michael Smith v. Duckworth, 824 F.3d 1233, 1250 (10th Cir. 2016) (citing

Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016)), cert. denied,

137 S. Ct. 1333, reh’g denied, 137 S. Ct. 2153 (2017).

8

“[W]e review the district court’s legal analysis of the state court decision

de novo,” Byrd, 645 F.3d at 1165 (alteration in original) (quoting Bland, 459 F.3d

at 1009), and “the factual findings of the state court are [presumed] correct unless

the petitioner rebuts that presumption by ‘clear and convincing evidence,’” id.

(quoting 28 U.S.C. § 2254(e)(1)). Moreover, our review “is limited to the record

that was before the state court that adjudicated the claim on the merits.” Victor

Hooks II, 689 F.3d at 1163 (alteration in original) (quoting Cullen v. Pinholster,

563 U.S. 170, 181 (2011)).

“Our standard of review changes if there has been no state-court

adjudication on the merits of the petitioner’s claim.” Byrd, 645 F.3d at 1166.

That is, “[t]he [deferential] § 2254(d) standard does not apply to issues not

decided on the merits by the state court.” Welch v. Workman, 639 F.3d 980, 992

(10th Cir. 2011) (emphasis added) (quoting Bland, 459 F.3d at 1010). For such

claims, “we exercise our ‘independent judgment’ and ‘review the federal district

court’s conclusions of law de novo,’” and its factual findings for clear error.

Victor Hooks II, 689 F.3d at 1163–64 (quoting McCracken v. Gibson, 268 F.3d

970, 975 (10th Cir. 2001)). And, even in the setting where we lack a state court

merits determination, “[a]ny state-court findings of fact that bear upon the claim

are entitled to a presumption of correctness rebuttable only by ‘clear and

convincing evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)).

9

“Finally, we may not consider claims that have been ‘defaulted in state

court on adequate and independent state procedural grounds’” absent the

petitioner’s demonstration of “cause for the default and actual prejudice as a

result of the alleged violation of federal law, or [that] failure to consider the

claims will result in a fundamental miscarriage of justice.’” Byrd, 645 F.3d at

1167 (quoting Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009)); see

also Davila v. Davis, --- U.S. ----, 137 S. Ct. 2058, 2064 (2017) (“[A] state

prisoner must exhaust available state remedies before presenting his claim to a

federal habeas court. The exhaustion requirement is designed to avoid the

‘unseemly’ result of a federal court ‘upset[ting] a state court conviction without’

first according the state courts an ‘opportunity to . . . correct a constitutional

violation[.]’” (alteration in original) (citation omitted) (quoting Rose v. Lundy,

455 U.S. 509, 518 (1982))).

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

III. MERITS

A. Procedural Due Process Competency Claim

Mr. Grant argues that the trial court violated his procedural due process

rights by allowing his trial to proceed while he was incompetent. The district

court deemed this claim to be procedurally barred, finding that Mr. Grant failed to

exhaust the claim in state court. Because we agree with the district court that

Mr. Grant failed to exhaust his procedural due process competency argument

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before the OCCA, we uphold this aspect of the district court’s ruling.

1. Legal Framework

“A state prisoner generally must exhaust available state-court remedies

before a federal court can consider a habeas corpus petition.” Bland, 459 F.3d at

1011; see 28 U.S.C. § 2254(b)(1)(A); accord Thacker v. Workman, 678 F.3d 820,

838–39 (10th Cir. 2012); see also Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th

Cir. 2017) (“More specifically, AEDPA prohibits federal courts from granting

habeas relief to state prisoners who have not exhausted available state

remedies.”). “Exhaustion requires that the claim be ‘fairly presented’ to the state

court, which ‘means that the petitioner has raised the “substance” of the federal

claim in state court.’” Fairchild, 579 F.3d at 1151 (quoting Bland, 459 F.3d at

1011); accord Jeremy Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir.

2015), cert. denied sub nom. Williams v. Warrior, --- U.S. ----, 136 S. Ct. 806

(2016). Put another way, “a federal habeas petitioner [must] provide the state

courts with a ‘fair opportunity’ to apply controlling legal principles to the facts

bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6

(1983); accord Picard v. Connor, 404 U.S. 270, 277 (1971).

“[T]he crucial inquiry is whether the ‘substance’ of the petitioner’s claim

has been presented to the state courts in a manner sufficient to put the courts on

notice of the federal constitutional claim.” Prendergast v. Clements, 699 F.3d

1182, 1184 (10th Cir. 2012) (citing Picard, 404 U.S. at 278). “A petitioner need

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not invoke ‘talismanic language’ or cite ‘book and verse on the federal

constitution.’” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.

1989)); accord Picard, 404 U.S. at 278. But, a “‘[f]air presentation’ requires

more than presenting ‘all the facts necessary to support the federal claim’ to the

state court.” Bland, 459 F.3d at 1011 (emphasis added) (quoting Anderson, 459

U.S. at 6).

Nor is citing the relevant legal principles, absent the relevant facts,

sufficient to fairly present a claim. See Picard, 404 U.S. at 277 (finding no fair

presentation where state court had no “opportunity to apply controlling legal

principles to the facts bearing upon [the federal] claim”); Anderson, 459 U.S. at 6

(“[A] federal habeas petitioner [must] provide the state courts with a ‘fair

opportunity’ to apply controlling legal principles to the facts bearing upon his

constitutional claim.”); Jeremy Williams, 782 F.3d at 1210 (noting that the

substance of the claim “includes not only the constitutional guarantee at issue, but

also the underlying facts that entitle a petitioner to relief”).

Furthermore, a “petitioner cannot assert entirely different arguments [in his

or her request for habeas relief] from those raised before the state court.” Bland,

459 F.3d at 1011. That is, there is no fair presentation if the claim before the state

court was only “somewhat similar” to the claim pressed in the habeas petition.

Duncan v. Henry, 513 U.S. 364, 366 (1995); see also Bland, 459 F.3d at 1012

(finding failure to exhaust “[b]ecause presentation of a ‘somewhat similar’ claim

12

is insufficient to ‘fairly present’ a federal claim”). Indeed, “mere similarity of

claims is insufficient to exhaust.” Id. And the assertion of a general claim before

the state court is insufficient to exhaust a more specific claim asserted for habeas

relief. See Gray v. Netherland, 518 U.S. 152, 163 (1996) (“[I]t is not enough to

make a general appeal to a constitutional guarantee as broad as due process to

present the ‘substance’ of such a claim to a state court.”); see also Thomas v.

Gibson, 218 F.3d 1213, 1221 n.6 (10th Cir. 2000) (holding petitioner’s

“generalized” state-court ineffective-assistance claim was insufficient to exhaust

his later, more specific federal habeas claim).

Indeed, in order to be fairly presented, the state-court claim must be the

“substantial equivalent” of its federal habeas counterpart. Picard, 404 U.S. at

278. There is no such substantial equivalency where the claim raised in habeas

proceedings is “in a significantly different and stronger posture than it was when

the state courts considered it.” Jones v. Hess, 681 F.2d 688, 694 (10th Cir. 1982).

To satisfy exhaustion, then, the habeas petition’s focus—as well as the alleged

error that it identifies—cannot depart significantly from what the petitioner had

presented to the state court. See, e.g., Bland, 459 F.3d at 1012 (noting that the

habeas “challenge to the actions of the prosecution differs significantly from” the

state-court “challenge to the instructions given by the court,” even where both

concerned the propriety of a given jury instruction). Nor is it acceptable for the

habeas petitioner to “shift” the “basis for [his or her] argument” away from what

13

was previously raised in state court. Gardner v. Galetka, 568 F.3d 862, 872 (10th

Cir. 2009) (claims were not “substantially the same” where petitioner’s state-

court ineffective-assistance claim was predicated on counsel’s inaccurate

description of petitioner’s injury, but where his habeas claim was grounded on

counsel’s failure to undertake a thorough investigation of the murder weapon);

Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (holding a claim for

ineffective assistance of counsel not exhausted where petitioner “based [his state-

court claim] on different reasons” and on different “bases [than those] upon which

his current ineffective assistance of counsel claims rely”).

There are consequences for failing to properly present a claim. “Generally,

a federal court should dismiss unexhausted claims without prejudice so that the

petitioner can pursue available state-court remedies.” Bland, 459 F.3d at 1012;

see 28 U.S.C. § 2254(b)(1)(A). “However, dismissal without prejudice for failure

to exhaust state remedies is not appropriate if the state court would now find the

claims procedurally barred on independent and adequate state procedural

grounds.” Smallwood, 191 F.3d at 1267 (citing Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991)). Where the relevant state courts “would now find those

claims procedurally barred, there is a procedural default for the purposes of

federal habeas review.” Bland, 459 F.3d at 1012 (quoting Dulin v. Cook, 957

F.2d 758, 759 (10th Cir. 1992)); see also Moore v. Schoeman, 288 F.3d 1231,

1233 n.3 (10th Cir. 2002) (“‘Anticipatory procedural bar’ occurs when the federal

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courts apply procedural bar to an unexhausted claim that would be procedurally

barred under state law if the petitioner returned to state court to exhaust it.”)

(citing Hain v. Gibson, 287 F.3d 1224, 1240 (10th Cir. 2002)). A petitioner may

overcome the procedural bar only if he can “demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 750.

2. Analysis

We conclude after thorough review that Mr. Grant presented only a

substantive due process competency argument to the OCCA on direct appeal. In

short, he failed to present the substance of his procedural due process competency

argument to the state court. Mr. Grant’s argument to the contrary depends on the

inherent similarities between the two types of competency challenges. We

conclude, however, that Mr. Grant’s presentation of a “somewhat similar” claim,

Duncan, 513 U.S. at 366, on direct appeal 1 was insufficient to have put the state

courts on notice of the procedural competency claim he now urges, Jones, 681

F.2d at 694.

1

We confine our fair-presentation analysis to Mr. Grant’s direct

appeal briefing because he identifies no alternative places where he might have

established exhaustion.

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a

We begin the analysis by delineating the differences between claims of

procedural due process competency and claims of substantive due process

competency.

“[C]ompetency claims can raise issues of both substantive and procedural

due process.” Walker v. Attorney Gen., 167 F.3d 1339, 1343 (10th Cir. 1999).

Although “sometimes there is overlap,” procedural competency and substantive

competency are distinct claims. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th

Cir. 1999). “A procedural [due process] competency claim is based upon a trial

court’s alleged failure to hold a competency hearing, or an adequate competency

hearing, while a substantive competency claim is founded on the allegation that

an individual was tried and convicted while, in fact, incompetent.” Allen v.

Mullin, 368 F.3d 1220, 1239 (10th Cir. 2014) (quoting McGregor v. Gibson, 248

F.3d 946, 952 (10th Cir. 2001) (en banc)).

“The distinction between substantive and procedural claims is significant

because courts have evaluated these claims under differing evidentiary

standards.” Walker, 167 F.3d at 1344. To make out a procedural competency

claim, a defendant must demonstrate that “a reasonable judge should have had a

bona fide doubt as to [the defendant’s] competence at the time of trial,”

McGregor, 248 F.3d at 954, but the claim does “not require proof of actual

incompetency,” Allen, 368 F.3d at 1239. Further, procedural competency imposes

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on the trial court a continuing duty to monitor the defendant’s behavior. See

Drope v. Missouri, 420 U.S. 162, 181 (1975) (“Even when a defendant is

competent at the commencement of his trial, a trial court must always be alert to

circumstances suggesting a change that would render the accused unable to meet

the standards of competence to stand trial.”).

“A substantive competency claim, on the other hand, requires the higher

standard of proof of incompetency by a preponderance of the evidence.” Allen,

368 F.3d at 1239 (emphasis added) (citing Cooper v. Oklahoma, 517 U.S. 348,

368–69 (1996)). A petitioner alleging a substantive claim must demonstrate that

he actually lacked a “sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding [and] a rational as well as a factual

understanding of the proceedings against him.” Dusky v. United States, 362 U.S.

402, 402 (1960). Thus, a petitioner alleging a substantive competency claim must

show that he was convicted during a period of incompetency, McGregor, 247 F.3d

at 953, whereas a procedural competency petitioner “states a procedural

competency claim by alleging the trial court failed to hold a competency hearing

after the defendant’s mental competency was put in issue.” Valdez v. Ward, 219

F.3d 1222, 1239 (10th Cir. 2000).

Moreover, the two claims rest on different evidentiary bases. In evaluating

a procedural competency claim, “[o]ur review is limited to the evidence that was

made available to the state trial court.” Lay v. Royal, 860 F.3d 1307, 1314 (10th

17

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

18

trial,” which he should have received in the first place); see also United States v.

Grist, 299 F. App’x 770, 775, 778 (10th Cir. 2008) (unpublished) (finding no

error in the magistrate judge’s assessment that no relief was due to the petitioner,

as he “ha[d] been afforded . . . the only relief to which [he] would be entitled for

a procedural due process competency violation: a retrospective competency

determination”). 2

Thus, the issuance of the habeas writ is not mandated in situations where

the procedural competency claimant is successful; it is resorted to only where a

retrospective competency hearing would not be feasible. Compare McGregor,

248 F.3d at 962 (“[W]e conclude that a meaningful retrospective competency

determination can not be made in this case. As such, McGregor’s due process

rights can not adequately be protected by remanding to the state court for such a

determination . . . . Accordingly, we GRANT McGregor’s request for habeas

corpus relief.”), and Pate v. Robinson, 383 U.S. 375, 387 (1966) (rejecting the

option of remand for a “limited hearing as to Robinson’s mental competence at

the time he was tried”), with Bryan v. State, 935 P.2d 338, 347 n.4 (Okla. Crim.

App. 1997) (“The [Robinson] Court did not, however, rule that retrospective

2

In several instances in this opinion, we rely on unpublished cases,

recognizing that we are not bound by them as controlling authorities. We do so

because we deem their analyses persuasive regarding material matters before us

here. See, e.g., United States v. Kurtz, 819 F.3d 1230, 1236 n.2 (10th Cir. 2016)

United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015).

19

hearings may not be held where such hearings are feasible, and has never so held

despite the opportunity in subsequent cases.”), and Walker, 167 F.3d at 1347 n.4

(“In these circumstances, we are not persuaded Mr. Walker was deprived of due

process by the retrospective competency hearing.”). Such a hearing would be

infeasible where—due to the passage of time, the unavailability of

contemporaneous medical evidence, the lack of defendant’s statements on the trial

record, or the absence of eyewitnesses to the defendant’s behavior during

trial—the examination would no longer be meaningful. See McGregor, 248 F.3d

at 962 (citing Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 1999)).

