Smith v. Mullin

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

JUL 29 2004
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

RODERICK L. SMITH,

Petitioner-Appellant,
No. 02-6055
v.

MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-98-601-R)

Jack D. Fisher of Edmond, Oklahoma, for Petitioner-Appellant.

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

Before SEYMOUR, HENRY, and O’BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.
 Roderick Lynn Smith, an Oklahoma state prisoner, was sentenced to death

for the 1993 murders of his wife and stepchildren. Challenging his convictions

and death sentence, Mr. Smith petitioned for a writ of habeas corpus in federal

district court pursuant to 28 U.S.C. § 2254. 1 The district court denied relief in an

unpublished opinion, but granted a Certificate of Appealability (COA), see 28

U.S.C. § 2253(c)(1), on eight of the eighteen claims before it. 2 We affirm in part,

reverse in part, and grant a writ of habeas corpus vacating Mr. Smith’s death

sentence, with the condition that the state resentence Mr. Smith within a

reasonable time.

I.

BACKGROUND FACTS AND PROCEDURE

The Oklahoma Court of Criminal Appeals (OCCA) aptly described the facts

surrounding Mr. Smith’s crimes in its opinion affirming his convictions and

sentences on direct appeal:

[Mr. Smith] was married to Jennifer Smith, who had four

1
In referencing the voluminous record in this case, we will cite the state
trial transcript as “Tr.,” the original record in state court as “O.R.,” the state’s
trial exhibits as “St. Ex.,” motion transcripts as “Motion Tr.” followed by their
dates, the transcript of the evidentiary hearing in federal district court as “E.H.,”
and the record in federal court as “Rec.”

On appeal, Mr. Smith has abandoned his claim regarding suppression of
2

exculpatory evidence. Aplt. Br. at 2.

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 children from a prior relationship: ten year old Shemeka Carter, nine
year old Glen Carter, Jr., seven year old Ladarian Carter, and six year
old Kanesha Carter. The children lived with [Mr. and Mrs. Smith].
On the morning of June 28, 1993, [Mrs. Smith’s] mother called
the police and asked them to check her daughter’s house. She had
not seen or heard from [Mrs. Smith] since June 18, 1993. When
Officer Peterson arrived at the [Smith] residence . . . , the house
appeared to be secured and no one answered the doors. Because he
noticed an odor of decaying flesh and a large number of flies around
the windows, he contacted his supervisor, Lieutenant Wayne Owen,
who came to the address. Owen and Peterson entered the house
through a window. Inside, they discovered a dead woman in one
closet and a dead child in another. They called the homicide division
of the Oklahoma City Police Department and secured the house.
Once homicide detectives arrived, the rest of the house was searched.
The bodies of three more children were found, two in closets and a
third under a bed. The bodies were determined to be those of
Jennifer Smith and her four children. They were determined to have
been dead for at least two to three days and up to . . . two weeks or
more.
The afternoon of that same day, . . . [Mr. Smith] walked into
the Oklahoma County Sheriff’s Office. He was turned over to the
Oklahoma City Police and placed under arrest. During a custodial
interrogation, [Mr. Smith] told Detectives Bemo and Cook that he
had been laid off his job as head janitor at Washington Irving
Elementary School because the company that he worked for had lost
its contract. According to [Mr. Smith], when he told his wife this
news a fight ensued. At one point [Mrs. Smith] grabbed a knife and
he took the knife from her and stuck her with it. When the boys
came to their mother’s defense, he stuck them with the knife as well.
Although [Mr. Smith] admitted that he “got” the girls also, he could
not remember any details. [Later, authorities determined the girls
died of asphyxiation.] [Mr. Smith] told the police where he placed
each of the bodies.

Smith v. State, 932 P.2d 521, 526 (Okla. Crim. App. 1996).

An Oklahoma County jury convicted Mr. Smith of five counts of first-

degree murder and recommended sentences of death on each count, which the

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court imposed. Mr. Smith unsuccessfully filed a direct appeal, see id. at 539,

followed by an unsuccessful application for post-conviction relief in the

Oklahoma courts, see Smith v. State, 955 P.2d 734 (Okla. Crim. App. 1998). Mr.

