Valdez v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit

JUL 27 2000
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk

TENTH CIRCUIT

GERARDO VALDEZ,

Petitioner-Appellant,

v.
No. 99-6147
RON WARD, Warden, Oklahoma State
Penitentiary; ATTORNEY GENERAL OF
THE STATE OF OKLAHOMA,

Respondents-Appellees,

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-97-347-L)

Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma
City, Oklahoma, for Petitioner-Appellant

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with him on the brief), State of Oklahoma,
Oklahoma City, Oklahoma, for Respondents-Appellees.

Before SEYMOUR, Chief Judge, PORFILIO and EBEL, Circuit Judges.

SEYMOUR, Chief Judge.
 Petitioner Geraldo Valdez was convicted of first degree murder and

sentenced to death. After he unsuccessfully filed a direct appeal and a petition

for state post-conviction relief with the Oklahoma Court of Criminal Appeals

(OCCA), he sought a writ of habeas corpus in federal district court under 28

U.S.C. § 2254. The district court denied the writ. Mr. Valdez appeals, and we

affirm.

BACKGROUND

Mr. Valdez is a Mexican immigrant who has lived in Oklahoma for some

time. One night in April of 1989, Mr. Valdez met the victim, Juan Barron, at a

bar in rural Oklahoma. Mr. Barron was a homosexual who apparently showed a

sexual interest in Mr. Valdez. Mr. Valdez, a married heterosexual, rejected Mr.

Barron’s advances. The testimony at trial revealed that throughout the course of

the evening Mr. Valdez consumed approximately fourteen beers.

When the bar closed, Mr. Barron, Mr. Valdez, and his friend, Martin

Orduna, went to Mr. Valdez’s house. Mr. Valdez began preaching to Mr. Barron

out of the Bible, attempting to convince Mr. Barron of the sinfulness of his

homosexuality. When Mr. Barron rejected this proselytizing, Mr. Valdez brought

out his gun. He began slapping Mr. Barron, telling him he was going to kill him

and that according to the Bible homosexuals do not deserve to live. Ordering Mr.

Barron to remove his clothes, Mr. Valdez gave him the option of death or

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castration, and continued to hit and slap him. When Mr. Barron started to fight

back, Mr. Valdez shot him twice in the forehead and then hit him in the head with

the gun. While Mr. Barron lay on the couch, Mr. Valdez retrieved a knife and cut

his throat, finally killing him. Mr. Valdez threatened to kill Mr. Orduna if he told

anyone about the murder, and demanded Mr. Orduna’s assistance in disposing of

the body. The two men carried Mr. Barron, the couch, and the surrounding rug to

the backyard, where they set them on fire.

Three months later, the police began investigating Mr. Barron’s

disappearance. On July 25, officers executed a search warrant for Mr. Valdez’s

home. Upon entering the house, Deputy Terry Cunningham administered Miranda

warnings to Mr. Valdez in English. Mr. Valdez conversed in English with the

officers, who believed he understood his rights. Because the officers had already

questioned Mr. Orduna, they knew to look for Mr. Barron’s remains in the

backyard barbecue pit. There they found what appeared to be a bone fragment.

Mr. Valdez agreed to accompany the officers to the local police station.

Officer Dan Benson administered another Miranda warning to Mr. Valdez upon

their arrival. Throughout the interrogation, Mr. Valdez spoke in English, without

the aid of an interpreter, and denied any involvement in Mr. Barron’s death. The

officers escorted Mr. Valdez back to his home late that evening. While driving

back, Deputy Cunningham told Mr. Valdez that he would feel better if he told

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them the truth. Officer Dan Benson asked Mr. Valdez if he would show them

what he had done with the body. When they arrived at Mr. Valdez’s home, he

showed them where he had burned Mr. Barron’s body. Deputy Cunningham read

Mr. Valdez his Miranda warnings a third time and asked him if he understood his

rights. Mr. Valdez said he did. When Deputy Cunningham asked Mr. Valdez to

sign the waiver of rights form, which was written in English, Mr. Valdez asked to

read it first. Mr. Valdez then signed the waiver and confessed to killing Mr.

Barron. This confession was taped and played for the jury.

Mr. Valdez was arraigned the morning of July 26 and counsel was

appointed for him. Later that day while Mr. Valdez was still in custody, Special

Agent A. J. Irwin of the U.S. Immigration and Naturalization Service interviewed

Mr. Valdez without his counsel present. Agent Irwin had previously interviewed

Mr. Orduna and Alfonso Borjas, a friend of Mr. Valdez who was present at the

bar on the evening of the murder, in an effort to aid the state police in their

investigation. As with these other interviews, Agent Irwin’s interview with Mr.

Valdez was conducted entirely in Spanish. At the outset, Agent Irwin identified

himself and emphasized he was only there to establish Mr. Valdez’s alienage and

immigration status. He then administered the Miranda warnings to Mr. Valdez in

Spanish.

After describing his immigration status to Agent Irwin, Mr. Valdez stated

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“that he wanted to converse with a Spanish speaking law enforcement official

concerning the matter for which he was incarcerated.” Rec., Supp. Ex. 2, Report

by Agent A.J. Irwin at 10. Agent Irwin told Mr. Valdez he did not have to offer

information about the homicide and said he was satisfied with Mr. Valdez’s

immigration status. Mr. Valdez still insisted on telling his story and proceeded to

explain what happened on the night he killed Mr. Barron.

At trial, Mr. Valdez admitted the crime and the events leading up to it, but

he asserted an insanity defense based on what his appellate counsel describes as

his “religious delusions.” Mr. Valdez testified that he believes homosexuality is a

sin according to the Bible and he wanted to help Mr. Barron understand the error

of his ways. He testified he became angry and killed Mr. Barron after he refused

to listen to the Bible’s message. He also testified he might kill another person if

placed in the same situation. Agent Irwin testified that Mr. Valdez told him on

July 26 “he was not insane and he did not intend to use an insanity plea or

defense.” Rec., vol. IV at 73. Agent Irwin also testified that Mr. Valdez showed

no remorse for killing Mr. Barron.

After hearing the evidence, the jury convicted Mr. Valdez of first degree

murder. Following the sentencing phase of the trial, the jury found three

aggravating circumstances: Mr. Valdez posed a continuing threat to society; the

crime was especially heinous, atrocious or cruel; and Mr. Valdez created a great

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risk of death to more than one person during the commission of the crime. The

jury sentenced him to death. The OCCA upheld Mr. Valdez’s conviction and

sentence on direct appeal and denied post-conviction relief. See Valdez, 900 P.2d

363 (Okla. Crim. App. 1995); Valdez v. State, 933 P.2d 931 (Okla. Crim. App.

1997). Mr. Valdez thereafter filed for a writ of habeas corpus in federal district

court. The district court denied the writ and Mr. Valdez appeals that denial.

On appeal, Mr. Valdez makes six claims of constitutional error: (1) his

statements made on July 25 and 26 were obtained in violation of his Fifth

Amendment rights; (2) the July 26 interrogation violated his Sixth Amendment

right to counsel; (3) the State failed to prove he was sane beyond a reasonable

doubt; (4) he was incompetent to stand trial; (5) the trial court’s failure to instruct

the jury on second degree murder violated his due process rights; and (6) his trial

counsel provided ineffective assistance. The district court granted Mr. Valdez a

certificate of appealability on all of these issues. See 28 U.S.C. § 2253(c).

STANDARDS OF REVIEW

Mr. Valdez filed the present habeas petition on July 3, 1997. The

provisions of section 2254 as they were amended by the Anti-Terrorism and

Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214

(1996), therefore apply to our review. Under AEDPA, section 2254(d) provides

that a writ of habeas corpus may not be issued with respect to any claim

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adjudicated on the merits in state court unless that adjudication:

(1) . . . was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) . . . was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.

§ 2254(d)(1)-(2). Section 2254(e)(1) further requires a habeas court to presume

that factual determinations made by the state court are correct, and places the

burden on the petitioner to rebut that presumption by clear and convincing

evidence. See § 2254(e)(1).

