Allen v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 19 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

GARRY THOMAS ALLEN,

Petitioner-Appellant,

v. No. 02-6146

MIKE MULLIN, Warden, Oklahoma,

Respondent-Appellee.

Appeal from the United States District Court
for the District of Western District of Oklahoma
(D.C. No. CIV-98-1754-R)

Randy Bauman, Assistant Federal Public Defender (Patrick J. Ehlers, Jr.,
Assistant Federal Public Defender on the briefs), Oklahoma City, Oklahoma,
for Petitioner-Appellant.

David M. Brockman, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General of Oklahoma with him on the briefs), Oklahoma
City, Oklahoma for Respondent-Appellee.

Before KELLY, HARTZ and O’BRIEN, Circuit Judges.

O’BRIEN, Circuit Judge.

Garry Thomas Allen was convicted of murder in the first degree in
violation of Okla. Stat. tit. 21, § 701.7, 1 for which he was sentenced to death.

After extended state court proceedings, he filed a petition for writ of habeas

corpus with the federal district court under 28 U.S.C. § 2254. The district court

held a limited evidentiary hearing and denied relief. He appeals four issues

certified for review, each turning on his competency. Exercising jurisdiction

under 28 U.S.C. § 2253, we affirm.

I. Background

The essential facts of November 21, 1986, as set forth by the district court,

are undisputed on appeal:

Petitioner shot and killed his girlfriend, Gail Titsworth (Titsworth),
four days after she moved out of the home they shared with their
sons, six-year old Anthony and two-year old Adrian. In the week
leading up to the shooting, Petitioner and Titsworth had several
angry confrontations when Petitioner tried repeatedly to persuade her
to move back in with him. On November 21, 1986, Titsworth went
to pick up her sons at their daycare center. Petitioner came into the
daycare center shortly after Titsworth arrived. Petitioner and
Titsworth argued briefly and then Petitioner left.

A few minutes later, Titsworth left the daycare center with her sons
and went into the parking lot. As she was opening the door to her
truck, Petitioner came up behind her and shut the door. Titsworth
once again tried to get into the truck but was prevented from entering
it by Petitioner. The two argued briefly and Petitioner reached down

1
“A person commits murder in the first degree when that person unlawfully
and with malice aforethought causes the death of another human being. Malice is
that deliberate intention unlawfully to take away the life of a human being, which
is manifested by external circumstances capable of proof.” O KLA . S TAT . A NN .
TIT . 21, § 701.7A.

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into his sock, retrieved a revolver and shot Titsworth twice in the
chest. It is unclear whether Titsworth was holding her youngest son
at the time of the shooting or had picked him up immediately
thereafter. After she was shot, Titsworth began begging Petitioner
not to shoot her again and then fell to the ground. Petitioner asked
Titsworth if she was alright. He then lifted up her blouse, apparently
attempting to figure out the extent of her injuries.

At the time of the shooting, some of the daycare employees were in
the parking lot and several of the children were in a van parked a few
feet from Titsworth’s truck. After the shooting, Titsworth managed
to get up and began running toward the building along with a daycare
center employee. As they were going up the steps leading to the
front door, Petitioner shoved the daycare worker through the door
and pushed Titsworth down onto the steps. Petitioner then shot
Titsworth two times in the back at close range.

Officer Mike Taylor of the Oklahoma City Police Department was on
patrol in the area and responded to the 911 call within minutes of the
shooting. As Officer Taylor was nearing the daycare center, a
witness to the shooting directed him to an alley where Petitioner was
apparently hiding. Officer Taylor spotted Petitioner as he drove into
the alley. Officer Taylor drew his service revolver and ordered
Petitioner to stop and remain still. Petitioner initially complied with
Officer Taylor’s order but then began walking away. Officer Taylor
followed Petitioner and reached out to place his hand on him.
Petitioner quickly turned around and grabbed Officer Taylor’s gun.
A struggle ensued, during which Petitioner obtained partial control of
Officer Taylor’s gun. Petitioner attempted to make Officer Taylor
shoot himself by applying pressure to Taylor’s finger which was still
on the trigger. Ultimately, Officer Taylor regained control of the gun
and shot Petitioner in the face.

Petitioner was rushed to the hospital where a CT scan revealed an air
pocket in the front part of his brain and cerebral spinal fluid leaking
from his nose and ear. Petitioner remained in the hospital
approximately two months for treatment for injuries to his face, left
eye, and brain. As a result of the gunshot wound, Petitioner lost his
left eye and suffered permanent brain damage.

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(R. Vol. 1, Doc. No. 35, pp. 2-3) (record citations omitted). 2 We will reference

additional record facts as the discussion requires.

Allen was charged with first degree murder by way of Information filed

November 24, 1986. The record of his arraignment on January 21, 1987, when he

was not represented by counsel, reflects he was provided a copy of the

Information. Shortly before his scheduled preliminary hearing, Allen’s court-

appointed attorney moved the state district court for a competency hearing,

pursuant to which the court on January 27, 1987, remanded Allen to the Eastern

State Hospital for evaluation. The Oklahoma Court of Criminal Appeals (OCCA),

in deciding one of Allen’s later appeals, succinctly summed up the Oklahoma

competency procedures in place when Allen was remanded for evaluation:

In the pre-trial context, the question of competency may be raised by
the prosecutor, the defendant, defense counsel, or by the court sua
sponte. Upon the filing of an application for determination of
competency, the court holds a hearing to examine the application and
determine if sufficient facts are alleged to create a doubt as to the
competency of the defendant. If the court finds a doubt as to the
competency of the defendant at this hearing, the defendant is ordered
to undergo an examination by doctors or appropriate technicians.

The examiner is ordered by the court to make the following
determinations: 1) is this person able to appreciate the nature of the
charges against him; 2) is this person able to consult with his lawyer
and rationally assist in the preparation of his defense; 3) if the
answer to question 1 or 2 is no, can the person attain competency

2
The facts recited in the district court opinion differ slightly from those
recited in the decision of Allen’s second direct appeal. Allen v. Oklahoma, 923
P.2d 613, 616 (1996) (Allen II). The discrepancy relates to the location of the
parties when the second of four shots was fired. It is immaterial to the
disposition of this appeal.

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 within a reasonable time if provided with a course of treatment,
therapy or training; 4) is the person a mentally ill person or a person
requiring treatment as defined by statute; and 5) if the person were
released without treatment, therapy or training would he probably
pose a significant threat to the life or safety of himself or others.

After these determinations have been made, a post-examination
competency hearing is held. Evidence regarding competence to stand
trial is presented, and the judge, or jury if requested by the
defendant, decides whether the defendant is competent to stand trial.

Allen v. Oklahoma, 956 P.2d 918, 919 (Okla. Crim. App. 1998), cert. denied, 525

U.S. 985 (1998) (citations and quotations omitted) (Allen III).

Within days of Allen’s commitment, Dr. Samuel J. Sherman, a clinical

psychologist at Eastern State Hospital, notified the court that while Allen was

able to appreciate the nature of the charges against him, he was not presently able

to consult with his lawyer and rationally assist in the preparation of his defense.

He added that Allen could attain competency within a reasonable time with

appropriate treatment. The court conducted a post-examination competency

hearing and concluded Allen was incompetent but capable of achieving

competence. To that end, Allen was remanded to Eastern State Hospital for

further treatment. About four months later, on June 12, 1987, Dr. Allen Kirk, a

psychiatrist at Eastern State Hospital, advised the court that Allen had achieved

competency: he was able to appreciate the nature of the charges against him,

consult with his attorney, and rationally assist his attorney in his defense. Dr.

Kirk noted that Allen “has been stable on decreasing doses of antipsychotic

medication, and currently is on no antipsychotic medication.” Also, Allen was

“not experiencing any significant psychiatric symptomatology.” (R. Vol. 4,

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Original R. (C-88-37) at 26-27.) He added Allen was scheduled for surgery,

including plastic surgery, necessitated by the gunshot wound to his head. Upon

receiving Dr. Kirk’s report, the court set the matter for competency trial before a

jury. Another arraignment took place on August 7. This time, Allen was

represented by counsel. The record shows he was then in receipt of a copy of the

Information.

Prior to the competency trial (which was held October 19 and 20, 1987)

Allen requested appointment of “mental health experts, psychologists, and

psychiatrists . . . and neuropsychologists to the extent that Mr. Allen . . . has brain

damage and . . . to determine the extent of his brain damage for purposes of

present competency” acting under Ake v. Oklahoma, 470 U.S. 68, 83 (1985). (R.

Vol. 3, Tr. Competency Hr’g at 7.) At Allen’s request, the court appointed Dr.

Edith King, clinical psychologist, to examine him. Pursuant to the

recommendation of his neurosurgeon, Dr. Stephen Cagle, Allen went back to the

court and requested appointment of a neuropsychologist to examine him in order

to ascertain if his brain injury affected his competency. The court denied the

request. At the competency trial, Allen again moved for appointment of a

neuropsychologist. The court reserved ruling until conclusion of the other expert

testimony.