Smith then filed this habeas petition. The district court granted an evidentiary

hearing on four grounds and heard five days of testimony, ultimately denying

relief.

II.

APPLICATION OF AEDPA AND PROCEDURAL BAR

Because Mr. Smith filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (1996), the provisions of that act apply to this appeal.

See Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir. 1999).

Under these provisions, a federal court is precluded from granting
habeas relief on any claim adjudicated on the merits by the state
court, unless the state proceeding “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” 28
U.S.C. § 2254(d)(1), or “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,” id. § 2254(d)(2). In
addition, we presume the factual findings of the state court are
correct unless petitioner can rebut this presumption by clear and
convincing evidence. See id. § 2254(e)(1).

Id. at 1264-65.

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 The level of deference owed the OCCA in this case is somewhat

complicated. As to factual findings underlying claims which the OCCA decided

on the merits and for which the federal district court refused to grant an

evidentiary hearing, the dictates of 28 U.S.C. § 2254(e)(1) apply and we must

presume them true unless rebutted by Mr. Smith by clear and convincing

evidence. As to factual findings underlying claims for which the federal district

court properly granted an evidentiary hearing and for which the OCCA made no

factual findings, we review the district’s court findings for clear error. See Miller

v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998); see also Romano v. Gibson,

278 F.3d 1145, 1150 (10th Cir. 2002).

[W]here . . . a habeas petitioner has diligently sought to develop the
factual basis underlying his habeas petition, but a state court has
prevented him from doing so, . . . [he] is entitled to receive an
evidentiary hearing so long as his allegations, if true and not
contravened by the existing factual record, would entitle him to
relief.

Miller, 161 F.3d at 1253. The Oklahoma courts refused to grant Mr. Smith’s

request for an evidentiary hearing on any of the claims in his application for post-

conviction relief. The federal district court found that Mr. Smith met the standard

for an evidentiary hearing as to his claims of ineffective assistance of counsel.

Smith v. Gibson, No. CIV-98-601-R, at 3 (W.D. Okla. 2002). We therefore

review the federal district court’s findings based upon facts adduced at the

evidentiary hearing for clear error. Rogers, 173 F.3d at 1282.

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 We will not, however, review Mr. Smith’s claims if they were defaulted in

state court on independent and adequate state procedural grounds unless Mr.

Smith has demonstrated cause and prejudice or a fundamental miscarriage of

justice. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing

Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)). Independent state

procedural grounds are those that rely exclusively on state law as a basis of

decision. Id. Whether a state procedural default rule is adequate to preclude

federal review depends upon how consistently and evenhandedly the state applies

the rule. Id.

Mr. Smith first raised an ineffective assistance of counsel claim (and a

multitude of related sub-claims) in his application for post-conviction relief. In

denying relief, the OCCA held that Mr. Smith had procedurally defaulted the

claim by failing to raise it on direct appeal. Smith, 955 P.2d at 737-40. The

federal district court reached the merits of this claim, but did so “based on an

overly broad application of the exception to state procedural bar recognized in

Walker v. Attorney General, 167 F.3d 1339[, 1344-45 (10th Cir. 1999)].” 3 Cargle

3
Walker, like the case before us today, concerned a federal habeas
petitioner who brought his direct appeal prior to the 1995 amendments to
Oklahoma’s procedural default statute, yet the OCCA applied the amended statute
to bar claims omitted on direct appeal. See Walker v. Att’y Gen., 167 F.3d 1339,
1344-45 (10th Cir. 1999). Our rationale in refusing to recognize the procedural
bar in Walker was that a petitioner “should not be deprived of a claim for failing
to comply with a rule that only comes into being after the time for compliance has
(continued...)

