Walker v. Ward, et.al.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 22 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk

GARY ALAN WALKER,

Petitioner-Appellant,

v.
No. 97-5244
ATTORNEY GENERAL FOR THE
STATE OF OKLAHOMA;
RON WARD,

Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 94-CV-214-H)

Gloyd L. McCoy, of Coyle & McCoy, Oklahoma City, Oklahoma (Jack Gordon,
Jr., of Gordon & Gordon, Claremore, Oklahoma, with him on the briefs), for
Petitioner/Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals
(W. A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief),
Oklahoma City, Oklahoma, for Respondents-Appellees.

Before SEYMOUR, Chief Judge, LUCERO and MURPHY, Circuit Judges.

SEYMOUR, Chief Judge.
 Gary Alan Walker was convicted of first degree murder in Tulsa County,

Oklahoma, and sentenced to death. After exhausting his state court remedies, he

filed this petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254,

alleging that his conviction and death sentence are constitutionally infirm in

several respects. The district court denied relief and Mr. Walker appeals, asserting

that: (1) his state court competency proceedings were unconstitutional; (2) he was

denied due process and equal protection when the state refused to provide funds

for neurological testing; (3) he was denied a fair trial because the trial judge

refused to instruct on lesser included offenses; and (4) the “continuing threat”

aggravating circumstance, which is the only one supporting his death sentence, is

unconstitutional on its face and as applied. We grant Mr. Walker’s motion for a

certificate of probable cause and affirm. 1

The facts underlying Mr. Walker’s conviction are undisputed. The body of

the victim, Eddie Cash, was discovered on the floor of his home. He had been

beaten on the head with a brick and strangled with a vacuum cleaner cord. Mr.

Walker was arrested for the crime and gave a detailed confession. He stated to

1
Because Mr. Walker’s petition was filed before the enactment of the
Antiterrorism and Effective Death Penalty Act and Oklahoma has not qualified
for retroactive application of the Act’s new death penalty provisions, the Act does
not apply. See Duvall v. Reynolds, 131 F.3d 907, 915-16 (10th Cir. 1997).

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police that he met Mr. Cash when he was hitchhiking and Mr. Cash gave him a

ride. During the trip, Mr. Walker decided to burglarize Mr. Cash’s home and

learned that he lived in Broken Arrow, Oklahoma. Mr. Walker subsequently

obtained Mr. Cash’s address and went to the residence. As Mr. Walker stood on

the front porch and knocked on the door to make sure no one was home, Mr. Cash

pulled into his driveway. Fearing Mr. Cash would call the police, Mr. Walker ran

around to the side of the home and picked up a brick. He returned to the front

door, knocked, went inside, and killed Mr. Cash. Mr. Walker then took several

items from the residence, including Mr. Cash’s shoes and his van.

Mr. Walker did not deny the above events at trial, instead presenting

evidence in support of an insanity defense. The state court record reveals that Mr.

Walker suffered severe physical and sexual abuse as a child. He was repeatedly

beaten by his step-father and at one point was threatened by him with a rifle. His

mother had a succession of men in the home, and when Mr. Walker was ten to

twelve years old she engaged in sexual relations with him, as well as with his

friends. He did poorly in school, and at age thirteen the school referred him to

Children’s Medical Hospital. Mr. Walker stayed there three months and was

thoroughly evaluated. He was diagnosed at that time with a personality disorder,

and with poor control over his behavior, impulses, and emotions.

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 Although the Hospital recommended that Mr. Walker be placed outside the

home, his parents refused. At age fourteen he was convicted for the first time in

the juvenile justice system for car theft, and at age nineteen he was hospitalized at

Eastern State Mental Hospital. In the following years, Mr. Walker was

hospitalized there eight times for lengthy periods and was diagnosed as having a

severe psychiatric disorder of a schizophrenic type. He was given anti-psychotic

medications and a course of twenty electroconvulsive shock treatments. During

this period, Mr. Walker was also convicted of several non-violent offenses and

was hospitalized while in prison at least four times for mental problems. He was

ultimately rediagnosed with bipolar disorder and treated with lithium.

Prior to trial, Mr. Walker’s attorney made a request for a competency

determination and Mr. Walker was examined by Samuel J. Sherman, Ph.D., who

determined that Mr. Walker was competent at the time of examination. Dr.

