Opposition Brief — Wade Greely Lay, Petitioner v. Terry Royal, Warden

Ca s e N o . 17-7685

IN THE S U P REME COU RT OF THE U N ITED S TATES

WAD E GREELY LAY,

P et i t i on er ,

v.

TERRY ROYAL, Wa rd e n ,

Ok la h o m a S ta te P e n ite n tia ry ,

R esp on d en t .

On P e titio n fo r Writ o f Ce rtio ra ri to th e

Ok la h o m a Co u rt o f Crim in a l Ap p e a ls

B RIEF IN OP P OS ITION TO P ETITION

F OR WRIT OF CERTIORARI

MIKE HU N TER

ATTORN EY GEN ERAL OF OKLAHOMA

*J EN N IF ER L. CRAB B , OB A #20546

AS S IS TAN T ATTORN EY GEN ERAL

313 N E 21 s t S tre e t

Ok la h o m a City , Ok la h o m a 73105

(405) 521-3921

(405) 522-4534 F AX

ATTORN EYS F OR RES P ON D EN T

fh c .d o c k e t@o a g .o k .g o v

je n n ife r.c ra bb@o a g .o k .g o v

*Co u n s e l o f re c o rd

Ma rc h 8, 2018

TAB LE OF CON TEN TS

P AGE

QU ES TION S P RES EN TED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S TATEMEN T OF THE CAS E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

S TATEMEN T OF THE F ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

REAS ON S F OR D EN YIN G THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

P E TITION ER’S CHALLEN GES TO THE TEN TH

CIRCU IT’S D EN IAL OF CLAIMS WHICH WERE

P ROCED U RALLY B ARRED IN S TATE COU RT

P R E S E N T N O IMP OR TAN T QU E S TION OF

F ED ERAL LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A.

B a c k g ro u n d o f P e titio n e r’s Cla im s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B.

P e titio n e r P re s e n ts N o F e d e ra l Qu e s tio n to th is Co u rt. . . . . . . . . . . . 8

C.

As s u m in g P e titio n e r Co u ld Av o id th e P ro c e d u ra l B a r, He

P re s e n ts N o Co m p e llin g Qu e s tio n fo r th is Co u rt’s Re v ie w .. . . . . . . . . 9

1.

T h e T en t h Ci r cu i t ’s Ap p l i ca t i on of 28 U .S .C. § 2254(d )

P r esen t s N o Q u est i on for t h i s Cou r t t o R esol v e. . . . . . . . . . . . . . . 9

2.

T h e S t a n d a r d of R ev i ew for Com p et en cy Cl a i m s i s n ot

a n O p en Q u est i on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3.

T h e O CCA’s S t a n d a r d for Gr a n t i n g a n Ev i d en t i a r y

Hea r i n g i s Ir r el ev a n t t o P et i t i on er ’s P r oced u r a l l y

Ba r r ed Cl a i m s. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CON CLU S ION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TAB LE OF AU THORITIES