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v. Mullin, 317 F.3d 1196, 1201 (10th Cir. 2003). In Cargle, we addressed

Walker’s proper scope and application, particularly with respect to claims of

ineffective assistance of counsel:

if claims omitted on direct state appeal would have been barred on
state post-conviction anyway, even under Oklahoma’s pre-1995 law
(for example, if they rested on authority established at the time of
direct appeal), it would not make sense to isolate the new 1995
standard as the operative cause of the default. Thus, we have not
applied Walker to excuse petitioner’s default in failing to raise
claims in his direct appeal that were at the time of the default clearly
established. Here, the Walker exception to procedural default is
inapplicable to . . . petitioner’s claim[] . . . [of] ineffective assistance
of counsel . . . . We will consider whether [that claim] should be
resolved on the merits notwithstanding state procedural default,
under the traditional federal standards for evaluating when state
procedural default should be excused.

Id. at 1201-02 (footnote omitted).

Although the district court wrongly applied Walker to excuse Mr. Smith’s

procedural default, Mr. Smith’s ineffective assistance of counsel claims are

properly before this court under the traditional federal standards for evaluating

when a state procedural bar should be excused. “Because the effective assistance

3
(...continued)
passed.” Walker, 167 F.3d at 1345; see also Mitchell v. Gibson, 262 F.3d 1036,
1047 (10th Cir. 2001). The issues at stake in Walker were the 1995 amendment’s
strict limits on claims based on intervening changes in law and that new rule’s
application to a claim based on the Supreme Court’s invalidation of Oklahoma’s
clear-and-convincing evidence standard for trial competency. Walker, 167 F.3d at
1345. Walker thus governs claims based on changes in law which would have
sufficed to excuse default under the statutory scheme in effect when the
procedural omission occurred, but which are barred by application of the new
procedural statute.

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of counsel lies at the very foundation of the adversary system of criminal justice,

this court has been particularly vigilant in scrutinizing the adequacy of state rules

of procedural default which have the effect of barring federal habeas review.”

English, 146 F.3d at 1259. We have repeatedly noted the “healthy degree of

skepticism” with which we view such procedural bars. See Anderson v. Att’y

Gen., 342 F.3d 1140, 1143 (10th Cir. 2003); Beavers v. Saffle, 216 F.3d 918, 923

(10th Cir. 2000); Smallwood, 191 F.3d at 1268. In English, we determined that

Oklahoma’s procedural rules would serve to preclude habeas review of ineffective

assistance claims only when “trial and appellate counsel differ” and the “claim

can be resolved upon the trial record alone.” English, 146 F.3d at 1264.

Extra-record facts are central to the vast majority of ineffective assistance

of counsel claims, and the case before us is typical in that regard. While the court

appointed Mr. Smith new counsel on direct appeal, key facts underlying his

claims as to trial counsel’s insufficient investigation and deficient performance

lay outside the trial record. In analogous cases, we have held Oklahoma’s

procedural rules inadequate to bar review. See Sallahdin v. Gibson, 275 F.3d

1211, 1235 (10th Cir. 2002) (failure to raise ineffective assistance on direct

appeal not adequate bar to federal review where trial counsel’s reasons for failing

to present mental health testimony and other evidence not in trial record);

Romano, 239 F.3d at 1180 (same where extent of trial counsel’s preparation and

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additional evidence counsel should have discovered not in trial record).

We recognized in English that new statutory rules enacted by Oklahoma in

1995 to govern capital cases permitted the OCCA to remand a direct appeal for

an evidentiary hearing on ineffective assistance where the claim “requires

factfinding outside the direct appeal record.” English, 146 F.3d at 1263 n.6

(quoting O KLA . S TAT . tit. 22, § 1089(D)(4)(b)(1)). We went on to note, however,

that the OCCA had narrowly construed this statute to allow remand only if the

relevant evidence was not available to the defendant’s attorney at the time of

appeal. Id. In subsequent capital cases, we have placed the burden on the State

of Oklahoma to show that this procedural mechanism has been consistently and

evenhandedly applied and is thereby adequate to bar our review. See Cannon v.

Gibson, 259 F.3d 1253, 1272 n.20 (10th Cir. 2001) (citing Hooks v. Ward, 184

F.3d 1206, 1217 (10th Cir. 1999)). The state has made no such showing in this

case. Consequently, Mr. Smith’s claims of ineffective assistance of counsel are

not procedurally barred. We therefore review the district court’s legal

determinations regarding this claim de novo and its factual determinations for

clear error. Cannon, 259 F.3d at 1260; LaFevers v. Gibson, 182 F.3d 705, 711

(10th Cir. 1999).