Sherman cautioned that he had not been provided with the records of Mr. Walker’s

prior hospitalizations, that Mr. Walker’s refusal to continue his lithium treatment

could affect his future competency, and that Mr. Walker should be given a

complete evaluation. Nonetheless, no post-evaluation competency hearing was

conducted before trial as required by then-applicable state law. See Okla. Stat. tit.

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22, § 1175.4 (1981). 2

Dr. Thomas Goodman, a psychiatrist, testified at trial in support of Mr.

Walker’s insanity defense. In addition to reviewing Mr. Walker’s medical records,

Dr. Goodman had conducted a series of examinations of Mr. Walker in five one-

hour sessions, and in one two-hour session while Mr. Walker was under the

influence of sodium amytal. Dr. Goodman expressed the opinion that although at

the time of the killing Mr. Walker probably knew right from wrong, his perception

of the person he was killing was so distorted that he believed the victim was his

step-father. Dr. Goodman further testified that in his opinion Mr. Walker did not

believe killing his step-father was wrong. The jury rejected Mr. Walker’s insanity

defense, convicted him of first degree murder, and sentenced him to death.

2
Mr. Walker’s trial was held in 1984. At that time, the relevant statute
provided that after a competency determination had been made, “a hearing on the
competency of the person shall be held.” Okla. Stat. tit. 22, § 1175.4(A) (1981).
The provision was amended effective September 1, 1991, to provide that a
competency hearing shall be held “only upon application of the defendant or the
state or upon the formal setting of a competency hearing by the court.” Okla.
Stat. tit. 22, § 1175.4(A) (1991).

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 I.

COMPETENCY

Although the issues of Mr. Walker’s competency to stand trial and the

failure to hold a pre-trial competency hearing were not raised on direct appeal, Mr.

Walker subsequently raised the matters in an application for state post-conviction

relief. The state district court determined that a retrospective post-evaluation

competency hearing was feasible, and held a hearing in 1988 at which the court

found that Mr. Walker was competent at the time of his trial in 1984. In making

this determination, the court held that Mr. Walker had failed to overcome the

presumption of competency by clear and convincing evidence.

The state district court denied Mr. Walker’s petition for state post-

conviction relief and Mr. Walker appealed, contending inter alia that the

retrospective competency hearing was inadequate both constitutionally and as a

matter of state law to cure the failure to hold a hearing pretrial. Mr. Walker also

asserted the evidence was insufficient to show either that a retrospective

competency determination was feasible or that he was in fact competent at the time

of trial. The Oklahoma Court of Criminal Appeals rejected these arguments. In

considering Mr. Walker’s assertion that the evidence was insufficient to show his

competency, the Court ruled that he had failed to meet the burden of proof set out

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by Okla. Stat. tit. 22, § 1175.4(B) (1981), which required a defendant to establish

incompetency by clear and convincing evidence. See Walker v. State, 826 P.2d

1002, 1005 (Okla. Crim. App. 1992).

Mr. Walker argues that the competency proceedings held in state court were

constitutionally defective in two regards. He contends the state trial court used the

wrong burden of proof in its retrospective competency determination, and the

retrospective hearing was an inadequate substitute for a pretrial hearing on the

issue in any event. As discussed below, we conclude that neither claim entitles

Mr. Walker to federal habeas relief.

A. Burden of Proof

Mr. Walker first contends he is entitled to federal habeas relief because the

state court used an unconstitutional burden of proof at his competency hearing. In

1996, the Supreme Court struck down the “clear and convincing evidence”

standard applied by the state courts here, holding that “[b]ecause Oklahoma’s

procedural rule allows the State to put to trial a defendant who is more likely than

not incompetent, the rule is incompatible with the dictates of due process.”

Cooper v. Oklahoma, 517 U.S. 348, 369 (1996). The Court pointed out that “the

State’s power to regulate procedural burdens was subject to proscription under the

Due Process Clause if it ‘offends some principle of justice so rooted in the

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traditions and conscience of our people as to be ranked as fundamental,’” and that

“[t]his case involves such a rule.” Id. at 367 (quoting Patterson v. New York, 432

U.S. 197, 201-202 (1977)).