As noted, the right at issue in a substantive competency claim is the right

not to be tried while incompetent; therefore, in the habeas context, the remedy

must involve the issuance of the writ because the conviction cannot

constitutionally stand. See, e.g., id. at 952 (noting that “a substantive competency

claim is founded on the allegation that an individual was tried and convicted

while, in fact, incompetent”); see also Godinez v. Moran, 509 U.S. 389, 396

(1993) (“A criminal defendant may not be tried unless he is competent.”).

It falls upon us to determine whether Mr. Grant actually presented a

procedural competency claim to the OCCA on direct appeal, in addition to a

substantive competency claim; we have undertaken analogous inquiries. See, e.g.,

Walker, 167 F.3d at 1343 (disagreeing with the district court’s characterization of

competency claim as procedural, rather than substantive); Barnett, 174 F.3d at

20

1134 (holding that the district court erred in construing the claim as substantive

when it was in fact procedural). In so doing, we parse the pleadings of Mr.

Grant’s direct-appeal brief and proceed with “care[] not to collapse the distinction

between procedural and substantive due process [claims].” McGregor, 248 F.3d

at 953.

b

Mr. Grant argues that he presented a procedural competency claim on direct

appeal: more specifically, he says that he cited the relevant caselaw, set forth the

relevant facts, and “correctly argued . . . that the trial judge independently had a

duty, based on all the information available to him prior to and during trial, to

halt the trial for additional competency proceedings.” Aplt.’s Opening Br. at 30.

We are not persuaded.

Our contrary view is supported by an independent examination of Mr.

Grant’s direct-appeal briefing: this review makes clear that the unwavering focus

of Mr. Grant’s arguments was on establishing his actual incompetence at the time

of trial—that is, on mounting a substantive competency claim, and not a

procedural one. We also find validation for our conclusion by juxtaposing

Mr. Grant’s state-court claim with the one filed for habeas relief; this side-by-side

view reveals that Mr. Grant’s original competency claim bears little resemblance

to the one he now advances.

21

We are thus left with a firm conviction that Mr. Grant’s direct-appeal

competency claim was “based . . . on different reasons,” and grounded on

different legal “bases [than those] upon which his current . . . claim[] rely.”

Smallwood, 191 F.3d at 1267. We accordingly hold that Mr. Grant did not fairly

present a procedural competency claim to the OCCA. Furthermore, for reasons

explicated infra, this claim is subject to an anticipatory procedural bar.

Therefore, we are precluded from considering it.

i

Several aspects of Mr. Grant’s direct-appeal brief contradict his argument

that he fairly presented a procedural competency claim to the OCCA. Indeed, we

discern that the focus of Mr. Grant’s direct-appeal briefing—and therefore, the

substance of the claim before the OCCA—was on whether Mr. Grant was in fact

incompetent at the time of his November 2005 trial.

At the outset, we note that the heading to Proposition I—the section under

which Mr. Grant contends he raised his procedural competency claim—did

nothing to put the OCCA on notice of any such claim. In fact, the heading neatly

set out the standard—not for a procedural claim—but for proving a violation of

substantive due process. Compare Aplt.’s Direct Appeal Opening Br. at 3

(“Mr. Grant Was Incompetent When He Stood Trial, In Violation of Due

Process”), with Allen, 368 F.3d at 1239 (“[A] substantive competency claim is

founded on the allegation that an individual was tried and convicted while, in

22

fact, incompetent.”). 3 We also observe that Mr. Grant himself characterized

Proposition I as setting out “Appellant[’s] complain[t] that he was tried while

incompetent.” Aplt.’s Direct Appeal App. for Evidentiary Hr’g. on Sixth and

Fourteenth Amendment Claims (filed Oct. 11, 2007), at 1. 4

Nor would the body of the direct-appeal brief have put the OCCA on notice

that the competency claim was anything other than substantive in nature.

Proposition I was devoted to establishing Mr. Grant’s actual incompetency: the

unalloyed thrust of the facts presented there was that Mr. Grant was incompetent

in November 2005, when he stood trial. The argument opened by asserting that

the reason for the four-year delay in Mr. Grant’s trial was due to his

incompetence. It proceeded to lay out the lengthy chronology of Mr. Grant’s

3

Though it is certainly not dispositive, we consider it germane and

significant to our inquiry that the word “procedural” is absent from Mr. Grant’s

direct-appeal briefing on the competency issue; nor is there any other indication

in this briefing that Mr. Grant objected to the court’s failure to implement the

proper procedures to ensure his competency. See, e.g., Glossip v. Trammell, 530

F. App’x 708, 718 n.1 (10th Cir. 2013) (unpublished) (holding that there was no

fair presentation where the relevant federal claim was not mentioned “in either

the heading or text of [petitioner’s] brief”). Moreover, to echo an earlier decision

by a panel of our court, although we do not require Mr. Grant to recite the words

“procedural due process competency” “as some kind of talismanic incantation,”

we do require that a claim of procedural competency “not be camouflaged within

a welter of other claims.” Burnett v. Hargett, 139 F.3d 911, *5 (10th Cir. 1998)

(unpublished) (citing Nichols, 867 F.2d at 1252).

4

Mr. Grant submitted an OCCA Rule 3.11(B) Application, along with

his direct-appeal brief, to the OCCA. Mr. Grant refers to the Rule 3.11

Application in his discussion in Proposition I, asking the court to supplement the

record with a number of affidavits relating to Mr. Grant’s competency during

trial. Aplt.’s Direct Appeal Opening Br. at 11.

23

history with his lawyers, the court, and the psychological experts they appointed

to assess his competency to stand trial, who had found him to be incompetent. It

is evident from the brief that Mr. Grant’s quarrel was with the fact of his

conviction while incompetent.

Consistent with the requirements of a substantive claim, the brief alleged

facts showing that Mr. Grant “lack[ed] the capacity to understand the nature and

object of the proceedings against him, to consult with counsel, and to assist in

preparing his defense.” Drope, 420 U.S. at 171. Specifically, it noted

Mr. Grant’s “understanding of the charges and criminal proceedings was ‘fleeting

at best,’” Aplt.’s Direct Appeal Opening Br. at 4 (quoting from the underlying

state court record). Furthermore, it recounted how Mr. Grant “was agitated and

[the] presence [of his counsel] aggravated him.” Id. at 5. And the brief observed

that Mr. Grant’s lawyer was “concerned because” Mr. Grant was “making

statements that may hurt him in the future.” Id. (quoting from the underlying

state court record).

Conversely, Mr. Grant’s direct-appeal briefing does not similarly bear the

trappings of a procedural competency claim, which would have alleged that a

“reasonable judge should have had a bona fide doubt as to [petitioner’s]

competence at the time of trial.” McGregor, 248 F.3d at 954. For one, the direct-

appeal brief never mentioned the established “bona fide doubt” standard of proof.

For another, the scope of the information presented on direct appeal exceeded the

24

bounds of evidence relevant to a procedural claim. For example, in order to

demonstrate that Mr. Grant was not taking his medications, Mr. Grant’s direct-

appeal brief requested that the OCCA consider Mr. Grant’s medical records for

the period leading up to trial. See Aplt.’s Direct Appeal Opening Br. at 11.

However, these medical records were neither part of the trial record; nor were

they at any point before the trial judge. 5 As such, they were irrelevant to a

procedural due process claim, because “[o]ur review [as to such a claim] is

limited to the evidence that was made available to the state trial court.” Lay, 860

F.3d at 1314 (citing Allen, 368 F.3d at 1239); see also McGregor, 248 F.3d at 954

(“We view the evidence in the record objectively, from the standpoint of a

reasonable judge presiding over petitioner’s case at the time of trial.”) (emphases

added). Therefore, Mr. Grant’s reliance on evidence that was never before the

trial court, nor part of the record, is inconsistent with his assertion now that he

was presenting a procedural due process claim to the OCCA.

5

The medical records were appended to Mr. Grant’s Rule 3.11

Application to supplement the record. Mr. Grant himself referred to his Rule 3.11

Application as “an Application for Evidentiary Hearing on Sixth Amendment

Claims supported by matters outside the trial record.” Aplt.’s Direct Appeal

Opening Br. at 11 (emphasis added). In addition to his medical records, the Rule

3.11 Application sought to introduce into the record, inter alia, a retrospective

competency analysis performed by a psychologist retained by defense counsel, the

affidavit of Cheryl Tubbs (Mr. Grant’s ex girlfriend), and the affidavit of Anna

Wright (a nurse who interacted with Mr. Grant while he was incarcerated). Like

the medical records, these documents are not relevant to a procedural competency

claim because they were neither on the record, nor before the trial judge, at the

time of Mr. Grant’s trial.

25

Quite significant, moreover, is the stark lack of fit between the remedy

requested from the OCCA on direct appeal and the procedural competency claim

Mr. Grant purports to have raised. Nowhere in Mr. Grant’s direct-appeal brief did

he mention the possible relief of a retrospective competency hearing—though

ordinarily, if feasible, this would be the relief available to him if he had

prevailed. See McGregor, 248 F.3d at 962 (“Our conclusion that McGregor’s

procedural due process rights were violated does not end the analysis. We next

consider whether a retrospective competency hearing can be held.”); see also

Grist, 299 F. App’x 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

26

that he sought to vindicate a procedural error on direct appeal.

Indeed, Mr. Grant demonstrated in his direct-appeal brief that he knew how

to ask for a hearing when he believed one was necessary to vindicate his rights.

Specifically, he alleged such an entitlement just a mere moment after his

competency arguments, in the context of Proposition II, which set out his Sixth

Amendment self-representation claim. See Aplt.’s Direct Appeal Opening Br. at

12–13 (“It was thus incumbent upon the trial court to hold a hearing on the issue

[of Mr. Grant’s desire to dismiss his attorneys], at which the trial court should

have evaluated [Mr. Grant’s] competency to waive [representation by counsel]

and warned him of the dangers of self-representation.”). The fact that Mr. Grant

did not ask for a hearing in Proposition I—which he now identifies as the source

of his procedural due process competency claim—strongly indicates that he did

not believe at that time that this remedy was material to the claim he was

pursuing there. And that belief would have been correct—if, as we

conclude—Mr. Grant was presenting there a substantive competency claim. Put

another way, given Mr. Grant’s demonstrated ability to challenge the court’s

failure to hold a hearing in the self-representation context, his silence regarding a

hearing in the competency context is deafening and strongly suggests that the kind

of competency claim that he actually was pursuing was not one that would have

been satisfied by a hearing. See Duncan, 513 U.S. at 366 (noting that failure to

raise a specific due process claim “is especially pronounced in that respondent did

27

specifically raise a due process objection before the state court based on a

different claim”).

Instead of requesting an additional hearing, Mr. Grant solely sought

reversal; as discussed, this remedy is clearly appropriate in the context of a claim

for substantive competency, but not a remedy at least of first resort in the setting

of a procedural competency claim. See, e.g., McGregor, 248 F.3d at 962; Bryan,

935 P.2d at 347 n.4. And the concluding paragraph of Proposition I is

particularly illuminating: there, Mr. Grant sought reversal based on the fact that

he “was not competent when he was tried . . . . in violation of his Fourteenth

Amendment due process right to be competent.” Aplt.’s Direct Appeal Opening

Br. at 11. This is paradigmatic language of a substantive due process competency

claim.

To be sure, throughout Proposition I, there are references to facts that could

have been relevant to a procedural due process competency claim. But given the

“blurred . . . distinctions” between substantive and procedural competency claims,

Walker, 167 F.3d at 1344, this is entirely unremarkable. For instance, direct-

appeal counsel quoted statements Mr. Grant made to the trial court, Mr. Grant’s

testimony during the penalty phase, and a letter Mr. Grant wrote to the

prosecutor. Direct-appeal counsel asserted that these statements were “full of

ramblings and delusions,” and that despite this, Mr. Grant’s “competence to stand

trial was never revisited, even though . . . he [showed] signs that his competence

28

may have slipped.” Aplt.’s Direct Appeal Opening Br. at 6–8. Yet the mere

presentation of potentially-relevant facts is not enough. See Bland, 459 F.3d at

1011 (“‘[F]air presentation’ requires more than presenting . . . ‘all the facts

necessary to support the federal claim’ to the state court) (quoting Anderson, 459

U.S. at 6).

Similarly, in Proposition I, Mr. Grant also cited to legal principles that

could have been relevant to a procedural due process competency claim. For

instance, he cited Drope, 420 U.S. at 180, for the proposition that “[e]ven if the

defendant is competent when the trial begins, the trial court must always be alert

to circumstances suggesting a change that would render the accused unable to

meet the standard of competence to stand trial.” Aplt.’s Direct Appeal Opening

Br. at 11. And he cited Robinson, 383 U.S. at 385–86, for the proposition that

“[e]vidence of a defendant’s irrational behavior, his demeanor at trial, and any

prior medical opinion on competence to stand trial are all relevant in determining

whether further inquiry is required.” Id.

However, recitations of caselaw—tethered neither to factual allegations nor

directed argumentation—also fall short of fairly presenting a legal claim. See

Gray, 518 U.S. at 163 (“[I]t is not enough to make a general appeal to a

constitutional guarantee as broad as due process to present the ‘substance’ of such

a claim to a state court.”); see also Thomas, 218 F.3d at 1221 n.6 (holding

petitioner’s “generalized” state-court ineffective-assistance claim was insufficient

29

to exhaust his later, more specific federal habeas claim). Indeed, Mr. Grant’s

citations to Robinson and Drope came at the tail-end of Proposition I and were

not connected, in any readily-discernible way, to the relevant factual allegations

discussed some five pages before. See Burnett v. Hargett, 139 F.3d 911, *5 (10th

Cir. 1998) (unpublished) (finding lack of exhaustion where petitioner belatedly

made “stray citations to a pair of potentially relevant federal cases”). Because

Mr. Grant failed to tie a legal theory grounded in procedural due process to the

salient facts, we hold that he failed to fairly present such a claim to the OCCA.

ii

Finally, our conclusion is further bolstered by a brief comparison of the

argument that Mr. Grant presented on direct appeal with the argument that he has

presented in his habeas petition. The claim on direct appeal is not the

“substantial equivalent” of the one asserted before us. Picard, 404 U.S. at 278.

“[T]he basis for [the competency] argument . . . shifted” from Mr. Grant’s alleged

incompetency during trial to the trial court’s failure to monitor his condition.

Gardner, 568 F.3d at 872.

Whereas the direct-appeal briefing made only fleeting references to the trial

court’s obligation to inquire into Mr. Grant’s competency, the habeas petition is

replete with assertions that the trial judge knew, was aware of, or otherwise

ignored signs that ought to have instilled in him a “bona fide doubt regarding

Mr. Grant’s competency to stand trial.” Aplt.’s Habeas Pet. at 11 (dated Jan. 25,

30

2011). Moreover, the petition explicitly identifies the procedural defect as the

trial judge’s “neglect [of] duty . . . to have a hearing on Mr. Grant’s competency.”