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 III.

GUILT STAGE

As errors in the guilt stage of his trial, Mr. Smith cites prosecutorial

misconduct and ineffective assistance of counsel. We address each argument in

turn.

Mr. Smith contends the prosecutors in his case “embarked on an improper

course . . . of innuendo and misrepresentation of the record,” entitling him to

relief on grounds of prosecutorial misconduct. Aplt. Br. at 88. Mr. Smith

brought this claim on direct appeal, but the OCCA did not address the various

instances of alleged prosecutorial misconduct individually, and it is difficult to

discern from its opinion which allegations received merits review and which did

not. See Smith, 932 P.2d at 532. Mr. Smith then raised another set of misconduct

allegations in his application for post-conviction relief, but the OCCA held them

procedurally barred. See Smith, 955 P.2d at 737. We need not determine the

level of deference owed the OCCA’s conclusions as to these various misconduct

claims or which are barred on independent and adequate state grounds. Where an

issue “may be more easily and succinctly affirmed on the merits,” judicial

economy counsels in favor of such a disposition. Miller v. Mullin, 354 F.3d 1288,

1297 (10th Cir. 2004) (quoting Romero v. Furlong, 215 F.3d 1107, 1111 (10th

Cir. 2000)).

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 As instances of prosecutorial misconduct, Mr. Smith cites the prosecutors’

(1) attacks on defense expert witnesses, (2) appeals to passion and prejudice, (3)

improper revelation to the jury that Mr. Smith invoked his right to counsel, (4)

recitation of facts not in evidence calculated to inflame the jury, (5) name-calling,

(6) statements of personal opinion and sense of justice, (7) misstatement of the

date of death, (8) assertion of a false motive, and (9) reference to photographs

ruled inadmissible in the penalty phase of trial. When claims such as these are

brought in a petition for a writ of habeas corpus, we review them only for a

violation of due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986).

“[N]ot every trial error or infirmity which might call for application of

supervisory powers correspondingly constitutes a failure to observe that

fundamental fairness essential to the very concept of justice.” Donnelly v.

DeChristoforo, 416 U.S. 637, 642 (1974) (citations and quotations omitted). For

us to grant Mr. Smith relief on these claims, we must find that the prosecutors’

remarks “so infected the trial with unfairness as to make the resulting conviction

a denial of due process.” Id. at 643. This determination may be made only after

“tak[ing] notice of all the surrounding circumstances, including the strength of

the state’s case.” Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir. 1986).

Having thoroughly reviewed the record of Mr. Smith’s trial, we find many

improper statements but none that resulted in a denial of due process.

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 Mr. Smith contends his claim that prosecutors improperly revealed his

invocation of the right to counsel demands more exacting review than what is

envisioned by Donnelly. In Donnelly, the Supreme Court excepted from its

fundamental-fairness analysis “prosecutor’s remarks [which] so prejudiced a

specific right . . . as to amount to a denial of that right.” Donnelly, 416 U.S. at

643. Thus, if prosecutorial misconduct sufficiently impacts a specific right, we

apply the constitutional standard applicable to that right. We found such a denial

in Mahorney v. Wallman, 917 F.2d 469 (10th Cir. 1990). The specific right at

issue there was the presumption of innocence, which we ruled the prosecutor

effectively denied when he made the following argument to the jury:

I submit to you, under the law and the evidence, that we are in a little
different position today than we were when we first started this trial
and it was your duty at that time, under the law of this land, as you
were being selected as jurors, to actively in your minds presume that
man over there not to be guilty of the offense of rape in the first
degree, but, you know, things have changed since that time. I submit
to you at this time, under the law and under the evidence, that that
presumption has been removed, that that presumption no longer
exists, that that presumption has been removed by evidence and that
he is standing before you now guilty. That presumption is not here
any more.

Id. at 471. In Mahorney, defense counsel “vigorously objected” to this patently

erroneous statement about the constitutionally protected presumption of

innocence. Id. at 473. The trial court failed to minimize the effect of the

statement through admonishment or special instructions to the jury. Id.