The Supreme Court recently construed the review standard set forth in

subsection (d)(1). See Williams v. Taylor, 120 S. Ct. 1495 (2000). When

applying subsection (d)(1), the Court stated the threshold question is whether the

petitioner seeks to apply a rule of law that was “clearly established” by the

Supreme Court at the time the conviction became final. 1 See id. at 1511 (Stevens,

J., writing for the Court). If so, we must proceed to a bifurcated inquiry. See id.

at 1519 (O’Connor, J., writing for the Court) (subsection (d)(1) “defines two

categories of cases in which a state prisoner may obtain federal habeas relief with

respect to a claim adjudicated on the merits in state court”). We first determine

This clause “refers to the holdings, as opposed to the dicta, of th[e
1

Supreme] Court’s decisions as of the time of the relevant state-court decision.”
See Williams v. Taylor, 120 S. Ct. 1495, 1499 (2000) (O’Connor, J., writing for
the Court).

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whether the state court’s decision was contrary to clearly established Federal law.

The “contrary to” clause of subsection (d)(1) is fulfilled where the state court

applied a rule that was “diametrically different [from], opposite in character or

nature, or mutually opposed” to a maxim of law as stated by the Supreme Court.

Id. The “contrary to” clause is also satisfied where the state court is confronted

with a set of facts which are “materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [its]

precedent.” Id. at 1519-20.

We next ask whether the state court’s determination involved an

unreasonable application of clearly established Federal law. See id. at 1520. The

“unreasonable application” clause of subsection (d)(1) applies in two scenarios:

first, where the “state court identifies the correct governing legal rule from [the

Supreme] Court’s cases but unreasonably applies it to the facts of the particular

state prisoner’s case,” id.; second, where the “state court either unreasonably

extends a legal principle from [Supreme Court] precedent to a new context where

it should not apply or unreasonably refuses to extend that principle to a new

context where it should apply,” id.

In either scenario the reviewing habeas court must determine whether the

state court’s application of Supreme Court precedent to the case at bar was

“reasonable.” See id. at 1521-22. The Court refrained from defining the term

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“reasonable” as it is used in AEDPA, other than to note that while it is “difficult

to define,” it is “a common term in the legal world and, accordingly, federal

judges are familiar with its meaning.” Id. at 1522. The Court did instruct that the

reasonableness determination is an objective inquiry, not a subjective one. See id.

at 1521-22. Thus, the fact that one court or even a few courts have applied the

precedent in the same manner to close facts does not make the state court decision

“reasonable.”

Mr. Valdez cites Miller v. Champion , 161 F.3d 1249 (10th Cir. 1998), for

the proposition that because he did not have an evidentiary hearing in either state

or federal district court on his constitutional claims, the underlying factual

findings should be reviewed de novo rather than presumed correct. See id. at

1254. Cf. Smith v. Estelle , 711 F.2d 677, 680-81 (5th Cir. 1983) (state habeas

court’s failure to hold evidentiary hearing on petitioner’s allegation meant that

there were no state findings of fact to which the presumption of correctness could

apply).

Mr. Valdez’s reliance on Miller is misplaced. The petitioner there had

requested and been denied an evidentiary hearing in both state and federal court.

In a separate order, the district court here denied Mr. Valdez’s request for an

evidentiary hearing because he had failed to request one in state court. Rec., vol.

I, doc. 43 at 2. As the district court pointed out, under AEDPA a habeas

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petitioner is not entitled to an evidentiary hearing in federal court if he “has failed

to develop the factual basis of [the] claim in State court proceedings.” Id.

Because Mr. Valdez failed to request a hearing from the state court and does not

argue that any of the exceptions listed in section 2254(e)(2) apply, 2 Miller does

not apply here and the district court correctly denied Mr. Valdez’s request for an

evidentiary hearing. Cf. Smallwood v. Gibson, 191 F.3d 1257, 1266 (10th Cir.

1999) (petitioner not entitled to Miller exception where factual basis for his claim

could have been, but was not, developed in state court).

We now turn to our review of Mr. Valdez’s claims in light of Williams, 120

S. Ct. 1495. In doing so, we review the district court’s factual findings under a

clearly erroneous standard and its legal conclusions de novo. See Rogers v.

Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944

(2000).

2
Section 2254(e)(2) provides:
(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that–
(A) the claim relies on–
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; . . . .

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 DISCUSSION

I

Mr. Valdez first claims that his July 25 taped confession and his July 26

statements to Agent Irwin were obtained in violation of his Fifth Amendment

rights. He argues that due to his poor command of the English language he did

not knowingly and intelligently waive his constitutional rights on July 25 as

required by Miranda v. Arizona , 384 U.S. 436 (1966). He also contends he

invoked his Fifth Amendment right to counsel on July 25, making his statements

to Agent Irwin the following day inadmissible under Edwards v. Arizona , 451

U.S. 477 (1981) (holding inadmissible defendant’s uncounseled statements made

during custodial interrogation when defendant had previously invoked Fifth

Amendment right to have counsel present). We address each argument in turn.

A. Miranda Waiver

Mr. Valdez’s claim that he did not knowingly and intelligently waive his

Miranda rights is based upon his assertion that he did not understand those rights

as read to him in English. Although the ultimate question of whether Mr.

Valdez’s waiver was knowing and intelligent is subject to review under the

standards set forth in section 2254(d), see Pickens v. Gibson , 206 F.3d 988, 995

(10th Cir. 2000), any subsidiary factual findings made by the state court are

entitled to a presumption of correctness under section 2254(e), see id. at 994. See

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also Trice , 196 F.3d at 1169 (although ultimate question of whether petitioner’s

confession was voluntary reviewed under section 2254(d), subsidiary factual

findings entitled to section 2254(e)’s presumption of correctness).

Whether Mr. Valdez understood his Miranda rights is a question of fact,

see Mincey v. Head , 206 F.3d 1106, 1131 (11th Cir. 2000); Cuppett v. Duckworth ,

8 F.3d 1132, 1141 (7th Cir. 1993) (en banc); Derrick v. Peterson , 924 F.3d 813,

823-24 (9th Cir. 1990), which underlies the legal question of whether his waiver

was knowing and intelligent, see Perri v. Department of Corrections , 817 F.2d

448, 451 (7th Cir. 1987). We therefore must presume the OCCA’s factual finding

that Mr. Valdez “fully comprehended what was being said to and asked of him,”

Valdez , 900 P.2d at 371, is correct unless Mr. Valdez convinces us otherwise by

clear and convincing evidence. See § 2254(e)(1).

Mr. Valdez did not offer any additional evidence and merely argues from

the trial record that he did not fully comprehend English and thus did not

knowingly and intelligently waive his Miranda rights. After a close reading of

the entire record, we agree with the state court that it establishes Mr. Valdez’s

understanding of English. In particular, Mr. Valdez’s responses to questions

during his July 25 interrogations, see Rec., Supp. Ex. 2, and during his lengthy

trial testimony, see Rec., vol. V at 10-103, convince us that while he had some

limitations in his ability to speak English and therefore occasionally referred to an

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interpreter to express himself at trial, he fully comprehended what was being

asked of him and explained to him. See, e.g. , United States v. Todisco , 667 F.2d

255, 260 (2d Cir. 1981) (defendant’s in-court behavior supported trial court’s

finding that defendant understood Miranda rights read to him in non-native

language).

In sum, we agree with the OCCA’s exhaustive review of the record, see

Valdez , 900 P.2d at 371-72, and its conclusion based thereon that “Valdez’s

assurances over the course of the evening that he understood his Miranda rights,

coupled with his objectively verifiable ability to understand and answer the

questions posed to him during the final interrogation, provide sufficient proof that

he knowingly and intelligently waived his Miranda rights prior to confessing on

July 25th, 1989.” Id. at 372. Because Mr. Valdez has not provided any further

evidence, clear and convincing or otherwise, to rebut this finding, we reject his

assertion that he did not understand English. Consequently, we agree with the

OCCA that he knowingly and intelligently waived his rights on July 25.

