Gilbert v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 3 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

LEWIS EUGENE GILBERT,

Petitioner - Appellant,

v. No. 01-6085

MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(No. CIV-99-74-T)

Gloyd L. McCoy, of Coyle, McCoy & Burton, Oklahoma City, Oklahoma, for
Petitioner-Appellant.

Nancy Elizabeth Connally, Assistant Attorney General (Jennifer B. Miller,
Assistant Attorney General, and W.A. Drew Edmondson, Attorney General of
Oklahoma, on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.

LUCERO, Circuit Judge.
 Lewis Eugene Gilbert, an Oklahoma state prisoner sentenced to death,

appeals the district court’s denial of his petition for a writ of habeas corpus. This

court has granted Gilbert a certificate of appealability (“COA”) pursuant to 28

U.S.C. § 2253(c) with respect to three of his claims of legal error: (1) that his

right to a fair trial was violated by a coerced verdict at the sentencing stage of the

trial; (2) that he was improperly denied his request for a competency evaluation in

state court; and (3) that there was insufficient factual support for the jury’s

finding of the existence of the “avoid arrest” and “continuing threat” aggravating

circumstances. We have independently reviewed the record and conclude that

Gilbert is not entitled to habeas relief on any of these claims. Exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.

I

Gilbert and a co-defendant were convicted of the 1994 murder of Roxanne

Ruddell, a security guard at Lake Stanley Draper in Oklahoma. 1
Prior to this

murder, Gilbert and his co-defendant had killed an elderly woman in Ohio, stolen

her car, and driven it to Missouri. In Missouri they had killed an elderly couple,

stolen their car, and driven it to Oklahoma. The two took the second stolen car to

1
The facts are taken from the opinion of the Oklahoma Court of Criminal
Appeals affirming Gilbert’s convictions and sentence. See Gilbert v. State , 951
P.2d 98, 103 (Okla. Crim. App. 1997). Gilbert was also convicted of kidnapping
and robbery with a firearm.

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Lake Stanley Draper, where they saw Ruddell fishing alone. Intending to steal

her pickup, they tied Ruddell’s hands and made her walk a short distance to sit in

the “vee” at the base of a tree. Gilbert then shot her three times in the head.

Approximately three days later, Gilbert and his co-defendant were apprehended in

New Mexico sleeping in a ditch. Ruddell’s pickup was found nearly a mile away.

During the sentencing stage of the trial the prosecutor argued, and the jury

found the existence of, two aggravating circumstances: that there was a

probability that Gilbert would commit criminal acts of violence such that he

constituted a “continuing threat to society,” and that the murder was committed

for the purpose of “avoiding or preventing a lawful arrest or prosecution.”

Gilbert v. State , 951 P.2d 98, 103, 122 (Okla. Crim. App. 1997). The jury

recommended that Gilbert be sentenced to death for Ruddell’s murder, and the

trial court sentenced him in accordance with this recommendation.

Gilbert appealed, raising thirteen propositions of error, but his convictions

and death sentence were affirmed by the Oklahoma Court of Criminal Appeals

(“OCCA”). He subsequently filed an application for post-conviction relief

before the OCCA, urging eight grounds and requesting an evidentiary hearing, but

this application was denied. In September 1999, Gilbert filed a petition for a writ

of habeas corpus in federal district court, seeking relief on seven grounds. The

petition was denied and this appeal followed.

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 II

Because Gilbert filed his habeas petition after the effective date of the

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

provisions of that act are applicable to his case. See Lindh v. Murphy, 521 U.S.

320, 326–27 (1997). Pursuant to AEDPA, we may not grant a petition for a writ

of habeas corpus on behalf of a person in custody pursuant to the judgment of a

state court with respect to any claim adjudicated on the merits in state court

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). A state court decision is contrary to clearly established

federal law under § 2254(d)(1) “if the state court arrives at a conclusion opposite

to that reached by [the Supreme Court] on a question of law or if the state court

decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state

court decision is an unreasonable application of federal law under § 2254(d)(2)

“if the state court identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Id.

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 A

Gilbert contends that he was denied due process of law when the trial court,

at the sentencing phase of his trial, coerced the jury into recommending a death

sentence by delivering a supplemental jury instruction that was intended to urge

the jurors to achieve a unanimous decision. Whether a jury has been improperly

coerced by a judge is a mixed question of law and fact. Rodriguez v. Marshall,

125 F.3d 739, 744 (9th Cir. 1997). Pursuant to AEDPA we may grant habeas

relief on such a claim only if the state court unreasonably applied the law to the

facts of the case. Williams, 529 U.S. at 413.

Jury deliberations for the sentencing phase of Gilbert’s trial began at 4:40

p.m. on a Thursday. At approximately 10:00 p.m., the trial court sua sponte

called the jury to the courtroom “to inquire as to their progress.” (7 Tr. at 1692.)