A. Competency Trial

Because all issues raised on appeal revolve around Allen’s competency, we

provide the following background material in significant detail. At the

competency trial, Dr. Cagle, after first cautioning as to use of the term “brain

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injury” and its connotation, testified Allen suffered some structural brain injury as

a result of the gunshot wound. 3 When asked whether he could offer an opinion as

to the extent Allen’s brain injury affected his competence, if at all, Dr. Cagle

testified he could not. 4 He recommended a psychiatrist or psychologist, together

with a neuropsychologist, to make that judgment. A neuropsychologist could

evaluate “[h]igher injury to the brain affecting the more sophisticated thinking,

emotional processes of the brain.” (Id. at 23.)

Dr. Sherman, who first evaluated Allen after his initial commitment and

evaluated him again shortly before Dr. Kirk declared Allen competent, agreed

with Dr. Cagle’s recommendation for a neuropsychologist to test the effect of the

brain injury on competence, specifically to test whether Allen had sufficient

3
Dr. Cagle went into some detail about Allen’s brain injury:

Mr. Allen, through this, from the first time I saw him until the last
time, remained remarkably stable in terms of vital signs. He was
always awake. He was conversing. He could move everything.
From a neurological viewpoint his injury included loss of left eye
and vision, loss of control of the muscle function of the left side of
the face, loss of hearing in the left ear, all of that due to peripheral
comminution of the bone and the nerves that run through the bone,
getting to the ear, the eye. And he had some imbalance which again
is due to the balance nerve which is in the ear compartment which
was shattered by the bullet.

(R. Vol. 3, Tr. Competency Hr’g at 21-22.)
4
Dr. Cagle testified Allen was cooperative with him. When asked about
Allen’s competency, however, he stated: “[c]ompetency is something frankly that
we as neurosurgeons in this community do not make a lot of statements about.
Competency reflects a higher intellectual functioning and certain psychiatric
considerations that I wouldn’t care to have an opinion on.” (Id. at 26.)

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memory of the events surrounding Titsworth’s killing to assist his counsel. On

the other hand, he agreed with Dr. Kirk’s report to the court that Allen was

competent. He added he detected no psychosis in Allen and agreed a person can

suffer from brain injury and still be competent.

Dr. Kirk, who certified Allen’s competency to the court as a lead-up to the

competency trial, testified the only mental illness from which Allen suffered was

long-term depression, with an associated history of substance abuse. 5 This

diagnosis did not bear on competency. As he did in his report to the court, Dr.

Kirk testified Allen was competent. He added that Allen suffered some organic

brain damage evidenced by an electroencephalogram and a neurological

evaluation. When asked whether an evaluation by a neuropsychologist would aid

in a determination of competency, Dr. Kirk testified he did not believe it was

necessary in Allen’s case. He conceded Allen suffered from some short-term and

long-term memory loss. However, the deficits were spotty.

Dr. Gregory McNamara, the jail physician who was seeing Allen twice a

week, as he had for the previous six months, testified Allen communicated

rationally with him, and he believed he was competent. As he put it, “He has

appeared and functioned as a man of average intelligence in all the time that I’ve

seen him.” (Id. at 103.) Several other health providers testified Allen was able to

communicate well with them. Dr. David Simms, Allen’s ear, nose and throat

surgeon, testified he had rational conversations with Allen, including one in

5
The presentence investigation report indicated a long history of alcohol
and drug abuse.

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which Allen explained how he sustained his injury and did not claim to be without

memory of the events surrounding his injury.

Apparently anticipating unfriendly testimony, Allen declined to call as a

witness the one expert he had retained through his Ake request: Dr. Edith King.

Instead, the State called Dr. King. She testified she interviewed Allen and

administered a number of screening tests, including the Wechsler Adult

Intelligence Scale for long-term memory and intelligence 6 and the Bender Gestalt

Visual Motor Test for organic dysfunction. From the latter test, she detected “at

least soft organic signs that there might be some visual motor problems.” (Id. at

117.) These signs did not affect her opinion that Allen was competent to stand

trial. Dr. King conceded neuropsychological testing, which required a specialist,

would enable a deeper probe into the nature and extent of brain injury and, from

that, further observations about legal competency. Nonetheless, she hewed to her

opinion that under the standards enunciated in the Oklahoma statute, Allen was

competent to stand trial. She indicated Allen had a reticence about discussing his

case: “I feel he is able but doesn’t want to reveal things about himself. I think he

can if he will.” (Id. at 119.)

6
While his academic record is spotty, between 1977 and 1986 Allen
completed twenty-eight hours of college instruction and earned a G.P.A. of 3.125.
At his second sentencing hearing, Dr. Nelda Ferguson testified for Allen and
stated he was a “bright man” of “high intelligence.” (R. Vol. 3, Tr. Re-
Sentencing Hr’g, Vol. II at 95.) He tested in 1993 with a verbal I.Q. of 117, in
the bright range, and a performance I.Q. of 104, resulting in a full scale I.Q. of
111, also in the bright range. Six years later, Dr. Michael Gelbort tested Allen
again, at which time he scored a verbal I.Q. of 79, a performance I.Q. of 73 and a
full scale I.Q. of 75.

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 The only witness to testify to Allen’s incompetence was one of his trial

attorneys, Mr. Opio Toure. Although he conceded Allen understood the charges,

it was Toure’s belief Allen could not assist counsel in preparation of a defense.

“I do believe he knows the charges and he understands the charges but he has not

been able to assist me in the preparation of his defense as I’ve been talking with

him.” Id. at 68. According to Toure, the gist of the problem was that:

[A]s I tried to get to talk to [Allen] about the charge, about the
evidence, about our defense, I was not able to get through the entire
conversation with him or just nearly an entire sentence without him
interrupting me to the extent that up to this point the conversations
that I’ve had with Mr. Allen had been incomplete in terms of me
being able to discuss the trial with him, discuss his options with him,
discuss the procedures and to give him advice.

(Id. at 67.)

At the conclusion of the evidence, the court revisited and denied Allen’s

request for appointment of a neuropsychologist. 7 The jury was instructed that

Allen was presumed competent and he bore the burden to establish his

incompetency by clear and convincing evidence. The jury found Allen did not

meet his burden of proof, thus finding him competent to stand trial.

B. Plea of Guilty

Less than a month later, on November 10, 1987, Allen changed tack and

As the court put it: “[a]fter hearing all the testimony in the case and all of
7

the doctors and all the witnesses for both sides why, it’s my opinion that there’s
no need in any way, shape or form to appoint any new medical witnesses to assist
the defense in this case.” (R. Vol. 3, Tr. Competency Hr’g at 144.)

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entered a blind plea of guilty. 8 In preparing to take the plea, the court inquired

of Allen, “[h]ave you ever been treated by a doctor or confined in a hospital for

mental illness?” (R. Vol. 3, Tr. Change-of-Plea at 3.) Allen answered in the

negative. This colloquy between the court and trial counsel followed and

constitutes the sum of the discussion of the prior competency determination:

MS. BAUMANN: Judge, he was sent to Eastern State Hospital
and spent about 4 months there. He was
there for evaluation and treatment, after
November of ’86, and he was returned as
competent.

Q. That was not just for competency determination,
but for actual treatment?

MS. BAUMANN: I believe he was given medication while he
was there and the determination at the very
beginning was that he was not competent,
and then some 4 months later he was in fact
returned as competent. We did have a
competency trial last month before Judge
Cannon, and at that time the jury returned a
verdict of competent as well.

Q. The jury determined him to be competent?

MS. BAUMANN: Yes, sir.

(Id. at 3-4.)

Critical to our review, the court then inquired of Baumann, who also

represented Allen at the competency trial, “do you have any reason to believe that

8
Defined as “[a] guilty plea made without the promise of a concession from
either the judge or the prosecutor.” Black’s Law Dictionary 1171 (7th ed. 1999).

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Mr. Allen is not mentally competent to appreciate and understand the nature,

purposes and consequences of this proceeding?” (Id. at 4.) To this question,

Baumann responded in the negative and assured the court that Allen had assisted

her in presenting any available defense to the charge.

Allen assured the court he had reviewed with counsel the charges and

possible penalties. The court then engaged in the familiar plea colloquy with

Allen, who told the court he understood all of his enumerated rights and had

reviewed them with counsel. Contemporaneous with his plea, Allen filed a

document with the court entitled “Plea of Guilty Without Sentencing - Summary

of Facts” in which he certified in writing he understood the charges, the penalties

and the rights he was giving up in pleading guilty. He also certified he had

discussed the charges with counsel; counsel, in turn, certified her client was

competent, and she countersigned the document. (R. Vol. 4, Original R. (C-88-

37) at 232-33.)

In aid of establishing a factual basis for the plea, Allen submitted an

affidavit in his own hand in which he stated the facts of the crime. He wrote

simply: “I shot & killed Gail Titsworth. I had no justifiable cause.” (Id. at 234.)