F ED ERAL CAS ES

Ap p el v . Hor n ,

250 F .3d 203 (3d Cir. 2001). .......................................................................... 12

At k i n s v . Vi r g i n i a ,

536 U .S . 304 (2002). ........................................................................................ 18

Au st i n v . D a v i s,

876 F .3d 757 (5 t h Cir. 2017). .......................................................................... 15

Ba r t on v . Wa r d en , S . O h i o Cor r . Fa ci l i t y,

786 F .3d 450 (6 t h Cir. 2015). .................................................................... 12, 13

Bel l v . Mi l l er ,

500 F .3d 149 (2d Cir. 2007). .......................................................................... 13

Col e v . T r a m m el l ,

755 F .3d 1142 (10 t h Cir. 2014). ...................................................................... 11

Col em a n v . T h om p son ,

501 U .S . 722 (1991). .......................................................................................... 8

Con n er v . Ha l l ,

645 F .3d 1277 (11 t h Cir. 2011). ...................................................................... 12

Coop er v . O k l a h om a ,

517 U .S . 348 (1996). .................................................................................. 17, 19

D em ost h en es v . Ba a l ,

495 U .S . 731 (1990). .................................................................................. 15, 16

Fi sch er v . S m i t h ,

780 F .3d 556 (2d Cir. 2015). .......................................................................... 13

For d v . Wa i n w r i g h t ,

477 U .S . 399 (1986). .................................................................................. 18, 19

Fu l t on v . Gr a h a m ,

802 F .3d 257 (2d Cir. 2015). .......................................................................... 13

Gr a y v . Gr eer ,

800 F .2d 644 (7 t h Cir. 1986). .......................................................................... 14

Ha r r i n g t on v . R i ch t er ,

562 U .S . 86 (2011). .......................................................................................... 10

Ha r r i s v . R eed ,

489 U .S . 255 (1989). ........................................................................................ 10

J oh n son v . N or t on ,

249 F .3d 20 (1 s t Cir. 2001). ............................................................................ 16

J oh n son v . Wi l l i a m s,

568 U .S . 289 (2013). .................................................................................. 10, 11

J osep h v . U n i t ed S t a t es,

___ U .S . ___, 135 S . Ct. 705 (2014)................................................................. 11

La y v . R oya l ,

860 F .3d 1307 (10 t h Cir. 2017). ..................................................... 2, 4, 7, 8, 14

Lot t v . T r a m m el l ,

705 F .3d 1167 (10 t h Cir. 2013). ...................................................................... 17

Ma g g i o v . Fu l for d ,

462 U .S . 111 (1983). ........................................................................................ 15

P a n et t i v . Q u a r t er m a n ,

551 U .S . 930 (2007). ........................................................................... 17, 18, 19

R osen t h a l v . O ’Br i en ,

713 F .3d 676 (1 s t Cir. 2013). .......................................................................... 15

S m i t h v . R ob b i n s,

528 U .S . 259 (2000). ........................................................................................ 14

U n i t ed S t a t es v . Hog a n ,

986 F .2d 1364 (11 t h Cir. 1993). ...................................................................... 16

Wi l l i a m s v . T a yl or ,

529 U .S . 362 (2000). ........................................................................................ 12

Zi v ot ofsk y ex r el . Zi v ot ofsk y v . K er r y,

___ U .S . ___, 135 S . Ct. 2076 (2015)......................................................... 14, 15

S TATE CAS ES

Gr a n t v . S t a t e,

205 P .3d 1 (Ok la . Crim . Ap p . 2009)............................................................. 16

La y v . S t a t e,

179 P .3d 615 (Ok la . Crim . Ap p . 2008)....................................................... 3, 4

S i m p son v . S t a t e,

230 P .3d 888 (Ok la . Crim . Ap p . 2010)......................................................... 18

S m i t h v . S t a t e,

955 P .2d 734 (Ok la . Crim . Ap p . 1998)......................................................... 17

F ED ERAL S TATU TES

28 U .S .C. § 2254. .............................................................................................. 9, 14, 16

S TATE S TATU TES

Ok la . S ta t. tit. 21, § 701.12. ....................................................................................... 3

F ED ERAL RU LES

Ru le 10, R u l es of t h e S u p r em e Cou r t . ............................................................ 17, 19

S TATE RU LES

Ru le 9.7(D )(5), R u l es of t h e O k l a h om a Cou r t of Cr i m i n a l Ap p ea l s,

Title 22, Ch . 18, Ap p . (2008). ........................................................................ 17

CAPITAL CASE

QUESTION PRESENTED

Should this Court grant certiorari review for claims that were

procedurally barred in state court when Petitioner makes no attempt to

avoid or excuse the procedural bar?

1

No. 17-7685

In the

SUPREME COURT OF THE UNITED STATES

October Term, 2017

________________________________________________________________________

WADE GREELY LAY,

Petitioner,

-vsTERRY ROYAL, Warden,

Oklahoma State Penitentiary,

Respondent.

________________________________________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

________________________________________________________________________

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent respectfully urges this Court to deny the petition for writ of

certiorari to review the Order and Judgment of the United States Court of Appeals

for the Tenth Circuit entered on June 26, 2017. See Lay v. Royal, 860 F.3d 1307

(10th Cir. 2017).

STATEMENT OF THE CASE

Petitioner is currently incarcerated pursuant to a Judgment and Sentence

rendered in the District Court of Tulsa County, State of Oklahoma, Case No. CF2004-2320.

In 2005, Petitioner was tried by jury for one count of first degree

2

murder.

A bill of particulars was filed alleging three statutory aggravating

circumstances: (1) Petitioner knowingly created a great risk of death to more than

one person; (2) Petitioner committed the murder for the purpose of avoiding or

preventing a lawful arrest or prosecution; and (3) the existence of a probability that

Petitioner would commit criminal acts of violence that would constitute a

continuing threat to society. See Okla. Stat. tit. 21, § 701.12. At the conclusion of

the trial, the jury found Petitioner guilty as charged, found the existence of all three

statutory aggravating circumstances and recommended a death sentence.