The following exchange then took place between the court and the jury’s

foreperson:

THE COURT: I want to ask you two or three or four questions, but
listen to it carefully before you answer it, because it’s important that
you not give any information other than what is asked for. The first
question is: Have you reached a—has the jury reached a verdict on
any of the charges?

THE FOREPERSON: Yes, we have.

THE COURT: Are you making progress on the one or more that you
have not reached a verdict on?

THE FOREPERSON: I don’t think so.

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 THE COURT: Do you think you will be able to reach a verdict on
the one or more charges that you have not reached a verdict on?

THE FOREPERSON: No, sir, I don’t.

THE COURT: Do not disclose the numerical division—excuse
me—do not disclose which way you are leaning. Just tell me, if you
would, please, on the—is there one charge or more that you have not
reached—

THE FOREPERSON: Yes. sir. One charge.

THE COURT: That you have not reached a verdict on?

THE FOREPERSON: Yes.

THE COURT: Without disclosing which way the vote is leaning, tell
me what the numerical division is.

THE FOREPERSON: Half and half.

...

THE COURT: I would like for you to go back and try a little longer.
We won’t leave you in there this long without inquiring further. But
at this time I would ask you to go back and try again on the
remaining charge.

(7 id. at 1693–94.)

At approximately 11:05 p.m., the trial court recalled the jury to the

courtroom and the ensuing exchange took place:

THE COURT: Ms. Cross, may I inquire of you further.

THE FOREPERSON: Your Honor, we have not reached a decision.

THE COURT: Has the numerical division changed?

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THE FOREPERSON: Yes, your Honor, it has. But there is at least
one person on each side that has no intention of changing their mind
and reaching a compromise.

...

THE COURT: Ladies and gentlemen of the jury, this case has taken
approximately seven days of trial time counting the voir dire. You
have deliberated, I believe, over six hours. You report to me that you
are experiencing difficulty in arriving at a verdict. This is an
important case and a serious matter to all concerned. You are the
exclusive judges of the facts, the Court is the judge of the law.

Now, I most respectfully and earnestly request of you that you
return to your jury room and resume your deliberations. Further open
and frank discussion of the evidence and the law submitted to you in
this case may aid you in arriving at a verdict. This does not mean
that those favoring any particular position should surrender their
honest convictions as to the weight or effect of any evidence solely
because of the opinion of other jurors or because of the importance
of arriving at a decision.

No juror should ever agree to a verdict that is contrary to the
law and the Court’s instructions nor find the fact or concur in a
verdict which in good conscience he or she believes to be untrue.
This does mean that you should give respectful consideration to each
other’s views and talk over any differences of opinion in the spirit of
fairness and candor.

If at all possible, you should resolve any differences and come
to a common conclusion that this case may be completed. Each juror
should respect the opinion of his or her fellow jurors as he or she
would have them respect his or hers in an earnest and diligent effort
to arrive at a just verdict under the law and the evidence. You may
be as leisurely in your deliberations as the case may require and take
all the time necessary.

The giving of this instruction at this time in no way means that
it is more important than any other instruction. On the contrary, you
should consider this instruction together with and as part of the

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 instructions which I have previously [given] you.

In stating the foregoing, I again repeat: You are the judges of
the facts, the Court is the judge of the law. In making all statements
made to you, I have not nor do I now express or intimate nor indicate
in any way the conclusion to be reached by you in this case. Nor do I
intend in any manner—or any way or manner to coerce a verdict not
directly or indirectly to force a verdict in this case. I only ask that
you return to your jury room and, again, diligently and earnestly
under your oaths resume your deliberations.

I want you to know that I’m conscious of the hour; we all are.
And we would like for you to try one more time. We’ll talk to you
again.

(7 id. at 1698–1701.) At 12:36 a.m., the jury returned to the courtroom with a

verdict recommending a death sentence for Gilbert on the murder charge, along

with life sentences on the two non-capital charges.

Gilbert contends that the statements quoted above demonstrate that the trial

court was “unconstitutionally coercive.” (Appellant’s Br. at 22.) Specifically, he

argues the impropriety of the court (1) sua sponte calling the jury to the

courtroom to inquire about its progress, (2) inquiring about the jury’s numerical

division, (3) refusing to accept as final the foreperson’s statements that the jury

could not reach a verdict as to the sentencing decision, and (4) twice giving an

Allen instruction 2 to the jury. Gilbert raised his coercion claims before the OCCA

2
An Allen charge—sometimes referred to as a “dynamite charge”—derives
its name from the supplemental jury instruction approved by the Supreme Court in
Allen v. United States, 164 U.S. 492, 501–02 (1896).

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on direct appeal and the court rejected them on the merits. Gilbert, 951 P.2d at

114–16.

In United States v. Smith, we noted that the use of a supplemental charge

has long been sanctioned, explaining that the purpose of an Allen instruction is

to encourage unanimity (without infringement upon the conscientious
views of each individual juror) by urging each juror to review and
reconsider the evidence in the light of the views expressed by other
jurors, in a manner evincing a conscientious search for truth rather
than a dogged determination to have one’s way in the outcome of the
deliberative process.