Id. at 23. This specific allegation of error—the trial court’s “failure to adopt a

procedure to ensure Mr. Grant was competent,” id. at 12–13—is nowhere to be

seen in Mr. Grant’s direct-appeal brief before the OCCA. The juxtaposition

between that brief and Mr. Grant’s habeas petition strongly underscores the

deficiencies of the former as an ostensible presentation of a procedural due

process competency claim. The direct-appeal brief did not offer a fair

presentation of such a claim.

c

In sum, in light of the foregoing, we cannot say that Mr. Grant “provide[d]

the state court with a ‘fair opportunity’ to apply controlling legal principles to the

facts bearing upon his” procedural due process competency claim. Anderson, 459

U.S. at 6. 6

Mr. Grant asks us to reach a contrary conclusion based in part on the

contents of the State’s direct-appeal response brief. Specifically, Mr. Grant

contends that, though the State argues now for a lack-of-exhaustion

determination, on direct appeal it sounded a different “tune” in that its response

6

Indeed, it comes as no surprise that the OCCA ruled only on the

single claim it perceived was before it—the substantive due process claim. See

Grant, 205 P.3d at 10 (denying Proposition I on the grounds that “the record

supports a conclusion that Appellant was competent at the time of his trial”).

31

brief “acknowledged the procedural due process element of the claim” and

responded to that element in its briefing. Aplt.’s Reply Br. at 3. Mr. Grant

contends that the State’s argument against a procedural due process claim is

tantamount to a “concession” that Mr. Grant actually presented such a claim to

the OCCA. Id. However, the State made no such concession, and certainly not

the kind of explicit one that would be necessary under the law to remove the

exhaustion-fair-presentation “issue from consideration.” Fairchild, 579 F.3d at

1148 n.7 (“[T]he State also has not explicitly argued exhaustion but that fact does

not remove the issue from consideration.”); see 28 U.S.C. § 2254(b)(3) (“A State

shall not be deemed to have waived the exhaustion requirement or be estopped

from reliance upon the requirement unless the State, through counsel, expressly

waives the requirement.”).

Therefore, our focus properly remains fixed on whether Mr. Grant satisfied

his burden to fairly present the argument to the OCCA. See Picard, 404 U.S. at

276 (“[W]e have required a state prisoner to present the state courts with the

same claim he urges upon the federal courts.”) (emphasis added). And Mr. Grant

cannot rely on the hypervigilence or extraordinary circumspection of others to

demonstrate his satisfaction of this burden. See Baldwin v. Reese, 541 U.S. 27,

32 (2004) (holding that “ordinarily a state prisoner does not ‘fairly present’ a

claim to a state court if that court must read beyond a petition or a brief (or a

similar document) that does not alert it to the presence of a federal claim in order

32

to find material . . . that does so”). In Baldwin, the Supreme Court rejected the

proposition that a petitioner could establish fair presentation as to the Oregon

Supreme Court simply by relying on the fact that a “lower state trial court” had

picked up on his federal constitutional violation, and that the Oregon Supreme

Court “had had ‘the opportunity to read . . . the lower [Oregon] court[’s]

decision.’” Id. at 30. A similar logic applies here. That the State’s attorney

elected to respond to an ostensible procedural due process competency

claim—whether out of hypervigilence, prophylactic intent, or simple

misunderstanding—does not relieve Mr. Grant of his burden of demonstrating that

he actually fairly presented such a claim to the OCCA. And we conclude that he

has not carried that burden. 7

Nor does Mr. Grant’s reliance on Sanders v. United States, 373 U.S. 1, 16

(1963), give us pause. Mr. Grant points to the district court’s characterization of

this question as a “close” one, see R., Vol. I, at 1578, and argues that, under

Sanders, we should resolve close calls in his favor and thus conclude that he

fairly presented a procedural due process competency argument to the OCCA,

Aplt.’s Opening Br. at 32. In Sanders, the Supreme Court explained: “Should

doubts arise in particular cases as to whether two grounds are different or the

same, they should be resolved in favor of the applicant.” 373 U.S. at 16. In

7

Notably, Mr. Grant did not even respond in his direct-appeal reply

brief to the State’s supposed procedural due process argument.

33

Mr. Grant’s view, because it is a close call whether the competency argument in

his direct-appeal brief was based on substantive due process alone or substantive

and procedural due process, we should resolve the question in favor of a

determination that Mr. Grant fairly presented a procedural due process claim to

the OCCA. We disagree.

Even assuming arguendo that the fair-presentation issue was close,

Mr. Grant’s reliance on Sanders would be unavailing. Sanders arises in a distinct

procedural context; it is not a fair-presentation case. The language Mr. Grant

relies on appears in the Court’s discussion of the principles that should determine

whether prior and successive habeas petitions, or such motions under 28 U.S.C.

§ 2255, present the same ground for federal relief. See Sanders, 373 U.S. at 16.

In other words, this language was offering guidance in resolving a distinct

problem, and Mr. Grant has not explained why it should apply in the fair-

presentation/exhaustion context, and we are not aware of any reason that it

should, especially given the unique federalism concerns at stake here. See

Picard, 404 U.S. at 275 (noting that “it would be unseemly in our dual system of

government for a federal . . . court to upset a state court conviction without an

opportunity to the state courts to correct a constitutional violation” (quoting Darr

v. Burford, 339 U.S. 200, 204 (1950))).

Indeed, Picard—which is a fair-presentation case—sheds useful light on

Sanders. Picard describes Sanders as a “ready example” of one of those

34

“instances in which ‘the ultimate question for disposition’ will be the same

despite variations in the legal theory or factual allegations urged in its support.”

Id. at 277 (quoting United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th Cir.

1966)). And Picard then explains that the Sanders example was not applicable

there because the claim that the petitioner pursued in federal court in Picard was

not the “substantial equivalent” of the claim presented in state court. Id. at 278.

This holds true here as well: the question for resolution in procedural and

substantive competency claims is not the same, and it is clear to us that the

competency claim that Mr. Grant presented in his direct-appeal brief to the OCCA

is not a “substantial equivalent” of the claim he presented in his habeas petition.

Id. In sum, Mr. Grant’s reliance on Sanders is misplaced.

Thus, we reject Mr. Grant’s arguments opposing our conclusion that he

failed to present a procedural due process competency claim to the OCCA.

d

All that said, we deem Mr. Grant’s procedural due process competency

claim unexhausted and—with an eye toward Oklahoma law—this claim is

seemingly subject to an anticipatory procedural bar. Specifically, if Mr. Grant

attempted to pursue this procedural competency claim in state court, that court

would deem the claim procedurally barred under Oklahoma law because

Mr. Grant could have raised it on direct appeal. Under Oklahoma’s Uniform

Post-Conviction Procedure Act, “only claims which ‘[w]ere not and could not

35

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 O KLA . S TAT . TIT . 22, § 1089(c)(1)); see also James v. Gibson, 211 F.3d

543, 550 (10th Cir. 2000) (citing cases in which the OCCA applied Section

1089(c)(1) to competency claims not raised on direct appeal); Walker v. State,

933 P.2d 327, 338–39 (Okla. Crim. App. 1997), superceded by statute on other

grounds as recognized in Davis v. State, 123 P.3d 243, 245 (Okla. Crim. App.

2005) (holding capital petitioner’s competency claim procedurally barred because

he failed to raise the issue on direct appeal). 8 While it is true that “[t]o preclude

federal habeas review, a state procedural bar must be adequate,” Mr. Grant makes

no arguments relating to the adequacy of Oklahoma’s procedural default rule,

much less mount a challenge to the propriety of applying it here. 9 Spears v.

Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003).

8

It should also be noted that Mr. Grant’s claim is doubly subject to the

anticipatory procedural bar, as he would be raising his procedural competency

claim for the first time in a successive petition for post-conviction relief. See

Thacker, 678 F.3d at 841; see also Jeremy Williams, 782 F.3d at 1212 (citing

O KLA . S TAT . TIT . 22 §§ 1086, 1089(2)); Whittier v. Hargett, 12 F. App’x 707, 708

(10th Cir. 2001) (unpublished) (applying procedural bar to petitioner’s procedural

competency claim because he neither raised the claim on direct appeal nor in his

first application for post-conviction relief pursuant to Oklahoma’s Uniform Post-

Conviction Procedure Act).

9

Mr. Grant is apparently silent for good reason. See, e.g., Sherrill v.

Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999) (“Oklahoma’s procedural rule

barring post-conviction relief for claims petitioner could have raised on direct

appeal constitutes an independent and adequate ground barring review of

petitioner's jury instruction claim.”).

36

Therefore, we have no reason to question the rule’s application to him. See

id. at 1252 (“[B]ecause Powell does not address his alleged procedural default, let

alone challenge the adequacy of Oklahoma’s procedural rules, we conclude that

Oklahoma’s procedural bar is adequate to preclude our habeas review of these

particular ineffective-trial-representation claims.”). And so we hold that

Mr. Grant’s claim is subject to an anticipatory procedural bar. Cf. Thacker, 678

F.3d at 841 (“Were Thacker to now return to state court to attempt to exhaust a

claim that trial counsel was ineffective in advising him to enter a blind plea and

in failing to file a motion to withdraw the guilty plea, by filing a fourth

application for post-conviction relief, it would be procedurally barred under

Oklahoma law because Thacker failed to assert it in any of his applications for

post-conviction relief.”); Cummings v. Sirmons, 506 F.3d 1211, 1222–23 (10th

Cir. 2007) (“Although the claim is technically unexhausted, it is beyond dispute

that, were Cummings to attempt to now present the claim to the Oklahoma state

courts in a second application for post-conviction relief, it would be deemed

procedurally barred.”).

Furthermore, Mr. Grant makes no effort to overcome this bar by arguing

cause and prejudice, or a fundamental miscarriage of justice. Consequently, we

hold that we are precluded from considering Mr. Grant’s procedural due process

competency claim. See Coleman, 501 U.S. at 750; see also Thacker, 678 F.3d at

841–42 (“The only way for Thacker to circumvent this anticipatory procedural bar

37

is by making either of two alternate showings: he may demonstrate ‘cause and

prejudice’ for his failure to raise the claim in his initial application for

post-conviction relief, or he may show that failure to review his claim will result

in a ‘fundamental miscarriage of justice.’” (quoting Anderson, 476 F.3d at

1140)). 10

B. Ineffective Assistance of Counsel Claims

Mr. Grant argues that his trial counsel rendered ineffective assistance

resulting in an “unfair trial and an unreliable death sentence in violation of the

10

We arrive at this determination of procedural bar in full recognition

of the heightened sensitivity associated with capital cases. See Cooks v. Ward,

165 F.3d 1283, 1294 (10th Cir. 1998) (recognizing, in regard to an ineffective-

assistance claim raised in a capital habeas petition, “a need to apply . . . closer

scrutiny when reviewing attorney performance during the sentencing phase of a

capital case”); see also Lockett v. Ohio, 438 U.S. 586, 604 (1978) (Burger, C.J.,

joined by Stewart, Powell, and Stevens, JJ.) (“[T]his qualitative difference

between death and other penalties calls for a greater degree of reliability when the

death sentence is imposed.”); Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint

opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he penalty of death is different

in kind from any other punishment imposed under our system of criminal

justice.”). But we must balance this sensitivity with the federalism and comity

concerns that arise in the habeas context. “The exhaustion-of-state-remedies

doctrine . . . reflects a policy of federal-state comity,” Picard, 404 U.S. at 275,

and “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,” id. (quoting Darr, 339 U.S. at 204). Like all

“[f]ederal courts sitting in habeas,” we are “not an alternative forum for trying

facts and issues which a prisoner made insufficient effort to pursue in state

proceedings.” Michael Williams v. Taylor, 529 U.S. 420, 437 (2000). Out of

deference to our system of federalism, we are constrained to conclude that Mr.

Grant failed to fairly present his procedural competency claim in state court, and

we are precluded from considering it.

38

Sixth, Eighth, and Fourteenth Amendments.” Aplt.’s Opening Br. at 50

(capitalization altered). We granted COAs regarding the following issues:

whether trial counsel rendered ineffective assistance by failing to (1) monitor

Mr. Grant’s competency, (2) investigate and present evidence of the effects of

Mr. Grant’s frontal-lobe damage (i.e., organic brain damage), and (3) investigate

and present evidence of (a) Mr. Grant’s purported delusional belief system and

(b) pertinent aspects of Mr. Grant’s childhood. Because Mr. Grant has not shown

that the OCCA’s resolution of his ineffective-assistance claims is contrary to or

an unreasonable application of clearly established federal law, or premised on an

unreasonable determination of fact, we affirm the district court’s denial of habeas

relief regarding Mr. Grant’s ineffective-assistance claims.

1. Legal Framework

We review claims of “ineffective assistance of counsel under the familiar

framework laid out in Strickland [v. Washington, 466 U.S. 668 (1984)].” Byrd,

645 F.3d at 1167. Under Strickland, a petitioner “must show both that his

counsel’s performance ‘fell below an objective standard of reasonableness’ and

that ‘the deficient performance prejudiced the defense.’” Id. (emphasis omitted)

(quoting Strickland, 466 U.S. at 687–88). “These two prongs may be addressed in

any order, and failure to satisfy either is dispositive.” Victor Hooks II, 689 F.3d

at 1186; see Littlejohn v. Royal (“Littlejohn II”), 875 F.3d 548, 552 (10th Cir.

2017) (“These two prongs may be addressed in any order; indeed, in Strickland,

39

the Supreme Court emphasized that ‘if it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, . . . that course should be

followed.’” (omission in original) (quoting Strickland, 466 U.S. at 697)).

“[O]ur review of counsel’s performance under the first prong of Strickland

is a ‘highly deferential’ one.” Byrd, 645 F.3d at 1168 (quoting Danny Hooks v.

Workman, 606 F.3d 715, 723 (10th Cir. 2010)). “Every effort must be made to

evaluate the conduct from counsel’s perspective at the time.” Littlejohn I, 704

F.3d at 859 (quoting United States v. Challoner, 583 F.3d 745, 749 (10th Cir.

2009)). “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Victor Hooks II, 689 F.3d at 1187 (quoting Byrd, 645 F.3d at 1168).

And the “petitioner ‘bears a heavy burden’ when it comes to overcoming that

presumption.” Byrd, 645 F.3d at 1168 (quoting Fox v. Ward, 200 F.3d 1286,

1295 (10th Cir. 2000)). “To be deficient, the performance must be outside the

wide range of professionally competent assistance. In other words, it must have

been completely unreasonable, not merely wrong.” Danny Hooks, 606 F.3d at

723.

“A state prisoner in the § 2254 context faces an even greater challenge.”