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 The facts surrounding revelation of Mr. Smith’s invocation of the right to

counsel are substantially less invasive of that right than was the case in

Mahorney. At Mr. Smith’s trial, the State introduced a videotape of Mr. Smith’s

interaction with police officers shortly after he was placed in custody. At the end

of the tape, Mr. Smith displayed his attorney’s business card and said, “There’s a

guy who came to see me yesterday.” St. Ex. 124. When the officers confirmed

that Kenneth Watson, the attorney, did indeed represent Mr. Smith, they ended the

interview. Id. After the jury viewed this portion of the video, Mr. Watson moved

for a mistrial. The court denied the motion, but admonished the jury to disregard

anything it had viewed past the point where Mr. Smith removed Mr. Watson’s

card because what appeared on the screen after that point did “not tend to prove

or disprove any issue that we’re here for you to determine.” Tr., vol. V, at 77-78,

80. This scenario did not so prejudice Mr. Smith’s right to counsel as to amount

to a violation of that right. It is thus subject to fundamental-fairness analysis.

Applying that analysis, we hold that Mr. Smith’s trial was not “so infected . . .

with unfairness as to make the resulting conviction a denial of due process,”

Donnelly, 416 U.S. at 643, and he is therefore not entitled to relief on this claim.

Mr. Smith also contends his trial counsel, Mr. Watson, was constitutionally

ineffective at the guilt phase of his trial. Specifically, he points to the following

deficiencies on Mr. Watson’s part: (1) failure to investigate, develop, and present

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evidence establishing Mr. Smith’s incompetence to stand trial; (2) failure to

challenge Mr. Smith’s confessions with available legal arguments and to present

evidence showing Mr. Smith’s waiver of rights was not knowing and intelligent

and his confession was not voluntary; (3) failure to investigate, develop, and

present available evidence refuting the State’s theory of motive; (4) failure to

understand the mental health evidence at issue in Mr. Smith’s trial and the

incoherent and haphazard manner in which it was presented; and finally, (5)

failure to investigate, develop, and present an insanity defense. The State argues

Mr. Watson’s performance was constitutionally sufficient, and even if it was not,

Mr. Smith cannot show he was prejudiced by Mr. Watson’s ineffectiveness.

The general principles governing an ineffective assistance of counsel claim

are set forth in Strickland v. Washington, 466 U.S. 668 (1984). Because the

OCCA never reached the merits of Mr. Smith’s ineffective assistance of counsel

claim, we review de novo the district court’s legal determinations regarding this

issue and its factual determinations for clear error. Romano, 278 F.3d at 1150;

LaFevers, 182 F.3d at 711. The district court concluded that Mr. Watson’s guilt

phase performance did not fall below constitutional requirements. Smith, No.

CIV-98-601-R, at 19. While Mr. Watson’s performance at the guilt stage gives us

pause, we are not convinced Mr. Smith was prejudiced thereby.

The gravity of a claim of ineffective assistance of counsel cannot be

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overstated. “Of all the rights that an accused person has, the ability to be

represented by counsel is by far the most pervasive, for it affects his ability to

assert any other rights he may have.” Kimmelman v. Morrison, 477 U.S. 365, 377

(1986) (quoting Walter V. Schaefer, Federalism & State Criminal Procedure, 70

H ARV . L. R EV . 1, 8 (1956)). The Supreme Court’s Strickland decision

“established the legal principles that govern claims of ineffective assistance of

counsel.” Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). In order to prevail on

this claim, Mr. Smith must demonstrate both that Mr. Watson’s performance was

deficient and that Mr. Watson’s deficiencies prejudiced Mr. Smith’s defense.

Strickland, 466 U.S. at 687. Our review of counsel’s effectiveness is “highly

deferential.” Id. at 689. In assessing Mr. Watson’s performance, we “consider all

the circumstances, making every effort to ‘eliminate the distorting effects of

hindsight,’” and view his “‘conduct from [his] perspective at the time.’” Hooper

v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002) (quoting Strickland, 466 U.S. at

689). By the same token, we must eschew post hoc rationalizations for Mr.