Petitioner was sentenced accordingly.1

The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Petitioner’s

convictions and sentences in a published opinion filed on February 12, 2008. See

Lay v. State, 179 P.3d 615 (Okla. Crim. App. 2008).

Petitioner did not seek

rehearing. Petitioner’s attempt to file a pro se petition for writ of certiorari in this

Court was unsuccessful.

Petitioner filed an application for state post-conviction relief on May 30, 2008,

which was denied by the OCCA in an unpublished opinion on September 26, 2008.

See Lay v. State, No. PCD-2006-1013, slip op. (Okla. Crim. App. Sept. 26, 2008)

(unpublished) (“PC Opinion”).

Thereafter, Petitioner filed his petition for a writ of habeas corpus with the

United States District Court for the Northern District of Oklahoma on September 4,

2009. Petitioner then filed a second application for state post-conviction relief on

1 Petitioner was also convicted of one count of attempted robbery with a firearm, for

which he was sentenced to twenty-five years’ imprisonment.

3

May 4, 2010.

The OCCA again denied post-conviction relief in an unpublished

decision. Lay v. State, No. PCD-2010-407, slip op. (Okla. Crim. App. Oct. 13, 2010)

(unpublished).

On October 7, 2015, the federal district court issued an order

denying Petitioner’s petition for habeas corpus relief. See Lay v. Trammell, No. 08CV-617-TCK-PJC, slip op. (N.D. Okla. Oct. 7, 2015) (unpublished).

Petitioner appealed the Northern District of Oklahoma’s denial of habeas

relief to the Tenth Circuit. After briefing and oral argument, the Tenth Circuit

affirmed the district court’s denial of relief in an opinion filed on June 26, 2017. See

Lay v. Royal, 860 F.3d 1307 (10th Cir. 2017). The Tenth Circuit denied Petitioner’s

request for rehearing and rehearing en banc on September 5, 2017. See Lay v.

Royal, No. 15-5111 (10th Cir. Sept. 5, 2017) (unpublished).

On February 2, 2018, Petitioner’s petition for a writ of certiorari was placed

on this Court’s docket.

STATEMENT OF FACTS

The OCCA set forth the relevant facts in its published opinion on direct

appeal:

The facts in this case are largely undisputed. Lay does not

challenge his convictions but only the sentences he

received for them. On May 24, 2004, Wade Lay and his

son, Chris, entered the MidFirst bank in Tulsa to rob the

bank to fund the purchase of guns to avenge the United

States Government's attacks on Ruby Ridge and the

Branch Davidians. The Lays believed that the United

States Government had become tyrannical and that they

had to start a patriotic revolution as was done by

America's founding fathers.

4

The Lays entered the bank armed, wearing ski masks and

gloves. Christopher Lay confronted bank employee Brian

Easlon and ordered him to the ground. When bank

security guard Kenneth Anderson entered the lobby, a

gun battle erupted wounding the Lays and killing

Anderson. The Lays, without obtaining any money, fled

across a field to their truck. Both were apprehended later

that day and were taken to the hospital. At trial, both

Lays admitted guilt but asserted that their actions were

driven by a necessity for the greater good of the country.

Lay, 179 P.3d at 619 (paragraph numbers omitted).

REASONS FOR DENYING THE WRIT

Petitioner presents various arguments in opposition to the denial of his

substantive

and

procedural

competency-to-stand-trial

claims.

The

OCCA

procedurally barred the claims when they were raised in Petitioner’s first postconviction application. Petitioner makes no attempt to show that the procedural

bar is inadequate or dependent on federal law, or to show cause and prejudice to

avoid his default of the claims. Petitioner has failed to show that the Tenth Circuit

has decided an important question of federal law in a way that conflicts with

another United States court of appeals or of a state court of last resort. Nor has

Petitioner shown that the Tenth Circuit decided an important question of federal

law that has not been, but should be, settled by this Court. Petitioner presents no

compelling reason for this Court to review the Tenth Circuit’s decision. This Court

should not grant certiorari to review this particular case.

5

PETITIONER’S CHALLENGES TO THE TENTH

CIRCUIT’S DENIAL OF CLAIMS WHICH WERE

PROCEDURALLY BARRED IN STATE COURT

PRESENT NO IMPORTANT QUESTION OF

FEDERAL LAW.

Petitioner seeks this Court’s review of two claims that were procedurally

barred in state court. Petitioner’s failure to challenge the procedural bar or attempt

to avoid it leaves this Court with no pertinent federal question to decide. This

Court should deny Petitioner’s request for a writ of certiorari.