The court confirmed in colloquy with Allen that this was a true and correct

statement. Baumann helped him prepare it. There is little disagreement that

Allen had incomplete recollection of the killing; his admission was essentially

based on acceptance of witness and police reports. 9 After its inquiry of Allen,

9
His trial counsel, Eugenia Baumann, testified at the federal evidentiary
hearing: “His recollection [of the killing] was very sketchy due to the gunshot

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including eliciting assurances from him that his judgment was good, he

understood what he was doing and he was acting voluntarily, the court found him

competent, found the plea to be knowingly and voluntarily entered and accepted

the plea.

C. Sentencing

At sentencing, in answer to questions from his counsel, Allen explained his

decision to plead guilty and his reticence to discuss the particulars of his case:

Q. What happened that caused you to think that there
might be a problem? Did something happen on a
Monday, Tuesday or Wednesday or Thursday?

A. I really don’t want – I don’t want to talk about
what problems we were having.

Q. I know that.

A. There is just so many things I wanted to avoid by
pleading guilty.

Q. Like what?

A. Well, like for example just discussing what I did.
I did not want my family involved in this and I
honestly thought when I pleaded guilty that that
would be the end of this. That a sentence would
be passed. That was the impression that I got. I
had already taken my family through enough. I
had already taken her family through enough and I

wound to his head. We had many conversations. There were some things prior to
that time and after that time he remembered and during the time it was all very
sketchy.” (R. Vol. 2 at 11.) “Neither of us had any belief that he hadn’t done
substantially what [Allen’s factual basis affidavit submitted to the court at plea
hearing] says.” (Id. at 13.)

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 had no desire to take them through more by going
to trial and I had no idea that things were going to
come down to this where my family would be
called on the stand and her family would be called
up on the stand and everybody just has to go
through more stuff. I just thought you know, that
if I committed the crime and admitted committing
the crime that that would end it for everybody
because to stretch things out does nobody any
good. It does nobody any more good. I just don’t
see it as doing any one any good. I just don’t see
it. I don’t see anything constructive about
discussing problems we were having. I just don’t
see it. What motivated us to go to church, I just
fail to see any reason for even being asked that.

Q. In fact have you and I had some discussions about
that, pretty heated discussions where - -

A. As a matter of fact I asked you not to have my
family up here. I knew I couldn’t do anything
about her family. I was hoping that they wouldn’t
have to appear either, because this just stretches
things out. I have already put people through
stuff and I did not want to put them through any
more. Why we have to keep on going over why I
did what I did you know, and my family has to tell
what kind of person I was, and her family has to
tell what kind of person she was, and I just can’t
see putting either family or anyone through that
and I see kids getting up there and crying and I
see my ex wife getting up there crying and my
mother – and it just doesn’t make any sense. I
thought I could avoid all of this by just entering a
plea of guilty. I had no desire, I never had any
desire to go to trial. I made every effort at a
much earlier date than this to enter a plea of
guilty. Just to bring things to an end, and it might
kind of make people have wrong ideas about
things by my family being called up there, it is

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 like they are trying to cover for me or something
like that, you know? But it is not that way at all.
I don’t want it to be misconstrued. I did not want
them to get on the stand. I did not want them to
go through any more. It wasn’t just my family. I
just don’t see any point in hurting anybody any
more. I just don’t see that. I have told you that
and I asked my relatives not to come. I couldn’t
tell my relatives anything, but when I first entered
that plea I didn’t think anybody was going to have
to go through anything. I can’t see making a bad
matter worse – bringing up the problems we were
having and what motivated me to do what I did. It
just makes things worse than ever.

***

Q. Just one more question for you Garry. How do you feel
about what you have done, how do you feel about how
this has affected the lives of your family and those of
Gail’s?

A. To her family it did a whole lot more damage to them
than my family. And that’s another reason I didn’t want
any of this to happen here in Court, because it just
makes what’s already a troubled situation worse and I
pointed that out to you time and time again and I wanted
to avoid things like this. I told you time and time again.
I asked my family not to come because they weren’t
required to come unless they were subpoenaed and I just
didn’t want to put people through this. I just didn’t
want to do that. Man, the people might look at my
family and they might associate that my family has been
in some way responsible for what happened but it was
solely my actions. It was something that I did and I
don’t want people to have misconceptions about my
family, you know. Because I have a pretty good family
and Gail’s family was a pretty good family. They were
always nice to me and like when her little kid – I mean
when the boy got up on the stand yesterday and he

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 started crying that just kind of set it up for the whole
thing, you know, and I just – people are just going
through things that are not necessary for them to go
through. I told you things like that and then I told you
that before this day came up and I told you while this
day was going on, this day and yesterday. It just didn’t
seem to me to be necessary to be dragging other people
in because I am the one responsible for this crime.

(R. Vol. 3, Tr. Sentencing Hr’g at 298-300, 303-04) (emphasis added).)

After he was sentenced to death, Allen moved to withdraw his guilty plea

on the grounds there was insufficient evidence to support imposition of the death

penalty. The court denied the motion. Allen appealed, arguing the plea was

invalid because the trial court did not adequately inquire into his competency to

enter it, he did not understand the elements of the charged offense and there was

no factual basis to support the plea. Although the OCCA affirmed the trial

court’s denial of the motion to withdraw the plea, it remanded the case for

resentencing to enable the trial court to consider the newly-available sentencing

option of life without parole. Allen v. Oklahoma, 821 P.2d 371, 375 (Okla. Crim.

App. 1991) (Allen I).

D. Resentencing

At resentencing, Allen suggested another reason for his inability to

remember the events surrounding his murder of Titsworth, his practice of

regularly intoxicating himself:

Q. Now, before this event, before November the 21st
of 1986, how often did you drink; alcoholic
beverages I’m talking about?

A. How often did I drink?

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 Q. Uh-huh.

A. I drank just about as often as I could.

Q. How much could you drink?

A. I could drink as much as I could afford to get.

Q. Well, could you drink a fifth?

A. Easily, if I could afford to get it. I’d always find
some kind of way. I could drink just as much as I
could.

Q. How often would you get drunk, say in a week?

A. I’d get drunk as many days in the week as I could.

***

Q. What’s the last thing that you remember before
that 5:00 p.m. on November the 21st of 1986?

A. I can remember drinking a lot and I don’t even
know if it was on that day, but I was drinking just
about every day at that point.

(R. Vol. 3, Tr. Resentencing Hr’g, Vol. II at 175-76, 182.) 10

The court resentenced Allen to death. Allen appealed on a number of

grounds, none of them relevant to our review, and the OCCA again affirmed.

10
Years later, in the federal evidentiary hearing, Baumann testified Allen
was severely intoxicated at the time of the killing, and this contributed to his
inability to remember the particulars of the event. Hospital records indicated his
blood alcohol content around the time of admission for his gunshot wound was
0.27.

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Allen v. Oklahoma, 923 P.2d 613 (Okla. Crim. App. 1996) (Allen II). The United

States Supreme Court granted certiorari, vacated the judgment and remanded to

the OCCA for further consideration in light of Cooper v. Oklahoma, 517 U.S. 348

(1996) (holding the Oklahoma requirement that defendant prove incompetence by

clear and convincing evidence, rather than by a preponderance of the evidence,

violates due process). Allen v. Oklahoma, 520 U.S. 1195 (1997).

On remand, the OCCA first recognized the general rule that “[a] criminal

defendant must be competent to go to trial or to enter a plea.” Allen v. Oklahoma,

956 P.2d 918, 919 (Okla. Crim. App. 1998), cert. denied, 525 U.S. 985 (1998)

(Allen III). It pointed out that Cooper was not implicated because the flawed

burden of proof was applied in a competency trial in expectation that Allen would

proceed to trial if found competent. When Allen changed tack and decided to

plead guilty, the presiding judge in the trial court concluded afresh that Allen was

competent to enter his plea.

In the plea context, the trial judge is charged in every case with the
duty to determine whether the defendant is competent to enter the
plea. This is accomplished by: 1) appropriate interrogation of the
defendant, and defense counsel if the defendant is represented,
regarding the defendant's past and present mental state; and 2)
observation of the defendant's behavior before the court. If a
substantial question as to the defendant's competency exists, the
defendant shall be committed for a competency evaluation as
provided in 22 O.S. 1991, § 1172.

Id. (quotation and citations omitted). After carefully reviewing the plea colloquy,

the OCCA concluded the prior competency determination by the jury did not taint

the fresh competency determination. “At the plea hearing the trial judge relied on

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his personal interrogation of Allen, his personal interrogation of Allen's counsel,

and his personal observation of Allen's demeanor. None of the evidence raised

any doubt as to Allen's competence to enter a plea.” Id. at 921. The OCCA

placed special significance on the colloquy between Allen’s counsel and the trial

court:

Three weeks earlier at the post-examination competency hearing, she
had questioned co-counsel regarding Allen's ability to assist with his
defense. The elicited testimony was the only evidence supporting the
allegation Allen was not competent to stand trial. At the plea
hearing, as an officer of the court, defense counsel told the presiding
judge Allen had assisted her with his defense. Thus, the one issue
which raised a question as to Allen's competence at the
post-examination competency hearing, his ability to assist counsel
with his defense, had been resolved. There was no longer any
evidence to support a doubt as to Allen's competence.