Watson’s deliberations, investigations, and defense strategy, or lack thereof. See

Wiggins, 123 S. Ct. at 2538.

Mr. Smith calls our attention to various failings in Mr. Watson’s

performance at the first stage of Mr. Smith’s murder trial. Many of these

deficiencies are troubling. Strickland, however, requires a showing of both

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deficient performance and prejudice. “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course

should be followed.” Strickland, 466 U.S. at 697. We take that course with

regard to counsel’s guilt stage assistance.

First, Mr. Smith claims Mr. Watson was ineffective in failing to investigate

and assert Mr. Smith’s incompetence after the initial competency hearing. The

mandate barring trial of the incompetent dates to the days of Blackstone and is

“fundamental to an adversary system of justice.” Drope v. Missouri, 420 U.S.

162, 171-72 (1975). The Supreme Court has insisted that “a person whose mental

condition is such that he lacks the capacity to understand the nature and object of

the proceedings against him, to consult with counsel, and to assist in preparing his

defense may not be subjected to trial.” Id. at 171.

A claim of incompetency raises “issues of both substantive and procedural

due process.” Walker, 167 F.3d at 1343. A procedural competency claim arises

from “a trial court’s alleged failure to hold a competency hearing, or an adequate

competency hearing.” McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001).

“[A] substantive competency claim is founded on the allegation that an individual

was tried and convicted while, in fact, incompetent.” Id. Mr. Smith asserts Mr.

Watson’s shortcomings led to violation of both his procedural and substantive

rights.

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 A court’s “failure to observe procedures adequate to protect a defendant’s

right not to be tried or convicted while incompetent to stand trial deprives him of

his due process right to a fair trial.” Drope, 420 U.S. at 172. The trial court in

Mr. Smith’s case held a competency hearing pre-trial, but it held Mr. Smith to a

clear-and-convincing-evidence standard of proof of his incompetence. See Smith,

932 P.2d at 527. In Cooper v. Oklahoma, 517 U.S. 348 (1996), the Supreme

Court declared this standard unconstitutional. On direct appeal, the OCCA

acknowledged the Supreme Court’s holding in Cooper, but held Mr. Smith had

not proven his incompetence even by the constitutional preponderance of the

evidence standard. Smith, 932 P.2d at 528. We agree.

In McGregor, we set forth the standard governing procedural competency

claims under the circumstances presented in this case:

[T]o prevail on a procedural competency claim after a trial in which
a petitioner was found competent under an unconstitutional burden of
proof, the petitioner must establish that a reasonable judge should
have had a bona 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. A petitioner establishes a bona fide doubt if he shows that a
reasonable judge should have doubted whether petitioner had
“sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding” and whether petitioner
had “a rational as well as factual understanding of the proceedings
against him.” [Dusky v. United States, 362 U.S. 402, 402 (1960).]
We stress that the due process requirement is continuing; a defendant
must be competent throughout the entire trial. See Drope, 420 U.S.
at 171-72.

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McGregor, 248 F.3d at 954.

We emphasized in McGregor that a person making a procedural

incompetence claim “need not establish facts sufficient to show he was actually

incompetent or to show he was incompetent by a preponderance of the evidence.”

Id. Rather, we look to “evidence of . . . irrational behavior, . . . demeanor at trial,

and any prior medical opinion” to determine whether further inquiry on the part of

the trial judge was required. Id. (quoting Drope, 420 U.S. at 180). “[E]vidence

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

incompetence” would also be significant. Id. (quoting Walker v. Gibson, 228

F.3d 1217, 1227 (10th Cir. 2000)). “We examine the totality of the circumstances

. . . . The question is . . . whether the trial court ‘fail[ed] to give proper weight to

the information suggesting incompetence which came to light during trial.’” Id. at

955 (quoting Drope, 420 U.S. at 179).