Victor Hooks II, 689 F.3d at 1187 (citing Byrd, 645 F.3d at 1168). “[W]hen

assessing a state prisoner’s ineffective-assistance-of-counsel claims on habeas

review, ‘[w]e defer to the state court’s determination that counsel’s performance

40

was not deficient and, further, defer to the attorney’s decision in how to best

represent a client.’” Id. (alterations in original) (quoting Byrd, 645 F.3d at 1168).

“Thus our review of ineffective-assistance claims in habeas applications under

§ 2254 is ‘doubly deferential.’” Id.; Harrington, 562 U.S. at 105 (“The standards

created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the

two apply in tandem, review is ‘doubly’ so . . . .” (citations omitted) (quoting

first Strickland, 466 U.S. at 689, and then Knowles v. Mirzayance, 556 U.S. 111,

123 (2009))).

“Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under § 2254(d). When

§ 2254(d) applies, the question is not whether counsel’s actions were reasonable.

The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Harrington, 562 U.S. at 105 (emphasis

added). And “because the Strickland standard is a general standard, a state court

has . . . more latitude to reasonably determine that a defendant has not satisfied

that standard.” Byrd, 645 F.3d at 1168 (emphasis added) (quoting Knowles, 556

U.S. at 123); accord Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014);

see also Harrington, 562 U.S. at 105 (“The Strickland standard is a general one,

so the range of reasonable applications is substantial.”); Acosta v. Raemisch, 877

F.3d 918, 925 (10th Cir. 2017) (noting that under AEDPA “our inquiry is

informed by the specificity of the governing rule”).

41

Despite our strong presumption that counsel rendered constitutionally

reasonable assistance, “we have recognized a need to apply . . . closer scrutiny

when reviewing attorney performance during the sentencing phase of a capital

case.” Cooks, 165 F.3d at 1294; see also Osborn v. Shillinger, 861 F.2d 612, 626

n.12 (10th Cir. 1988) (“[T]he minimized state interest in finality when

resentencing alone is the remedy, combined with the acute interest of a defendant

facing death, justify a court’s closer scrutiny of attorney performance at the

sentencing phase.”). “We judge counsel’s performance by reference to

‘prevailing professional norms,’ which in capital cases include the ABA

Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases (‘ABA Guidelines’).” Victor Hooks II, 689 F.3d at 1201 (quoting Young v.

Sirmons, 551 F.3d 942, 957 (10th Cir. 2008)). “Among the topics defense

counsel should investigate and consider presenting include medical history,

educational history, employment and training history, family and social history,

prior adult and juvenile correctional experiences, and religious and cultural

influences.” Young, 551 F.3d at 957.

“Counsel has a duty to conduct a ‘thorough investigation—in particular, of

mental health evidence—in preparation for the sentencing phase of a capital

trial.’” Victor Hooks II, 689 F.3d at 1201 (quoting Michael Wilson v. Sirmons

(“Michael Wilson I”), 536 F.3d 1064, 1083 (10th Cir. 2008)); accord Littlejohn I,

704 F.3d at 860. “[D]rawing on a trilogy of Supreme Court cases—[Terry]

42

Williams v. Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510 (2003),

and Rompilla v. Beard, 545 U.S. 374 (2005)—involving ineffective assistance at

capital-sentencing proceedings[,]” Littlejohn I, 704 F.3d at 860, we divined the

following three principles:

First, the question is not whether counsel did something; counsel

must conduct a full investigation and pursue reasonable leads

when they become evident. Second, to determine what is

reasonable investigation, courts must look first to the ABA

guidelines, which serve as reference points for what is acceptable

preparation for the mitigation phase of a capital case. Finally,

because of the crucial mitigating role that evidence of a poor

upbringing or mental health problems can have in the sentencing

phase, defense counsel must pursue this avenue of investigation

with due diligence. Our own Circuit has emphasized this guiding

principle. In Smith v. Mullin, 379 F.3d 919, 942 (10th Cir.

2004), we held that it was “patently unreasonable” for trial

counsel to fail to present evidence of Smith’s borderline mental

retardation, brain damage, and troubled childhood, and stated that

this type of mitigating evidence “is exactly the sort of evidence

that garners the most sympathy from jurors.”

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

704 F.3d at 860.

“Under the prejudice prong [of Strickland], a petitioner must demonstrate

‘a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Littlejohn II, 875 F.3d at 552

(quoting Strickland, 466 U.S. at 694); accord Victor Hooks II, 689 F.3d at 1202.

“When a petitioner alleges ineffective assistance of counsel stemming from a

failure to investigate mitigating evidence at a capital-sentencing proceeding, ‘we

43

evaluate the totality of the evidence’” that AEDPA permits us to consider.

Jeremy Williams, 782 F.3d at 1215; accord Littlejohn II, 875 F.3d at 552–53; see

Cullen, 563 U.S. at 181 (“We now hold that review under § 2254(d)(1) is limited

to the record that was before the state court that adjudicated the claim on the

merits.”).

More specifically, “we ‘reweigh the evidence in aggravation against the

totality of available mitigating evidence,’ considering ‘the strength of the State’s

case and the number of aggravating factors the jury found to exist, as well as the

mitigating evidence the defense did offer and any additional mitigating evidence

it could have offered[.’]” Littlejohn II, 875 F.3d at 553 (quoting first Hooks, 689

F.3d at 1202, and then Knighton v. Mullin, 293 F.3d 1165, 1178 (10th Cir. 2002)).

Furthermore, “we must consider not just the mitigation evidence that Defendant

claims was wrongfully omitted, but also what the prosecution’s response to that

evidence would have been.” Michael Wilson v. Trammell (“Michael Wilson II”),

706 F.3d 1286, 1306 (10th Cir. 2013); accord Littlejohn II, 875 F.3d at 553; see

Michael Wilson II, 706 F.3d at 1305 (“To resolve whether there was prejudice, we

do not consider omitted mitigation evidence in a vacuum.”).

“If there is a reasonable probability that at least one juror would have

struck a different balance, . . . prejudice is shown.” Littlejohn I, 704 F.3d at 861

(quoting Victor Hooks II, 689 F.3d at 1202). Put another way, in the capital-

sentencing context, if the petitioner demonstrates that there is a reasonable

44

probability “that at least one juror would have refused to impose the death

penalty,” the petitioner has successfully shown prejudice under Strickland. Victor

Hooks II, 689 F.3d at 1202 (quoting Michael Wilson I, 536 F.3d at 1124 (Hartz,

J., concurring)); accord Littlejohn II, 875 F.3d at 553.

2. Misstatement of Strickland Standard

We first address Mr. Grant’s overarching claim that the OCCA’s rejection

of his ineffective-assistance claims is contrary to clearly established federal law

because the OCCA applied the incorrect legal framework—that is, the OCCA

failed to apply Strickland’s well-established rubric. When setting forth “the legal

framework for evaluating [Mr. Grant’s] ineffective-assistance claims,” the OCCA

stated that “[Mr. Grant] must demonstrate that trial counsel’s performance was so

deficient as to have rendered [him], in essence, without counsel.” Grant, 205

P.3d at 22. This statement of law, in Mr. Grant’s view, “placed an extra burden

on him which was contrary to law.” Aplt.’s Opening Br. at 83. Mr. Grant thus

argues that we must apply de novo review to his ineffective-assistance claims.

We disagree.

On habeas review, we properly eschew the role of strict English teacher,

finely dissecting every sentence of a state court’s ruling to ensure all is in good

order. Cf. Renico v. Lett, 559 U.S. 766, 773 (2010) (noting that “AEDPA imposes

a ‘highly deferential standard for evaluating state-court rulings[]’” (quoting Lindh

v. Murphy, 521 U.S. 320, 333 n.7 (1997))); Michael Williams, 529 U.S. at 411

45

(“Congress specifically used the word ‘unreasonable,’ and not a term like

‘erroneous’ or ‘incorrect.’”). Rather, our focus is on the reasonableness of the

state court’s decision—viz., whether that decision is contrary to or an

unreasonable application of clearly established federal law or based on an

unreasonable determination of the facts.

Consequently, our inquiry relates to the overall substance of the state

court’s analysis and the conclusion it thereafter makes. The Supreme Court has

emphasized § 2254’s focus on the decision of the state court: “Avoiding [§

2254’s] pitfalls does not require [a state court’s] citation of [Supreme Court]

cases—indeed, it does not even require [a state court’s] awareness of [Supreme

Court] cases, so long as neither the reasoning nor the result of the state-court

decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphases

added).

Viewed through this proper prism, there is no occasion here for us to apply

de novo review based on the OCCA’s language in a single sentence. Admittedly,

that language—especially, the “rendered without counsel” phrase—deviates from

the proper formulation of the Strickland standard. Cf. United States v. Cronic,

466 U.S. 648, 659 (1984) (“[I]f counsel entirely fails to subject the prosecution’s

case to meaningful adversarial testing, then there has been a denial of Sixth

Amendment rights that makes the adversary process itself presumptively

unreliable.”). But that is not material. The true question presented by

46

Mr. Grant’s challenge is simply whether the overall substance of the OCCA’s

analysis, as well as the result it reached, reflects that the court understood and

decided the ineffective-assistance issue under the proper Strickland framework.

And we answer that question with no difficulty in the affirmative.

Virtually in the same breath—indeed, in the same paragraph on the same

page as the language that Mr. Grant identified—the OCCA articulated the proper

rubric of Strickland: it stated with respect to the performance prong—“We assess

counsel’s performance for reasonableness in light of prevailing professional

norms”—and regarding the prejudice prong—“Appellant must also demonstrate

that the allegedly deficient performance caused prejudice.” Grant, 205 P.3d at

22. And the OCCA never repeated in its Strickland discussion the “rendered

without counsel” linguistic formulation. Therefore, we have no difficulty

concluding that the OCCA’s analysis reflects that it understood and resolved the

ineffective-assistance issue under the proper Strickland framework. We

consequently reject Mr. Grant’s call for the application of de novo review based

on the (admittedly inaccurate) wording of a single sentence.

3. Failure to Monitor Competency

Mr. Grant argues that he is entitled to habeas relief based on the OCCA’s

rejection of his ineffective-assistance claim asserting that trial counsel’s alleged

unreasonable failure to monitor his competency—or, more precisely, his

purported decline into incompetency—prejudiced him. The OCCA summarized

47

the nature of Mr. Grant’s argument:

[Mr. Grant] submits that in the months between the

competency trial and the trial on guilt and punishment, his

competency may well have deteriorated. He points to his

statements at various pretrial and in camera hearings, pro se

writings, and his testimony in the punishment stage of the trial in

an attempt to support this claim. He also submits extra-record

evidence to support a related claim, based on the Sixth

Amendment right to counsel, that trial counsel was deficient for

not challenging his competency at the time of trial. Specifically,

he presents (1) an expert’s retrospective opinion, based on

evaluation of various materials, that [Mr. Grant] was not

competent to stand trial in November 2005; and (2) documentary

evidence suggesting that in mid–2005, Mr. Grant was not diligent

about taking medications prescribed to treat his mental illness.

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

Regarding his pretrial statements, Mr. Grant highlights certain comments

that he made during a hearing in May 2005, when he waived a possible conflict of

interest involving one of his attorneys. After telling the court that he

“underst[ood] conflict of interest” and was prepared to “fire all staff and represent

myself once I feel that honestly [sic] matters are being taken out of proportion

meaning I’m being plotted against with the DA,” Mr. Grant offered his “theory”

in response to the court’s assurances that no such plotting was taking place: “My

theory plays my whole background. That’s for one. My way of life is I’m going

to leave this planet earth. That’s my theory. My theory I stand on it and it don’t

have nothing to do with this. My theory is my theory, you see what I’m saying.”

Mot. Hr’g Tr. at 7–8 (dated May 2, 2005). However, in response to follow-up

48

questioning, Mr. Grant indicated that he was not accusing the potentially

conflicted attorney of plotting with the District Attorney, and his other attorney

advised the court—without objection by Mr. Grant—that when Mr. Grant was

speaking about such plotting, he was simply “expressing concern that lawyers

sometimes do that.” Id. at 9.

Mr. Grant also draws our attention to two letters that he wrote in September

2005 to the judge and prosecutor, respectively. The first letter—which Mr. Grant

calls the “Eye” letter—refers to “electrons,” “eye,” “God,” and “Allah,” among

other things, R., Vol. I, at 782–84, and the author of Mr. Grant’s retrospective

competency hearing—Dr. Antoinette McGarrahan, PhD—subsequently suggested

that it “revealed incoherent ramblings and religious and grandiose delusions,” id.

at 771. The second letter (directed to the prosecutor) amounted to a confession to

the charged crimes which Mr. Grant wrote with the apparent hope of securing the

release of another inmate whom Mr. Grant described as “a good man from the

heart.” Id. at 786.

The OCCA’s ineffective-assistance analysis implicated Strickland’s first

prong— viz., the performance prong. Considering the extra-record materials that

Mr. Grant specifically marshaled with respect to this claim, the court held that the

materials were “insufficient to overcome the presumption that trial counsel had a

sound basis for believing [Mr. Grant] was competent at the time of trial.” Grant,

205 P.3d at 10. And the OCCA offered the following comments regarding the

49

underlying issue of competency:

[W]e find no reason to second-guess the judgment of those

parties most familiar with [Mr. Grant’s] history of mental

problems before and during the trial—defense counsel, the trial

court, and the defense experts retained at that time. The record

supports a conclusion that [Mr. Grant] was competent at the time

of his trial.

Id.

In resolving this claim, we first address below Mr. Grant’s contentions that

certain specific legal and factual errors are embedded in the OCCA’s analysis.

Concluding that these contentions are without merit, we then turn to the

substantive Strickland question. We determine that Mr. Grant’s ineffective-

assistance claim based on trial counsel’s alleged failure to monitor his purported

decline into incompetency fails under Strickland’s second prong—that is, on the

issue of prejudice. Accordingly, we affirm the district court’s denial of habeas

relief as to this claim.

a

First, Mr. Grant argues that the OCCA’s rejection of his failure-to-monitor

claim was contrary to clearly established federal law because it rested on a

determination of competence that was legally flawed. The OCCA rejected

Mr. Grant’s failure-to-monitor claim in significant part because it determined that

Mr. Grant was in fact competent when tried. Mr. Grant argues that the OCCA’s

competency determination was legally flawed because it addressed only one

50

prong of the two-pronged test for competency. We disagree.

“The [two-pronged] test for incompetence is . . . well settled. A defendant

may not be put to trial unless he ‘has [(1)] sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding . . . [and (2)] a

rational as well as factual understanding of the proceedings against him.’”

Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Dusky v. United States,

362 U.S. 402, 402 (1960) (per curiam)); see also Drope, 420 U.S. at 171 (“It has

long been accepted that a person whose mental condition is such that he lacks the

capacity to understand the nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his defense may not be subjected

to a trial.” (emphasis added)).

Mr. Grant argues that the OCCA’s competence determination is legally

flawed because it addressed only the second prong of the competency

standard—i.e., whether Mr. Grant understood the proceedings—and, therefore, the

OCCA’s resultant rejection of his failure-to-monitor claim is contrary to clearly

established federal law. Our review of the OCCA’s direct-appeal opinion,

however, reveals that the OCCA understood and also sufficiently considered the

first prong of the competence standard—i.e., whether Mr. Grant was able to assist

counsel in preparing his defense.

The OCCA clearly recognized that the competence standard had two

components and explicitly set them out. See Grant, 205 P.3d at 8 (“Under

51

Oklahoma law, a person is competent to stand trial if he has the present ability to

understand the nature of the charges and proceedings brought against him and to

rationally assist in his own defense. These standards are consistent with federal

constitutional requirements.” (emphasis added) (citations omitted, including to the

Supreme Court’s seminal decisions in Cooper and Drope)).

Furthermore, the OCCA’s reasoning also reflects its awareness of the first

prong of the standard and application of it. For example, the court reasoned that

Mr. Grant was able to make decisions regarding his defense; during the pre-trial

phase, for instance, the trial court “had several discussions with [Mr. Grant] about

various matters” and “these exchanges show[ed that Mr. Grant] had a rather keen

understanding of the legal process, and . . . was able to make important

decisions.” Id. at 9.

In short, we are confident that all fairminded jurists would not agree that

the OCCA misunderstood the appropriate federal standard for competency or

misapplied it. Its decision in this regard was not contrary to or an unreasonable

application of clearly established federal law.

b

Mr. Grant next argues that the OCCA’s rejection of his failure-to-monitor

claim and its related rejection of Mr. Grant’s request for an evidentiary hearing

were premised on an unreasonable determination of several facts. Specifically, he

claims that the OCCA unreasonably determined that (1) Mr. Grant “had a rather

52

keen understanding of the legal process . . . [and] was able to make important

decisions,” Grant, 205 P.3d at 9; (2) Mr. Grant had an awareness and

understanding of the “ramifications” of the “admission” in his confession letter,

id.; and (3) Mr. Grant’s purported “delusions” were actually “related to an

unconventional philosophy, or religion of sorts,” id. at 9 n.6.

We conclude that Mr. Grant has not preserved these three arguments for

appellate review because he failed to raise them in his habeas petition. See

Owens v. Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015) (“Because the

argument was not raised in his habeas petition, it is waived on appeal.”); Stouffer

v. Trammell, 738 F.3d 1205, 1222 n.13 (10th Cir. 2013) (“We do not generally

consider issues that were not raised before the district court as part of the habeas

petition.”); Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (deeming

waived certain ineffective-assistance claims where petitioner “fail[ed] to assert

them in his district court habeas petition”); see also Hancock v. Trammell, 798

F.3d 1002, 1021–22 (“But in the habeas petition, Mr. Hancock did not present this

allegation as a separate basis for habeas relief. As a result, this issue has been

forfeited.” (footnote omitted)). Accordingly, we do not reach the merits of them.

The third alleged unreasonable factual determination warrants a brief

discussion. 11 Mr. Grant argues that the OCCA unreasonably determined that the

11

The other two involve more straightforward instances of lack of

(continued...)

53

“‘delusions’ found by experts in their diagnoses of schizophrenia were not

delusions, but ‘related to an unconventional philosophy, or religion of sort.’”

Aplt.’s Opening Br. at 92 (quoting Grant, 205 P.3d at 9 n.6). Mr. Grant asserts

that this factual determination was unreasonable in light of the OCCA’s

contrasting determination that “experts tended to agree that [Mr. Grant] had . . . a

form of schizophrenia.” Id. (quoting Grant, 205 P.3d at 8). As Mr. Grant sees

things, these statements reflect “internally inconsistent determinations” and are,

therefore, unreasonable. Id.

The State contends that Mr. Grant waived this argument. In the State’s

view, Mr. Grant “never argued that the OCCA’s findings were unreasonable

because it made inconsistent findings.” Aplee.’s Br. at 51 n.9 (emphasis added).

We conclude that Mr. Grant has failed to preserve this argument for appellate

review. To be sure, Mr. Grant did contend that the OCCA made an unreasonable

11

(...continued)

preservation: Mr. Grant’s habeas materials are clearly silent regarding the

arguments. We do note regarding the first contention (understanding the legal

process), Mr. Grant essentially acknowledged in his habeas petition that he had

such an understanding prior to and during trial: “Mr. Grant’s understanding of the

legal process and his ability to understand the nature of the proceedings is only

one part of the competency standard—the part that was never seriously disputed.”

R., Vol. I, at 559 (emphasis added). He goes on to state that “[t]he evaluators

were nearly unanimous in concluding that Mr. Grant could understand the nature

of the legal proceedings.” Id. And, regarding the second (the confession letter),

though Mr. Grant discussed the confession letter in his petition, see, e.g., id. at

542, 549, he never contended that the OCCA’s findings regarding the letter were

an unreasonable determination of the facts.

54

determination of facts bearing on his delusions: “The OCCA also made an

unreasonable determination of the facts in concluding comments Mr. Grant made

in writings, colloquies with the court, and in his trial testimony are not ‘delusions

that sprang [from Mr. Grant’s] own mind [because] they related to an

unconventional philosophy, or religion of sorts.’” R., Vol. I, at 561 (quoting

Grant, 205 P.3d at 9 n.6). And Mr. Grant bolstered this assertion by noting that

the OCCA’s finding was contrary to the evidentiary findings of others: “The

wealth of evidence from all the experts indicate that his grandiose delusions,

which have a religious element, are a significant symptom of his mental illness

and not merely an unconventional philosophy.” Id. In other words, Mr. Grant

contrasted the OCCA’s factual findings with the allegedly abundant contrary

evidentiary findings of others and, on this basis, declared the OCCA’s findings

unreasonable.

However, at no point did Mr. Grant contend that the OCCA’s findings were

unreasonable because they were at odds with themselves—i.e., internally

inconsistent. More specifically, in seeking to establish their unreasonableness,

Mr. Grant did not compare one set of OCCA findings with another. But this

logically is what Mr. Grant would have done if he were attempting to demonstrate

that the unreasonableness of the OCCA’s findings was based on their internal

inconsistency. And, not surprisingly, this is precisely the line of argument that

Mr. Grant pursues on appeal.

55

We do not understand the State—as Mr. Grant does—to be “essentially

assert[ing] that by not using the word ‘inconsistent’ . . . Mr. Grant waived the

argument.” Aplt.’s Reply Br. at 18. That is because both the totality of the

relevant language and structure of Mr. Grant’s arguments in his habeas petition

make patent to us that he did not advance this internal-inconsistency ground for

declaring the OCCA’s factual findings unreasonable in his habeas petition.

Accordingly, he has failed to preserve this contention for appellate review.

c

Having rejected Mr. Grant’s specific contentions of legal and factual error,

we turn to the merits of his ineffective-assistance claim based on trial counsel’s

alleged failure to monitor his competency. We conclude that Mr. Grant cannot

prevail on this ineffective-assistance claim under Strickland’s (second) prejudice

prong. That is, Mr. Grant cannot demonstrate that there is a reasonable

probability that the result of the proceeding would have been different but for

counsel’s failure to monitor Mr. Grant’s competency—or, as Mr. Grant views it,

his “slide into incompetency.” R., Vol. I, at 582.

It is undisputed—as the district court found—that the OCCA did not

“expressly address [Strickland’s] second prong.” 12 Id. at 1584. The parties joust

12

Mr. Grant complains about the OCCA’s “brief and conclusive

prejudice analysis without a totality of the evidence review.” Aplt.’s Opening Br.

at 92; see also R., Vol. I, at 605 (noting “the OCCA’s brief and conclusive

(continued...)

56

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

12

(...continued)

prejudice analysis”). However, though appearing in the portion of his brief

generally discussing trial counsel’s alleged failings in addressing Mr. Grant’s

mental-health issues, this comment does not appear to refer to the OCCA’s

specific ruling on the ineffective-assistance failure-to-monitor claim. Indeed,

Mr. Grant later agrees with the State, in his reply brief, that “the OCCA did not

adjudicate the prejudice prong of this sub-claim [i.e., failure-to-monitor

ineffective assistance].” Aplt.’s Reply Br. at 19.

57

state court, and collecting cases).

However, in resolving the merits of Strickland’s first prong (i.e.,

performance), the OCCA made a related, but distinct and independent, merits

determination regarding Mr. Grant’s substantive competency. See Grant, 205

P.3d at 10. We are obliged to take this ruling into account in our analysis of

Strickland’s prejudice prong. And it seemingly can be determinative regarding

whether Mr. Grant can prevail under that prong. For instance, commenting on

what constitutionally effective counsel would have done for him, Mr. Grant

states:

Reasonably effective counsel, with a client whose competency

was as mercurial as Grant’s, would have investigated, checked

medication records, interviewed the mental health professionals

at [the Oklahoma County Detention Center] who were treating

him daily, challenged Grant’s mental capacity to make a written

confession, and heeded the signs of decompensation noted by

their own expert.

Aplt.’s Opening Br. at 64. But, even assuming arguendo the performance of

Mr. Grant’s trial counsel was constitutionally deficient for failing to take such

steps—and, significantly, for failing to seek a second competency trial—if

Mr. Grant was actually competent, their unconstitutional performance would not

have prejudiced him. More specifically, any motion that Mr. Grant’s purportedly

effective counsel would have filed for a second competency proceeding would

have been properly denied.

58

AEDPA’s deferential standards are appropriately applied to our review of

the OCCA’s distinct and independent merits determination of Mr. Grant’s

competency. And this is true even though—as Mr. Grant urges—we conduct a de

novo review of the overarching and related question of whether Mr. Grant was

prejudiced by trial counsel’s assumed unconstitutional performance. Compare

Spears, 343 F.3d at 1249–50 (using de novo review of petitioner’s

ineffective-assistance claim involving counsel’s failure to object to a

flight-from-the-crime instruction, but seemingly applying a deferential

reasonableness standard of AEDPA to the OCCA’s related determination of a

mixed question of law and fact, specifically, that “the State had presented

sufficient evidence to support giving the flight instruction”), with Victor Hooks v.

Ward (“Victor Hooks I”), 184 F.3d 1206, 1223 (10th Cir. 1999) (applying de novo

review where “the Oklahoma courts never considered Hooks’ federal

constitutional claim with regard to his requested instructions on lesser included

offenses” but according AEDPA’s presumption of correctness where “the

Oklahoma Court of Criminal Appeals made some factual determinations that may

bear on this issue” (emphasis added)).

The question then becomes what AEDPA standards govern this question:

viz., AEDPA’s standards pertaining to issues of fact (notably, § 2254(e)(1)) 13 or

13

To be sure, AEDPA’s deferential standards with respect to state court

(continued...)

59

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, F EDERAL H ABEAS C ORPUS P RACTICE & P ROCEDURE §

13

(...continued)

factual findings are also embodied in 28 U.S.C. § 2254(d)(2). However, insofar

as competency may be deemed a factual issue, the caselaw that we have

unearthed—which is discussed infra—primarily has focused on whether state

court determinations of competency are entitled to a “presumption of

correctness”—that is, on whether the standard that AEDPA ultimately

incorporated into 28 U.S.C. § 2254(e)(1) should apply. Therefore, that is our

focus as well. However, we recognize that Mr. Grant has alleged factual errors

related to the OCCA’s competency determination—which implicate

§ 2254(d)(2)’s rubric—but we have determined in Part II.B.3.b, supra, that

Mr. Grant has not preserved any of those contentions for appellate review.

60

20.3[d] at 1156 n.55 (noting that “[t]he lower federal courts are divided on the

question of whether competency to stand trial is a factual issue entitled to a

presumption of correctness or a mixed question of law and fact,” and citing Tenth

Circuit cases in the former camp).

The Supreme Court “typed” the competency issue as a factual one, even

though it is not comprised solely of “simple historical fact[s],” Miller v. Fenton,

474 U.S. 104, 113–14 (1985), but, rather, is determined by applying legal

standards to the subsidiary facts, see Thompson, 516 U.S. at 111 (“[T]he Court

has classified as ‘factual issues’ within § 2254(d)’s compass [certain] questions

extending beyond the determination of ‘what happened.’ This category notably

includes: competency to stand trial . . . .”). The Thompson Court explained the

“practical considerations” underlying this choice:

While these issues encompass more than “basic, primary, or

historical facts,” their resolution depends heavily on the trial

court’s appraisal of witness credibility and demeanor. This Court

has reasoned that a trial court is better positioned to make

decisions of this genre, and has therefore accorded the judgment

of the jurist-observer “presumptive weight.”

Id. at 100 (citation omitted) (citing Wainwright v. Witt, 469 U.S. 412, 429 (1985),

and quoting Miller, 474 U.S. at 114). 14

14

The Supreme Court recently employed a similar typing

methodology—involving the application of “practical considerations” (Thompson,

516 U.S. at 113) in the civil bankruptcy context—to determine that the proper

standard of review to apply to a certain “‘mixed question’ of law and fact” was

(continued...)

61

We recognize that the key cases cited supra—Thompson, Demosthenes, and

its seminal Tenth Circuit progeny, Spitzweiser-Wittgenstein—were decided under

a pre-AEDPA version of § 2254 that contained the presumption-of-correctness

language that subsequently found a home in subsection (e)(1) of § 2254, with

AEDPA’s 1996 enactment. However, the presumption-of-correctness language

before and after AEDPA is intended to effectuate federalism principles by

“giv[ing] great weight to the considered conclusions of a coequal state judiciary,”

Miller, 474 U.S. at 112. Compare Thompson, 516 U.S. at 108 (quoting Miller, in

discussing the federalism principles underlying the presumption of correctness in

the pre-AEDPA regime), with Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010)

(“AEDPA in general and Section 2254(e) in particular were designed ‘to further

the principles of comity, finality, and federalism.’ Section 2254(e)(1) plainly

14

(...continued)

the standard generally applicable to factual issues—i.e., clear error—and not de

novo review. See U.S. Bank Nat. Ass’n ex rel. CW Capital Asset Mgmt. LLC v.

Vill. at Lakeridge, --- U.S. ----, 138 S. Ct. 960, 966 (2018). The mixed question

there generally was whether a “particular creditor is a non-statutory insider”; the

answer to that question turned on whether “the facts found showed” that the

creditor’s claim was acquired in “an arm’s-length transaction.” Id. at 967, 969.