Id. Based on the plea colloquy and the record as a whole, the OCCA determined

Allen was competent to enter his plea. Id.

E. State Post-Conviction Relief

Allen applied to the OCCA for post-conviction relief, raising seven

propositions of error. Material to this appeal are those alleging: 1) Allen was

convicted while incompetent, and 2) ineffective assistance of trial counsel in

permitting entry of a guilty plea when Allen was incompetent. In an unpublished

decision, Allen v. Oklahoma, No. PC 97-311 (Okla. Crim. App. July 20, 1998)

(Allen IV), the OCCA concluded the incompetence issue was procedurally barred

because it had previously been raised and decided in Allen III, on remand from

the Supreme Court. It concluded the ineffective assistance of trial counsel claim

was waived because it could have been raised, and was not, on direct appeal.

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 Of particular interest during the post-conviction proceedings was an

affidavit submitted by Dr. Michael M. Gelbort, a clinical psychologist, in which

he recounted the results of a neuropsychological evaluation he conducted on Allen

in February 1997. He indicated, “the patient has no recollection for the incident

and this is as would be expected due to the neurotrauma he sustained.”

(Appellant Br., Attach. K at 5.) Based on his findings, he concluded “the patient

is able to appear or ‘present’ more normally than he is actually able to function or

perform as he has some of the basic skills present but lacks or is flawed on the

higher level abilities.” (Id. at 4.) He added:

As a result of the brain damage and associated cognitive deficits or
impaired thinking abilities, the patient is and has been unable to
comprehend the meaning of the proceedings in which he is involved
in post-conviction relief work and is unable to assist his attorney in
any meaningful way. This impairment and his resulting inability to
assist counsel is present now, would have been and was present since
the time of his brain injury/gun shot wound, and, if it has changed
since the time of the brain damage, would have improved rather than
worsened. This is to say that the patient is equally or more able to
assist counsel now as compared with the time of his original trial and
that he is not able to assist counsel at this time.

(Id. at 6.) He was critical of the previous assessments of Allen by other

examiners, including those involved in the competency trial nearly ten years

earlier.

F. Federal Habeas Review

Having failed to obtain relief through state post-conviction procedures,

Allen filed his federal habeas petition under 28 U.S.C. § 2254 on August 3, 1999.

-20-
In it, he raised eight grounds for relief. After a limited evidentiary hearing, 11 the

district court denied the petition in a Memorandum Opinion. Five issues have

been certified for review, one has been abandoned, leaving four for our

consideration. These are: 1) a procedural competency claim (including sub-

claims of a violation of Ake v. Oklahoma, 470 U.S. 68, 83 (1985), and ineffective

assistance of appellate counsel for failing to raise the Ake claim), 2) a substantive

competency claim, 3) an ineffective assistance of trial counsel claim based on

counsel permitting Allen to enter a plea of guilty despite his alleged

incompetency, and 4) a claim that Allen’s plea was not knowing, voluntary and

intelligent. 12

Our review begins with the testimony of Allen’s trial counsel, Baumann, at

Although the district court granted an evidentiary hearing on only one
11

ground for relief (ineffective assistance of trial counsel due to conflict of interest
in motion to withdraw guilty plea), it considered the evidence adduced at the
hearing in resolving all issues presented.
12
Allen declines to argue on appeal a claim of ineffective assistance of
counsel due to a conflict of interest in the motion to withdraw plea, one of eight
grounds for relief presented in the habeas petition and one of the five issues the
district court certified for review. We therefore consider this claim abandoned.
State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994)
(citation omitted). Allen requested us to expand the certificate to include three
additional issues: 1) a claim pursuant to Ford v. Wainwright, 477 U.S. 399, 410
(1986), that he not be executed because he is insane, 2) denial of an evidentiary
hearing on all but one of the grounds for relief presented in the habeas petition,
and 3) cumulative error. Judge Porfilio, in his Case Management Order issued on
behalf of this Court, adopted the certificate of appealability issued by the district
court and declined to expand it as requested. In spite of the limited certificate,
Allen argues the Ford claim and cumulative error claim we have already declined
to certify. Not being certified, we do not consider them. 28 U.S.C. §
2253(c)(1)(A). Only four issues are presented for our review.

-21-
the evidentiary hearing. Her testimony echoed statements she made in a 1997

affidavit provided in the state post-conviction proceeding and in a 1999 written

declaration submitted in the federal habeas proceeding. She testified it was

always her belief that Allen was incompetent to plead. In her view, Allen did not

fully understand the possible sentence he could face in the event he pled guilty;

nor did he understand the rights he was giving up by pleading guilty, including

the right to a lesser-included offense instruction on manslaughter and a voluntary

intoxication instruction. She failed to inform the trial judge of her belief in

Allen’s incompetency because a jury had found him competent and, in any event,

it was Allen’s wish to plead guilty. 13 She wanted to take the case to trial. She

believed Allen had a viable defense of voluntary intoxication and an opportunity

for an instruction on manslaughter as a lesser-included offense.

Notwithstanding her reversal on Allen’s competence, Baumann averred

numerous times in her testimony that her primary objective in filing an appeal was

to undo the death penalty, not the conviction:

Q. You wanted an appeal?

A. Yes.

Q. Because you needed to get out from underneath the death
penalty, right? Your client did at least?

13
As Baumann put it, “My opinion never changed. At that particular point
in time, having had the jury trial where he was found mentally competent, I didn’t
believe it was my decision to tell this man he couldn’t plead guilty.” (R. Vol. 2 at
31.) “I felt it was in his best interest to go to trial. He did not want to go to trial.
I felt like he had the right to make that decision because he was a legally
competent man.” (Id. at 34.)

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 A. Yes.

Q. You wanted to advance that goal, correct?

A. Yes. I never thought he should have gotten the death penalty
in the first place. He shouldn’t have it now.

(R. Vol. 2 at 43.) She later added:

Bottom line was I didn’t think the man should have gotten the death
penalty and I wish that some court along the line would recognize
that fact and give the man some relief. He shouldn’t have gotten the
death penalty the first time, he shouldn’t have gotten it the second
time.

(Id. at 57.)

II. Standard of Review

We defer to a state court’s legal conclusions if it has previously addressed a

habeas claim on the merits. Our deference is guided by the following:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim (1) resulted in
a decision that 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) resulted in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In so doing, we review the district court’s legal analysis of

the state court decision de novo. Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.

2000), cert. denied, 532 U.S. 979 (2001).

We first inquire whether the federal law in question was clearly established.

If so, we turn to whether the state court decision was contrary to or involved an

-23-
unreasonable application of it. Id. at 1229.

A federal habeas court may issue the writ under the ‘contrary to’
clause if the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts. The court
may grant relief under the ‘unreasonable application’ clause if the
state court correctly identifies the governing legal principle from our
decisions but unreasonably applies it to the facts of the particular
case. The focus of the latter inquiry is on whether the state court's
application of clearly established federal law is objectively
unreasonable, and . . . an unreasonable application is different from
an incorrect one.

Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted).

If a state court has not previously heard a habeas claim on the merits, we

review the district court’s legal conclusions de novo and factual findings for clear

error. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001). If the district

court’s factual findings depend entirely on the state court record, we

independently review that record. Walker v. Gibson, 228 F.3d 1217, 1225 (10th

Cir. 2000), cert. denied, 533 U.S. 933 (2001). A state court factual finding is

presumed correct. The applicant for a writ of habeas corpus has the burden of

rebutting the presumption of correctness by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

III. Discussion

A. Procedural Competence

We begin by noting that in support of his argument for procedural

incompetence, Allen relies on deficiencies in the competency trial including: 1)

the failure of the trial court to instruct the jury on the correct standard for

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incompetency, see Cooper, 517 U.S. at 369, and 2) the failure of the trial court,

after a timely defense request, to appoint a neuropsychologist to examine Allen in

accord with Ake. Allen’s focus on the competency trial is misplaced because he

waived any objection to it when, several weeks after the jury found him

competent, he changed tack by abandoning any claim of incompetence and

entering a plea of guilty. See United States v. Salazar, 323 F.3d 852, 856 (10th

Cir. 2003) (voluntary and unconditional guilty plea waives all non-jurisdictional

defenses preceding plea; only voluntary and intelligent character of plea may

thereafter be challenged). Therefore, the proper focus of our review is the plea

proceeding. See Allen I & Allen III.

While we generally construe Allen’s claim to be one of procedural

incompetence, it includes sub-claims for violations of the Fourteenth and Sixth

Amendments, premised on Ake, 470 U.S. 68, 83 (1985), which requires the state

to assure a defendant access to a competent psychiatrist when sanity is at issue.