A.

Background of Petitioner’s Claims

In his first application for post-conviction relief, Petitioner raised both

substantive and procedural competency claims.

5/30/2008 Application for Post-

Conviction Relief – Death Penalty (Okla. Crim. App. No. PCD-2006-1013) (“PC

App.”) at 6-32. Petitioner also claimed appellate counsel was ineffective for failing

to raise the competency claims on direct appeal. PC App. at 7. The OCCA found

Petitioner’s competency claims to be procedurally barred and denied his ineffective

assistance of appellate counsel claim on the merits. PC Opinion at 3. Specifically,

the OCCA held that

Lay’s application fails to support his contention that he

was incompetent to represent himself at trial.[2] In fact,

his supplementary evaluation indicates his extremely

high I.Q. Lay has failed to present this Court with

sufficient evidence of his incompetence at trial. As a

result, we find both that this claim is procedurally barred

and that appellate counsel was not ineffective for failing

to raising an unmeritorious issue on direct appeal.

Moreover, we find that Lay has failed to present sufficient

2 Petitioner’s claim included his competency to stand trial and his competency to

proceed pro se. PC App. at 11-21, 29-32.

6

evidence of his incompetence at trial to justify an

evidentiary hearing on this issue.

PC Opinion at 3.

The Tenth Circuit, without explanation, overlooked the OCCA’s procedural

bar and denied the competency claims on the merits.3 Lay, 860 F.3d at 1314-15.

The Tenth Circuit concluded that the OCCA’s denial of Petitioner’s competency

claims was not contrary to, or an unreasonable application of, clearly established

federal law, nor based on an unreasonable determination of the facts. Id.

Although this is not a merits brief, Respondent must briefly dispute

Petitioner’s contention that his incompetence is “undisputed[.]” Pet. at 32. Both

the federal district court and Tenth Circuit, relying in part on the failure of

Petitioner’s attorneys to suggest he was not competent, determined that the OCCA’s

decision was reasonable. The district court found that Petitioner “behaved in an

orderly manner in the proceedings; he was responsive to inquiries from the Court

and communicated well, at times very well; he seemed to understand the

proceedings and even seemed to understand and follow the procedural rules.” Lay,

No. 08-CV-617-TCK-PJC, slip op. at 15. The Tenth Circuit concluded that

although [Petitioner] at times shared with the jury his

unusual and conspiratorial beliefs, he conducted himself

professionally throughout the proceedings and complied

3 The Tenth Circuit overlooked the procedural bar of the substantive competency

claim because that court holds that such claims can never be procedurally barred.

Lay, 860 F.3d at 1315. This Court has never held that the constitution prevents

states from procedurally barring substantive competency claims. Petitioner does

not ask this Court to consider the issue in his case. Accordingly, the state court’s

procedural bar must stand. In any event, Respondent will show that Petitioner’s

challenges to the Tenth Circuit’s decision do not present a compelling question.

7

with procedural rules. The evidence before the OCCA

suggests that [Petitioner] interacted with the trial court,

that he understood the charges against him, the range of

punishment he faced, and his rights as explained by the

trial court. Importantly, [Petitioner’s] defense counsel,

who had represented [Petitioner] for more than a year,

never questioned his competency despite having ample

opportunity to do so.

Lay, 860 F.3d at 1314-15 (internal citation omitted).

Respondent has never

conceded Petitioner was incompetent and does not do so now.

B.

Petitioner Presents No Federal Question to this Court

“This Court will not review a question of federal law decided by a state court

if the decision of that court rests on a state law ground that is independent of the

federal question and adequate to support the judgment.” Coleman v. Thompson,

501 U.S. 722, 729 (1991). Petitioner’s competency claims were procedurally barred

by the OCCA. Petitioner does not argue that the procedural bar was inadequate or

dependent on federal law, that he can show cause and prejudice4 or that application

of the bar would result in a fundamental miscarriage of justice. See id. at 750 (a

federal court may not consider a claim that was subject to an adequate and

independent state procedural default unless the petitioner can show cause and

prejudice or that application of the bar will result in a fundamental miscarriage of

justice).

Petitioner asserts that he has, at all times, claimed ineffective assistance of

appellate counsel as cause. Pet. at 16. While this is true, the petition challenges

only the Tenth Circuit’s rejection of the underlying competency claims and makes

no attempt to show ineffective assistance of appellate counsel.