857 F.2d 682, 683–84 (10th Cir. 1988). We have, however, “traditionally urged

caution in the use of the Allen instruction,” United States v. Rodriguez-Mejia, 20

F.3d 1090, 1091 (10th Cir. 1994), and will allow such an instruction only “if it is

not impermissibly coercive,” United States v. Porter, 881 F.2d 878, 888 (10th Cir.

1989). In determining whether a trial court’s actions have improperly coerced a

jury, the Supreme Court has held that a reviewing court must look at the

supplemental charge given by the judge “in its context and under all the

circumstances.” Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quotation

omitted). “Some of the factors we consider in making this determination include:

(1) the language of the instruction, (2) whether the instruction is presented with

other instructions, (3) the timing of the instruction, and (4) the length of the jury’s

subsequent deliberations.” United States v. Arney, 248 F.3d 984, 988 (10th Cir.

2001). In our evaluation of the totality of the circumstances surrounding the trial

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court’s giving of the Allen charge, we will address each of the Arney factors in

turn along with the particular claims urged by Gilbert. 3

Looking first at the language of the Allen charge given by the trial court in

the present case, we observe that the court made admirable efforts to assure that

its instructions would not unduly pressure members of the jury. The court noted

the serious nature of the jury’s task, but urged “open and frank discussion” of the

evidence and law, emphasized that no juror should “surrender their honest

convictions as to the weight or effect of any evidence solely because of the

opinion of other jurors or because of the importance of arriving at a decision,”

and insisted that no juror should concur in a verdict “which in good conscience he

or she believes to be untrue.” (7 Tr. at 1700.) In this regard, we note that the

type of instruction given by the trial court has been referred to as a “modified”

Allen charge, and that it differs from a traditional Allen charge in that the court

asks each juror, rather than only those in the minority, to carefully reconsider

their views. See Arney, 248 F.3d at 988. Such instructions, we have held, reduce

the possibility of coercion. See id. In addition, the trial court stressed that each

3
Although Arney sets forth the factors under which a federal appellate
court reviews the supplemental jury instructions used by a federal district court,
we note that this standard is higher than our more deferential review pursuant to
AEDPA. Because we conclude below that the trial court’s Allen instruction was
proper under the heightened federal standard, the OCCA’s determination that the
instruction did not abridge Gilbert’s due process rights was not an unreasonable
determination under AEDPA.

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juror “should give respectful consideration to each other’s views and talk over

any differences of opinion in the spirit of fairness and candor.” (7 Tr. at 1700.)

We have approved of such language in the past. See, e.g., Arney, 248 F.3d at

988. We conclude that there is nothing in the language of this particular Allen

charge that could be deemed coercive. 4

Ideally, a trial court’s instruction to jurors that they should listen to each

other would be given at the same time that all other jury instructions are given;

such a practice would avoid having the jury give disproportionate weight to the

new charge. See Porter, 881 F.2d at 889. This is not, however, a per se rule; we

have regularly approved the giving of supplemental Allen charges during jury

deliberations. See Arney, 248 F.3d at 989 (listing cases). We conclude that in

the present case the separate provision of an Allen instruction did not unduly

emphasize the importance of reaching a verdict and that it was not thereby

coercive.

With respect to the timing of the Allen charge, Gilbert contends in part that

the trial court’s instruction was coercive because it was given to the jury after the

jury indicated that it was deadlocked, because the court inquired sua sponte as to

4
In its instruction, the trial court also underscored that it did not intend “in
any manner” to “coerce a verdict.” (7 Tr. at 1701.) While such language
certainly does no harm, we note that it alone will not immunize an otherwise
coercive Allen charge from the scrutiny of a reviewing court.

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the status of the jury before he gave the instruction, and because of the late hour

at which it was given. Although we have noted that there is an “inherent danger”

in giving a supplemental instruction to an “apparently deadlocked jury,” Munroe

v. United States, 424 F.2d 243, 246 (10th Cir. 1970) (en banc) (quotation

omitted), we have also stated that this is “not a per se rule,” Arney, 248 F.3d at

989; see also id. (quoting with approval 2A Charles Alan Wright, Federal Practice

and Procedure § 502, at 530–31 (3d ed. 2000), for the proposition that a court “is

not required to accept the judgment of a jury that it is hopelessly deadlocked, and

may require it to continue deliberating,” so long as the court says nothing

coercive to the jury). As the passages from the trial transcript quoted above

demonstrate, the jury was moving closer toward unanimity each time it was polled

by the court. Although the foreperson stated, in response to queries from the

court, that she did not believe the jury would reach a verdict on one of the charges

(7 Tr. at 1693–94), and that “there is at least one person on each side that has no

intention of changing their mind” (7 id. at 1698), we do not perceive such

statements to be absolute declarations that further deliberation would be fruitless.