We have interpreted Ake to apply to pre-trial competency proceedings. Walker v.

Oklahoma, 167 F.3d 1339, 1348-49 (10th Cir.), cert. denied, 528 U.S. 987 (1999).

It is important to distinguish Allen’s claim and sub-claims because each requires

its own standard of review.

1) Ake Sub-Claims

Each of the sub-claims is based on the refusal of the trial court to appoint a

neuropsychologist to examine Allen in aid of his claim of incompetence to stand

trial. In the first instance, Allen alleges that his Fourteenth Amendment right to

due process was violated by the state trial court’s failure to comply with Ake.

-25-
Secondly, he alleges appellate counsel was ineffective, in violation of the Sixth

Amendment, for failing to raise on direct appeal the trial court’s refusal to

appoint a neuropsychologist as required by Ake. 14 Allen first raised these sub-

claims in state post-conviction proceedings. In that venue, he did not present the

alleged Ake violation as a stand-alone claim. Rather, he presented it as evidence

supporting his ineffective assistance of appellate counsel claim. Now presented

as a stand-alone claim in the federal habeas petition, it is vulnerable to the

argument it cannot be heard because it has not been exhausted in state

proceedings, 28 U.S.C. § 2254(b)(1)(A), or, in the alternative, because it is

procedurally barred. Harris v. Champion, 48 F.3d 1127, 1131 n.3 (10th Cir.

1995). Notwithstanding these concerns, the district court considered the Ake

claim on its merits, citing to § 2254(b) (subsection (b)(2) permits denial of a

claim on the merits even though it is not exhausted) and Romero v. Furlong, 215

F.3d 1107, 1111 (10th Cir.) (allowing review of claim on merits, in spite of

possibility of procedural bar, in interest of judicial economy), cert. denied, 531

U.S. 982 (2000). For like reasons, we do the same. As to the ineffective

assistance of appellate counsel claim, it has been inadequately briefed. We will

therefore not consider it. Gross v. Burggraf, 53 F.3d 1531, 1547 (10th Cir. 1995).

Also, since it is resolved by the merits of the independent Ake claim, there is no

14
Allen also claims, without elaboration, that the refusal of the trial court to
appoint a neuropsychologist amounts to state-induced ineffective assistance of
counsel in violation of the Sixth Amendment. We will not review this
perfunctory, undeveloped claim. Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th
Cir. 1994).

-26-
need to consider it further. Inasmuch as the Oklahoma courts have not previously

adjudicated the merits of the Ake claim, we review de novo. Mitchell, 262 F.3d at

1045.

Having settled on the plea proceeding as the focus of our review, we

liberally construe Allen’s Ake argument to be that failure to appoint a

neuropsychologist in the competency trial tainted the trial court’s finding of

competence when Allen entered his plea. Because we conclude Allen was not

entitled to appointment of a neuropsychologist at the competency trial, we need

not reach the manner in which or the degree to which the alleged Ake violation

tainted the competency determination at entry of the plea.

Ake stands for this proposition:

When the defendant is able to make an ex parte threshold showing to
the trial court that his sanity is likely to be a significant factor in his
defense . . . the State must, at a minimum, assure the defendant
access to a competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and presentation of
the defense.

Ake, 470 U.S. at 82-83. As we noted earlier, its rule extends to pre-trial

competency proceedings. Walker, 167 F.3d at 1348-49. Although we interpret

Ake broadly, id. at 1348, “[g]eneral allegations supporting a request for court

appointment of a psychiatric expert, without substantive supporting facts, and

undeveloped assertions that psychiatric assistance would be beneficial to the

defendant will not suffice to require the appointment of a psychiatrist to aid in the

preparation of a criminal defense.” Liles v. Saffle, 945 F.2d 333, 336 (10th Cir.

1991), cert. denied, 502 U.S. 1066 (1992). Even if we identify an Ake violation,

-27-
we disregard the error if it is harmless. Walker, 167 F.3d at 1348.

The record reveals the trial court granted Allen’s Ake request for

appointment of an expert to inquire into his competency to stand trial. Therefore,

we are not presented with a claim that the trial court failed altogether to make an

Ake appointment. Instead, we are presented with a claim that additional expert

appointment was required to complete the evaluation of Allen’s competence, and

the additional appointment was unconstitutionally denied. We construe Allen’s

claim to be that the failure to make the additional appointment rendered the

appointment of Dr. King, standing on its own, noncompliant with Ake.

We previously addressed this very issue in Walker. There, a defense

psychiatrist testified to Walker’s insanity at the time of commission of the crime.

In preparation for trial, he urged that Walker be subjected to neurological testing

to flesh out the etiology of his mental illness. To this end, Walker was examined

by a neurologist to test for the presence of minimal brain damage. The

neurologist suggested re-administration of an electroencephalogram to rule out

seizure disorder and a CT scan to evaluate for physical brain abnormalities.

“[D]ue 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.” Walker, 167 F.3d at 1348. We

concluded the failure to provide the additional neurological testing violated Ake,

although we also concluded the error was harmless. Id. at 1348-49.

We distinguish the facts presented in Walker from those presented here. In

Allen’s case every witness who testified to his competence, including Allen’s own

-28-
Ake expert, Dr. King, testified he was competent. None qualified his or her

opinion, as did the psychiatrist in Walker, with a recommendation for further

testing. Although Dr. Sherman, who first examined Allen and examined him

again after Dr. Kirk found him to be competent, testified that he agreed with Dr.

Cagle (the neurosurgeon who did not offer an opinion on competency) that

consultation with a neuropsychologist might illuminate the degree to which

Allen’s brain injury affected his memory of the events surrounding the killing, he

nonetheless agreed with Dr. Kirk that Allen was competent. He also agreed a

person can suffer brain injury and still be competent. The psychiatrist, Dr. Kirk,

testified Allen was competent. While he acknowledged that Allen suffered some

organic brain damage evidenced by an electroencephalogram and a neurological

evaluation, and conceded some loss of both short and long-term memory, in his

opinion further evaluation by a neuropsychologist was not necessary to a

determination of competency. While Dr. King, like Dr. Kirk, conceded some

brain damage, it was her opinion that neuropsychological testing, while it would

enable further investigation into the nature and extent of the brain injury, was

unnecessary to reach a conclusion about legal competence. In view of this series

of expert opinions of competency, none of them qualified by recommendation for

further testing, refusal of the trial court to appoint a neuropsychologist for Allen

did not implicate Ake.

We are bolstered in our conclusion by Dr. King’s testimony about Allen’s

reticence to discuss details of the killing. It is significant because it parallels

Allen’s own testimony about speaking of the crime and offers a non-

-29-
neuropsychological explanation for his reserve. Recall Dr. King’s observation, “I

feel he is able but doesn’t want to reveal things about himself. I think he can if

he will.” (R. Vol. 3, Tr. Competency Hr’g at 119.) The only witness at the

competency hearing to testify that Allen was not competent was one of his

attorneys, Toure. In his opinion, although Allen understood the charges, he was

not able to assist his legal team in preparing a defense. To a large degree, Toure

based his opinion of incompetence on Allen’s inability or unwillingness to

communicate with his defense team about the crime. At sentencing, Allen

explained his reticence was due to his unhappiness at having to discuss the

particulars of the crime. He wanted to spare his family and the victim’s family

from re-living the event. As he put it, “I can’t see making a bad matter worse –

bringing up the problems we were having and what motivated me to do what I

did. It just makes things worse than ever.” (R. Vol. 3, Tr. Sentencing Hr’g at

300.) At resentencing, Allen offered an alternative explanation for his lack of

recall. He revealed that in the days leading up to the day of the crime, and

possibly even on the day of the crime itself, he was drinking to the point of

intoxication. “I’d get drunk as many days in the week as I could.” (R. Vol. 3, Tr.

Re-Sentencing Hr’g, Vol. II at 176.) 15 To be sure, the gunshot wound he

sustained likely impaired his memory of events. Nonetheless, the record leads to

the inescapable conclusion that at least some of what appeared to examiners and

his own attorney to be memory loss, capable of more exact determination through

a neuropsychological exam, was actually an unwillingness to discuss the crime or

15
See n.10.

-30-
a memory obscured by the effects of alcohol. In any event, there is no dispute as

to the facts surrounding the killing, notwithstanding Allen may not recall all of

them. Under these circumstances, impaired memory does not implicate due

process. United States v. Borum, 464 F.2d 896, 900 (10th Cir. 1972).

In support of his claim of an Ake violation, Allen offers the affidavit of Dr.

Gelbort from the state post-conviction proceeding, given nearly ten years after the

competency hearing and nearly eleven years after Allen killed Titsworth. Dr.

Gelbort is a clinical psychologist. He administered a neuropsychological

evaluation to Allen. He attributed Allen’s inability to recall events surrounding

the killing to the neurotrauma he sustained when he was shot. He concluded

Allen’s apparent ability to communicate masked an inability to function at a

higher intellectual level. In his opinion, Allen was incompetent at the time of his

competency hearing.