4

8

Petitioner asks this Court to consider whether the Tenth Circuit should have

applied 28 U.S.C. § 2254(d) (“AEDPA”) in its review of the OCCA’s alternative

merits analysis, whether competency claims are purely questions of fact and

whether the OCCA’s post-conviction procedures for considering extra-record

evidence are adequate to warrant deference. None of these questions implicate the

procedural bar. Petitioner has made no attempt to explain how this Court could

consider his claims in spite of the procedural bar. Accordingly, Petitioner has not

properly placed any federal question before this Court. Petitioner is not entitled to

a writ of certiorari.

C.

Assuming Petitioner Could Avoid the Procedural Bar, He Presents

No Compelling Question for this Court’s Review

1.

The Tenth Circuit’s Application of 28 U.S.C. § 2254(d) Presents No

Question for this Court to Resolve

Petitioner claims AEDPA should only apply when a claim is adjudicated on

the merits in state court.

Pet. at 16.

Respondent fully agrees.

The OCCA

alternatively

Petitioner’s

competency

the

adjudicated

claims

Accordingly, the Tenth Circuit properly applied AEDPA.

on

merits.

There is no federal

question for this Court to resolve.

Petitioner asserts that “[c]laims cannot be both defaulted and adjudicated on

the merits.” Pet. at 17. This is patently untrue.

[A] State court need not fear reaching the merits of a

federal claim in an alternative holding. By its very

definition, the adequate and independent state ground

doctrine requires the federal court to honor a state

holding that is a sufficient basis for the state court’s

judgment, even when the state court also relies on federal

9

law. Thus, by applying this doctrine to habeas cases,

[Wainwright v.] Sykes[, 433 U.S. 72 (1977)] curtails

reconsideration of the federal issue on federal habeas as

long as the state court explicitly invokes a state

procedural bar rule as a separate basis for decision. In

this way, a state court may reach a federal question

without sacrificing its interests in finality, federalism,

and comity.

Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (internal citation omitted). The fact

that a state court can both procedurally bar a claim and alternatively deny it on the

merits is settled. To the extent that Petitioner’s reliance upon Harris establishes

that the Tenth Circuit erred, he shows only that it erred in his favor. Petitioner

should not have obtained review of his competency claims, whether under AEDPA

or de novo.

Petitioner also suggests that the OCCA did not adjudicate his claims on the

merits because it did not order an evidentiary hearing and did not evaluate his

evidence. Pet. at 18-19, 23-24. An evidentiary hearing is not required for a merits

adjudication, nor is the state court required to discuss Petitioner’s evidence in its

opinion. See Johnson v. Williams, 568 U.S. 289, 298-301 (2013) (holding, in a case

in which no hearing was held and the highest state court issued a one-sentence

order, that there is a rebuttable presumption that a state court denies every federal

claim presented to it on the merits even when the state court’s opinion contains no

mention of the federal claim); Harrington v. Richter, 562 U.S. 86, 96, 98-100 (2011)

(holding that AEDPA applied to state court’s one-sentence summary denial

10

although no evidentiary hearing was held).

Once again, Petitioner presents no

important question of federal law that needs to be settled by this Court.5

Petitioner cites Cole v. Trammell, 755 F.3d 1142, 1158-59 (10th Cir. 2014) in

an attempt to show that the Tenth Circuit is being inconsistent as to whether it will

entertain the merits of a procedurally barred claim. However, any potential intracircuit conflict should be addressed by the circuit. See Joseph v. United States, ___

U.S. ___, 135 S. Ct. 705, 707 (2014) (statement of Kagan, J., Ginsburg, J., and

Breyer, J., respecting the denial of certiorari) (“we usually allow the courts of

appeals to clean up intra-circuit divisions”). Further, Petitioner neglects to mention

that, after finding the claim in Cole procedurally barred, the court went on to review

the merits of the claim “[o]ut of an abundance of caution” and did so under AEDPA

deference. Cole, 755 F.3d at 1159-63. Further, Petitioner fails to explain why this

Court should grant certiorari to review a case in which he received more than what

he was entitled to.6

5 In this case, the OCCA indisputably resolved Petitioner’s claims on the merits.

The OCCA reviewed “Lay’s application” and found that it “fail[ed] to support his

contention[.]” PC Opinion at 3. The OCCA explicitly considered the expert

evaluation presented by Petitioner. PC Opinion at 3. The OCCA found the issue

“unmeritorious” because Petitioner “failed to present th[e] Court with sufficient

evidence of his incompetence at trial.” PC Opinion at 3. This was a merits

adjudication. See Johnson, 568 U.S. at 302 (defining “merits” as relating to matters

of substance, as opposed to form).