Even if we accept Gilbert’s premise that the jury actually indicated that it was

deadlocked—a premise which is debatable—we conclude that this fact alone

would not suffice to demonstrate that the court’s charge was coercive in the

present circumstances. We likewise find nothing improper in the decision of the

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court to give the supplemental charge sua sponte, before a request by counsel and

without any prompting from the jury that it perceived itself to be deadlocked. Cf.

Rodriguez-Mejia, 20 F.3d at 1092 (stating that it is proper to give an Allen

instruction even without evidence of jury deadlock).

Of more concern to us is the fact that the court issued the Allen charge so

late in the evening, after 11:00 p.m., and that the jury was kept deliberating well

past midnight. Under such circumstances there is a real danger that jurors in the

minority camp will feel significant pressure to switch their votes. In the present

case, our concern is somewhat enhanced due to the fact that a number of jurors

had indicated to the court, before closing arguments, that their preference would

be to start deliberations the next morning rather than late that day. Nonetheless,

although courts should be wary of the potentially coercive effect of holding jurors

late into the night and even into the early morning hours, we remain unconvinced

that the court’s giving of the Allen charge at such a late hour was, under the

circumstances of this case, in and of itself coercive. Key to our conclusion is the

fact that the court ended its charge to the jury by noting that it was “conscious of

the hour,” (7 Tr. at 1701), thereby clearly signaling to the jury that it would not be

held indefinitely.

We next turn to the length of the jury deliberations following the Allen

charge. The Supreme Court has noted that the jury’s return of a verdict very soon

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after the giving of an Allen instruction “suggests the possibility of coercion.”

Lowenfield, 484 U.S. at 240. In the present case, however, the jury deliberated

for a substantial amount of time—nearly an hour and a half—after the court gave

its Allen charge. We have approved Allen instructions in previous cases where

the juries deliberated for far shorter periods of time, see Arney, 248 F.3d at 990

(listing cases in which Allen charges were found not to be coercive where

verdicts were reached eighty minutes, sixty minutes, and forty minutes after the

supplemental instruction was given), and conclude that the ninety-minute

deliberation in the present case does not lead us to an inference of coercion.

Gilbert also argues that the trial court effectively gave multiple Allen

charges to the jury, heightening the level of coercion. At least one circuit court

has held that the giving of multiple Allen charges in a federal prosecution is

improper and coercive. See United States v. Seawell, 550 F.2d 1159, 1162–63

(9th Cir. 1977). We disagree with Gilbert, however, that the trial court gave

multiple Allen charges in the present case. The first time the court sent the jury

back for more deliberations, it merely stated, “I would like for you to go back and

try a little longer. We won’t leave you in there this long without inquiring

further. But at this time I would ask you to go back and try again on the

remaining charge.” (Appellant’s Br. at 16.) This statement was not a new jury

instruction and, even if it were, we do not perceive its issuance in conjunction

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with the later Allen charge to have been coercive.

Gilbert finally argues that the court’s Allen charge was improperly coercive

when viewed in light of its prior polling of the jury regarding their numerical

division as to the verdict. In Brasfield v. United States, the Supreme Court held

that this type of polling was automatic grounds for reversal because such polling

almost always brings to bear “in some degree, serious, although not measurable,

an improper influence upon the jury.” 272 U.S. 448, 450 (1926). The Court has,

however, since characterized its holding in Brasfield as “an exercise of this

Court’s supervisory powers” over the federal courts and, by implication, not a

constitutional holding with respect to due process requirements. Lowenfield, 484

U.S. at 240; see also id. at 240 n.3 (“Our decision in Brasfield makes no mention

of the Due Process Clause or any other constitutional provision. The Federal

Courts of Appeals have uniformly rejected the notion that Brasfield’s per se

reversal approach must be followed when reviewing state proceedings on habeas

corpus.”). The Court in Lowenfield did note that Brasfield was “instructive as to

the potential dangers of jury polling,” id. at 240, but it nonetheless held that the

trial court’s polling in that case, in combination with the Allen charge, was not

coercive, id. at 241.

The Lowenfield Court emphasized that its finding of no coercion was “not

mean[t] to be understood as saying other combinations of supplemental charges

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and polling might not require a different conclusion.” Id. Moreover, it is clear

that Lowenfield is factually distinguishable in some ways from the instant case.

In Lowenfield, for example, the trial court’s inquiry as to the jury’s numerical

division was limited to whether the individual jurors felt that additional

deliberation would be useful, and it did not elicit information with respect to the

jury’s division on the merits of the charge itself. Id. at 234. In addition, defense

counsel in that case failed to object to the poll, leading the Lowenfield Court to

conclude that the possibility of coercion was not obvious at the time of trial. Id.

at 240. In the present case, Gilbert’s defense counsel did object to the

supplemental instruction.