The district court considered Dr. Gelbort’s dated (1997) evaluation and

concluded that it is not sufficiently persuasive to tip the balance in favor of an

Ake violation when viewed alongside the testimony of several experts (including a

psychiatrist and two clinical psychologists) who examined Allen within a year of

the killing. 16 While correct in its conclusion, the district court was overly

charitable in even considering and evaluating the Gelbort material on this issue.

The results of a 1997 examination do not inform a debate about the propriety of a

16
We also note a number of Allen’s other, non-mental health care providers
testified consistently as to his ability to rationally communicate with them on a
regular basis.

-31-
1987 decision relating to the need for a fourth mental health expert

(neuropsychologist) to explore peripheral issues; that decision is tested by

reference to contemporaneous materials, not post hoc opinions. Allen failed to

make the “ex parte threshold showing,” necessary to require appointment of a

neuropsychologist. Ake, 470 U.S. at 82.

2) Procedural Competence Claim

Having settled the Ake question, we turn to the broader question of

procedural competency. It was raised initially in Allen I. There, the issue was

framed as whether the trial court had sufficiently inquired into Allen’s

competence to enter a plea. Allen, 821 P.2d at 373. The OCCA found that it had.

Id. The issue was not raised again in Allen II, the decision affirming Allen’s

resentencing. We only mention Allen II because when the Supreme Court granted

certiorari, it did so not for the purpose of further reviewing the resentencing, but

rather, for the purpose of vacating the judgment itself and remanding the case to

the OCCA “for further consideration in light of Cooper v. Oklahoma.” Allen v.

Oklahoma, 520 U.S. 1195 (1997) (citations omitted). As we have mentioned,

Cooper concerned the standard of proof to be applied in a pre-trial competency

determination. Cooper, 517 U.S. at 369. In Allen III, the OCCA conducted the

review ordered by the Supreme Court and found Cooper to be inapposite where a

defendant did not stand trial, but instead entered a plea of guilty. Allen, 956 P.2d

at 920. It then reviewed the trial court’s pre-plea competency determination for

Allen and found it to be without error. It also concluded the prior competency

trial conducted with an unconstitutional burden of proof did not taint the court’s

-32-
fresh determination of competency for purposes of entry of the plea. It reinstated

its original competency decision in Allen I (together with the resentencing

decision in Allen II). Id. at 921. The Supreme Court allowed these decisions to

stand. Allen v. Oklahoma, 525 U.S. 985 (1998). In sum, because the OCCA, in

Allen I and Allen III, adjudicated on the merits Allen’s claim of incompetency

when he entered his plea, we review its decisions with the deference required by

28 U.S.C. § 2254(d).

We first note there is no record evidence to support the argument that the

judge who took Allen’s guilty plea was influenced or otherwise tainted in his

determination of competency by the earlier jury verdict of competency

(irrespective of whether an additional Ake expert was appointed). The judge at

the plea proceeding was not the same judge who conducted the competency trial;

in fact, he did not preside over any of the pre-trial competency proceedings. The

record is silent as to whether he was familiar with them at all prior to the plea

proceeding. We do know from his questioning of Allen and his colloquy with

trial counsel that it appears he was being informed for the first time, just prior to

taking Allen’s plea, of the course of the earlier competency proceedings. We also

know he engaged in his own fresh inquiry as to Allen’s competence to enter a

plea. This record does not even suggest taint.

The law of competency is well-settled. “[T]he criminal trial of an

incompetent defendant violates due process. This prohibition is fundamental to

an adversary system of justice.” McGregor v. Gibson, 248 F.3d 946, 951 (10th

Cir. 2001) (quotations and citation omitted). The test for determining competency

-33-
to stand trial is this: “[t]he trier of fact must consider ‘whether [defendant] has

sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding--and whether he has a rational as well as factual

understanding of the proceedings against him.’” Id. at 952 (quoting Dusky v.

United States, 362 U.S. 402 (1960)). The standard of competence to enter a

guilty plea is identical. Godinez v. Moran, 509 U.S. 389, 399 (1993).

Competency claims may be based on violations of both procedural and

substantive due process. “A procedural competency claim is based upon a trial

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

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

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

248 F.3d at 952. The standards of proof for procedural and substantive

competency claims differ. To make out a procedural competency claim, a

defendant “must raise a bona fide doubt regarding his competency to stand trial

. . . .” Id. This requires a demonstration that “a reasonable judge should have

doubted” the defendant’s competency. Id. at 954. It does not require proof of

actual incompetency. Id. A substantive competency claim, on the other hand,

requires the higher standard of proof of incompetency by a preponderance of the

evidence. Cooper, 517 U.S. at 368-69; Walker, 167 F.3d at 1344.

In evaluating a procedural competency claim, we look only at the evidence

available to the trial court when the plea was entered to determine if the judge

ignored evidence that objectively would have raised doubt about the defendant’s

fitness to proceed. Walker, 228 F.3d at 1227; see also McGregor, 248 F.3d at 954

-34-
(“[E]vidence of . . . irrational behavior . . . demeanor . . . and any prior medical

opinion on competence to stand trial are all relevant in determining whether

further inquiry is required.” (quotation omitted)). Defense counsel is often in the

best position to evaluate a client’s competence. Bryson v. Ward, 187 F.3d 1193,

1201 (10th Cir. 1999), cert. denied, 529 U.S. 1058 (2000). “[A]ssessment of a

procedural competency claim requires us to form a judgment on the aggregate not

the segment. We examine the totality of the circumstances: all evidence should

be considered together, no single factor stands alone.” McGregor, 248 F.3d at

955 (quotation and alteration omitted). “The question is . . . whether the trial

court failed to give proper weight to the information suggesting incompetence

which came to light . . . .” Id. (quotation omitted).

With these principles in mind, we examine the record. As we have already

explained in discussing the Ake claim, all of the expert testimony at the

competency trial, including that adduced from Allen’s own Ake expert, was that

Allen was competent to stand trial. Moreover, during the plea proceeding, Allen

exhibited no irrational behavior. To the contrary, he appeared cogent and rational

in colloquy with the court. He assured the court he had reviewed with counsel the

charges and possible penalties, and he gave every indication he understood the

rights the court explained to him and the fact he would waive those rights in

pleading guilty. He added he had discussed his rights with counsel. As further

indication of his understanding of the proceedings, Allen filed a document with

the court entitled “Plea of Guilty Without Sentencing - Summary of Facts” in

which he again certified he understood the charges, the penalties and the rights he

-35-
was giving up by pleading guilty, and that he had discussed the charges with

counsel. (R. Vol. 4, Original R. (C-88-37) at 232-33.) Allen continued to

demonstrate an equally rational demeanor at sentencing, which is reflective to

some degree of his mental condition at the time he pled guilty.

Although one of Allen’s attorneys, Toure, testified at the competency trial

that his client was not competent, we discount his testimony for the same reasons

given in our Ake discussion. An additional and compelling reason to disregard his

testimony is that at the plea proceeding, only three weeks after Toure’s testimony,

Allen’s remaining attorney, Baumann, assured the court that Allen appreciated the

nature, purposes and consequences of the proceeding and had assisted her in

presenting any available defense. The trial court properly relied on Baumann’s

representation as to the competency of her client. See Bryson, 187 F.3d at 1201.

Based on the totality of the evidence, we conclude Allen has not

demonstrated the trial court ought to have entertained a bona fide doubt as to his

competency to enter a plea. This being so, we find no error in the state court

determinations in Allen I and Allen III, especially when we accord those

determinations the deference required by § 2254(d).

B. Substantive Competence

We construe Allen I and Allen III to dispose of Allen’s substantive

competency claims as well as procedural ones. Therefore, we again review with

§ 2254(d) deference.

“[T]o succeed in stating a substantive incompetency claim, a petitioner

must present evidence that creates a real, substantial and legitimate doubt as to

-36-
his competency to stand trial.” Walker, 167 F.3d at 1347 (quotations omitted).

At the plea proceeding there was insufficient evidence to justify even a hearing on

incompetency. A fortiori, there was insufficient evidence to support a claim of

substantive incompetency. Id.

Allen is not aided by Dr. Gelbort’s affidavit or Baumann’s testimony. As

we earlier noted, Dr. Gelbort’s observations are insufficient to undermine the

accumulated contemporaneous testimony of competency adduced at the

competency trial. As to Baumann, in her 1997 affidavit (submitted in support of

Allen’s state post-conviction petition), her 1999 declaration and her 2001

testimony (both submitted in support of federal habeas relief), she disavows her

assurance of Allen’s competence given to the trial court when the guilty plea was

accepted and solemnly declares him to have been incompetent at the time. Her

about-face on the competency issue strongly suggests a willingness to “fall on the

sword” in order to derail a death sentence. The motive is transparent, if not

misguided.