As with competency, more was at issue in this determination than basic historical

facts; a legal standard had to be applied to those facts. See id. at 967.

Nevertheless, akin to competency, the Court concluded that answering the

question “entails primarily . . . factual work”; specifically, it involves “tak[ing] a

raft of case-specific historical facts, consider[ing] them as a whole, [and]

balanc[ing] them one against another.” Id. at 966–67. Thus, as the Thompson

Court reasoned regarding competency, the Lakeridge Court reasoned that such

work is “primarily” the province of the trial court and, consequently, it should be

deferentially “subject only to review for clear error.” Id. at 968–69.

62

seeks to conserve judicial resources and reflects Congress’s view that there is no

reason for a do-over in federal court when it comes to facts already resolved by

state tribunals. That section also reflects Congress’s respect for principles of

federalism, recognizing that a decision to set aside state court factual findings

intrudes on the state’s interest in administering its criminal law.” (citation

omitted) (quoting Michael Williams, 529 U.S. at 436)). Furthermore, we have no

reason to believe that the “practical considerations” that Thompson cited, 516

U.S. at 113, do not remain in full effect in the post-AEDPA era. Cf. United States

v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000) (“Competency to stand trial

is a factual determination that can be set aside only if it is clearly erroneous.”

(quoting United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998))).

Therefore, there is a strong suggestion in controlling precedent that competency

should be treated as a factual issue in the habeas context—even in the post-

AEDPA setting. If so, it would be subject to § 2254(e)(1)’s presumption of

correctness.

As it turns out, however, we need not definitively determine whether

subsection (e)(1)’s standard applies here. That is because whether this standard

applies or, alternatively, AEDPA’s standard pertaining to law-dependent mixed

questions—specifically, the standard of subsection (d)(1), see Michael Williams,

529 U.S. at 398; Gilson v. Sirmons, 520 F.3d 1196, 1233–34 (10th Cir. 2008)

(holding that whether there is sufficient evidence to warrant giving a lesser-

63

included-offense instruction is “a mixed question of law and fact and is thus

reviewable under § 2254(d)(1)”); Cook v. McKune, 323 F.3d 825, 829–30 (10th

Cir. 2003) (discussing Michael Williams and noting that § 2254(d)(1) “applies to

errors of law and mixed questions of fact and law”)—Mr. Grant cannot prevail.

In the former scenario, § (e)(1)’s “standard is demanding but not insatiable.”

Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231, 240 (2005); accord Danny

Hooks, 606 F.3d at 721; House, 527 F.3d at 1019. But Mr. Grant would be hard-

pressed to satisfy it here because he makes no effort to take up the cudgel by

making specific arguments under § 2254(e)(1)’s framework to rebut the

presumption of correctness. In the latter scenario, Mr. Grant cannot demonstrate

that the OCCA’s determination of competency was contrary to or an unreasonable

application of clearly established federal law. See, e.g., Dusky, 362 U.S. at 402;

Drope, 420 U.S. at 171. At the very least, “it is possible fairminded jurists could

disagree” regarding whether the OCCA’s competency determination conflicts

with Supreme Court precedent. Harrington, 562 U.S. at 102.

Relevant to both scenarios, specifically, the OCCA considered the totality

of the evidence, including the supplemental materials that Mr. Grant submitted

with respect to his purported incompetency, and found “no reason to second-guess

the judgment of those parties most familiar with [Mr. Grant’s] history of mental

problems before and during the trial—defense counsel, the trial court, and the

defense experts retained at that time.” Grant, 205 P.3d at 10. This approach was

64

not unreasonable. And, as the OCCA explained, these sources uniformly did not

express doubt regarding Mr. Grant’s competency to stand trial. See id. at 9.

Notably, the OCCA stated:

[Mr. Grant’s] two-lawyer defense team was experienced and

zealous, considering that the overwhelming evidence against their

client limited their options. At no time did either of them

express doubts about their client’s competency during the trial.

Their chief mental-health expert, Dr. Grundy, who spent many

hours interviewing [Mr. Grant] over the lengthy course of the

prosecution, attended at least part of the trial and testified for the

defense. Yet, there is no indication that Dr. Grundy had doubts

about [Mr. Grant’s] competency, either at that time or on

reflection afterward.

Id.

The OCCA moreover called into question the adequacy of Mr. Grant’s

supplemental medical records that supposedly “suggest[ed] that in mid–2005,

[Mr. Grant] was not diligent about taking medications prescribed to treat his

mental illness.” Id. at 8. Mr. Grant contends that these “psychiatric medications .

. . . [were] required to keep him competent.” Aplt.’s Opening Br. at 65. And Dr.

McGarrahan’s report underscored the point: “Most all of the mental health

professionals who evaluated Mr. Grant, including court-ordered experts and

State’s experts agreed that Mr. Grant’s competency was basically dependent upon

. . . his use of psychotropic medications.” R., Vol. I, at 774.

Regarding the medication records, however, the OCCA stated:

The jail records regarding [Mr. Grant’s] medication history do

not warrant a different result. [Mr. Grant] claims these logs

65

show that he was, at times, non-compliant in taking his

prescribed medication. However, the affidavit accompanying

these logs indicates that complete records for crucial time

periods—particularly, most of September 2005, all of October

2005, and most of November 2005, when the trial was held—are

missing or incomplete.

Grant, 205 P.3d at 10. In his appellate briefing, Mr. Grant does not dispute the

OCCA’s finding—based on the court’s review of the submitted affidavit—that his

medication records for a “key time period” leading up to trial were incomplete.

Aplt.’s Opening Br. at 65. He simply responds that “[h]ad counsel been

monitoring Grant’s medication contemporaneously, the medication picture for

October would be complete.” Id. But that comment does nothing to undermine

the OCCA’s factual judgment regarding the inadequacy of his medication records

to establish the alleged harmful pattern of Mr. Grant not taking his

medication—or, relatedly, to call into question the OCCA’s ultimate finding that

Mr. Grant was competent.

Similarly, Mr. Grant also attacks vigorously the OCCA’s reasoning

regarding the competency implications of his decision to testify and to send his

two September 2005 letters. But we discern nothing in these arguments that

would undermine the presumption of correctness that would attach to any OCCA

factual finding that Mr. Grant was competent, and at the very least, “it is possible

fairminded jurists could disagree” about whether the OCCA’s reasoning here

regarding competency conflicts with Supreme Court precedent. Harrington, 562

66

U.S. at 102.

In this regard, the OCCA rejected Mr. Grant’s argument that his decision to

testify, despite trial counsel’s contrary advice, militates in favor of a conclusion

that he was not competent. See Grant, 205 P.3d at 9. Dr. McGarrahan had

concluded that Mr. Grant was incompetent during his trial and sentencing, in part

because “Mr. Grant testified in the punishment stage against counsel’s advice.”

Id. The OCCA, however, generally refused to adopt Dr. McGarrahan’s opinion

because it was contrary to the opinions of the trial court, defense counsel, and

Dr. Grundy—who each observed Mr. Grant leading up to and during trial and

believed him to be competent. See id. Furthermore, the OCCA specifically

reasoned that, insofar as Dr. McGarrahan’s opinion rested on the fact that

Mr. Grant testified over the contrary advice of counsel, it really implicated

whether Mr. Grant’s decision-making was wise, not necessarily whether he was

competent to make such decisions. See id. More specifically, the OCCA

explained that the wisdom, or lack of wisdom, of Mr. Grant’s decisions is not

dispositive of the competency inquiry: “Just as we do not judge counsel’s

effectiveness solely by the success of their strategies, we refuse to judge a

defendant’s competency solely by the wisdom of his own choices.” Id.

The OCCA also did not shy away from addressing whether Mr. Grant’s

September 2005 letters evinced that he was incompetent. Relevant to the so-

called EYE letter, the OCCA reasoned:

67

[Mr. Grant] points to several cryptic comments in his writings,

in his colloquies with the court, and in his trial testimony, as

evidence that he did not understand the nature of the proceedings.

But these comments were not delusions that sprang from

[Mr. Grant’s] own mind. They related to an unconventional

philosophy, or religion of sorts, that [Mr. Grant] adhered to,

similar in some respects to the Black Muslim or Nation of Islam

movements, and known variously as “The Nation of Gods and

Earths” or “The Five Percenters.” This set of beliefs is not

uncommon among inmates in the Northeastern United States,

where [Mr. Grant] had grown up and been incarcerated.

Id. at 9 n.6. Moreover, in the same vein as its comments regarding Mr. Grant’s

decision to testify in the sentencing proceeding, the OCCA offered the following

remarks regarding Mr. Grant’s letter to the prosecutor:

The letter [Mr. Grant] addressed to the prosecutor shortly before

trial, wherein he detailed his commission of the crimes, may not

have been the most prudent course of action, but it does not show

that he was unable to grasp the ramifications of such an

admission. To the contrary, the letter indicates that [Mr. Grant]

was fully aware of what he was doing.

Id. at 9. Notably, in the letter, Mr. Grant acknowledges that he may pay a “price”

for confessing, insists that he is not “crazy” and explains that he is making the

statement because he is “tired” and “want[s] to help someone.” R., Vol. I, at

786–87.

Based on the foregoing, we conclude that Mr. Grant has not rebutted the

presumption of correctness that attaches to the OCCA’s arguably factual

competency finding; or, alternatively, has not demonstrated that the OCCA’s

competency determination was contrary to or an unreasonable application of

68

clearly established federal law regarding substantive competency. Consequently,

we must accept this competency determination in our de novo consideration of

whether Mr. Grant can prevail under Strickland’s prejudice prong. 15 And we

15

We pause to more clearly define the scope of that prejudice analysis.

As noted, while concluding that Mr. Grant was competent, the OCCA also opined

that the performance of Mr. Grant’s counsel in monitoring his competency was

not constitutionally deficient (i.e., Strickland’s first prong). Notably, its ultimate

determination regarding Mr. Grant’s competency relied in part on certain

subsidiary factual findings that reflected this positive view of the performance of

Mr. Grant’s counsel. For example, the OCCA bolstered its determination that

Mr. Grant was competent with a finding that Mr. Grant’s counsel was zealous; it

reasoned from this finding that, if Mr. Grant was actually incompetent, his

counsel could reasonably have been expected—due to their zealous nature—to

have voiced doubts about his competency with the trial court, but counsel did not

do so. See Grant, 205 P.3d at 10. In conducting our de novo review of

Strickland’s prejudice prong, we keep in mind that the predicate for this de novo

analysis is the assumption that the performance of Mr. Grant’s counsel in

monitoring his competency was actually not constitutionally adequate—that is,

our assumption is contrary to the OCCA’s assessment of counsel’s performance.

Accordingly, the OCCA’s subsidiary factual findings on the competency question

that reflect its favorable view of counsel’s performance—e.g., its finding that

Mr. Grant’s counsel was zealous regarding the monitoring of his

competency—are not taken into account in our de novo prejudice analysis, even

though we accord AEDPA deference to the OCCA’s ultimate determination that

Mr. Grant was competent. Such subsidiary factual findings are logically

immaterial to our prejudice analysis, which rests on an assumption of deficient

performance, and have no place in it. To be clear, we are not saying that AEDPA

deference does not apply to these findings when we are assessing, in isolation, the

question of substantive competency vel non. Our point is simply that in

conducting our de novo analysis of prejudice under Strickland, subsidiary factual

findings of the OCCA reflecting a favorable view of the performance of

Mr. Grant’s counsel in monitoring his competency are not relevant to that

prejudice analysis and play no part in it—even though we accord AEDPA

deference to the OCCA’s ultimate competency determination. Moreover, it is

notable that this competency determination rested on much more than these

subsidiary findings (e.g., the absence of doubts of the trial court and Dr. Grundy

(continued...)

69

conclude that this competency determination sounds the death knell for

Mr. Grant’s ineffective-assistance claim because it undercuts his ability to satisfy

this prong.

Specifically, Mr. Grant cannot establish that, but for his trial counsel’s

failure to monitor his alleged descent into incompetency, the result of his

proceeding would have been different. For example, even if counsel had

responded to Mr. Grant’s seemingly strange behavior and requested a second

competency trial, they would not have been successful because Mr. Grant was in

fact competent. In other words, given Mr. Grant’s competency, there is no

reasonable probability that the court would have ruled favorably on such a

motion. In sum, we conclude that Mr. Grant’s ineffective-assistance claim based

on the failure to monitor fails under Strickland’s prejudice prong. The district

court reached a similar alternative holding. See R., Vol. I, 1584–85 (“[G]iven the

OCCA’s conclusion that petitioner was competent at the time of his trial, even

assuming that his counsel’s performance in allegedly failing to monitor

petitioner’s competence was deficient, petitioner cannot show that he was

prejudiced by his counsel’s failure or that fairminded jurists could not disagree

15

(...continued)

regarding Mr. Grant’s competency and the inadequacy of Mr. Grant’s

supplemental medical records to demonstrate that he was rendered incompetent by

the lack of proper medication), and it is sufficient quite apart from those findings

to warrant our deference.

70

that petitioner was prejudiced.”). We uphold the district court’s denial of habeas

relief on this claim.

4. Failure to Investigate and Present Evidence of Organic Brain Damage

Mr. Grant’s habeas petition asserts that his trial counsel was

constitutionally ineffective for failing to investigate and present evidence of his

frontal-lobe damage at the sentencing phase of his trial. Trial counsel’s

mitigation case focused on evidence of Mr. Grant’s schizophrenia, and his

dysfunctional family background. Trial counsel presented “red flags” suggestive

of organic brain damage, but never offered definitive evidence that Mr. Grant

suffered from organic brain damage.

To support his ineffective-assistance claim on direct appeal, Mr. Grant

presented a neuropsychological evaluation, performed by clinical psychologist

Dr. Michael M. Gelbort, PhD, in which Dr. Gelbort diagnosed Mr. Grant with

organic brain damage—specifically, damage to the frontal lobes. Based on

Dr. Gelbort’s evaluation, Mr. Grant argued on direct appeal that trial counsel’s

failure to investigate and present evidence of organic brain damage deprived him

of his constitutional right to effective assistance of counsel. The OCCA rejected

this argument, concluding that trial counsel’s performance was not

constitutionally deficient and that Mr. Grant was not prejudiced by trial counsel’s

failure to investigate and present evidence of his organic brain damage.

Mr. Grant raised this claim in his habeas petition in the district court and,

71

applying AEDPA deference, the district court found no error in the OCCA’s

denial of Mr. Grant’s claim. Mr. Grant argues before us that the OCCA’s

rejection of his claim is contrary to and an unreasonable application of clearly

established federal law and is premised on unreasonable factual determinations.