The evidence of Mr. Smith’s competence encountered by the trial court was

mixed. Before trial, Mr. Smith’s attorney moved for a determination of

competency, stating that Mr. Smith was “unable to comprehend his attorney or to

meaningfully assist in the defense of his case,” and that his “mental state and

communication abilities are such that they seriously interfere with the

understanding of proceedings against him and with his capability of aiding his

attorney in preparation for this trial.” O.R., vol. I, at 24. In response to this

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motion, the trial judge ordered a competency evaluation. Id. at 25. Dr. Edith

King, a psychologist, performed the evaluation, interviewing Mr. Smith three

times and speaking with his mother. Id. at 28-31. Although she recommended

Mr. Smith receive a neurological examination, she concluded he was competent to

stand trial. Id. at 31. At a post-examination hearing on competency, Mr. Watson

submitted only Dr. King’s report and the court found Mr. Smith competent to

stand trial. The court made clear, however, that he would entertain further

evidence of incompetence at any time. Motion Tr., Sept. 3, 1993, at 5. While Mr.

Watson never again formally challenged Mr. Smith’s competency in court, he

“t[ook] issue with” Dr. King’s finding of competence when he moved for access

to the resources of the public defender’s office, O.R., vol. I, at 44-46. He also

requested funds for further medical investigation into Mr. Smith’s competency,

O.R., vol. II, at 218, 329; funds for a SPECT scan, an MRI, and an EEG, O.R.,

vol. II, at 301; and a continuance so he could seek a more adequate examination

of Mr. Smith’s competence, O.R., vol. II, at 320.

Mr. Watson testified at the evidentiary hearing that Mr. Smith was

withdrawn in their conversations and unhelpful in obtaining information about the

murders and any possible defense. E.H., vol. VIII, at 13-14. In Mr. Watson’s

assessment, Mr. Smith earnestly believed a fanciful story about a DEA agent’s

having killed his family. Id. at 19. Gary Ray, a former employee of the

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Oklahoma County jail, encountered Mr. Smith talking to himself in his cell and

described Mr. Smith as “a few french fries short of a Happy Meal.” Id. at 142.

Joseph Ward, a mitigation investigator, testified as to both Mr. Smith’s withdrawn

and then his hypervigilant or hyperactive behavior. Id. at 244. Mr. Ward wrote a

memo to Mr. Watson’s attention raising the issue of Mr. Smith’s competence to

stand trial and his ability to waive constitutional rights during police

interrogation. E.H., vol. III, at 30-31.

Both of Mr. Smith’s medical experts, Dr. John Smith, a clinical

psychiatrist, and Dr. Philip Murphy, a neuropsychologist, testified to Mr. Smith’s

severe mental impairments, but they also found him competent to stand trial. Tr.,

vol. VIII, at 46, 91. 4 At the evidentiary hearing, Dr. Alan Hopewell testified that

Mr. Smith’s mental capacity was similar to that of a twelve-year-old, but he

agreed that twelve-year-olds know right from wrong and can understand criminal

charges on a basic level. E.H., vol. X, at 417-18, 429.

There is no record of Mr. Smith exhibiting bizarre behavior before the trial

court. The court’s most extended interaction with Mr. Smith took place when he

presented several pro se motions. Taking into account the evidence gathered in

4
Dr. John Smith’s evidentiary hearing protestations that he would have
found Mr. Smith incompetent had Mr. Watson provided him with more
information relating to Mr. Smith’s mental state prior to trial drew skepticism
from the district court and is less than persuasive in view of the evidence he had
available at the time of trial. See Smith v. State, No. CIV-601-R, at 37-38, 58
(W.D. Okla. 2002).

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federal district court, it seems quite clear that Mr. Smith did not write these

motions; they were composed by “jailhouse lawyer” Ronald Veatch. See Rec.,

vol. III, at docs. 10-12, 32, 35. But Mr. Smith orally presented the motions.

While Mr. Smith’s presentation did not reveal the skills of a trained legal mind,

he put forth a coherent argument and demonstrated comprehension of both a

lawyer’s duties and the concept of a “fair trial.” Tr., vol. II, at 3-6; Tr., vol. IV,

at 197-202. Based on the totality of these circumstances, we are not persuaded

the trial court should have had a bona fide doubt regarding Mr. Smith’s

competence. Consequently, Mr. Smith cannot show prejudice resulting from any

deficiencies in Mr. Watson’s performance with respect to his procedural

incompetency claim.