Nonetheless, the trial court in the present case garnered only information

concerning the numerical division of the jury and carefully avoided eliciting

information concerning the direction in which the jury was leaning. 5 At most, the

impression left with the jurors would have been that the trial court was anxious

for them to reach a verdict; the jurors could not have labored under the

impression that the court was interested in what their actual decision would be.

Although Gilbert clearly had an interest in having the jury fail to reach a

5
Moreover, the court never learned which specific jurors were in the
minority, nor did it learn the precise numerical division amongst the jurors.

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unanimous verdict, 6 the Supreme Court has specifically noted that an Allen charge

in such circumstances is permissible under the Due Process Clause because the

state “has in a capital sentencing proceeding a strong interest in having the jury

‘express the conscience of the community on the ultimate question of life or

death.’” Id. at 238 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519 (1968)).

We therefore conclude that the trial court’s polling of the jury in combination

with the issuance of an Allen charge was not coercive.

We have considered the totality of the circumstances in which the Allen

instruction was given in the present case, and conclude that it was not coercive in

a way that denied Gilbert a fair trial and due process of law. Accordingly, the

OCCA’s determination that he was not entitled to relief on his coercion claim was

not unreasonable under the standards of AEDPA, and his petition for habeas relief

will not be granted on this ground.

B

Gilbert’s second claim is that the trial court violated his due process rights

by refusing to provide him with a competency hearing despite a request from his

trial counsel.

6
In a capital sentencing proceeding in Oklahoma, if the jury “cannot,
within a reasonable time, agree as to punishment, the judge shall dismiss the jury
and impose a sentence of imprisonment for life without parole or imprisonment
for life.” Okla. Stat. tit. 21, § 701.11.

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 Before the trial began, Gilbert’s counsel filed an application for a

competency hearing. As part of that application, counsel stated that Gilbert was

having difficulty understanding the court procedures, that he seemed unable to

focus his attention, and that he might behave inappropriately during trial.

Pursuant to Okla. Stat. tit. 22, § 1175.2, the trial court then held a hearing

to determine whether Gilbert’s application for a competency hearing should be

granted. During that hearing, Gilbert’s counsel called Luther Grisso, an

investigator for the Oklahoma Indigent Defense System (“OIDS”), to testify about

Gilbert’s competency. Grisso, who specialized in capital cases, had spoken with

Gilbert on a number of occasions and had reviewed his psychiatric records, some

of which pertained to Gilbert’s “level of intellectual function.” (Oct. 12, 1995 Tr.

at 14.) Grisso indicated some concern about Gilbert’s ability to understand the

courtroom procedures, noting that Gilbert himself had told him that “he didn’t

understand anything that was said. He didn’t understand what was going on.”

(Id. at 15.) In particular, Grisso testified that Gilbert was unable to comprehend

the concept of a jury or why it would be present in the courtroom:

[A]t first he didn’t indicate that he knew the jury was going to be in
the courtroom. After eventually convincing him that it would be, he
didn’t see any reason for the jury. He didn’t think the jury should be
judging him. . . . He didn’t understand why or what their function
was.

(Id. at 15–16.) Grisso also testified that after this discussion Gilbert “became

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completely non-responsive,” that “[h]is face just went blank,” and that he “started

talking about something else completely off the subject.” (Id. at 16.) According

to Grisso, on other occasions during his conversations with Gilbert there were

times when “his mind seem[ed] to be someplace else.” (Id. at 19.) As a result,

Grisso concluded that he did not believe that Gilbert “will be able to go through

the whole trial and be able to pay attention to everything that’s going on.” (Id. at

20.) He added that Gilbert had indicated that if he felt someone was not telling

the truth during the trial, “he would object out loud to it.” (Id. at 21.)

Although Grisso conceded that he had found no records indicating that

Gilbert had previously been medicated for any mental illnesses, he noted that

Gilbert’s family members indicated that he had been treated with medication in

the past. He also stated that a doctor had diagnosed Gilbert with attention deficit

disorder, that he had been placed in special-education classes at school, and that

although Gilbert was not mentally retarded, he was not of “very high

intelligence.” (Id. at 18–19.) Based on this information, Grisso felt a further

investigation into Gilbert’s competency was required. On cross-examination,

however, the investigator conceded that no defendant whom he had concluded

was incompetent was ultimately found to be incompetent to stand trial.

Having heard this testimony, the trial court rejected Gilbert’s application

for a competency hearing. It concluded there was no doubt as to Gilbert’s

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competency to stand trial, in part based on the court’s own observation of Gilbert

at various pre-trial hearings.