Before the Supreme Court handed down its decision in Cooper, Mr. Walker

filed the present petition for writ of habeas corpus. After Cooper was decided, he

supplemented his federal habeas petition to add a claim based on that case. The

federal district court stayed action on the petition to permit Mr. Walker to exhaust

his state remedies by filing an application for post-conviction relief with the

Oklahoma Court of Criminal Appeals. See Walker v. Ward, 934 F. Supp. 1286,

1294 (N.D. Okla. 1996). The state court ruled the claim procedurally barred for

failure to raise it on direct appeal or in Mr. Walker’s first post conviction

proceeding under amendments to the state’s statutory post-conviction procedures

enacted subsequently in 1995. See Walker v. State, 940 P.2d 509, 510 (Okla.

Crim. App. 1997).

The federal district court thereafter ruled that the claim was procedurally

barred. In so doing, the court concluded that the issue involved a matter of

procedural rather than substantive due process and was therefore waivable. The

court rejected Mr. Walker’s contention that the relevant procedural default rule is

the one in place at the time the alleged procedural default actually occurred.

Although we disagree with the district court’s ruling that this claim is procedurally

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barred, for the following reasons we conclude it does not provide grounds for

habeas relief.

1. Applicable Legal Standards

A defendant is competent to stand trial if he “has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding [and if]

he has a rational as well as a factual understanding of the proceedings against

him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see also Lafferty v. Cook,

949 F.2d 1546, 1550 (10th Cir. 1991). Courts have held that competency claims

can raise issues of both substantive and procedural due process.

A petitioner may make a procedural competency claim by
alleging that the trial court failed to hold a competency hearing after
the defendant’s mental competency was put in issue. To prevail on
the procedural claim, “a petitioner must establish that the state trial
judge ignored facts raising a ‘bona fide doubt’ regarding the
petitioner’s competency to stand trial.”

Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995) (citing Pate v.

Robinson, 383 U.S. 375, 385 (1966) and quoting James v. Singletary, 957 F.2d

1562, 1572 n.15 (11th Cir. 1992)); see also Carter v. Johnson, 110 F.3d 1098,

1105 n.7 (5th Cir. 1997). On the other hand,

[a] petitioner may make a substantive competency claim by
alleging that he was, in fact, tried and convicted while mentally
incompetent. In contrast to a procedural competency claim, however,
“a petitioner raising a substantive claim of incompetency is entitled to
no presumption of incompetency and must demonstrate his or her
incompetency by a preponderance of the evidence.” A petitioner who
presents “clear and convincing evidence” creating a “real, substantial

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 and legitimate doubt” as to his competence to stand trial is entitled to
a hearing on his substantive incompetency claim.

Medina, 59 F.3d at 1106 (quoting James, 957 F.2d at 1572-73); see also Carter,

110 F.3d at 1105-06 & n.7.

The distinction between substantive and procedural claims is significant

because courts have evaluated these claims under differing evidentiary standards.

In addition, we have held that a procedural competency claim is subject to waiver

while a substantive competency claim is not. See Nguyen v. Reynolds, 131 F.3d

1340, 1346 & n.2 (10th Cir. 1997); but cf. United States v. Williams, 113 F.3d

1155,1160 (10th Cir. 1997) (holding in direct appeal that neither substantive nor

procedural due process competency rights can be waived). However, our cases

have on occasion blurred the distinctions between the two claims, particularly

when both claims are raised together. See, e.g., Castro v. Ward, 138 F.3d 810,

817-18 (10th Cir. 1998) (applying both procedural and substantive competency

standards to claims defaulted in state court); Sena v. New Mexico State Prison, 109

F.3d 652 (10th Cir. 1997) (applying procedural standard to substantive claim

defaulted in state court). We need not attempt to reconcile any inconsistencies in

our cases because we conclude that if the claim here is characterized as procedural

and is therefore subject to waiver, it was not waived in this case. We further

conclude that Mr. Walker has failed to establish the right to habeas relief under the

standards applied either to procedural or to substantive competency claims.

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 2. Procedural Default

Mr. Walker’s argument on appeal may be construed as asserting that the

state courts’ use of the “clear and convincing evidence” standard rendered the

procedure used to evaluate his competency inadequate to ensure he was competent

to stand trial. Viewed in this light, the claim asserts a denial of procedural due

process, a claim that we held in Nguyen is subject to waiver. The state court held

the claim procedurally barred both because the claim should have been raised on

direct appeal and because it was not raised in Mr. Walker’s first application for

state post-conviction relief. See Walker, 940 P.2d at 510. In holding the claim

barred by Mr. Walker’s failure to raise it on direct appeal, the court applied the

1995 amendments to the state’s post-conviction procedures, under which a

petitioner who has not raised the issue on direct appeal must show that the legal

basis for the claim was unavailable. The court further held that the challenge to

the evidentiary standard could have been made in Mr. Walker’s direct appeal. Id.