B. Invocation of Fifth Amendment Right to Counsel

Mr. Valdez’s next Fifth Amendment claim is based upon his assertion that

he requested counsel during the interrogation at his home on July 25. In Edwards

v. Arizona , 451 U.S. 477 (1981), the Court held that after an accused clearly

invokes his right to have counsel present during a custodial interrogation, officers

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must cease all questioning and may not reinitiate questioning on any matter until

counsel is provided. See id. at 484-85 (the “ Edwards rule”). Relying on

Edwards , Mr. Valdez contends his July 26 interrogation by Agent Irwin without

counsel present violated his Fifth Amendment rights because it occurred after he

invoked his right to counsel the previous day. Therefore, he argues, Agent

Irwin’s testimony was inadmissible at trial.

On the evening of July 25, after Deputy Cunningham convinced Mr. Valdez

to show him where he disposed of Mr. Barron’s body, he presented Mr. Valdez

with a Miranda waiver form which Mr. Valdez signed. The officers then taped

Mr. Valdez’s subsequent confession. Investigator Benson concluded the

interrogation by asking Mr. Valdez whether his confession was voluntarily made

and whether he willingly signed the Miranda waiver form. Mr. Valdez replied:

“Yes, I understand it a little bit and I sign it because I understand it something

about a lawyer and he want to ask me questions and that’s what I’m looking for a

lawyer.” Rec., Supp. Ex. 1 at 5. Investigator Benson replied, “But you are

willingly talking to us? We didn’t beat you or anything like that to get you to talk

did we?” Id. After a barrage of questions along this line, and without a response

from Mr. Valdez, Investigator Benson asked once more, “you talked to us because

you wanted to didn’t you?” Id. Mr. Valdez responded, “Yea.” The officers then

ended the taped statement. Mr. Valdez argues that his first response was an

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unequivocal invocation of his Fifth Amendment right to have counsel present

during the custodial interrogation.

In Davis v. United States , 512 U.S. 452 (1994), the Court described the

Edwards rule as requiring courts to “determine whether the accused actually

invoked his right to counsel.” Id. at 458. The Court stated that reviewing courts

must make this objective inquiry with the understanding that “a statement either is

such an assertion of the right to counsel or it is not.” Id. at 459. The Court held

that “if a suspect makes a reference to an attorney that is ambiguous or equivocal

in that a reasonable officer in light of the circumstances would have understood

only that the suspect might be invoking the right to counsel,” the Edwards rule

requiring a cessation of questioning does not apply. Id. at 459.

Mr. Valdez unsuccessfully raised this challenge in his direct appeal. See

Valdez, 900 P.2d at 374. Reviewing the issue, the OCCA described the

circumstances as they existed on July 25, prior to Mr. Valdez’s purported

invocation. Applying Davis to those circumstances, the court determined that Mr.

Valdez’s statement was “[a]t most . . . an ambiguous request for counsel.” Id.

The OCCA therefore held that Mr. Valdez’s subsequent uncounseled interrogation

on July 26 did not violate his Fifth Amendment rights.

Whether a statement constitutes an unequivocal request for counsel under

Davis is a question of law, see United States v. Oba , 978 F.2d 1123, 1129 (9th

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Cir. 1992), which we review under AEDPA § 2254(d) if the state has addressed

the issue on the merits, see LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir.

1999), cert. denied , 120 S. Ct. 1290 (2000). Mr. Valdez asserts the OCCA’s

determination is both contrary to, and an unreasonable application of, Davis. See

§ 2254(d)(1). The OCCA correctly cited Davis and applied its holding when

reviewing this claim, and Mr. Valdez does not argue otherwise. For this reason,

its determination is not contrary to Davis. See Williams, 120 S. Ct. at 1519-20.

Hence, for Mr. Valdez to obtain habeas relief on this claim, he must convince us

the OCCA’s determination “unreasonably applies [Davis] to the facts of [his]

case.” Id. at 1520. We agree with the district court that it did not.

The OCCA’s conclusion that Mr. Valdez’s reference to an attorney was

insufficient to invoke his Fifth Amendment right to counsel under Davis was not

unreasonable. At the outset, we agree with the OCCA that a plain reading of Mr.

Valdez’s statement is ambiguous, particularly because it was made after he had

given a taped confession and showed police where he had burned the body,

undermining his need for the aid of counsel during the interrogation. See, e.g.,

United States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995) (where accused

confessed, agreed to give a recorded statement, was read Miranda rights and

asked if she was willing to answer questions, accused’s subsequent comment that

she needed a lawyer was insufficient under Davis to invoke her Fifth Amendment

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right to counsel); Lord v. Duckworth, 29 F.3d 1216, 1221 (7th Cir. 1994)

(accused’s statement “I can’t afford a lawyer but is there anyway I can get one?,”

was ambiguous because accused had twice been informed of Miranda rights and

had already confessed in lengthy, tape-recorded statement).

In Davis, the Supreme Court “recognize[d] that requiring a clear assertion

of the right to counsel might disadvantage some suspects who—because of . . . [a]

lack of linguistic skills . . . —will not clearly articulate their right to counsel

although they actually want to have a lawyer present.” Davis, 512 U.S. at 460.

Despite this, the Supreme Court rejected any further prophylactic protections for

an accused’s Fifth Amendment right to counsel, holding instead that the primary

protection is the accused’s comprehension of the Miranda warnings themselves.

Id. As discussed above, Mr. Valdez had been read his rights three times prior to

making this statement, and the record supports the OCCA’s determination that he

understood those rights and that he knowingly and intelligently waived his right

to counsel. In light of this, and the fact that Mr. Valdez’s statement came after he

confessed, the OCCA’s determination that Mr. Valdez’s statement was an

ambiguous request for counsel is not an objectively unreasonable application of

Davis.

II

Mr. Valdez next claims that his Sixth Amendment right to counsel was

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violated by Agent Irwin’s July 26 interrogation of him without the presence of his

appointed counsel representing him on the murder charge. He argues the

statements he made about the murder during that interrogation were therefore

inadmissible under Michigan v. Jackson, 475 U.S. 625 (1986) (applying Edwards

rule to Sixth Amendment and holding a defendant’s waiver of Sixth Amendment

right to counsel invalid when made during post-arraignment, police-initiated

interrogations).

Mr. Valdez unsuccessfully raised this argument in his direct appeal. The

OCCA first recognized that under McNeil v. Wisconsin, 501 U.S. 171, 175 (1991),

the Sixth Amendment right is offense-specific. Agent Irwin was therefore free to

question Mr. Valdez on his immigration status without implicating Mr. Valdez’s

Sixth Amendment rights because that interrogation did not relate to the murder

charge. See Valdez, 900 P.2d at 374. The OCCA held that Agent Irwin limited

his interrogation to Mr. Valdez’s immigration status, and that Mr. Valdez waived

his Sixth Amendment right by “initiat[ing] the exchange about the murder

charges” and then making “spontaneous and unsolicited remarks about the

killing.” Id. at 375.

Mr. Valdez contends he is entitled to relief under section 2254(d)(1)

because the OCCA’s determination was contrary to, or an unreasonable

application of, Michigan v. Jackson, 475 U.S. 625. Mr. Valdez also maintains the

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OCCA’s holding was based on an unreasonable determination of the facts under

section 2254(d)(2), claiming Agent Irwin intentionally created a situation in

which Mr. Valdez would make incriminating statements in violation of his Sixth

Amendment right to counsel.

The district court rejected both of these arguments. It first noted that Mr.

Valdez had not proffered clear and convincing evidence that the OCCA’s factual

determinations regarding the July 26 interrogation were erroneous and thus those

facts were presumed correct, see 28 U.S.C. § 2254(e)(1). Relying on McNeil, 501

U.S. 171, the district court held that Agent Irwin’s interrogation was not a

violation of Mr. Valdez’s Sixth Amendment right to counsel because the subject

matter of the interrogation was limited to Mr. Valdez’s immigration status, a topic

on which Mr. Valdez had not been charged. Citing our recent decision in Cooks

v. Ward, 165 F.3d 1283 (10th Cir. 1998), cert. denied, 120 S. Ct. 94 (1999), the

court further held the OCCA’s determination that Mr. Valdez waived his Sixth

Amendment right to counsel by initiating the discussion with Agent Irwin

regarding the murder was not contrary to, or an unreasonable application of,

Supreme Court precedent. We agree.

A. Waiver by Initiating Discussion of Charges

Because Mr. Valdez had been arraigned on the murder charge and had been

appointed counsel, it is beyond dispute that his Sixth Amendment right to counsel

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for the murder had attached at the time of Agent Irwin’s July 26 interrogation.