The leading case in this circuit with respect to evaluating the need for a

competency hearing is our recent en banc decision in McGregor v. Gibson, where

we noted that it is “well-settled that the ‘criminal trial of an incompetent

defendant violates due process,’” 248 F.3d 946, 951 (10th Cir. 2001) (en banc)

(quoting Medina v. California, 505 U.S. 437, 453 (1992)), and that this

“prohibition is fundamental to an adversary system of justice,” id. (quoting Drope

v. Missouri, 420 U.S. 162, 172 (1975)). 7 In determining whether a criminal

defendant is competent to stand trial, the trial court 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. (quoting

7
In McGregor, the full court of this circuit took under consideration the
analysis that should apply to a procedural incompetency claim where the original
competency hearing had proceeded under an unconstitutional burden of proof.
248 F.3d at 953. Although we are faced with a slightly different scenario in this
case—the state trial court never held a competency hearing in the first place—the
overall analysis and basic principles from McGregor nonetheless remain
applicable. This is because in McGregor we treated the competency hearing that
proceeded under an unconstitutional burden of proof as if it never occurred in the
first place. Id. at 952–53. The only significant difference between the analysis in
McGregor and the analysis in the present case is that in McGregor we were able
to consider the record of, and the evidence presented during, the competency
hearing. In the instant case, because no competency hearing ever occurred, there
is no such record for us to rely upon.

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Dusky v. United States, 362 U.S. 402, 402 (1960)).

A competency claim by a criminal defendant may implicate both

substantive and procedural due process. Walker v. Attorney Gen., 167 F.3d 1339,

1343 (10th Cir. 1999). “A procedural competency claim is based upon a trial

court’s alleged failure to hold a 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. As a result,

a procedural incompetency claim requires a lower burden of proof as to

defendant’s competency than does a substantive competency claim. Id.

In McGregor, we noted that the procedural due process right to a

competency hearing is grounded on the obligation of the state to provide adequate

procedures to protect accused individuals from being tried while incompetent. Id.

(citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). In order for a habeas

petitioner to prevail on a procedural competency claim, “the petitioner must

establish that a reasonable judge should have had a bone fide doubt as to his

competence at the time of trial. We view the evidence in the record objectively,

from the standpoint of a reasonable judge presiding over petitioner’s case at the

time of trial.” Id. at 954. The petitioner “need not establish facts sufficient to

show he was actually incompetent or to show he was incompetent by a

preponderance of the evidence.” Id.

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 In determining whether there was a “bona fide doubt” as to competence,

there are

no fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is often a
difficult one in which a wide range of manifestations and subtle
nuances are implicated. That they are difficult to evaluate is
suggested by the varying opinions trained psychiatrists can entertain
on the same facts.

Drope, 420 U.S. at 180. Tenth Circuit and Supreme Court precedent, however,

has established a number of factors that should be considered in making this

evaluation—factors that were synthesized in McGregor. Evidence of “irrational

behavior,” “demeanor at trial,” and “any prior medical opinion on competence to

stand trial are all relevant in determining whether further inquiry is required.”

McGregor, 248 F.3d at 954 (quoting Drope, 420 U.S. at 180). Evidence of

“mental illness and any representations of defense counsel about the defendant’s

incompetence” also may be considered. Id. (quoting Walker v. Gibson, 228 F.3d

1217, 1227 (10th Cir. 2000), cert. denied, 533 U.S. 933 (2001)). Although

“[e]ven one of these factors standing alone may, in some circumstances, be

sufficient” to find that a defendant is entitled to a competency hearing, in the end

we are required to “examine the totality of the circumstances: all evidence should

be considered together, no single factor ‘stand[s] alone.’” Id. (quoting Drope,

420 U.S. at 180).

Finally, we note that our review of the factual findings made by the state

-22-
court in the course of its determination of the need for a competency hearing is

subject to AEDPA’s “unreasonable determination” of the facts standard of

§ 2254(d)(2). 8 The state court’s ultimate determination that a competency hearing

was unnecessary is, however, a question of law to be reviewed pursuant to

§ 2254(d)(1)’s “contrary to, or . . . an unreasonable application of, clearly

established federal law” standard. See Wright v. Sec’y for the Dep’t of Corr., 278

F.3d 1245, 1256 (11th Cir. 2002); Sanchez v. Gilmore, 189 F.3d 619, 623 (7th

Cir. 1999).

Gilbert’s claim that he was unable to understand court procedures and to

comprehend the proper role of the jury could, if established, qualify as

incompetence under the standard that the defendant must have “a rational as well

as factual understanding of the proceedings against him.” McGregor, 248 F.3d at

952 (quoting Dusky, 362 U.S. at 402). Presumably, if Gilbert were incapable of

grasping the role of the jury in the courtroom then he could have no rational

8
Gilbert argues that we are “not bound by the state trial judge’s conclusion
regarding Mr. Gilbert’s competency” (Appellant’s Br. at 53), citing Sena v. N.M.
State Prison, 109 F.3d 652, 655 (10th Cir. 1997), for the proposition that we need
not presume the correctness of a state court’s factual findings in this context.
Gilbert misreads Sena. In that case we refused to defer to the state court’s factual
findings because they were not evidenced by a written record and were not arrived
at following a full, fair, and adequate hearing. See Sena, 109 F.3d at 655. In the
present case the trial court made its findings in writing following a pre-
competency hearing addressing the issue of whether there was any doubt as to
Gilbert’s competency.