We begin by assessing the effect we are to give the state court’s application

of the 1995 amendments to an alleged default that occurred before those

amendments were enacted. When a federal habeas petitioner has defaulted his

federal claims in state court pursuant to an adequate and independent state

procedural rule, federal habeas review of the claims is barred absent a showing of

cause and prejudice or of a fundamental miscarriage of justice. See Coleman v.

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Thompson, 501 U.S. 722, 750 (1991). “The Supreme Court of the United States

has made it clear that a state’s procedural rule used to bar consideration of a claim

‘must have been “firmly established and regularly followed” by the time as of

which it is to be applied.’” Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997)

(quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)), cert. denied, 118 S. Ct. 1826

(1998). We agree with the Ninth Circuit that “the proper time for determining

whether a procedural rule was firmly established and regularly followed is ‘the

time of [the] purported procedural default.’” Id. at 760 (quoting Calderon v. Bean,

96 F.3d 1126, 1130 (9th Cir. 1996)) (alteration in original). A defendant cannot

be expected to comply with a procedural rule that does not exist at the time, and

should not be deprived of a claim for failing to comply with a rule that only comes

into being after the time for compliance has passed. See id. (citing NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958), and Ford, 498 U.S. at 424).

We point out that no competency hearing had even been held at the time of

Mr. Walker’s direct appeal, and that consequently no basis existed then for

challenging the burden of proof. Moreover, when Mr. Walker raised the failure to

be given a contemporaneous hearing for the first time in his first application for

post-conviction relief, the Court of Criminal Appeals considered the merits of this

claim despite the failure to raise it on direct appeal. See Walker, 826 P.2d at 1005.

Accordingly, we conclude that Mr. Walker is not barred by his failure to challenge

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the “clear and convincing evidence” standard on direct appeal.

The Oklahoma Court of Criminal Appeals alternatively held that Mr.

Walker’s Cooper challenge to the burden of proof was procedurally barred by his

failure to raise it in his first petition for post-conviction relief when he challenged

the failure to hold a competency hearing. Prior to the 1995 amendments to the

state post-conviction procedures, however, it was settled law in Oklahoma that an

intervening change in the law constituted sufficient reason for a petitioner’s

failure to raise an issue on direct appeal or in a prior application for post-

conviction relief. See Walker, 934 F. Supp. at 1293 (citing cases). Moreover,

Oklahoma had held that a decision qualified as an intervening change in the law

even if it was based on previously announced principles so long as it constituted

the Supreme Court’s definitive resolution of the matter. See id. at 1293-94

(quoting Stafford v. State, 814 P.2d 685, 687 (Okla. Crim. App. 1991)). The Court

of Criminal Appeals specifically noted in Valdez v. State, 933 P.2d 931 (Okla.

Crim. App. 1997), that a Cooper claim would have constituted an intervening

change in the law under prior capital post-convictions statutes, id. at 933 n.7.

Under these circumstances, we hold that Mr. Walker is not procedurally barred

from seeking habeas relief on his Cooper claim by his failure to raise it in his first

state post-conviction petition, and we turn to the merits of that claim.

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 3. Procedural Competency Claim

A habeas petitioner who makes a procedural competency claim by alleging

that state procedures were inadequate to ensure he was competent to stand trial is

entitled to habeas relief if the state trial court ignored evidence that, viewed

objectively, raised a bona fide doubt as to the petitioner’s competency to stand

trial. See Drope v. Missouri, 420 U.S. 162, 180-81 (1975); Carter, 110 F.3d at

1105 n.7; Medina, 59 F.3d at 1106. This standard is usually applied to a claim

arising when a petitioner asserts that no competency hearing was held despite the

existence of evidence creating a bona fide doubt regarding his competency to stand

trial or to continue in a trial already begun. In the present case, although a hearing

was ultimately held, Mr. Walker’s competency was determined under a

constitutionally impermissible standard of proof. Such a determination is not

entitled to a presumption of correctness. See Lafferty, 949 F.2d at 1551 & n.4.