6 In fact, Petitioner’s suggestion that a federal court should overlook a procedural

bar which is independent and adequate to review the defaulted claim de novo would

improperly allow habeas petitioners to circumvent AEDPA by procedurally

defaulting their claims in state court.

11

Finally, Petitioner fails to show an inter-circuit conflict.

A state court’s

application of the wrong standard is not comparable to an alternative merits

discussion. See Appel v. Horn, 250 F.3d 203, 209-12 (3d Cir. 2001) (reviewing de

novo where the state court applied Strickland to a Cronic claim); cf. Williams v.

Taylor, 529 U.S. 362, 405 (2000) (a state court’s decision is “contrary to” clearly

established federal law if it “arrives at a conclusion opposite to that reached by this

Court on a question of law”). Nor is a case in which the state court applied an

inadequate procedural bar and did not make an alternative merits adjudication

comparable to this case. See Conner v. Hall, 645 F.3d 1277, 1284-85, 1287-92 (11th

Cir. 2011) (holding AEDPA did not apply to the petitioner’s request for an

evidentiary hearing where the state court applied an inadequate procedural bar and

did not alternatively reach the merits of the claim because it found his evidence to

be inadmissible).

In Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 458 (6th Cir. 2015),

the state trial court found the petitioner’s claim to be procedurally barred and then

expressed reservations as to the relevance and persuasiveness of the evidence

offered by the petitioner. The Ohio Court of Appeals simply found the claim barred.

Barton, 786 F.3d at 458. The Sixth Circuit stated, in dicta, that the trial court’s

offhand remarks on the merits did not constitute a merits adjudication.7 Id. at 461.

However, this discussion was not necessary as the court went on to recognize that it

7 As shown above, the OCCA actually evaluated Petitioner’s evidence and found it

lacking. These were not mere offhand remarks, they were necessary to the OCCA’s

adjudication of Petitioner’s ineffective assistance of appellate counsel claim.

12

must evaluate the opinion of the highest state court, which rested solely on a

procedural bar. Id. at 462-64. More importantly for purposes of this case, the Sixth

Circuit stated that it may apply AEDPA deference to a state court’s alternative

merits adjudication of a claim. Id. at 461. Accordingly, the Sixth Circuit is not in

conflict with the Tenth Circuit.

Petitioner also relies upon the Second Circuit’s refusal to apply AEDPA to a

state court’s alternative discussion of the merits of a procedurally barred claim

when the state court explicitly declares that it is not reaching the merits of the

claim. See Fulton v. Graham, 802 F.3d 257, 264-65 (2d Cir. 2015) (holding the state

court’s statement that it “would” deny the claim on the merits “if” it were to

consider the claim meant that the court was not basing its decision on the merits of

the claim); Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (holding that the state

court did not make an alternative merits holding where it said it would deny a

claim “if” it reached the merits). However, the Second Circuit does apply AEDPA

where similar language does not appear in the state court’s opinion. See Fischer v.

Smith, 780 F.3d 556, 559-61 (2d Cir. 2015) (applying AEDPA where the state court

said the claim was both procedurally barred and meritless). Here, the OCCA did

not indicate that it was doing anything other than providing an alternative merits

rationale for denying Petitioner’s claims. The OCCA did not state that it would

deny the claims “if” it were to consider them. Rather, the OCCA found the claims

“unmeritorious[.]” PC Opinion at 3. The Tenth Circuit’s application of AEDPA does

13

not conflict with the Second Circuit’s approach.

Petitioner has failed to

demonstrate a conflict between the circuits.

As a final matter, although Petitioner’s question presented asks whether

federal courts are required to apply AEDPA to a state court’s adjudication of the

claim underlying an ineffective assistance of appellate counsel claim, he does not

provide any argument or cases relevant to that aspect of his question presented.

Petitioner has, therefore, waived this aspect of his argument. See Zivotofsky ex rel.

Zivotofsky v. Kerry, ___ U.S. ___, 135 S. Ct. 2076, 2083 (2015) (finding argument

waived by inadequate briefing). In any event, although the ultimate question before

the OCCA was whether appellate counsel’s alleged ineffectiveness excused

Petitioner’s waiver of his competency claims, the OCCA quite plainly adjudicated

the merits of the competency claims and determined them to be without merit.8 PC

Opinion at 3.

The OCCA alternatively decided Petitioner’s claims on the merits. Petitioner

has failed to present a compelling argument that this Court should review the

Tenth Circuit’s decision to apply AEDPA to a claim that was “adjudicated on the

merits in State court proceedings[.]”