-23-
understanding of the legal process that was being brought to bear upon him. In

addition, the claim by Gilbert’s counsel that he was having difficulty

communicating with Gilbert would also, if adequately supported, establish doubt

as to Gilbert’s competency by raising the question of whether Gilbert “has

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

rational understanding.” McGregor, 248 F.3d at 951 (quoting Dusky, 362 U.S. at

402).

In order to succeed on a procedural competency claim, however, the burden

is on the petitioner to present facts that “establish that a reasonable judge should

have had a bone fide doubt as to his competence at the time of trial.” Id. at 954.

Thus, the crucial question in the present case is whether—either at the time of the

request for a competency hearing or at any later point during the

proceedings—there was evidence in support of the above claims that would have

been sufficient for a reasonable judge to have had a bona fide doubt as to

Gilbert’s competency.

As noted above, Gilbert’s trial counsel did indicate that he had concerns

about Gilbert’s lack of competence. Although “the concerns of counsel alone are

insufficient to establish doubt of a defendant’s competency,” Bryson, 187 F.3d at

1202, defense counsel “is often in the best position to determine whether a

defendant’s competency is questionable,” id. at 1201. Gilbert also provided

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some evidence of possible mental health problems in the form of the testimony by

the OIDS investigator. Gilbert, however, provided no other evidence at the pre-

competency hearing of any mental health problems, hospitalization, or medication

from any point in his life. At the time of the application for a competency

hearing there was neither evidence of irrational behavior by Gilbert nor any

indication that Gilbert’s demeanor during the pre-trial hearings betokened a lack

of competence. Our independent review of the record has unearthed no evidence

that Gilbert acted irrationally or in a bizarre manner at any point during the trial

or sentencing. We also have found no evidence that other courts have made prior

findings concerning Gilbert’s lack of competence.

Having reviewed the material in the record, we conclude that the state court

did not reach an unreasonable determination of the facts when it concluded that

the evidence, viewed objectively, did not raise a bona fide doubt as to Gilbert’s

competency. The trial court based its decision in part on its observation that

Gilbert was acting normally throughout the pre-trial proceedings. Cf. Sanchez v.

Gilmore, 189 F.3d 619, 623 (7th Cir. 1999) (concluding that a state appellate

court was not unreasonable in determining that there was no doubt as to

defendant’s competency despite a suicide attempt during the trial because the trial

court had made independent observations of defendant’s demeanor and concluded

that he was competent). The only evidence provided by Gilbert as to his alleged

-25-
incompetence were the statements by his own counsel and the OIDS investigator.

Cf. Bryson, 187 F.3d at 1202–03 (concluding that the OCCA was not

unreasonable in determining that there was no doubt as to competency where

petitioner relied solely on a conclusory affidavit by his attorney and an equivocal

statement as to competency by a psychiatrist). Finally, we note that Gilbert has

presented no evidence of any prior mental health problems separate from the

testimony of the OIDS investigator, and that our independent review of the record

reveals no abnormal behavior at any time during the proceedings. Cf. United

States v. Crews, 781 F.2d 826, 833 (10th Cir. 1986) (per curiam) (finding no

doubt as to competency despite evidence that defendant was “a hospitalized

mental patient at the time of the alleged crime and that he suffered from . . .

mental illnesses,” because psychiatrists found defendant competent to stand trial).

Gilbert has not presented us with the same quantum of evidence that we

have found sufficient in other cases to establish that a due-process violation has

occurred. See, e.g., Barnett v. Hargett, 174 F.3d 1128, 1135–36 (10th Cir. 1999)

(finding a bona fide doubt where defendant had a history of mental illness,

counsel expressed its belief that defendant was presently incompetent, and there

were prior findings of defendant’s incompetence during the proceedings); United

States v. Williams, 113 F.3d 1155, 1157–59 (10th Cir. 1997) (finding a bona fide

doubt where there had been outbursts and hysteria by the defendant in court);

-26-
Williamson v. Ward, 110 F.3d 1508, 1514–17 (10th Cir. 1997) (finding counsel

ineffective for not raising a competency claim where defendant had been

diagnosed with and treated for mental illness); Sena v. N.M. State Prison, 109

F.3d 652, 653–55 (10th Cir. 1997) (finding grounds for a competency hearing

where, even though an expert had determined defendant to be competent,

defendant had previously been found incompetent by the trial court).