Indeed, in view of the Supreme Court’s statement in Cooper that the clear and

convincing evidence requirement “allows the State to put to trial a defendant who

is more likely than not incompetent,” 517 U.S. at 369, the situation here is

arguably analogous to that in which no hearing has taken place. Mr. Walker is

therefore entitled to some form of relief if the record evidence is sufficient to raise

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a bona fide doubt as to his competency at the time of his trial. 3

“[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” to the bona

fide doubt inquiry. Drope, 420 U.S. at 180; Castro, 138 F.3d at 818. The

evidence produced at the 1988 competency hearing consisted of the written report

of Dr. Sherman in 1984 determining Mr. Walker to be competent, and the

testimony of the psychiatrist, Dr. Goodman, as well as testimony from an attorney

who represented Mr. Walker in another murder prosecution during approximately

the same time period, the district attorney who prosecuted Mr. Walker for the

Eddie Cash murder, the police officer who interviewed Mr. Walker upon his arrest,

Mr. Walker’s trial attorney, and an investigator for the district attorney’s office

who observed Mr. Walker during his trial.

Although Dr. Sherman had determined that Mr. Walker was competent, he

had qualified his opinion with concerns that it might be altered by an examination

of Mr. Walker’s medical records, by the results of recommended diagnostic tests

or psychological and psychiatric evaluations, and by Mr. Walker’s failure to

3
The state asserts that if Mr. Walker were to establish a bona fide doubt as
to his competency in 1984, the appropriate remedy would be a reweighing of the
evidence presented in the retrospective competency hearing under the
preponderance of the evidence standard, rather than a new competency hearing.
Given our determination that Mr. Walker does not meet the standard for obtaining
a new competency hearing, we need not decide this issue.

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continue on his lithium program. However, Dr. Goodman had subsequently

interviewed Mr. Walker extensively and had reviewed his medical record. He

stated at the competency hearing that: “My opinion at [the time of trial] and my

opinion now . . . is that . . . he was at that time competent to stand trial under the

Oklahoma Statutes.” Transcript of Competency Hearing, Nov. 29, 1988, at 101;

see also Okla. Stat. tit. 22, § 1175.3(E) (1981) (setting forth factors doctors must

consider in determining competency). Dr. Goodman also answered “no” when

asked if, during his interviews, Mr. Walker often appeared confused about what

was happening in the court proceedings. Id. at 109. Dr. Goodman had also

prepared a pretrial written psychiatric evaluation of Mr. Walker for his attorney

purportedly directed to both his mental state at the time of the crime and his

capacity to stand trial, in which Dr. Goodman had stated that the evaluation could

reach a higher degree of certainty if further tests and evaluations could be

performed on Mr. Walker. This report in fact dealt only with Mr. Walker’s mental

state at the time of the crime and with the elements of an insanity defense. Dr.

Goodman expressed no opinion in that report on Mr. Walker’s competency to stand

trial nor did he indicate at the competency hearing that his opinion on Mr.

Walker’s competency was qualified by the lack of that testing.

Mr. Walker’s trial counsel also testified at the competency hearing. He

stated that he had represented thousands of criminal defendants and had in other

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cases objected to going forward with a trial based on his belief that the defendant

might not be competent. Although he further testified that Mr. Walker’s moods

varied and that at times he felt Mr. Walker did not understand clearly what was

going on, he admitted he had not raised Mr. Walker’s competency at trial. Indeed,

he put Mr. Walker on the stand. The attorney who represented Mr. Walker in the

other, contemporaneous criminal proceeding testified that he too experienced times

during his representation of Mr. Walker when Mr. Walker did not appear to

comprehend what was going on. Nonetheless, that attorney did not ask for a jury

trial on Mr. Walker’s competence or file an objection to going to trial based on

that basis. The attorney also testified that it would have been his obligation to

bring to the attention of the court any information indicating Mr. Walker was not

competent to stand trial, and that he believed the issue in his trial to be insanity

rather than competence. Finally, the judge observed that he had tried the case and

that he had noticed nothing at the time to raise a concern about Mr. Walker’s

competency.

We have carefully reviewed the evidence pertaining to Mr. Walker’s

competency at the time of his trial, including the transcript of his trial testimony.

This record sets out a lamentable and grievous life history. It is undisputed that

Mr. Walker was brutalized physically, emotionally, and sexually by his parents.