According to the OCCA’s recitation of the facts, Agent Irwin confined his

questions to Mr. Valdez’s immigration status and did not interrogate Mr. Valdez

regarding the murder. It was Mr. Valdez himself who initiated the discussion

regarding the murder, despite Agent Irwin’s reminders that he was there regarding

Mr. Valdez’s immigration status and that Mr. Valdez did not have to discuss the

murder charges. See Valdez, 900 P.2d at 375. Mr. Valdez did not challenge these

facts at trial and does not challenge them here, thus they are presumed correct.

See 28 U.S.C. § 2254(e)(1).

The OCCA’s determination that Mr. Valdez voluntarily waived his Sixth

Amendment rights by initiating discussion about the charged crime is a question

of law, see Cooks , 165 F.3d at 1288, which we review pursuant to AEDPA §

2254(d). See Holman v. Kemna , 212 F.3d 413 (8th Cir. 2000) (applying § 2254(d)

to review state court determination of whether defendant initiated conversation

with police ). In Jackson, the Supreme Court held the Sixth Amendment right to

counsel could not be waived during post-arraignment, police-initiated

interrogations. See Jackson, 475 U.S. at 635-36. In McNeil v. Wisconsin, 501

U.S. 171, the Court clarified this holding by stating that the Sixth Amendment

right is offense-specific, meaning Jackson’s holding invalidates only those

waivers made during police-initiated interrogations covering the subject matter of

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the charged offense. See id. at 175. In practice, this means that once the right

attaches (usually at the defendant’s arraignment), the police may not initiate an

uncounseled interrogation of the defendant on a subject dealing with the offense

for which he is charged, see id. at 176, but may initiate an uncounseled

interrogation on uncharged offenses.

Mr. Valdez asserts that because Agent Irwin’s interrogation was post-

arraignment and police-initiated, the OCCA should have held his Sixth

Amendment waiver invalid under Jackson. This argument ignores the fact that

Mr. Valdez retained the ability to waive his Sixth Amendment right to counsel by

voluntarily reinitiating a discussion with police regarding the crime for which he

was charged without counsel present. See, e.g., Michigan v. Harvey, 494 U.S.

344, 352 (1990) (“[N]othing in the Sixth Amendment prevents a suspect charged

with a crime and represented by counsel from voluntarily choosing, on his own, to

speak with police in the absence of an attorney.”); Patterson v. Illinois, 487 U.S.

285, 290-91 (1988) (defendant’s Sixth Amendment waiver was valid where

confession was self-initiated and voluntary); Clayton v. Gibson, 199 F.3d 1162,

1172-73 (10th Cir. 1999) (post-arraignment Sixth Amendment waiver made while

defendant was being booked on a different charge was valid because defendant

voluntarily reinitiated communication with officers regarding the charged crime),

petition for cert. filed, No. 99-9630 (May 20, 2000); Cooks, 165 F.3d at 1288

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(defendant’s Sixth Amendment waiver was valid where defendant summoned

detective to his cell and insisted on confessing to charged crime without attorney

present).

The parties do not cite, nor are we aware of any, Supreme Court precedent

dealing with the exact situation we have here where a Sixth Amendment waiver

was made during a police-initiated interrogation regarding uncharged crimes. In

the procedural posture of this case, Williams requires us to deny habeas relief

unless Mr. Valdez can show the OCCA’s decision rests upon an objectively

unreasonable application of Supreme Court precedent to these new facts. See

Williams, 120 S. Ct. at 1520.

As the OCCA recognized, the essence of the Court’s holding in Jackson

was that the “Sixth Amendment right to counsel at a post-arraignment

interrogation requires at least as much protection [afforded by the Edwards rule]

as the Fifth Amendment right to counsel at any custodial interrogation.’” Valdez,

900 P.2d at 374 n.44 (quoting Jackson, 475 U.S. at 632). The Court therefore

held that the Edwards rule applied to Sixth Amendment waivers as well. See

Jackson, 475 U.S. at 632. Importantly, the Court in Jackson expressed the

Edwards rule as allowing an exception for interrogations which were initiated by

the defendant himself. See id. at 626 (Edwards rule protects an accused whose

constitutional right to counsel has attached, shielding him from “further

-22-
interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges or

conversations with the police”) (emphasis added). This last exception to the

Edwards rule must be read in conjunction with McNeil’s holding that the police

do not violate the Sixth Amendment by initiating an interrogation of a defendant

about uncharged crimes. Under the AEDPA standard we are required to apply, we

cannot say the OCCA’s determination that Mr. Valdez waived his Sixth

Amendment right to counsel when he made spontaneous and unsolicited remarks

about the killing during the police-initiated interrogation rested upon an

objectively unreasonable application of Edwards, Jackson, and McNeil to the new

facts presented here. Mr. Valdez is thus not entitled to habeas relief on this point.

See Williams, 120 S. Ct. at 1520.

B. Agent Irwin’s Interrogation as a Pretext

Mr. Valdez also contends the OCCA’s holding was based on an

unreasonable determination of the facts, entitling him to habeas relief under

section 2254(d)(2). Pointing out that Agent Irwin interrogated other Spanish-

speaking witnesses regarding the murder and was doing so to aid the state police

in their investigation, Mr. Valdez asserts that Agent Irwin was merely using Mr.

Valdez’s immigration status as a pretext to elicit admissions from him about the

charged crime. The OCCA rejected this view of the facts, holding that “[w]hile

-23-
Irwin arguably presented Valdez with a comfortable environment in which to talk

about the crime, he did not question Valdez about that crime” and he “did not

badger Valdez into talking.” Valdez, 900 P.2d at 375. Our review of the facts

presented at trial in light of the relevant caselaw persuades us the OCCA’s

determination of these facts was not unreasonable.

Where government officials must have known that a defendant will make

incriminating statements about a charged crime, their interrogation on uncharged

crimes without counsel present clearly violates the Sixth Amendment. See Maine

v. Moulton, 474 U.S. 159, 176-77 & n.12 (1985) (government’s arrangement to

record post-arraignment conversations between defendant and co-defendant

violated defendant’s Sixth Amendment right to counsel because the government

“must have known that its agent was likely to obtain incriminating statements

from the accused”); United States v. Henry, 447 U.S. 264, 270-71 (1980) (Sixth

Amendment violated where informant cell-mate of defendant was paid only if he

produced useful information because police “must have known” that informant

would take affirmative steps to obtain incriminating evidence regarding the

charged crime notwithstanding instructions to the contrary); see also United

States v. Terzado-Madruga, 897 F.2d 1099, 1109-10 (11th Cir. 1990) (where

government agents “must have known” the informant would obtain incriminating

statements from defendant regarding charged crimes, statements taped during

-24-
those conversations were inadmissible). Mr. Valdez maintains this was the

situation here. He analogizes Agent Irwin to the jail-house informant in Henry

who was surreptitiously employed to receive incriminating information regarding

a charged crime, arguing that the government must have known Agent Irwin

would obtain incriminating statements from Mr. Valdez during the interview. In

Henry, however, the Court specifically relied upon the fact that the defendant did

not know he was speaking to a government agent or that his statements could be

used against him. See Henry, 447 U.S. at 273. Mr. Valdez’s analogy is therefore

inapposite because he knew he was speaking to a government official and his

statements could be used against him.

Agent Irwin testified that he did not ask Mr. Valdez any questions

regarding the murder during his interrogation. Moreover, he specifically told Mr.

Valdez he did not have to offer information about the homicide when Mr. Valdez

raised the subject. The fact that Agent Irwin may have hoped Mr. Valdez would

volunteer information, “by luck or happenstance,” does not result in a Sixth

Amendment violation. Moulton, 474 U.S. at 176. In light of this evidence, it was

not an unreasonable determination of the facts for the OCCA to conclude no Sixth

Amendment violation occurred.

III

Mr. Valdez next asserts there was insufficient evidence to prove he was

-25-
sane beyond a reasonable doubt. Under a sufficiency of the evidence challenge, a

reviewing court must evaluate the evidence to determine whether “any rational

trier of fact” could have found the defendant sane beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because Mr. Valdez established a

reasonable doubt of his sanity, under Oklahoma law, the burden shifted to the

State to “prove beyond a reasonable doubt that [Mr. Valdez] could distinguish

between right and wrong at the time of the offense.” Ullery v. State, 988 P.2d

332, 348 (Okla. Crim. App. 1999).