C. Invalid Guilty Plea

“In addition to determining that a defendant who seeks to plead guilty . . .

is competent, a trial court must satisfy itself that the waiver of his constitutional

rights is knowing and voluntary.” Godinez, 509 U.S. at 400. The competency

inquiry focuses on a defendant’s ability to understand the proceedings; the

“knowing and voluntary” inquiry focuses on whether he in fact did understand the

proceedings. Id. at 401 n.12. “[A] plea of guilty cannot be voluntary in the sense

that it constitutes an intelligent admission that the accused committed the offense

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unless the accused has received real notice of the true nature of the charge against

him, the first and most universally recognized requirement of due process.”

Marshall v. Lonberger, 459 U.S. 422, 436 (1983) (quotation omitted). Allen

claims he was not informed of the intent element (malice aforethought) of the

crime with which he was charged and to which he pled guilty, and as a

consequence his plea was not knowing and voluntary. He previously raised this

issue in Allen I, and the state court denied relief. Therefore, we review with §

2254(d) deference.

Allen relies on Henderson v. Morgan, 426 U.S. 637 (1976), a case in which

the Supreme Court vacated a conviction on the grounds the plea of guilty was not

knowing and voluntary because there was no evidence the defendant understood

the intent element of the crime with which he was charged. The defendant had

been charged with first degree murder and was informed in open court as to this

charge, including its intent element of having “willfully” committed the act. Id.

at 642. He pled guilty to second degree murder without a formal substitute charge

having been filed. The intent element for second degree murder was an “intent to

cause . . . death.” Id. at 643. In federal habeas, the district court found that

neither counsel nor the trial court informed the defendant of the intent element of

second degree murder before he pled to the charge. 17 Id. at 640. The narrowness

17
The Court drew a fine but significant distinction between whether a
factual basis supports the presence of the requisite intent and whether a defendant
understands that the requisite intent is an element of the crime. A demonstration
of the former does not satisfy the requirement of the latter. Henderson, 426 U.S.
at 645-46. We have exhaustively reviewed the record of Allen’s case, and
conclude it establishes a factual basis for the charge of first degree murder,

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of the Court’s holding is evidenced by this passage in its opinion:

Normally the record contains either an explanation of the charge by
the trial judge, or at least a representation by defense counsel that the
nature of the offense has been explained to the accused. Moreover,
even without such an express representation, it may be appropriate to
presume that in most cases defense counsel routinely explain the
nature of the offense in sufficient detail to give the accused notice of
what he is being asked to admit. This case is unique because the trial
judge found as a fact that the element of intent was not explained to
respondent.

Id. at 647.

In order to establish an involuntary plea under Henderson, we require a

petitioner to: “(1) show that the [intent] element was a critical element of [the

charge]; (2) overcome the presumption that his attorney explained this element to

him at some other time prior to his guilty plea; and (3) demonstrate that, prior to

his guilty plea, he did not receive notice of this element from any other source.”

Miller v. Champion, 161 F.3d 1249, 1255 (10th Cir. 1998); Henderson at 647. As

to the second requirement, we will not indulge the presumption unless there is

factual basis in the record to support it. Id.

“Malice aforethought” is defined in both the murder statute under which

Allen was charged and in an Oklahoma pattern jury instruction. The statute

provides, in pertinent part: “Malice is that deliberate intention unlawfully to take

away the life of a human being, which is manifested by external circumstances

capable of proof.” O KLA . S TAT . TIT . 21, § 701.7A.

including its intent element. This conclusion alone, however, does not settle the
question whether Allen had notice of the intent element and understood it.

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 Malice aforethought means a deliberate intention to take away the
life of a human being. As used in these instructions, malice
aforethought does not mean hatred, spite or ill-will. The deliberate
intent to take a human life must be formed before the act and must
exist at the time a homicidal act is committed. No particular length
of time is required for formation of this deliberate intent. The intent
may have been formed instantly before commission of the act.
OUJI-CR (2d) 4-62.

Williams v. Oklahoma, 22 P.3d 702, 714 (Okla. Crim. App. 2001) (quotations

omitted). Put simply, malice aforethought denotes a deliberate killing where the

intent to kill may be formed right up to the commission of the act. This is not a

difficult concept for the ordinary person to grasp, particularly when assisted by

legal counsel. It admits of no subtlety. The question presented is whether Allen

understood both the meaning of the term and that it was an element of the crime

to which he pled guilty. To answer this question, we look to the record.

As to Miller’s first requirement, we do not gainsay that the intent element

of a criminal offense is a critical element of the charge. See Miller, 161 F.3d at

1255. As to Miller’s second requirement, 18 whether Allen has overcome the

presumption that his trial counsel explained to him the intent element of malice

aforethought, we first point out that Allen was charged by way of Information

18
For purposes of its analysis, the district court assumed, without finding,
that Allen’s counsel failed to advise him of the intent element of the charge. (R.
Vol. 1, Doc. 35 at 46.) It resolved the Miller test against Allen on the basis of the
third requirement of the test. It concluded Allen had acquired notice of the intent
element from sources other than his attorney. (Id. at 50-51.) We do not indulge
this assumption. See n. 22.

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reciting the offense and its included intent element. 19 Conceding our focus in

evaluating the validity of the plea is on whether Allen did in fact understand the

charge and not on whether he was capable of understanding it, the fact that all of

the mental health experts who testified at the competency hearing testified that he

was capable of understanding the charge lays a necessary predicate for a finding

he did in fact understand it. At the competency trial, one of Allen’s attorneys,

Toure, testified that while it was his opinion that Allen was not competent

because he could not assist counsel in preparing a defense (the second prong of

the competency test), he did in fact understand the charges (the first prong of the

competency test). At the plea proceeding, Allen assured the court he had

reviewed the charges with Baumann, his counsel. He certified the same in writing

in the “Plea of Guilty Without Sentencing - Summary of Facts” which he filed

with the court and which Baumann countersigned. (Id.) In open court, Baumann

informed the court that Allen had assisted her in presenting any defenses he might

have to the charge. In our view, this statement necessarily includes, because it

would not otherwise make sense, an assurance that she had reviewed with Allen

the intent element of the charge. We next weigh in the mix Allen’s affidavit of

19
The Information reads in pertinent part:

On or about the 21st day of November, 1986, A.D., the crime of
murder in the first degree was feloniously committed in Oklahoma
County, Oklahoma, by Garry Thomas Allen who wilfully, unlawfully
and with malice aforethought, killed Lawanna Gail Titsworth by
shooting her with a handgun, inflicting mortal wounds which caused
her death . . . .

(R. Vol. 4, Original R. (C-88-37) at 1.)

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factual basis submitted to the court at the plea hearing. Penned in his own

handwriting, it is both simple and inartful: “I shot & killed Gail Titsworth. I had

no justifiable cause.” (Id. at 234.) Although it is curt, the statement admits to a

deliberate and unexcused act of homicide, fitting well within the definition of

malice aforethought. It evidences Allen understood the intent element through

discussion with his attorneys. In fact, Baumann testified she helped him prepare

it.

The record provides sufficient factual basis to engage the presumption that

Allen’s counsel informed him of the intent element for the offense with which he

was charged. 20 The only evidence Allen submits in his effort to overcome the

presumption are Baumann’s conclusions, 21 memorialized a decade or more after

the fact, that Allen did not understand the required intent. 22 We have already

20
We distinguish Miller. There, as in Henderson, the defendant was
charged with first degree murder and pled guilty to second degree murder
(involving a different intent element) without benefit of a substitute charging
instrument having been issued and served which would have alerted to the new
intent element. See Henderson, 426 U.S. at 645; Miller v. Champion, 161 F.3d
1249, 1256 (10th Cir. 1998). In Miller, the record was devoid of any other
evidence, direct or indirect, that Miller’s counsel or the court advised him of the
intent element for second degree murder. Id. at 1254-55.

Allen’s reliance on Dr. Gelbort’s affidavit is misplaced for the reasons
21

discussed in the previous section.
22
In her statements Baumann does not say she neglected to perform an
attorney's fundamental duty of explaining the elements of a charged crime to a
client. Instead, her statements blur acts and conclusions. Moreover, they conflate
Allen's ability to understand the meaning of ‘malice aforethought’ (intent element
of first degree murder) with the intent element of manslaughter (a potential lesser-
included offense). In the 1999 declaration she prepared for federal habeas relief,
Baumann is silent as to the operative fact question – whether she explained

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characterized these statements and need not elaborate further, except to say they

are at significant variance with other evidence contemporary to the plea, including

Baumann’s own assurances to the trial court. None of her statements overcomes

the presumption Allen was appropriately advised.

To be sure the trial court might have engaged in a more exhaustive plea

colloquy with Allen to assure he understood both the meaning of malice

aforethought and that it was an important element of the charge against him.

“malice aforethought” to Allen. (Appellant Br., Attach. J, ¶11.) However, quite
unequivocally, she makes a different fact statement – she never explained
manslaughter as a lesser-included offense. She then states her conclusion – Allen
was “incapable of understanding ‘malice aforethought’ both because he did not
remember the crime and because he was not able to conceptualize the intent
element.” (Id.) Her conclusions may trigger a need for further inquiry, but only if
adequately supported by facts. We do not find such factual support.