28 U.S.C. § 2254(d).

Further, it bears

repeating that Petitioner is complaining about claims that were procedurally barred

8 Respondent acknowledges that a different rule might apply if a state court found a

claim to be potentially meritorious but not so meritorious that it was unreasonable

for appellate counsel to exclude it. See Smith v. Robbins, 528 U.S. 259, 288 (2000)

(“’Generally, only when ignored issues are clearly stronger than those presented,

will the presumption of effective assistance of counsel be overcome.’” (quoting Gray

v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). However, such is not the case here.

14

giving him no right to merits review under any standard. Petitioner’s request for

certiorari review should be denied.

2.

Question

The Standard of Review for Competency Claims is not an Open

Petitioner also asks this Court to resolve the “open question” of whether

competency determinations are pure questions of fact. Pet. at 24-26. Petitioner

does not discuss the Tenth Circuit’s treatment of his competency claims nor assert

that the resolution of his claims would be different if they were mixed questions of

fact and law.9 Petitioner’s argument is wholly insufficient to warrant this Court’s

review. See Zivotofsky, 135 S. Ct. at 2083 (finding argument waived by inadequate

briefing).

In any event, this Court “ha[s] held that a state court’s conclusion regarding

a defendant’s competency” is entitled to the presumption of correctness which was

afforded to questions of fact before the enactment of AEDPA. Demosthenes v. Baal,

495 U.S. 731, 735 (1990) (per curiam) (citing Maggio v. Fulford, 462 U.S. 111, 117

(1983) (per curiam)); accord Austin v. Davis, 876 F.3d 757, 777-78 (5th Cir. 2017)

(“The Supreme Court concluded in Maggio v. Fulford that competency to stand trial

is a question of fact.”); Rosenthal v. O’Brien, 713 F.3d 676, 684 n.4 (1st Cir. 2013)

The Tenth Circuit appears to have treated Petitioner’s procedural competency

claim as a mixed question of law and fact, and his substantive competency claim as

a question of fact. Lay, 860 F.3d at 1315. The only difference between the two

claims was a few items of evidence Petitioner submitted in support of the

substantive claim. Id. There is no reason to believe the Tenth Circuit’s holding

that the OCCA reasonably determined that Petitioner’s substantive competency

claim lacked merit would have changed had it asked whether the OCCA reasonably

applied this Court’s cases to the evidence, as opposed to whether the OCCA

reasonably determined the facts in light of the evidence.

9

15

(relying on Demosthenes to state that competency determinations are questions of

fact but, like the Tenth Circuit here, reviewing a procedural competency claim as a

question of law or mixed question of law and fact); Johnson v. Norton, 249 F.3d 20,

25-26 (1st Cir. 2001) (reviewing a procedural competency claim under 28 U.S.C. §

2254(d)(1)); United States v. Hogan, 986 F.2d 1364, 1269-72 (11th Cir. 1993) (relying

on Demosthenes to hold that competency determinations are questions of fact).

Petitioner does not cite a single case from any court which applies 28 U.S.C. §

2254(d)(1) to substantive competency claims. Petitioner has failed to demonstrate a

conflict between the Tenth Circuit’s decision and a decision of this Court, or any

other court. Petitioner does not present a compelling question. This Court should

deny Petitioner’s request for a writ of certiorari.

3.

The OCCA’s Standard for Granting an Evidentiary Hearing is

Irrelevant to Petitioner’s Procedurally Barred Claims

Petitioner’s final complaint is that the OCCA does not provide post-conviction

applicants with an adequate opportunity to raise competency claims. The OCCA

found that Petitioner’s competency claims should have been raised on direct appeal.

PC Opinion at 3. Petitioner has never argued the claims were not available at the

time of his direct appeal. Petitioner identifies no precedent from this Court which

would require a state court to permit him to raise a competency claim in postconviction proceedings which was available on direct appeal. Indeed, Petitioner

does not even argue that the constitution prevents state courts from procedurally

barring competency claims. Petitioner’s procedurally barred claims do not present a

compelling question.

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Moreover, Petitioner fails to establish that Oklahoma’s post-conviction review

of competency claims violates Cooper or Panetti. In Cooper v. Oklahoma, 517 U.S.