The jury was presented with conflicting medical testimony regarding Mr.

Valdez’s sanity. Dr. Mynatt, who had evaluated Mr. Valdez’s sanity for the state,

testified that based upon a one hour examination he concluded Mr. Valdez was

legally sane, that is, he comprehended the difference between right and wrong at

the time of the murder. Dr. Mynatt testified that Mr. Valdez told him he did not

lose control on the night of the murder but only wanted to show Mr. Barron the

error of his ways. Dr. Romero, a Mexican psychiatrist assisting Dr. Mynatt,

described Mr. Valdez as calm and lucid during the interview, and testified that

Mr. Valdez admitted he might kill again if faced with the same circumstances.

Mr. Valdez then called his examining psychologist, Dr. Murphy, who had

interviewed Mr. Valdez for five hours and administered four tests. Dr. Murphy

opined that at the time of the killing Mr. Valdez was acting under the delusion

-26-
that God was commanding him to convert Mr. Barron and was thus unable to

appreciate right from wrong. During the State’s rebuttal, 3 Dr. Mynatt testified the

tests administered by Dr. Murphy could not have assessed Mr. Valdez’s mental

condition as it existed at the time of the crime. Dr. Romero testified he agreed

with Dr. Mynatt that Mr. Valdez appreciated the difference between right from

wrong on the night of the murder.

Mr. Valdez undermined Dr. Murphy’s theory by testifying that God did not

command him to kill Mr. Barron, or to kill homosexuals generally. He also

testified that certain passages of the Bible teach that homosexuals do not deserve

to live. He said he did not really know why he killed Mr. Barron but did so when

Mr. Barron refused to listen to his sermon denouncing homosexuality. Finally,

Mr. Valdez testified he might kill another person who, like Mr. Barron, refused to

listen to his teachings.

The jury also heard testimony from several witnesses who were with Mr.

Valdez in the bar on the night of the murder. None testified that Mr. Valdez

seemed mentally unstable. With the exception of Mr. Orduna, who actually

witnessed the killing, all of these witnesses testified that Mr. Valdez did not

appear to be angry at Mr. Barron.

3
Both Dr. Mynatt and Dr. Romero heard Mr. Valdez’s trial testimony before
they testified on rebuttal.

-27-
 On direct appeal, Mr. Valdez contended Dr. Murphy’s opinion that he was

not legally sane at the time of the murder was more credible than Drs. Romero’s

and Mynatt’s conclusions because the latter were based upon cursory sanity

evaluations. See Valdez, 900 P.2d at 375. In reviewing this argument, the OCCA

remarked that Mr. Valdez’s sanity was a “question of fact for the sole

determination of the jury,” and that it would not “inquire into the credibility of

the witnesses nor weigh conflicting testimony.” Id. at 376. The OCCA concluded

the evidence was sufficient to uphold the jury’s finding that Mr. Valdez was sane

beyond a reasonable doubt based on the “testimony from witnesses who were with

Valdez at the time of the crime, from the doctors who later evaluated Valdez’s

mental condition, and from Valdez himself.” Id. at 377.

A claim based on sufficiency of the evidence is a mixed question of fact

and law which we reviewed de novo under the pre-AEDPA habeas caselaw. See

Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995). Habeas relief was granted

only if, considering all of the evidence in the light most favorable to the

government, a rational trier of fact could not have found the defendant was sane

beyond a reasonable doubt at the time of the crime. See id. (citing Jackson v.

Virginia, 443 U.S. at 319). Under AEDPA, however, where a habeas petitioner’s

sufficiency of the evidence challenge has already been decided in state court, we

employ a more limited review under either section 2254(d)(1) or (d)(2). Under

-28-
Tenth Circuit caselaw, it is unclear whether subsection (d)(1) or (d)(2) applies to

the review of mixed questions of law and fact presented when reviewing for

sufficiency of evidence questions. See Hogan v. Gibson, 197 F.3d 1297, 1306

(10th Cir. 1999) (describing conflict in our cases), petition for cert. filed, No.

99-1976 (June 8, 2000). Because Mr. Valdez raises this argument under both

subsections (d)(1) and (d)(2), we need not decide which is the more appropriate

analysis.

Mr. Valdez first asserts under section 2254(d)(1) that the OCCA applied

state evidentiary law, contrary to the Federal constitutional standard for

sufficiency of evidence set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See

Williams, 120 S. Ct. at 1519. This assertion is without merit. Jackson instructs

the reviewing court to determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at

319. The OCCA cited a state law case rather than Jackson, but it correctly

articulated and applied the Jackson standard for a sufficiency of evidence review.

It recognized “the State bears the burden of proving beyond a reasonable doubt”

that the defendant does not fall within the state’s legal definition of insanity.

Valdez, 900 P.2d at 375. After determining that the jury had been correctly

instructed on this matter, the OCCA thoroughly reviewed the testimony and

-29-
concluded the evidence was sufficient to support the jury’s conclusion that Mr.

Valdez was sane beyond a reasonable doubt, see id. at 376-77 (citing Kiser v.

State, 782 P.2d 405, 407 (Okla. Crim. App. 1989)). Despite Mr. Valdez’s

contention that this was an incorrect application of “state evidence law,” this

standard is the same whether cited from the Jackson opinion or from state

caselaw. The OCCA’s application of this standard was thus in accordance with

federal constitutional requirements.

Mr. Valdez also contends the OCCA’s determination that the evidence was

sufficient was an objectively unreasonable determination of the facts, entitling

him to habeas relief under section 2254(d)(2). He first maintains the OCCA

should have disregarded the expert witness testimony of Drs. Romero and Mynatt

because it was less credible than the testimony of Dr. Murphy, due to his

extensive testing. As the OCCA recognized, whether Dr. Murphy’s testimony at

trial was more credible was an issue solely within the province of the jury. 4 See

United States v. Castaneda-Reyes, 703 F.2d 522, 524 (11th Cir. 1983) (whether

testimony of one expert witness is more believable than testimony of another

4
In presenting this argument, Mr. Valdez merely recasts the evidence
presented at trial in a light most favorable to himself. Because the jury was
correctly instructed on the issue and determined Mr. Valdez sane beyond a
reasonable doubt, a reviewing court must view the evidence in a light most
favorable to the prosecution. See Jackson, 443 U.S. at 319; United States v.
Hanzlicek, 187 F.3d 1228, 1232-33 (10th Cir. 1999).

-30-
expert witness is issue for trier of fact); United States v. Walker, 524 F.2d 1125,

1128 (10th Cir. 1975) (same). Despite the relative strengths of the expert

testimony, only the fact-finder may determine whether the defendant was legally

sane. See, e.g., United States v. Madrid, 673 F.2d 1114, 1123 (10th Cir. 1982)

(evidence of sanity was sufficient to sustain conviction although four of five

experts concluded defendant was not legally sane); Walker, 524 F.2d at 1128-29

(same where defense expert who extensively examined defendant testified

defendant was not legally sane but state expert who conducted limited

examination and did not hear trial testimony testified defendant was); see also

United States v. Shepard, 538 F.2d 107, 110 (6th Cir. 1976); United States v.

Bohle, 475 F.2d 872, 874 (2d Cir. 1973).

Moreover, the OCCA did not rely solely on the expert testimony in holding

the evidence was sufficient; it also considered the testimony from “witnesses who

were with Valdez at the time of the crime” and the testimony of Mr. “Valdez

himself.” 5 Valdez, 900 P.2d at 377. Because of the OCCA’s deference to the jury

5
Although Mr. Valdez does not attempt to refute his own testimony, he does
argue that testifying he would kill again if presented with a similar situation was
itself proof he was legally insane, and that the OCCA was unreasonable in failing
to construe the testimony in this light. See Aplt. Reply Br. at 13 (“If a man on
trial for his life fully understood the wrongfulness of killing another, and
appreciated the nature and consequences of such conduct, would he tell the
State’s examiner that he would do the same thing again? The very insanity of that
proposition seems lost on the state court.”). While a defense attorney may
(continued...)