His medical records reveal a history of serious mental disease that was apparently

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difficult to diagnose and to treat effectively. Nonetheless, the experts who

examined the evidence determined that Mr. Walker was competent to stand trial

and we have found nothing in the record to the contrary. The evidence, deplorable

as it is, simply does not raise a bona fide doubt as to Mr. Walker’s competency at

the time of his trial. Accordingly, he cannot prevail on his procedural competency

claim.

4. Substantive Competency Claim

Mr. Walker’s failure to establish his procedural competency claim is also

dispositive of his substantive claim. As discussed above, to succeed in stating a

substantive incompetency claim, a petitioner must present evidence that creates a

“‘real, substantial and legitimate doubt’ as to his competency to stand trial.”

Medina, 59 F.3d at 1106 (quoting James, 957 F.2d at 1573). The evidence here,

which does not satisfy the “bona fide doubt” standard for a procedural claim, also

does not satisfy the more demanding standard for a substantive claim. We

therefore reject Mr. Walker’s argument that he was tried while incompetent.

B. Retrospective Hearing

We turn to Mr. Walker’s argument that the failure to provide him a

contemporaneous competency hearing resulted in a denial of due process, and that

the retrospective hearing held four years after his trial was an improper remedy.

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This argument is based on Mr. Walker’s assertion that a contemporaneous hearing

was mandated both by evidence tending to cast doubt on his competency and by

the state statutes then in effect. Neither ground provides a basis for federal habeas

corpus relief.

First, as discussed above, Mr. Walker’s evidentiary showing failed to meet

the standards for either a procedural or a substantive competency claim. His due

process right not to be tried while incompetent was therefore not violated. 4

4
This is not a case like Pate v. Robinson, 383 U.S. 375 (1966), where the
Supreme Court raised concerns about a retrospective competency hearing because
“[t]he jury would not be able to observe the subject of their inquiry and expert
witnesses would have to testify solely from information contained in the printed
record,” id. at 386. Here, the trial judge who observed Mr. Walker in the criminal
trial and heard him testify was the same judge who decided the competency issue
at the retrospective hearing. Mr. Walker’s defense attorney for this crime, the
prosecuting attorney, and an attorney who represented Mr. Walker in another case
during 1984-85, all testified. Moreover, the psychiatrist who was Mr. Walker’s
expert witness on his insanity defense at trial testified at the retrospective hearing
as to Mr. Walker’s competence at the time of trial, and the court had before it
Dr. Sherman’s report. In these circumstances, we are not persuaded Mr. Walker
was deprived of due process by the retrospective competency hearing. See
Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir. 1996) (holding that “a post-
conviction competency hearing is proper so long as a meaningful hearing remains
possible”); Galowski v. Berge, 78 F.3d 1176, 1181 (7th Cir. 1996) (noting that the
Seventh Circuit allows retrospective competency hearings); Cremeans v.
Chapleau, 62 F.3d 167, 170 (6th Cir. 1995) (finding adequate a retrospective
competency hearing where the evidence presented included “contemporaneous
medical reports; the testimony of the presiding trial judge and the defendant’s
attorney; and the transcript of the penalty hearing held before the jury including
the testimony of the petitioner”); Moran v. Godinez, 57 F.3d 690, 696 (9th Cir.
1995) (upholding finding of competency at retrospective hearing where the judge
had also presided at trial and evidence included two contemporaneous psychiatric
(continued...)

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Second, the state appellate court in this case made clear that such a hearing was

not a per se violation of the state statutes then in effect and did not therefore

implicate a liberty interest created by state law. See Walker, 825 P.2d at 1005.

We thus find no merit in Mr. Walker’s claim that his failure to be given a

contemporaneous hearing violated his constitutional rights.

II.

NEUROLOGICAL TESTING

Mr. Walker asserts he was denied due process and equal protection by the

state courts’ failure to provide funds for neurological testing. Although Dr.