We therefore conclude that Gilbert has failed to meet his burden under

AEDPA to show that the OCCA rendered 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)(2). 9

9
We note that the burden of providing adequate procedures to protect
accused individuals from being tried while incompetent “persists throughout trial;
thus, ‘[e]ven when a defendant is competent at the commencement of his trial, a
trial court must always be alert to circumstances suggesting a change that would
render the accused unable to meet the standards of competence to stand trial.’”
McGregor, 248 F.3d at 952 (quoting Drope, 420 U.S. at 181). Gilbert’s
arguments with respect to the court’s failure to provide him with a competency
hearing focus solely, however, on the evidence garnered at the October 12, 1995
pre-competency hearing; his briefs altogether fail to discuss the trial court’s
revisiting of the issue at his January 9, 1996 sentencing hearing. At that hearing,
one of Gilbert’s lawyers testified that Gilbert could not assist him in connection
with the sentencing, and that in particular the lawyer was “unable to get through
to [Gilbert] even what a motion for new trial was.” (Jan. 9, 1996 Tr. at 17.) Also
at this proceeding, the trial court examined Gilbert, posing questions designed to
determine whether he understood the nature of the proceedings. At the close of
this hearing, the trial court found that “there is no doubt as to the defendant’s
competency.” (Id. at 32.) From our review of the record we conclude that there
were no circumstances suggesting a change in Gilbert’s behavior or interactions
(continued...)

-27-
 C

Gilbert’s final claim is that the evidence was insufficient to support a

finding by the jury of the two aggravating circumstances in this case—that the

murder was committed to avoid arrest and that Gilbert was a continuing threat to

society. As we recently noted in Hogan v. Gibson, “our precedents have not been

consistent in their treatment of whether a question of sufficiency of the evidence

represents a legal conclusion or a factual determination.” 197 F.3d 1297, 1306

(10th Cir. 1999). Compare, e.g., Bryson, 187 F.3d at 1207 (treating a sufficiency

of the evidence claim as a question of fact), with, e.g., Maes v. Thomas, 46 F.3d

979, 988 (10th Cir. 1995) (treating a sufficiency of the evidence claim as a mixed

question of law and fact). We need not, however, determine which standard of

AEDPA review to apply in the present case because under either one Gilbert’s

claim fails.

The Supreme Court has stated that a jury’s finding on an issue will be

upheld if, “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 v. Virginia, 443 U.S. 307, 319

(1979). We conclude that the State presented more than ample evidence at trial to

9
(...continued)
with counsel sufficient to raise a doubt about his competency.

-28-
meet the Jackson standard with respect to both aggravating circumstances.

Under Oklahoma law, the focus of the aggravating circumstance that the

murder was committed to avoid lawful arrest or prosecution is on the state of

mind of the murderer; it is he who must have the purpose of avoiding or

preventing lawful arrest or prosecution. See Carter v. State, 879 P.2d 1234, 1250

(Okla. Crim. App. 1994). This aggravator also requires a predicate crime,

separate from the murder, for which the appellant seeks to avoid arrest or

prosecution. Id. The OCCA, in concluding that there was sufficient evidence to

support the jury’s finding of the “avoid arrest” aggravator, stated that Gilbert

admitted to killing one woman in Ohio and stealing her car, driving it
to Missouri where an elderly couple was killed for their car, driving
that car to Oklahoma where Mrs. Ruddell was killed and her pickup
taken by [Gilbert] and his co-defendant to New Mexico. This is
ample evidence to support the jury’s finding the murder was
committed for the purpose of avoiding or preventing lawful arrest or
prosecution.

Gilbert, 951 P.2d at 122. Further evidence in the record in support of the “avoid

arrest” aggravating circumstance includes testimony that Gilbert admitted that the

victim pleaded with him to take her car and swore she would not notify police,

but that Gilbert disbelieved her and killed her. (June 11, 1995 Tr. at 371.) The

jury could easily have concluded from this evidence that there was no reasonable

doubt that Gilbert’s intent in killing Ruddell was to take her truck in order to

avoid arrest for the previous murders and to eliminate a potential witness to his

-29-
stealing of Ruddell’s truck. Testimony as to the conversation between Gilbert and

Ruddell specifically supports such an inference as to Gilbert’s intent. We

therefore conclude that a rational trier of fact could have found the essential

elements of this aggravating circumstance beyond a reasonable doubt and that the

OCCA’s determination in this regard was not unreasonable.

In order to support the “continuing threat” aggravating circumstance, the

State must demonstrate a defendant will continue to present a threat to society

after sentencing. Cudjo v. State, 925 P.2d 895, 902 (Okla. Crim. App. 1996). “A

defendant’s criminal history, the callousness of the crime, threats against others,

lack of remorse, and attempts to prevent calls to the police are all factors this

Court has previously considered when addressing this issue.” Id. The following

evidence was in the record in support of the “continuing threat” aggravating

circumstance: the unadjudicated murders committed in Ohio and Missouri; prior

convictions for child endangerment, theft, and breaking and entering in Ohio; and

prior convictions for the unauthorized use of a motor vehicle and for

embezzlement by bailee in Oklahoma. Gilbert, 951 P.2d at 122. We conclude

that this evidence was likewise sufficient for a rational trier of fact to have found

the essential elements of this aggravating circumstance beyond a reasonable

doubt, and that the OCCA’s determination in this regard was not unreasonable.

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 III

The district court’s dismissal of Gilbert’s petition for a writ of habeas

corpus is AFFIRMED.

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