-31-
on the sufficiency of the evidence issue, see Valdez, 900 P.2d at 376, we cannot

characterize its determination as unreasonable. See, e.g., Billotti v. Legursky, 975

F.2d 113, 118-19 (4th Cir. 1992) (evidence held sufficient to support finding of

sanity where jury heard from lay witnesses regarding defendant’s conduct at time

of crime even though all experts testified defendant was not legally sane at time

of crime); cf. United States v. Samuels, 801 F.2d 1052, 1056 (8th Cir. 1986)

(evidence held insufficient to prove sanity where defendant had extensive history

of psychiatric problems, government’s only evidence on sanity issue was expert

testimony based on limited examination of defendant, and no lay persons could

testify as to defendant’s mental state at the time of the offense).

Mr. Valdez also argues the testimony at trial shows he was suffering from

paranoid delusions resulting in an “avenging angel complex,” during which he

enforced what he believed to be biblical requirements without any corresponding

feeling of wrong-doing. The only new evidence he offers in support of his

position is a deposition taken of Dr. Mynatt in December 1997, seven and a half

years after the trial. In this deposition, Dr. Mynatt stated he did not remember

5
(...continued)
understandably believe his client “insane” for testifying honestly about his
emotions where such testimony devastates his defense strategy, the inferences to
be made from Mr. Valdez’s testimony are purely matters for the jury. See United
States v. Bilson, 648 F.2d 1238, 1239 (9th Cir. 1981) (selection from among the
competing factual inferences arising from the proffered evidence of sanity was for
jury and appellate court is not free to disturb that conclusion).

-32-
Mr. Valdez or testifying at his trial, even after seeing a picture of Mr. Valdez.

See Rec., Dep. of Dr. Mynatt at 7, 34. Dr. Mynatt did testify that a person

suffering from an “avenging angel complex” normally does not appreciate the

difference between right and wrong, and would therefore not be legally sane. Id.

at 26. He also testified that an individual suffering from this disorder might seem

normal in some areas, and that the disorder could be exacerbated by alcohol. Id.

at 23, 25. Significantly, however, Dr. Mynatt did not testify he had changed his

opinion and now believed Mr. Valdez was suffering from this complex at the time

of the murder, nor did he testify that Mr. Valdez was not legally sane at the time

he committed the crime. None of this testimony contradicts or calls into question

his testimony at trial. Moreover, Dr. Mynatt testified that whatever the basis was

for his opinion given at trial, it was “much clearer” at that time than seven and a

half years later when being deposed. Id. at 36. For these reasons, this evidence

does not undermine the jury’s evaluation of Dr. Mynatt’s trial testimony or the

OCCA’s review.

IV

Mr. Valdez appeals the district court’s denial of his procedural and

substantive competency claims. “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

-33-
understanding of the proceedings against him.’” Walker v. Oklahoma, 167 F.3d

1339, 1343 (10th Cir. 1999) (quoting Dusky v. United States, 362 U.S. 402, 402

(1960)), cert. denied, 120 S. Ct. 449 (1999). In Walker, we held that a 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,

and that to prevail “a petitioner must establish that the state trial judge ignored

facts raising a ‘bona fide doubt’ regarding the petitioner’s competency to stand

trial.” Id. at 1343. To state a substantive competency claim, on the other hand, a

petitioner must allege “he was, in fact, tried and convicted while mentally

incompetent,” and “must demonstrate his or her incompetency by a preponderance

of the evidence.’” Id. Mr. Valdez asserts the trial court erred in failing to

suspend the proceedings during trial and re-evaluate his competency in violation

of his procedural due process rights, and that he was tried while incompetent in

violation of his substantive due process rights. The former claim may be

defaulted, but is subject to a less demanding standard of review; the latter cannot

be defaulted, but is subject to a higher standard of review. See id. at 1343-44.

Prior to Mr. Valdez’s trial, his counsel requested a competency examination

and a post-examination competency hearing, both of which were granted. During

the hearing, the trial court required Mr. Valdez to prove his incompetency by

clear and convincing evidence, a standard subsequently struck down by the

-34-
Supreme Court in Cooper v. Oklahoma, 517 U.S. 348, 369 (1996). Because Mr.

Valdez’s direct appeal was decided before Cooper, he raised the standard-of-

proof issue in a state post-conviction proceeding. See Valdez, 933 P.2d 931.

Applying the 1995 amendments of Oklahoma’s post-conviction statute, 6 which

greatly circumscribed the state courts’ power to apply intervening changes in the

law to capital post-conviction applicants, the OCCA held his claim procedurally

barred due to his failure to raise it on direct appeal.

The district court agreed that the state’s procedural bar applied to Mr.

Valdez’s procedural competency claim and refused to consider it. See Dist. Ct.

Op. at 31 (citing Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997)). The

district court rejected Mr. Valdez’s substantive competency claim on the merits.

Both the OCCA and the district court erroneously held Mr. Valdez’s

procedural competency claim barred for his failure to raise it during his direct

appeal. We have held that Oklahoma’s 1995 statutory amendments cannot stand

as a procedural bar to Cooper claims not raised on direct appeal when the direct

appeal pre-dated the effective date of the amendments. See Clayton v. Gibson,

199 F.3d 1162, 1171 (10th Cir. 1999), petition for cert. filed, No. 99-9630 (May

20, 2000); Rogers, 173 F.3d at 1290; Walker, 167 F.3d at 1345. Since Mr.

Valdez’s direct appeal was decided March 15, 1995, prior to the November 1,

6
See O KLA . S TAT . tit. 22, § 1089(D)(9) (Supp. 1999).

-35-
1995 effective date of Oklahoma’s post-conviction statutory amendments, the

procedural bar cannot be applied to Mr. Valdez’s case. We therefore review the

merits of his procedural competency claim.

A defendant is competent to stand trial if he is able to consult with his

lawyer “with a reasonable degree of rational understanding,” and if he has both a

“rational” and “factual” understanding of the proceedings against him. Walker,

167 F.3d at 1343 (quoting Dusky, 362 U.S. 402). To obtain habeas relief on his

procedural competency claim, Mr. Valdez must show that the trial court ignored

evidence which, viewed objectively, raised a bona fide doubt regarding his

competency to stand trial. See Rogers, 173 F.3d at 1290; Walker, 167 F.3d at

1345. When reviewing the record for evidence bearing on competency, a court

must look at the defendant’s behavior and demeanor at trial, together with any

prior medical opinions on his competency. 7 See Barnett v. Hargett, 174 F.3d

1128, 1134 (10th Cir. 1999) (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)).

As previously noted, Mr. Valdez raised the issue of his competency prior to

trial and requested a psychiatric examination. Dr. John Quinn was appointed by

7
The district court here specifically held that only the expert testimony was
probative on the issue of Mr. Valdez’s competence. See Dist. Ct. Op. at 35. We
agree with Mr. Valdez that this holding was erroneous as it foreclosed the district
court’s review of Mr. Valdez’s own testimony. Upon our de novo review of this
testimony, however, we are persuaded it does not raise doubts regarding Mr.
Valdez’s competency at the time of trial.

-36-
the court to examine Mr. Valdez. After interviewing Mr. Valdez, Dr. Quinn

concluded he was competent to stand trial. At the post-examination competency

hearing, Dr. Quinn testified that he spent one and a half hours evaluating Mr.

Valdez. He opined that Mr. Valdez was able to participate and assist in his

defense and that he understood the nature and potentially severe consequences of

the charge against him. 8

None of the experts at trial testified Mr. Valdez was incompetent to stand

trial. Indeed, Dr. Mynatt, who had examined Mr. Valdez the previous week,

testified Mr. Valdez was competent. Despite Mr. Valdez’s assertions that his

“avenging angel complex” caused him to be incompetent, none of Dr. Quinn’s

testimony at the competency hearing or any of the experts’ testimony at trial

revealed that Mr. Valdez’s religious beliefs interfered with his perceptions of

reality. In addition, there is no evidence in the record that Mr. Valdez acted

irrationally or was disruptive during any of the proceedings against him. See,

e.g., Bryson, 187 F.3d at 1204.