In spite of the 1999 declaration, in her 2001 federal habeas testimony Baumann
could not remember whether she discussed lesser-included offenses with Allen.
(R. Vol. 2 at 22.) The shifting sands of recent memory are an unstable foundation
and her imprecise recollection of whether or not she and Allen discussed lesser
included offenses (and, hence, the issue of intent) is of dubious utility.
Particularly so since it stands in stark contrast to her bold statement to the judge
when the plea was entered that Allen had assisted her in presenting any defenses
he might have to the charge of first degree murder. (R. Vol. 3, Tr. Change-of-
Plea at 4.) A defense would include argument for conviction of only a lesser
crime. In this case the distinction between the charged crime and a lesser one
would necessarily turn on intent.

The district court avoided deciding whether Baumann had discussed the intent
element of first degree murder with Allen and made no findings in that regard. It
resolved the voluntariness of the plea on the basis of Miller’s third requirement.
See n.18. While we agree with the district court on the third requirement we are
less charitable with regard to the second. The record does not demonstrate a
credible factual predicate for Baumann's conclusions, so Allen fails to meet
Miller's second requirement.

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However, we are satisfied from the record as a whole that Allen obtained a

sufficient understanding of the required intent from his counsel.

Even if we were to conclude that Allen satisfied the second requirement of

the Miller test, he fails to satisfy the third, being a demonstration he was not put

on notice of the intent element from sources other than his counsel. First, the

record of his two arraignments shows he was provided a copy of the Information

each time. Unlike many of the complex and convoluted federal indictments, the

Information in Allen's case clearly and succinctly sets forth the elements of the

crime charged. See infra n.19. And under Oklahoma law the language is neither

subtle or arcane. See infra, pp. 40-41. Moreover, as we earlier noted, he

acknowledged reviewing the charge with counsel. The language of the

Information, focused by the sobering knowledge that he faced the death penalty, 23

would alert even an unsophisticated man that he was charged 1) with killing

another, 2) the killing was intentional – not the result of mistake, accident, or

other innocent reason, and 3) the killing was not, somehow, excused. In spite of

perhaps unfamiliar language the concept is not elusive.

Second, Allen attended the preliminary hearing and heard the State present

its case, which included the testimony of two witnesses who said Allen first shot

Titsworth twice in the chest, examined her body for wounds, and then, after she

stood up and tried to escape by entering the daycare center, he pushed her down

and shot her again twice in the back, at close range. See Worthen v. Meachum,

23
The trial court assured itself at the plea proceeding that Allen understood
that the penalty he faced in the event of a plea of guilty was life in prison or
death. (R. Vol. 3, Tr. Change-of-Plea at 4-5.)

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842 F.2d 1179, 1183 (10th Cir. 1988) (presence of defendant at preliminary

hearing an ingredient to consider when evaluating a claim of lack of knowledge of

elements of crime). The testimony evidences a cool, deliberate and merciless

intent to kill, certainly sufficient for one to infer malice aforethought. And one

such as Allen, with the Information in hand, could consider and compare the

evidence presented at the preliminary hearing with the charging language and

reason accordingly, drawing reasonable inferences about the deliberate nature of

the offense.

While we acknowledge the reasoning process we attribute to Allen is not

singularly compelling and would be insufficient, standing alone, to support a

conclusion he understood the intent element, we are comforted in our conclusion

that Allen fails to meet the third requirement of the Miller test by the assurances

he gave to the trial court at the plea hearing that he was acting knowingly and

voluntarily and that his factual basis statement was correct. As an appellate court,

we do not enjoy the trial court’s advantage of having personally observed and

evaluated the synergistic effect of Allen’s behavior, demeanor and statements

when he entered his plea. This being so, we place special reliance on the trial

court’s measure of Allen’s understanding of the nature and consequence of his

plea. The trial court’s evaluation is necessarily based not only on the bare

colloquy of the record that we see but also on its intuitive sense, undergirding the

colloquy, that Allen understood the elements of the crime to which he was

pleading. And this is true whether Allen’s understanding emanated from

discussion with counsel, sources independent of counsel or both.

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 Taken together, the indicia of the record demonstrate Allen acquired

knowledge of the intent element of the crime from sources other than his counsel

and that he entered his plea with the benefit of this knowledge. Failing two of the

three Miller requirements, the claim that Allen did not knowingly and voluntarily

enter his plea goes wanting.

Our role is not to undo what in hindsight may seem to Allen to have been

an unwise choice to plead guilty to murder. Our role, instead, is to assure that the

proceedings leading to his conviction and sentence were free of constitutional

error. We conclude they were, and the determination of the state court in Allen I

that Allen’s plea was knowingly and voluntarily entered comfortably survives

review under § 2254(d).

D. Ineffective Assistance of Trial Counsel

Allen claims trial counsel was ineffective because she misrepresented his

competency to the trial court and permitted him to enter a blind plea of guilty to

first degree murder instead of litigating his case in front of a jury when he had

persuasive defenses (manslaughter as a lesser-included offense, involuntary

intoxication, temporary insanity) that would have avoided a conviction in the

liability stage of the trial and, failing that, would have avoided the punishment of

death in the penalty stage. Allen first raised this claim in state post-conviction

proceedings. The OCCA procedurally barred the claim on the ground it was

apparent from the trial court record and could have been, and was not, raised on

direct appeal. Allen v. Oklahoma, No. PC 97-311 (Okla. Crim. App. July 20,

2998) (Allen IV) (citing to O KLA . S TAT . A NN . tit. 22, § 1089, a provision of

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Oklahoma’s Post-Conviction Procedure Act, O KLA . S TAT . A NN . tit. 22, §§ 1080-

1089). In federal habeas review, the district court, citing to Walker, 167 F.3d at

1345, elected not to recognize the procedural bar because it was based on a 1995

amendment to § 1089 that post-dated Allen’s direct appeal. It reviewed the claim

on its merits. On appeal, the state objects to the district court’s disregard of the

state procedural bar, maintaining that even prior to the 1995 amendment claims of

ineffective assistance which could have been, and were not, raised on direct

appeal were regularly barred. We agree with the district court, both for the reason

it gave and because of our previously expressed skepticism as to the adequacy of

Oklahoma’s procedural bar of ineffective assistance of counsel claims not brought

on direct appeal. See English v. Cody, 146 F.3d 1257 (10th Cir. 1998). We

review de novo. Mitchell, 262 F.3d at 1045.

In order to make out a claim of ineffective assistance of counsel, Allen

must show counsel’s performance was deficient and it prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient assistance of

counsel is representation that “[falls] below an objective standard of

reasonableness.” Id. at 688. “This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id. at 687. Recall Baumann assured the trial court

that Allen was competent to enter a plea; a decade later, she declared to the

contrary. We avoid a discussion of whether Baumann’s performance was

deficient, assume for the sake of analysis that it was, and turn straight to an

evaluation of prejudice. Id. at 697.

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 Prejudice to the defense “requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id. at 687. “The defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.

By way of preface, we identify an apparent illogic in Allen’s position. On

the one hand, he argues Baumann’s deficient performance caused him to plead

guilty while he was incompetent. On the other hand, he argues her deficient

performance deprived him of a jury trial where certain defenses would have

exonerated him or, at the very least, would have enabled him to avoid the death

penalty. We are perplexed because if Allen was incompetent to enter a plea he

would have been remanded for treatment. See O KLA . S TAT . A NN . TIT . 22, §

1175.6. He would not have been permitted to proceed to trial. Perhaps Allen is

suggesting that if and when he recovered competency after treatment he would

have elected a jury trial. Whatever may be the camouflaged logic of his

argument, we take up his claims.

We evaluate whether, absent Baumann’s failure to advise the trial court of

her client’s incompetency, the court would have nonetheless found him competent

to enter a plea. While the observations of defense counsel are valuable, “the

concerns of counsel alone are insufficient to establish doubt of a defendant's

competency.” Bryson, 187 F.3d at 1202. In this case, the record as a whole

contains compelling evidence of Allen’s competence. Every expert witness who

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testified at the competency trial, including Allen’s own Ake expert, testified he

was competent. Furthermore, the court conducted its own evaluation of Allen’s

competency through colloquy with him and observation of his behavior. Id. at

1201 (“A trial court may rely on its own observations of the defendant's

comportment.”). At sentencing, Allen articulately explained his wish to plead

guilty. Based on this record, we conclude Allen has not demonstrated the trial

court would have prevented him from entering a plea on the basis of

incompetency if only his counsel had been truthful with the court in her

estimation of his mental state. Thus, even assuming trial counsel misrepresented

Allen's competence to the trial judge and was ineffective in so doing, no prejudice

resulted and Allen fails in his claim of ineffective assistance of counsel.

IV. Conclusion

Accordingly, we AFFIRM the order of the district court.

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