Sherman, a psychologist, determined Mr. Walker was competent to stand trial, he

also recommended that Mr. Walker be given a further complete psychological and

psychiatric evaluation. Dr. Goodman, the psychiatrist consulting at the time of

(...continued)
4

reports); United States v. Mason, 52 F.3d 1286, 1293 (4th Cir. 1995) (allowing a
retrospective competency hearing if enough contemporaneous evidence exists to
make such a determination); Miller v. Dugger, 838 F.2d 1530, 1544 (11th Cir.
1988) (“The determination of whether a district court can hold a meaningful
retrospective competency hearing is necessarily a case-by-case one.”); Wheat v.
Thigpen, 793 F.2d 621, 630 (5th Cir. 1986) (allowing retrospective competency
hearings when there is “sufficient data available to guarantee reliability”); Crail
v. United States, 430 F.2d 459 (10th Cir. 1970) (upholding retrospective
competency hearing where two physicians who examined the defendant at the
time of trial testified).

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trial on the insanity defense, also strongly urged that further neurological testing

be conducted because Mr. Walker presented the profile of an individual who often

suffers from minimal organic brain disease, which Dr. Goodman stated could be

relevant as either a cause or factor in Mr. Walker’s mental illness. Mr. Walker

was clinically examined by Dr. John Hastings, a neurologist, to evaluate the

possibility of minimal brain damage. Dr. Hastings recommended that an

electroencephalogram be repeated to rule out a seizure disorder, and that Mr.

Walker be given a CT scan to rule out physical brain abnormalities. Although Mr.

Walker’s attorney unsuccessfully requested a trial continuence so that additional

evaluation of Mr. Walker’s mental state could be conducted, the record contains

no evidence that Mr. Walker’s attorney requested funds to pay for further

neurological testing. We note, however, that funds for such tests were denied Mr.

Walker in the contemporaneous criminal proceeding in which Dr. Goodman also

assisted him. It is clear that due either to lack of time or lack of funds, Mr.

Walker was denied the opportunity to conduct the additional neurological testing

recommended by the experts who examined him before trial. We must therefore

assess whether he is entitled to federal habeas corpus relief on that ground.

Mr. Walker contends the lack of additional testing is relevant both to his

competency claims and to his insanity defense. In Ake v. Oklahoma, 470 U.S. 68

(1985), the Supreme Court held that due process requires a defendant be provided

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with court-appointed psychiatric assistance at trial and during sentencing if he

demonstrates his mental state will be a significant factor in those proceedings. Id.

at 1091-92. Although Ake was decided in 1985 after Mr. Walker’s trial, we have

held it nevertheless applies to cases such as this which were pending on direct

appeal at the time. See Liles v. Saffle, 945 F.2d 333, 335 n.2 (10th Cir. 1991).

Under these circumstances, the question is whether, upon review of the entire

record, the petitioner could have made a threshold showing of need, which

requires substantive supporting facts. Id. at 336. Although general allegations of

need without substantive supporting facts and undeveloped assertions that

assistance would be beneficial will not suffice, id., we have construed Ake broadly,

see Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995). We held in Brewer

that even when the State did not present expert testimony, the Ake requirements

apply if the State presented evidence at the sentencing phase concerning the

defendant’s future dangerousness and the defendant showed that his mental

condition could have been a significant mitigating factor. Id. The inquiry is

whether evidence was presented to the trial court suggesting that his mental

condition was likely to be a significant factor. Castro v. Reynolds, 71 F.3d 1502,

1513-14 (10th Cir. 1995). We believe the evidence described above presented

through the mental health experts was sufficient to trigger the application of Ake,

and the State therefore should have provided Mr. Walker with the opportunity for

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the neurological testing those experts recommended.

That conclusion does not end our inquiry, however. The denial of

psychiatric assistance in violation of Ake is trial error subject to harmless error

analysis under the standard set forth in Kotteakos v. United States, 328 U.S. 750

(1946); see Brewer, 51 F.3d at 1529. We must therefore decide whether the error

“had substantial and injurious effect or influence in determining the jury’s

verdict.” Kotteakos, 328 U.S. at 776. Under this standard, we will grant relief if

we believe the error substantially influenced the jury’s decision, or if we are in

grave doubt as to the harmlessness of the error. See O’Neal v. McAninch, 513 U.S.

432, 436 (1995).

Our review of the record convinces us that the lack of the additional

recommended testing had no substantial injurious impact on the jury’s decision.