“Notwithstanding the difficulty of making evaluations of the kind required

8
Mr. Valdez criticizes Dr. Quinn’s testimony as only finding Mr. Valdez
had an orientation to time and place and a recollection of events. This ignores his
further testimony that Mr. Valdez regretted his acts, his thought processes were
coherent and consistent, and he was goal oriented towards his religious beliefs,
see Tr. of Competency Hearing at 7-11, all tending to show a rational
understanding of reality.

-37-
in these circumstances,” Drope, 420 U.S. at 179, our review of Mr. Valdez’s own

testimony convinces us he was competent at the time of trial. His “behavior on

the stand was neither irrational nor unusual. His testimony was responsive to the

questions asked, logical, and coherent.” Foster v. Ward, 182 F.3d 1177, 1191

(10th Cir. 1999), cert. denied, 120 S. Ct. 1438 (2000). Mr. Valdez characterizes

specific parts of his testimony as bizarre and irrational, and strenuously argues

that his incompetence is demonstrated on the record by the fact that he candidly

admitted things that helped the State convict him and that demonstrated his

supposed future dangerousness. 9 However damaging his testimony was, nothing

in it reveals or suggests Mr. Valdez was incompetent to stand trial. Quite the

opposite, his testimony shows a consistency in thought process and an admitted

religious bias toward homosexuals. Such beliefs do not equate with

incompetence, and we disagree with Mr. Valdez that his “irrational” convictions

precluded him from accurately perceiving reality, cf. Lafferty v. Cook, 949 F.2d

1546, 1554-56 (10th Cir. 1991) (discussing paranoid delusions and their effect on

a defendant’s rational understanding of the proceedings). After reviewing the

9
In this regard, Mr. Valdez points to his testimony that he quoted to Mr.
Barron out of the Bible; that he wanted to castrate Mr. Barron; that he wanted to
change Mr. Barron and killed him because he would not listen to his
proselytizing; that he might commit this crime again if presented with the same
circumstances; and that he rolled Mr. Barron up in the carpet “like a taco.” See
Pet. Br. at 61-62.

-38-
record, we conclude the evidence before the trial court did not raise a bona fide

doubt about Mr. Valdez’s competency at the time of trial.

With respect to Mr. Valdez’s substantive comptency claim, the only new

evidence Mr. Valdez presented on his mental capacity was the deposition of Dr.

Mynatt taken seven and one-half years after trial. This additional evidence has no

probative value with respect to Mr. Valdez’s competency to stand trial. See supra

at 32-33. Because Mr. Valdez does not meet the lower standard of review for his

procedural due process claim and does not provide additional evidence of his

incompetency at the time of trial, see Nguyen v. Reynolds, 131 F.3d 1340, 1345-

47 (10th Cir. 1997) (considering post-conviction evidence in the context of a

substantive competency claim), he also cannot “satisfy the more demanding

standard for a substantive claim.” Walker, 167 F.3d at 1347. See also Rogers,

173 F.3d at 1291 n.13. We therefore deny his request for relief on his substantive

competency claim as well.

V

Mr. Valdez’s next claim for relief is founded on his assertion that the trial

court’s failure to give a jury instruction on second degree murder violated his due

process rights as set forth by the Supreme Court in Beck v. Alabama, 447 U.S.

625 (1980). The Court held in Beck that in a capital murder trial, failure to give

an instruction on a lesser-included non-capital offense which is supported by the

-39-
evidence violates the defendant’s due process rights by placing the jury in an “all-

or-nothing” position to acquit or find the defendant guilty of a capital crime. See

id. at 633-35. This holding was limited in Schad v. Arizona, 501 U.S. 624, 646

(1991), where the Court held that due process does not require the jury to be

instructed on every non-capital lesser-included offense supported by the evidence,

just that the jury may not be placed in an “all-or-nothing” position when the

evidence supports a third option. See, e.g., Paxton v. Ward, 199 F.3d 1197, 1205

(10th Cir. 1999) (Beck requirement satisfied when jury is given option of at least

one lesser-included offense which was supported by evidence).

The jury at Mr. Valdez’s trial was instructed on the lesser-included non-

capital offense of first degree manslaughter. Mr. Valdez argues the evidence

presented at his trial was insufficient to support this instruction and the jury was,

in effect, in the same “all-or-nothing” position of central concern in Beck.

Answering this argument on direct appeal, the OCCA determined that “the

evidence reasonably supported an instruction on the non-capital offense of first

degree heat of passion manslaughter. . . . Accordingly, the jury in this case was

not faced with the all-or-nothing, capital murder or innocence choice condemned

in Beck v. Alabama.” Valdez, 900 P.2d at 379.

Mr. Valdez asserts that the OCCA’s holding was an unreasonable

application of Beck, entitling him to habeas relief under section 2254(d)(1). See

-40-
Williams, 120 S. Ct. at 1520. The district court disagreed, concluding that the

manslaughter instruction took Mr. Valdez’s case outside of the constitutional

concerns at issue in Beck. In so holding, the district court mischaracterized Mr.

Valdez’s argument as asserting only an error of state law not implicating

constitutional concerns. Mr. Valdez’s argument is not simply that his due process

rights were violated because the court failed to give a second-degree murder

instruction; rather, he argues that because the evidence did not support the only

lesser-included offense instruction given, the jury was in fact left without a third

option in violation of Beck. These circumstances, if present, would amount to a

constitutional deprivation, not merely an error of state law. As the Court stated in

Schad, it was not “suggest[ing] that Beck would be satisfied by instructing the

jury on just any lesser included offense, even one without any support in the

evidence.” Schad, 501 U.S. at 648. Thus, we must determine whether there was

evidence in the record to support the first degree manslaughter instruction, the

only lesser-included non-capital offense instruction given. See, e.g., Montoya v.

Collins, 955 F.2d 279, 285 (5th Cir. 1992) (non-capital lesser-included offense

instruction must have support in the record for it to be a “realistic alternative

verdict for the jury”).

Because the OCCA determined this issue on the merits, our review of its

decision is prescribed by AEDPA. If we find the OCCA’s determination to be an

-41-
unreasonable application of Beck’s requirements, Mr. Valdez would be entitled to

habeas relief. See Williams, 120 S. Ct. at 1520. This argument requires a

sufficiency of the evidence review to determine whether the OCCA reasonably

concluded there was evidence in the record to support the instruction. We need

not decide whether the OCCA’s determination was factual or legal, see Hogan,

197 F.3d at 1306 (standard of review under AEDPA depends on whether the state

court’s examination of sufficiency of the evidence for a lesser included offense

instruction was a factual or legal conclusion), because we conclude Mr. Valdez’s

argument is without merit in either event.

The crux of Mr. Valdez’s argument is that first degree manslaughter is

homicide perpetrated without the intent to effect death, and that this instruction

had no support in the record because he admitted he intentionally killed Mr.

Barron. This argument is baseless because under Oklahoma law heat of passion

manslaughter does not require a lack of intent to kill. 10 See Le v. State, 947 P.2d

10
Instruction No. 11 stated:
No person may be convicted of MANSLAUGHTER IN THE FIRST
DEGREE unless the State has proved beyond a reasonable doubt each
element of the crime.
First: the death of a human;
Second: the death was not excusable or justifiable;
Third: inflicted by means of a dangerous weapon;
Fourth: caused by the defendant;
Fifth: when performing the conduct which caused the
death, defendant were [sic] in the heat of passion.
(continued...)

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535, 546 (Okla. Crim. App. 1997) (rejecting the state’s argument that a first

degree heat of passion manslaughter instruction is improper where there is

evidence of intent) (cited in Hooks v. Ward, 184 F.3d 1206, 1232 (10th Cir.

1999)). See also Hogan, 197 F.3d at 1305 n.5 (under Oklahoma law, evidence of

intent does not render improper the instruction on manslaughter). Mr. Valdez’s

admission of intent did not foreclose the jury’s consideration of first degree

manslaughter, and the OCCA’s determination was therefore reasonable.