To aid our analysis, we first pause to explicate the OCCA’s adjudication of this

particular claim. We then address Mr. Grant’s arguments and ultimately conclude

that he has not shown that the OCCA’s denial of his claim was unreasonable or

otherwise erroneous under AEDPA’s standards.

a

In analyzing Mr. Grant’s claim, the OCCA considered both the additional

evidence that Mr. Grant argued trial counsel should have discovered and

presented at the penalty phase of his trial—that is, as relevant here, Dr. Gelbort’s

report—as well as the mitigation evidence that was in fact presented to the jury.

The OCCA characterized Dr. Gelbort’s report as “linking some of [Mr. Grant’s]

mental deficits to an organic brain disorder, and concluding that these deficits

appeared very early in [Mr. Grant’s] life.” Grant, 205 P.3d at 23. Next, the

OCCA reviewed trial counsel’s mitigation strategy: “Because the evidence of

[Mr. Grant’s] guilt was overwhelming, defense counsel focused on punishment.”

Id. The OCCA found that trial counsel “spent considerable time presenting

[mitigation] evidence to the jury.” Id. Specifically, trial counsel’s “strategy was

to present expert evidence on [Mr. Grant’s] mental illness, and testimony from

72

family members about his disadvantaged and dysfunctional childhood.” Id. The

OCCA stated that trial counsel’s mitigation strategies “were by no means

antagonistic” and concluded that “jurors might have found the circumstances

surrounding [Mr. Grant’s] formative years to have created, or at least aggravated,

his mental problems.” Id.

Based on the mitigation evidence before the jury, the OCCA reasoned that

“the fact that [Mr. Grant] had some sort of mental illness was never in serious

dispute” and, as a result, even though evidence of “organic brain disorder might

have shed light on one potential cause of [Mr. Grant’s] mental illness,” there was

not a reasonable probability that Dr. Gelbort’s report “would have affected the

jury’s sentencing decision.” Id. In particular, the OCCA opined that “the

affidavits [Mr. Grant] submit[ted] on appeal do not present anything qualitatively

different from what was presented at trial on these issues.” Id. The OCCA

further found that Mr. Grant failed to “overcome the strong presumption that his

trial counsel performed competently,” and denied his claim. Id.

b

Mr. Grant first argues that “the OCCA mischaracterized [his] claim as a

failure of trial counsel to call several witnesses who could have testified to

[Mr.] Grant’s mental illness generically.” Aplt.’s Opening Br. at 91

(emphasis omitted) (citing Grant, 205 P.3d at 23). Presumably, Mr. Grant is

referring to the following statement of the OCCA: “The final complaint is defense

73

counsel’s failure to call several witnesses who could have testified about [Mr.

Grant’s] mental illness.” Grant, 205 P.3d at 23. Mr. Grant asserts that this

characterization was unreasonable because trial counsel’s “deficient performance

did not arise from a strategic decision not to call witnesses but from a failure to

thoroughly investigate mitigating evidence in order to make reasonable strategic

decisions about what witnesses to call.” Aplt.’s Opening Br. at 91 (emphasis

added).

As a threshold matter, it appears that Mr. Grant neglected to raise this

argument in his habeas petition. Consequently, we could decline to consider it.

See, e.g., Parker, 394 F.3d at 1327. However, even if we saw fit to do so, see,

e.g., Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (“[T]he decision

regarding what issues are appropriate to entertain on appeal in instances of lack of

preservation is discretionary.”), we would be hard-pressed to conclude that the

OCCA mischaracterized Mr. Grant’s claim.

Reading the statement at issue in context, it appears to be merely a

shorthand reference to Mr. Grant’s claim, rather than a mischaracterization. The

OCCA’s opinion explicitly introduced the claim as one involving “trial counsel’s

failure to investigate aspects of [Mr. Grant’s] mental health.” Grant, 205 P.3d at

23 (emphasis added). And the concepts of deficient investigation and deficient

presentation are closely intertwined. Indeed, the OCCA reviewed the evidence

that Mr. Grant alleges trial counsel would have discovered from a reasonable

74

investigation and concluded that Mr. Grant was not prejudiced by the absence of

this evidence before the sentencing jury. See id. In light of the foregoing, we are

not persuaded that this stray line from the OCCA’s opinion constitutes a

misapprehension of Mr. Grant’s claim.

Furthermore, as previously noted, our focus under AEDPA’s deferential

standard is on the reasonableness of a 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—not on the

unalloyed rectitude of each line of text of a state court’s opinion. And Mr. Grant

has not explained how this isolated line resulted in the OCCA performing an

unreasonable analysis in contravention of AEDPA’s standards. Consequently, on

this basis alone, we would reject Mr. Grant’s argument.

c

Mr. Grant argues that the OCCA’s finding that he suffered no prejudice

from trial counsel’s failure to investigate and present evidence of his organic

brain damage constitutes an unreasonable application of clearly established

federal law. 16 He asserts that “[p]rejudice has been specifically found by the

16

In this context, Mr. Grant challenges a stray statement in the

OCCA’s discussion; we summarily address and reject the challenge at this time.

Specifically, Mr. Grant argues that the OCCA unreasonably “[c]haracteriz[ed]

organic brain damage as potentially causing Mr. Grant’s probable schizophrenia.”

Aplt.’s Opening Br. at 87. Mr. Grant argues that this explanation “oversimplifies

(continued...)

75

Supreme Court from trial counsel’s deficient performance in not investigating a

client’s cognitive deficits.” Aplt.’s Opening Br. at 92 (citing Michael Williams,

529 U.S. at 396). To bolster his point, Mr. Grant challenges the OCCA’s

subsidiary conclusion that Mr. Grant’s particular organic-brain-damage evidence

was not qualitatively different, in terms of mitigating effect, from the evidence of

schizophrenia that trial counsel had presented to the jury. 17

16

(...continued)

the connection, if any, between the damage to Grant’s brain and his schizophrenia

[and] ignores the cumulative effect from these separate disease processes.” Id.

As we see it, Mr. Grant’s argument amounts to no more than a complaint that the

OCCA’s language was inartful. He has not shown that this particular statement

constituted an unreasonable determination of fact, much less that such an error

would warrant habeas relief. See Byrd, 645 F.3d at 1172 (“Section 2254(d)(2),

however, ‘is a daunting standard—one that will be satisfied in relatively few

cases.’ That is because an ‘unreasonable determination of the facts’ does not,

itself, necessitate relief.” (citation omitted) (quoting Taylor v. Maddox, 366 F.3d

992, 1000 (9th Cir. 2004)). Indeed, the OCCA’s statement finds support in

Dr. Grundy’s testimony, wherein he explained that part of his job was to “look[]

at the medical or physical history of a person” in order to determine “whether

there is a medical or physical cause,” such as organic brain damage, “that would

contribute to their mental illness,” such as schizophrenia. R., Vol. IV, Trial Tr.

VII at 18 (emphases added). In light of Dr. Grundy’s testimony, we cannot

conclude that the OCCA’s suggestion (perhaps inartfully expressed) of a potential

causal nexus between Mr. Grant’s organic brain damage and his mental illness

constitutes an unreasonable determination of fact based on the record before the

OCCA.

17

In his brief, Mr. Grant argues that the OCCA’s determination that

evidence of organic brain damage was not qualitatively different in mitigating

effect from the evidence of schizophrenia was an unreasonable determination of

fact. However, as we have recently highlighted, such a prejudice-related question

is actually “a mixed question of law and fact with a significant legal component.”

Littlejohn II, 875 F.3d at 558 n.3; see Michael Williams, 529 U.S. at 398 (“The

[state] court correctly found that as to ‘the factual part of the mixed question,’

(continued...)

76

In line with Mr. Grant’s arguments, we elect to focus our deferential review

under AEDPA on the OCCA’s prejudice ruling—viz., its determination that there

is not a reasonable probability that, but for trial counsel’s failure to investigate

and present organic-brain-damage evidence, the jury’s sentencing verdict would

have been different. See, e.g., Strickland, 466 U.S. at 697 ( “If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.”); see also

Littlejohn II, 875 F.3d at 552 (noting that “[t]hese two prongs” of the Strickland

standard “may be addressed in any order”). And, viewed through AEDPA’s

17

(...continued)

there was ‘really . . . n[o] . . . dispute’ that available mitigation evidence was not

presented at trial. As to the prejudice determination comprising the ‘legal part’ of

its analysis, it correctly emphasized the strength of the prosecution evidence

supporting the future dangerousness aggravating circumstance.” (citations

omitted) (quoting Williams v. Warden of the Mecklenburg Corr. Ctr., 487 S.E.2d

194, 198–99 (Va. 1997))). Consequently, the OCCA’s comment on this matter

implicates the legal component of AEDPA, § 2254(d)(1). See Acosta, 877 F.3d at

927 (“Contrary to the district court’s assertion, whether the facts found

concerning the prosecution’s efforts to produce the witness support the legal

conclusion that it acted in good faith is a mixed question of law and fact. Under

AEDPA, it is reviewed for an ‘unreasonable application of clearly established

Federal law.’” (citation omitted) (quoting Cook v. McKune, 323 F.3d 825, 831

(10th Cir. 2003))); cf. Lakeridge, 138 S. Ct. at 970 (holding that “the standard of

review for a mixed question [of law and fact] all depends—on whether answering

it entails primarily legal or factual work” and concluding that clear error (rather

than de novo) review applied to the mixed question of non-statutory insider status

under bankruptcy law because resolution of it largely involved factual work).

Accordingly, we consider Mr. Grant’s objection to the OCCA’s not-qualitatively-

different determination in the context of resolving the overall question of whether

the OCCA’s lack-of-prejudice conclusion was contrary to or an unreasonable

application of Strickland.

77

prism, we conclude that Mr. Grant has not carried his burden to demonstrate

prejudice under Strickland.

i

“Evidence of organic brain damage is something that we and other courts,

including the Supreme Court, have found to have a powerful mitigating effect.”

Victor Hooks II, 689 F.3d at 1205 (citing Rompilla, 545 U.S. at 392; Michael

Wilson I, 536 F.3d at 1094; Roderick Smith v. Mullin, 379 F.3d 919, 942–43 (10th

Cir. 2004)); see Littlejohn I, 704 F.3d at 864 (“Evidence of organic mental

deficits ranks among the most powerful types of mitigation evidence available.”).

“And for good reason—the involuntary physical alteration of brain structures,

with its attendant effects on behavior, tends to diminish moral culpability, altering

the causal relationship between impulse and action.” Victor Hooks II, 689 F.3d at

1205.

In Littlejohn II, we had occasion to elaborate on this “proposition”—and,

thereby, clarify the mitigating role that organic-brain-damage evidence plays in

the capital-sentencing context. See Littlejohn II, 875 F.3d at 559. Specifically,

we said:

[T]his proposition only has explanatory power with respect to our

caselaw when appropriately qualified in two salient respects.

First, it does not mean that all evidence of organic brain damage

has the same potency in the Strickland prejudice analysis and

will ineluctably result in a determination of prejudice. Our

caselaw requires us to examine the precise nature of the alleged

organic brain damage. In this regard, in several instances, we

78

have concluded that evidence alleged to show organic brain

damage, or related mental-health evidence, would have had little,

if any, impact on the jury’s decision-making process. . . .

....

Second, we have concluded, in some instances, that

organic-brain-damage evidence would have been just as

likely—if not more likely—to have had an aggravating effect

rather than a mitigating effect on a sentencing jury.

Id. at 559–60 (citations omitted).

Put more simply, with respect to the first point, we must carefully consider

in our analysis the “precise nature” of the organic-brain-damage evidence at issue

and recognize that, though this category of evidence generally packs a powerful

mitigating punch, particular versions of it may be “qualitatively weak in their

mitigating effects on jurors.” Id. at 559, 566. And, regarding the second point,

because omitted mitigation evidence may have the effect of a “double-edged

sword”—cutting both in favor of mitigation and in favor of aggravation—we must

remain cognizant of the possibility that the evidence actually would have hurt

more than helped the petitioner’s mitigation case. 18 See Davis v. Exec. Dir. of

Dep’t of Corr., 100 F.3d 750, 762 (10th Cir. 1996) (noting that courts must

18

In his reply brief, Mr. Grant asserts that “the Supreme Court . . .

rejected the ‘double-edged’ characterization of [organic-brain-damage] evidence,”

in Sears v. Upton, 561 U.S. 945 (2010). Aplt.’s Reply Br. at 26–27. We recently

rejected the same argument in Michael Smith. See 824 F.3d at 1254 (“We cannot

agree that Sears clearly prohibits courts from considering the ‘doubled-edged’

nature of mental-health and substance-abuse evidence in evaluating prejudice

resulting from its omission during the penalty phase of trial.”). Accordingly, on

this basis, we reject Mr. Grant’s assertion.

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carefully review omitted mitigation evidence to determine if it truly mitigates or,

instead, has the possibility of being a “two-edged sword” (quoting Davis v.

People, 871 P.2d 769, 774 (Colo. 1994))); see Gilson, 520 F.3d at 1250 (noting,

as to organic-brain-damage evidence, that “the presentation of this evidence

would likely have weighed against [petitioner] by erasing any lingering doubts

that may have existed as to his role in [the victim’s] murder, and by confirming

the jury’s conclusion that he represented a continuing threat, even if confined in

prison for life”); see also Littlejohn II, 875 F.3d at 564 (noting that “the

introduction of Mr. Littlejohn’s organic-brain-damage evidence at resentencing

likely would have been the impetus for developments harmful to his case”). In

sum, the identification of organic-brain-damage evidence that counsel allegedly

omitted unreasonably from the sentencing phase marks the beginning—not the

end—of our prejudice analysis under Strickland.

ii

(1)

On direct appeal, Mr. Grant submitted the neuropsychological evaluation

performed by clinical psychologist Dr. Gelbort. In summary, Dr. Gelbort’s report

indicated that Mr. Grant has a “frontal lobe syndrome,” causing him to suffer

from certain cognitive impairments. Aplt.’s Direct Appeal Appl. for Evidentiary

Hr’g, Ex. G-2. He found that Mr. Grant’s “impairments . . . predate the [offense

conduct],” “are omnipresent[,] and continuously affect his behavior in a negative

80

way.” Id. at Ex. G-3. More specifically, Dr. Gelbort found that Mr. Grant is

“never as able as a normal individual to think logically, adaptively, and

coherently,” and that “[h]is capacity for normal reasoning” is impaired. Id. As a

result, “his behavior [was] less likely to conform to normal standards at the time

of the crime.” Id.

Mr. Grant argues that this evidence could have explained to the jury that

his frontal lobe damage “caused [the] neuro-cognitive deficiencies that are linked

to his lifetime of impulsive, aggressive, and irrational behaviors.” Aplt.’s

Opening Br. at 87. Moreover, he argues that Dr. Gelbort’s evidence could have

“proved the brain damage to which trial counsel alluded, [and] also explained

. . . . in mitigating terms the self-destructive impulsive behaviors that carried over

into his devastating confession letter and testimony, and explained how his

impulse to sabotage his case was impossible for him to control.” Id. at 61–62.