348 (1996), this Court held that states may not require criminal defendants to prove

they are incompetent by clear and convincing evidence. According to Petitioner,

Oklahoma violates Cooper because post-conviction applicants are entitled to an

evidentiary hearing only if they “show [the OCCA] by clear and convincing evidence

the materials sought to be introduced have or are likely to have support in law and

fact to be relevant to an allegation raised in the application for post-conviction

relief.” Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22,

Ch. 18, App. (2008). The OCCA has followed this Court’s decision in Cooper. See,

e.g., Grant v. State, 205 P.3d 1, 8 (Okla. Crim. App. 2009) (applying the

preponderance standard); Smith v. State, 955 P.2d 734, 738 (Okla. Crim. App. 1998)

(recognizing the proper standard in light of Cooper).

The standard for an

evidentiary hearing on post-conviction requires clear and convincing evidence only

that Petitioner’s proposed evidence will likely be supported by fact and be relevant

to his claim. This does not equate to requiring Petitioner to prove his incompetence

by clear and convincing evidence. Cf. Lott v. Trammell, 705 F.3d 1167, 1212-13

(10th Cir. 2013) (holding that Oklahoma’s standard for obtaining an evidentiary

hearing on direct appeal, which requires the application to show by clear and

convincing evidence a strong possibility that counsel was ineffective, does not

equate to requiring the petitioner to show that counsel was ineffective by clear and

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convincing evidence)10; Simpson v. State, 230 P.3d 888, 905-06 (Okla. Crim. App.

2010) (holding that the direct appeal evidentiary hearing standard is less onerous

than Strickland).

Petitioner’s argument thus amounts to a complaint that the

OCCA (whose decision is not currently under review) misapplied a properly stated

rule of law. Such does not warrant this Court’s review. See Sup. Ct. R. 10 (a writ of

certiorari is rarely granted for an alleged misapplication of a properly stated rule of

law).

Petitioner’s reliance upon Panetti v. Quarterman is similarly misplaced. In

Ford v. Wainwright, 477 U.S. 399, 426 (1986), this Court held that a defendant who

makes a substantial threshold showing that he is not competent to be executed is

entitled to a hearing.

Panetti v. Quarterman, 551 U.S. 930, 948-49 (2007).

In

Panetti, the state court failed to afford the petitioner a hearing in spite of it being

“uncontested that petitioner made a substantial showing of incompetency.” Id. at

948.

Here, Petitioner’s alleged incompetence is contested, which reduces

Petitioner’s claim to a disagreement with the outcome of his appeal.

Finally, Petitioner’s request for “a uniform policy for when state evidentiary

hearings are required for competency-to-stand-trial issues first raised in postconviction” is not compelling. Pet. at 31. This Court typically does not dictate rules

of procedure for state courts.

Cf. Atkins v. Virginia, 536 U.S. 304, 317 (2002)

10 Petitioner asks this Court to resolve an alleged intra-circuit split concerning the

OCCA’s treatment of direct appeal evidentiary hearing applications. As noted

above, this Court generally does not resolve intra-circuit conflicts. Further,

Petitioner’s claim was raised on post-conviction review, which renders the direct

appeal rule irrelevant.

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(leaving it to the States to develop ways to enforce the constitutional ban against

executing mentally retarded offenders); Ford v. Wainwright, 477 U.S. 399, 405

(1986) (leaving it to the States to develop ways to enforce the constitutional ban on

executing someone who is not competent).

Respondent acknowledges that this

Court does not give states carte blanche, as evidenced by Cooper and Panetti.

However, aside from an incorrect assertion that evidence of his alleged

incompetency is uncontested and his flawed Cooper argument, Petitioner makes no

attempt to demonstrate that Oklahoma’s procedures are flawed or somehow failed

him in this case.

Again, Petitioner simply disagrees with the Tenth Circuit’s

application of AEDPA to his case. This Court should deny certiorari review.

CONCLUSION

Petitioner’s argument that the Tenth Circuit improperly denied relief for

procedurally barred claims does not present this Court with a “compelling reason”

to grant a writ of certiorari. See Sup. Ct. R. 10 (stating that a petition for writ of

certiorari will be granted only for compelling reasons).

Therefore, and for the

reasons stated above, Respondent respectfully requests this Court deny the petition

for writ of certiorari.

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Respectfully submitted,

MIKE HUNTER

ATTORNEY GENERAL OF OKLAHOMA

s/ JENNIFER L. CRABB*

JENNIFER L. CRABB, OBA# 20546

ASSISTANT ATTORNEY GENERAL

313 NE 21st Street

Oklahoma City, Oklahoma 73105

(405) 521-3921

FAX (405) 521-6246

Service emails: fhc.docket@oag.ok.gov

Jennifer.crabb@oag.ok.gov

ATTORNEYS FOR RESPONDENT

*Counsel of record

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