VI

Mr. Valdez finally asserts he was denied effective assistance of trial

counsel. In order to warrant habeas relief, a petitioner must establish that his

attorney’s representation was deficient, and that he was prejudiced by that

deficient performance. See Strickland v. Washington, 466 U.S. 668 (1984). To

establish deficient performance, Mr. Valdez must show that his attorney’s

10
(...continued)
Instruction No. 12 stated:
Heat of passion exists when four requirements are proven. These
requirements are:
First: adequate provocation;
Second: a passion or an emotion such as fear, terror, anger,
rage, or resentment existed in defendant;
Third: the homicide occurred while the passion still
existed, and before there was a reasonable
opportunity for the passion to cool;
Fourth: there was a casual [sic] connection between the
provocation, the passion, and the homicide.

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representation “fell below an objective standard of reasonableness.” Id. at 688.

To establish prejudice, Mr. Valdez “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “An ineffective assistance

claim may be resolved on either performance or prejudice grounds alone.”

Fowler v. Ward, 200 F.3d 1302, 1310 (10th Cir. 2000).

Mr. Valdez alleges as constitutionally harmful his trial counsel’s failure to:

(1) sufficiently challenge his competency; (2) move to suppress his confessions or

to request a hearing on their voluntariness; and (3) request jury instructions on

second degree murder and voluntary intoxication. Mr. Valdez unsuccessfully

raised all of these arguments in his direct appeal. See Valdez, 900 P.2d at 387-88.

A. Failure to Appropriately Challenge Competency

Mr. Valdez claims the evidence at trial raised serious questions about his

competency. He contends his trial counsel’s failure to vigorously cross-examine

the state’s witness at his competency hearing, or to interrupt trial to request

another competency determination after Mr. Valdez testified, constituted deficient

performance which prejudiced his case. The OCCA concluded that this alleged

deficient performance could not have prejudiced Mr. Valdez. See id. Although

not directly citing to its pre-Cooper competency standard, the OCCA must have

reviewed this ineffective assistance claim in light of Oklahoma’s underlying

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competency standard requiring clear and convincing evidence of incompetency, a

standard later held unconstitutional. See Cooper, 517 U.S. at 369. Mr. Valdez

was therefore not given a “full, fair, and adequate hearing” on this issue in the

state court. Miller, 161 F.3d at 1253 (§ 2254(e)(2)’s presumption of correctness

does not apply in this situation). For this reason, we review de novo the OCCA’s

determination that Mr. Valdez was not prejudiced by his trial counsel’s failure to

better present an incompetency defense. See id.

Based on the totality of the evidence, we agree with the OCCA that Mr.

Valdez was not prejudiced by his trial counsel’s failure to better present his

alleged incompetence. The evidence presented at the competency hearing and at

trial overwhelmingly showed that Mr. Valdez had a rational understanding of

reality. See discussion supra Part IV. At trial, all of the witnesses who knew Mr.

Valdez testified he was mentally stable, none of the experts testified that he

showed signs of detachment from reality, and none of the officers who

interrogated him found him “unusual” or “irrational.” Finally, Mr. Valdez

testified on his own behalf, answering the questions put to him in a responsive,

coherent manner. See e.g., Bryson, 187 F.3d at 1203-04. In short, nothing in our

review of the record indicates that Mr. Valdez was unable to consult with his

lawyer “with a reasonable degree of rational understanding,” or that he lacked a

rational and factual comprehension of the proceedings against him. Walker, 167

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F.3d at 1343. We agree with the OCCA’s conclusion that there is no reasonable

probability the outcome of Mr. Valdez’s trial would have been different but for

trial counsel’s allegedly deficient performance.

B. Failure to Challenge Mr. Valdez’s Confessions

Mr. Valdez also claims his trial counsel’s failure to challenge his

confessions in light of his limited ability to converse in English was both

deficient and prejudicial. The OCCA disagreed, concluding Mr. Valdez’s trial

would not have been different had this challenge been raised because there was no

evidence of involuntariness. See Valdez, 900 P.2d at 388. Mr. Valdez’s argument

that this was an unreasonable application of Strickland entitling him to habeas

relief, see Williams, 120 S. Ct. at 1520, is unconvincing. There was a significant

amount of evidence that Mr. Valdez understood English sufficiently to converse

with officers and understand the three Miranda warnings he received in that

language, see discussion supra Part I.A. More importantly, however, Mr.

Valdez’s claim of prejudice is centered around his July 26 confession to Agent

Irwin. Even if Mr. Valdez’s July 25 confession had been suppressed, there is no

reasonable probability that his July 26 confession – the alleged “devastating”

testimony – would be suppressed because Agent Irwin gave Miranda warnings

and conducted the entire interrogation in Spanish, and that interrogation was not a

violation of Mr. Valdez’s Fifth or Sixth Amendment rights to counsel. See

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discussion supra Parts I and II. This confession would most certainly have

survived a motion to suppress, making Mr. Valdez’s claim of prejudice

unpersuasive.

C. Failure to Request Jury Instructions

Mr. Valdez argues that his counsel was constitutionally ineffective for

failing to request that the jury be instructed on the defense of voluntary

intoxication and the lesser included offense of second degree murder, alleging

there was sufficient evidence to support both. Both of these claims were raised

and rejected on direct appeal. See Valdez, 900 P.2d at 378, 388. As we

previously noted, it is not clear under our precedent whether we are to review

state determinations of this sort under section 2254(d)(1) or (d)(2). 11 Again, we

need not decide which is the correct approach because we conclude the OCCA

was not unreasonable in either its application of the law or its determination of

the facts.

Mr. Valdez asserts that the evidence he was “on one of the worst drunks of

his life” supported a voluntary intoxication instruction. His own testimony

undermines this argument. To be entitled to an instruction on the defense of

voluntary intoxication, Mr. Valdez had to present evidence sufficient to raise a

But see, Hogan, 197 F.3d 1306 n.5 (noting panel unanimously agreed the
11

correct approach is to treat the determination as a question of law reviewable
under section 2254(d)(1)).

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reasonable doubt concerning his ability to form the requisite criminal intent. See,

e.g., Fontenot v. State, 881 P.2d 69, 83 (Okla. Crim. App. 1994). However, Mr.

Valdez testified that he knew he was going to kill Mr. Barron beforehand, and in

fact told Mr. Barron so. Moreover, he was able to remember and describe the

evening’s events in explicit detail, and his recollections were corroborated by all

of the witnesses who were present on the night of the murder. See Crawford v.

State, 840 P.2d 627, 638 (Okla. Crim. App. 1992) (defendant’s detailed

description of the crime and the surrounding circumstances “demonstrate[d] that

he was in control of his mental faculties and not in the advanced state of

intoxication he attempt[ed] to assert”). The OCCA was therefore not

unreasonable in determining that Mr. Valdez was not so intoxicated as to be

unable to form intent on the night of the murder. Because the requirements for

voluntary intoxication instruction were not met, the OCCA did not unreasonably

apply Strickland in determining that Mr. Valdez’s counsel was not ineffective for

failing to request such an instruction.

Mr. Valdez also argues the evidence supported a second degree murder

instruction because the murder occurred during a drunken fight. Under Oklahoma

law, second degree murder requires a lack of intent. See, e.g., Palmer v. State,

871 P.2d 429, 432 (Okla. Crim. App. 1994). Once again, his argument is

undermined by his own admission that he intended to kill Mr. Barron before the

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two started fighting. Consequently, the OCCA was not unreasonable in

determining that the evidence did not support a second degree murder instruction.

Nor was the OCCA unreasonable in applying Strickland to determine that Mr.

Valdez’s trial counsel was not ineffective for failing to request the instruction.

For these reasons, Mr. Valdez has not shown he is entitled to relief under

section 2254 for his claim of ineffective assistance of trial counsel.

CONCLUSION

Mr. Valdez is not entitled to habeas relief based on the OCCA’s

determination that: (1) his July 25 and 26 statements were not obtained in

violation of his Fifth Amendment rights; (2) his July 26 interrogation did not

violate his Sixth Amendment right to counsel; (3) the State proved he was sane

beyond a reasonable doubt; (4) he was competent to stand trial; (5) the trial

court’s failure to instruct the jury on second degree murder did not violate his due

process rights; and (6) his trial counsel’s ineffectiveness, if any, was not

prejudicial to his case.

We AFFIRM the district court’s denial of Mr. Valdez’s request for a writ

of habeas corpus.

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