We conclude that the OCCA could have reasonably concluded that the

organic-brain-damage evidence from Dr. Gelbort “would have been qualitatively

weak in [its] mitigating effects on jurors.” Littlejohn II, 875 F.3d at 566.

Dr. Gelbort spoke only in general terms about the presence of “frontal-lobe

damage” and Mr. Grant’s inability to think “logically, adaptively, and

coherently.” See Aplt.’s Direct Appeal Appl. for Evidentiary Hr’g, Ex. G-2, G-3.

Contrary to Mr. Grant’s suggestion, Dr. Gelbort’s testimony never indicated that

Mr. Grant’s brain defects caused his behavior to be “impulsive” or “aggressive”

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in a way that would meaningfully explain his involvement in the double murders

for which he suffered convictions.

Indeed, evidence of impulse-control impairments would have been of

modest explanatory power in this particular case, where the overwhelming

evidence in the record indicates that Mr. Grant’s commission of the offenses at

issue was not the result of impulse; on the contrary, Mr. Grant’s criminal episode

was a planned, organized, and methodical one designed to secure money for his

girlfriend’s bail. See, e.g., R., Vol. IV, Trial Tr. VI, at 194 (“Q: So was it part of

your plan, before you went there, that you were going to get the videotape [from

the security camera]? [Mr. Grant:] Most definitely.”); id. at 194–95 (“Q: And so

before you ever entered the La Quinta Inn that day you had a knife and a gun and

you knew that you were going to kill whoever was there; is that correct?

[Mr. Grant:] Most definitely.”).]

As a result, in this case, any evidence of Mr. Grant’s inability to control his

impulses would have done little to connect the dots between his brain damage and

the offense conduct. Cf. Hooks, 689 F.3d at 1204 (“Counsel in capital cases must

explain to the jury why a defendant may have acted as he did—must connect the

dots between, on the one hand, a defendant’s mental problems, life circumstances,

and personal history and, on the other, his commission of the crime in question.”).

Furthermore, with regard to Dr. Gelbort’s opinion that Mr. Grant’s “behavior

[was] less likely to conform to normal standards at the time of the crime,” Aplt.’s

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Direct Appeal Appl. for Evidentiary Hr’g. at Ex. G-3, the OCCA could have

reasonably concluded that “such evidence[, which] tends to depict [Mr. Grant] as

unstable and unable to control his actions[,] . . . could have [had] an overall

aggravating, rather than mitigating, effect,” and, therefore, its omission was not

prejudicial. Littlejohn II, 875 F.3d at 562.

Moreover, the OCCA also could have reasonably concluded that the

potency of Dr. Gelbort’s organic-brain-damage evidence would have been

significantly weakened by the fact that he never indicated that the negative

manifestations of Mr. Grant’s organic brain damage—for instance, his inability to

conform to societal norms—were treatable with medication or other such means.

See id. at 565 (“[T]he mitigating effect of Mr. Littlejohn’s evidence of organic

brain damage would likely have been diminished by the lack of reliable treatment

options for Mr. Littlejohn’s attention deficit and impulse-control disorders.”); cf.

Littlejohn I, 704 F.3d at 865 n.24 (evidence of organic brain damage coupled with

evidence of available medical treatments could give a sentencing jury “some

assurance that” the petitioner’s “criminal, violent past would not be prologue”);

Michael Wilson I, 536 F.3d at 1094 (“Diagnoses of specific mental illnesses such

as schizophrenia or bipolar, which are associated with abnormalities of the brain

and can be treated with appropriate medication, are likely to [be] regarded by a

jury as more mitigating than generalized personality disorders, which are

diagnosed on the basis of reported behavior, are generally inseparable from

83

personal identity, and are often untreatable through medical or neurological

means.” (emphases added)); cf. also Hooks, 689 F.3d at 1205 (citing Michael

Williams, 529 U.S. at 398).

In sum, we conclude that the OCCA could have reasonably concluded that

the “mitigating effects on the jurors” of the particular organic-brain-damage

evidence identified by Mr. Grant “would have been qualitatively weak.”

Littlejohn II, 875 F.3d at 566.

(2)

Furthermore, this qualitatively-weak evidence would not have been

considered by the sentencing jury in a vacuum; Strickland and its progeny lead us

to examine the role that the evidence would have played in Mr. Grant’s overall

mitigation case. As the Supreme Court put it,

In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence

before the judge or jury. Some of the factual findings will have

been unaffected by the errors, and factual findings that were

affected will have been affected in different ways. Some errors

will have had a pervasive effect on the inferences to be drawn

from the evidence, altering the entire evidentiary picture, and

some will have had an isolated, trivial effect.

Strickland, 466 U.S. at 695–96; accord Jeremy Williams, 782 F.3d at 1215;

Michael Wilson II, 706 F.3d at 1305.

The OCCA observed that trial counsel “spent considerable time presenting

[mitigation] evidence to the jury.” Grant, 205 P.3d at 23. Trial counsel’s

84

mitigation case included expert evidence of Mr. Grant’s schizophrenia presented

by Dr. Grundy; testimony from family members and Dr. Art Williams, PhD, about

his disadvantaged and dysfunctional childhood; and various references to certain

“red flag” indicators of organic brain damage, though no definitive evidence of

organic brain damage was presented.

Dr. Grundy testified that he diagnosed Mr. Grant with schizophrenia and

that this illness “significantly impaired his competency,” but that medication and

a structured environment “helped his symptoms go into partial remission . . . to a

great extent.” R., Vol. IV, Trial Tr. VI, at 231. He also noted that Mr. Grant was

subject to certain “stressors” including that he grew up in “a high crime

neighborhood” with “poor parental supervision,” and possibly “parental neglect.”

Id., Trial Tr. VII, at 19. Dr. Grundy explained that when these “stressors are

present . . . mental illness worsens.” Id. at 20.

Dr. Grundy did not testify as to organic brain damage because he was not

qualified to “examine . . . and assess” the “potential for organic brain damage.”

Id. at 16, 18. However, he testified to certain “red flag” indicators of organic

brain damage including that Mr. Grant was deprived of oxygen at birth. Id. at 16,

28. Moreover, Mr. Grant’s mother testified that she drank alcohol heavily during

her pregnancy with Mr. Grant and that he was born “blue” and without a pulse.

Id., Vol. IV, Trial Tr. VI, at 133–34. And the jury was given the following

mitigation instruction further reinforcing the potentiality for organic brain

85

damage: “There are indications of brain damage existing at or before Donald

Grant’s birth[, including] his mother’s heavy consumption of alcohol during her

pregnancy with Donald Grant and the loss of oxygen to him during delivery.” Id.,

Trial Tr. VIII, at 34–35.

Dr. Williams testified regarding Mr. Grant’s “[v]ery pathological”

childhood. Id., Trial Tr. VII, at 181. Dr. Williams explained that Mr. Grant’s

father was an alcoholic and his mother was addicted to crack cocaine, and that, as

a result, “[h]e didn’t get any of the core values . . . the discipline accountability

[values] in terms of a family system and support system. . . . [H]e didn’t get any

positive rol[e] models early in life in relationship of support.” Id. at 181–82.

In light of the foregoing, we may certainly conclude that this is patently not

a situation where Mr. Grant’s trial counsel just “did something” in the mitigation

case. Michael Wilson I, 536 F.3d at 1084. Far from it. Consequently, with the

totality of this evidence before it, we think that the OCCA’s rejection of

Mr. Grant’s prejudice showing under Strickland cannot be found to be contrary to

or an unreasonable application of clearly established federal law. At a minimum,

“‘fairminded jurists could disagree’ on the correctness of the [OCCA’s] decision.”

Harrington, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at 664).

Significantly, the omitted evidence of organic brain damage in this case

would have merely supplemented the same mitigation theory as was already

presented in the record. The jury heard evidence, inter alia, of Mr. Grant’s

86

schizophrenia diagnosis, and red flags of organic brain damage, as part of trial

counsel’s strategy to show that Mr. Grant was relatively less morally culpable for

his crimes. The omitted evidence of Dr. Gelbort’s evaluation and related

testimony would have followed this same theme: Mr. Grant is less morally

culpable for his crimes because of a mental impairment beyond his control. More

specifically, trial counsel’s mitigation case was targeted specifically to explain

and lessen Mr. Grant’s culpability for his offense conduct by underscoring a

clinically-diagnosable mental-health condition afflicting Mr. Grant, that is,

schizophrenia. And to this end, counsel put substantial evidence before the

sentencing jury regarding Mr. Grant’s mental illness.

Thus, evidence of organic brain damage would have only supplemented,

rather than introduced, this mitigation theory to the sentencing jury. Indeed, the

further evidence of organic brain damage could have been in tension with the

mitigation case and had a doubled-edged effect. Whereas Dr. Grundy testified, as

to schizophrenia, that—though it “significantly impaired his competency”—

medication and a structured environment “helped his symptoms go into partial

remission . . . to a great extent,” R., Vol. IV, Trial Tr. VI, at 231, there was not

similar testimony from Dr. Gelborn regarding the possibility of successful

treatment options for Mr. Grant’s organic brain damage. See, e.g., Littlejohn II,

875 F.3d at 565 (“[T[he mitigating effect of Mr. Littlejohn’s evidence of organic

brain damage would likely have been diminished by the lack of reliable treatment

87

options for Mr. Littlejohn’s attention deficit and impulse-control disorders.”); cf.

Michael Wilson I, 536 F.3d at 1094 (“Diagnoses of specific mental illnesses such

as schizophrenia or bipolar [disorder], which are associated with abnormalities of

the brain and can be treated with appropriate medication, are likely to [be]

regarded by a jury as more mitigating than generalized personality disorders,

which are diagnosed on the basis of reported behavior, are generally inseparable

from personal identity, and are often untreatable through medical or neurological

means.” (emphases added)). In sum, for Mr. Grant, evidence of his organic brain

damage—absent any indication that the symptoms could be treated—could well

have caused some damage to the substantial mitigation case trial counsel had

already presented to the jury.

Mr. Grant points to a number of cases in which the Supreme Court and this

one have found prejudice stemming from counsel’s failure to investigate and

present evidence of organic brain damage. In several of these cases—unlike the

circumstances here—trial counsel’s only mitigation theory was far afield from

that supported by (omitted) evidence of organic brain damage. For instance, in

Sears v. Upton, 561 U.S. 945, 947, 949 (2010), the Supreme Court found

prejudice where trial counsel’s mitigation case “portray[ed] the adverse impact of

[the defendant’s possible] execution on his family and loved ones,” and omitted

evidence of the defendant’s “frontal lobe abnormalities” and dysfunctional

childhood, which impaired the defendant’s planning, sequencing, and impulse

88

control. Similarly, in Rompilla, 545 U.S. at 378, 392, the Court found prejudice

where trial counsel presented testimony from family members that the defendant

“was innocent and a good man,” and omitted evidence that the defendant suffered

from organic brain damage and fetal alcohol syndrome.

And, in Wiggins, the Court found prejudice where counsel argued only that

the defendant had a “clean record,” with no prior convictions, despite the fact that

“[t]he mitigating evidence that counsel failed to discover and present in this case

[was] powerful,” including evidence of petitioner’s “diminished mental

capacities.” 539 U.S. at 515, 534–35. Finally, in Anderson v. Sirmons, 476 F.3d

1131, 1146–47 (10th Cir. 2007), we found prejudice where counsel presented

evidence that the defendant “was a kind, hard-working, normal man who could be

of some help to his daughter if his life were spared,” and omitted evidence, inter

alia, that the defendant had brain damage and was “borderline mentally

defective.”

In each of these cases, the good-guy and beloved-family-member mitigating

evidence presented by counsel was significantly different from the omitted—and

potentially more powerful—evidence of organic brain damage, which could have

served to explain and lessen the defendants’ moral culpability for their offense

conduct. Not so here. Evidence of organic brain damage would have only

supplemented, rather than introduced, the mitigation theory of Mr. Grant’s

counsel to the sentencing jury.

89

Furthermore, a proper Strickland prejudice analysis would also necessarily

take into account the State’s potential case in aggravation. See, e.g., Michael

Wilson II, 706 F.3d at 1306 (noting that, in making the prejudice determination

under Strickland, we must evaluate the strength of the omitted evidence in light of

“what the prosecution’s response to that evidence would have been”). In support

of its contention that Mr. Grant deserved the death penalty, the State argued, inter

alia, that Mr. Grant posed a continuing threat to society. At least under facts akin

to these, “we have characterized a petitioner’s potential for continued

dangerousness, even if incarcerated, as ‘perhaps [the] most important aggravating

circumstance’ that juries consider in weighing the death penalty.” Littlejohn II,

875 F.3d at 564 (quoting John Grant v. Trammell, 727 F.3d 1006, 1017 (10th Cir.

2013)); see also Littlejohn I, 704 F.3d at 865 (holding that “[t]he potential

prejudice flowing from th[e] omission” of organic-brain-damage evidence could

have been “heightened” where “a considerable portion of the State’s case in

aggravation relate[d] to the continuing-threat aggravator”). Thus, in considering

the State’s potential case in aggravation, the jury would likely have used evidence

of Mr. Grant’s organic brain damage and its possibly untreatable symptoms as

support for a conclusion that Mr. Grant would pose a continuing threat to society,

notwithstanding his incarceration. The OCCA thus could have reasonably

concluded that, in this instance, “organic-brain-damage evidence would have been

just as likely—if not more likely—to have had an aggravating effect rather than a

90

mitigating effect on a sentencing jury.” Littlejohn II, 875 F.3d at 560.

***

In sum, we are not persuaded that the OCCA was unreasonable in

concluding that this additional mental-health explanation for Mr. Grant’s offense

conduct—offered in the form of organic-brain-damage evidence from

Dr. Gelbort—would have created a reasonable probability that a juror would have

voted differently at Mr. Grant’s sentencing. See Grant, 205 P.3d at 23 (“[W]hile

the presence or absence of organic brain disorder might have shed light on one

potential cause of [Mr. Grant’s] mental illness, the fact that [Mr. Grant] had some

sort of mental illness was never in serious dispute. In our view, the affidavits

[Mr. Grant] submits on appeal do not present anything qualitatively different from

what was presented at trial on these issues.”); cf. [Lois] Smith, 235 F.3d at 1282

(“Although the evidence pertaining to Smith’s organic brain damage would have

been proper mitigating evidence and may have helped explain the crime to some

degree . . . . we are not persuaded it is reasonably probable that the introduction

of the organic brain damage evidence would have led the jury to choose a life

sentence rather than a death sentence.”). At a

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