Dr. Goodman testified extensively at trial in support of Mr. Walker’s insanity

defense. Although Dr. Goodman stated that Mr. Walker had not been given a CT

scan or an electroencephalogram and that he would have been more comfortable

with his opinion if Mr. Walker had been given those tests, Dr. Goodman responded

affirmatively when he was asked whether he was comfortable in giving his opinion

based on the information he had at that time. We have reviewed Dr. Goodman’s

testimony and we are not convinced the lack of these tests was significant. The

focus by both the prosecution and the defense in their extensive examination of

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Dr. Goodman was on the nature of Mr. Walker’s mental illness and the effect his

illness had upon his behavior rather than on its cause. Moreover, Dr. Goodman’s

testimony indicated to the jury that he and other experts who had examined Mr.

Walker believed that his illness did in fact have an organic component.

We likewise conclude that the lack of neurological testing did not have an

injurious impact on Mr. Walker’s competency proceedings. Dr. Goodman stated

unequivocally his opinion that Mr. Walker was competent to stand trial. Although

Dr. Goodman reiterated that a higher degree of certainty would have existed if the

additional testing had been done, he did not qualify his opinion on Mr. Walker’s

competency. As with the question of insanity, the issue for determination in the

competency proceedings was not the cause of Mr. Walker’s mental illness but its

effect on his ability to understand the charges against him and to aid in his

defense. Accordingly, the lack of neurological testing is not grounds for federal

habeas relief.

III.

LESSER INCLUDED OFFENSE INSTRUCTIONS

Mr. Walker argues that his constitutional right to a fair trial was violated

when the trial court refused to instruct the jury on the lesser included offenses of

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second degree murder and first degree manslaughter. A capital defendant is

constitutionally entitled to instructions on offenses that state law recognizes as

lesser included offenses of the charged crime, see Beck v. Alabama, 447 U.S. 625,

627 (1980), but only when such instructions are supported by the evidence, see

Hopper v. Evans, 456 U.S. 605, 610 (1982); see also Hopkins v. Reeves, 118 S. Ct.

1895, 1900 (1998); Hatch v. Oklahoma, 58 F.3d 1447 1453-54 (10th Cir. 1995).

Mr. Walker was convicted of committing first degree murder by causing the

death of another with malice aforethought in violation of Okla. Stat. tit. 21, §

701.7(A). He asserts the jury should have been allowed to consider a conviction

for second degree murder under a state statute defining second degree murder as

that committed while engaged in the commission of, inter alia, second degree

burglary. See id. § 701.8(2). Second degree burglary, in turn, is defined as that

committed by breaking into a building with the intent to steal property. See id. §

1435. It differs from first degree burglary in that first degree burglary is

committed by breaking into a dwelling that contains a person. See id.

§ 1431.

Mr. Walker contends that in his trial, the State argued and the evidence

showed that his actions constituted an attempted second degree burglary. He

presented this argument in his direct criminal appeal and the Oklahoma Court of

Criminal Appeals disagreed, holding that although Mr. Walker had been

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attempting a second degree burglary when the victim arrived home, Mr. Walker

abandoned that attempt when he saw the victim, fled to the side of the house and

waited until Mr. Cash had entered the home to gain admittance. See Walker v.

State, 723 P.2d 273, 283 (Okla. Crim. App. 1986). The state court’s conclusion

that the undisputed facts established at trial amounted to abandonment of second

degree burglary is a construction of state law to which this court must defer.

Mr. Walker’s argument that he was entitled to an instruction on first degree

manslaughter is similarly without merit. Oklahoma law defines this crime as a

homicide perpetrated without a design to effect death. See Okla. Stat. tit. 21,

§ 711(2). We have carefully reviewed the trial record and have found no evidence

to support the giving of this instruction. Dr. Goodman’s testimony in support of

Mr. Walker’s insanity defense clearly indicates that although Mr. Walker may have

acted in a rage, he did intend to kill his victim. There is simply no evidence to

support a contrary finding. The trial court did not err in denying this instruction.

IV.

CONTINUING THREAT AGGRAVATING CIRCUMSTANCE

Finally, Mr. Walker argues that the continuing threat aggravating

circumstance is unconstitutional on its face and as applied. In so doing, he

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recognizes we have rejected his argument in Nguyen v. Reynolds, 131 F.3d 1340

(10th Cir. 1997), but presents the argument nonetheless to preserve the issue in

hopes that the Supreme Court may intervene.

V.

CONCLUSION

Having carefully considered Mr. Walker’s claims, we are not persuaded that

constitutional errors infected his state court trial. We AFFIRM the judgment of

the district court denying Mr. Walker’s petition for a writ of habeas corpus.

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