In order to state a valid substantive due process competency claim, Mr.

Smith must show “he was, in fact, tried and convicted while mentally

incompetent.” Walker, 228 F.3d at 1229. The burden of proof on a substantive

claim of incompetency is higher than that on a procedural claim. “To prevail,”

Mr. Smith “must demonstrate by clear and convincing evidence a real, substantial,

and legitimate doubt regarding his competence to stand trial.” Id. Given that the

evidence fails to satisfy the bona fide doubt standard, it necessarily “also does not

satisfy the more demanding standard for a substantive claim.” Walker, 167 F.3d

at 1347. Therefore, any deficiencies in Mr. Watson’s performance were non-

-21-
prejudicial. 5

Next, Mr. Smith challenges Mr. Watson’s performance in failing to prevent

introduction of his confession. Twice Mr. Smith gave incriminating statements to

police detectives. Mr. Smith claims that the waiver of rights preceding each

confession was invalid, and that Mr. Watson should have been more vigilant in

keeping the confession out of his state court trial.

In order to be effective, a waiver must be made “voluntarily, knowingly,

and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Supreme

Court has held that a court’s inquiry into a waiver’s validity “has two distinct

dimensions”:

First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather
than intimidation, coercion, or deception. Second, the waiver must
have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.
Only if the totality of the circumstances surrounding the interrogation
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda
rights have been waived.

Mr. Smith raised procedural and substantive competency claims on direct
5

appeal independent of his subsequent ineffective assistance claim. The OCCA
denied relief on the merits. Smith v. State, 932 P.2d 521, 528 (Okla. Crim. App.
1996). He raises these claims again in this court. Because Mr. Smith received a
competency hearing during the state court trial, he was not entitled to a federal
evidentiary hearing on this independent claim apart from his assertion that his
counsel was ineffective in presenting it. But for our consideration of the
competency claim as part of Mr. Smith’s ineffective assistance of counsel claim,
the OCCA’s determination of the claim would have been entitled to AEDPA
deference. 28 U.S.C. § 2254(d)(1).

-22-
Moran v. Burbine, 475 U.S. 412, 421 (1986) (citations and quotations omitted).

For a waiver to be knowing and intelligent, it “must have been made with a

full awareness both of the nature of the right being abandoned and the

consequences of the decision to abandon it.” United States v. Morris, 287 F.3d

985, 989 (10th Cir. 2002) (quoting Colorado v. Spring, 479 U.S. 564, 573

(1987)). “No doubt a defendant’s mental capacity . . . is relevant to whether or

not” he or she is capable of such a waiver. Id.

As evidence that he did not knowingly and intelligently waive his rights,

Mr. Smith cites his mental retardation, mental illness, and the police detectives’

“intentional and calculated misrepresentation[s].” Aplt. Br. at 80. Mr. Smith’s

cognitive difficulties are apparent. Each doctor who examined him placed his

intellectual functioning in the range of mild to borderline mental retardation. Tr.,

vol. VIII, at 15; E.H., vol. X, at 448; E.H., vol. XI, at 675, 693; E.H., vol. XII, at

740. Dr. Hopewell, a clinical neuropsychologist, testified that Mr. Smith’s

comprehension is similar to that of a twelve-year-old’s. E.H., vol. X, at 403. Mr.

Smith suffers from brain damage as a result of a near-drowning as a child, and

that injury affects his cognitive abilities. Id. at 374-75. After administering a

“Grisso test,” which is designed to test one’s ability to waive Miranda rights, Dr.

-23-
Hopewell concluded Mr. Smith could make no such waiver. E.H., vol. X, at 399. 6

Mr. Smith alleges police detectives questioned him improperly,

exacerbating the problems presented by his mental impairments. Prior to each

confession, police detectives went over each Miranda right and Mr. Smith stated

he “believed” he understood each right. St. Exs. 94, 124. The detectives began

their interviews, however, not with discussion of the murders but with questions

regarding a car accident Mr. Smith reported and the head injury he may have

suffered as a result. Id. Mr. Smith describes this questioning as the sort of

“trickery” that “can vitiate the validity of a waiver.” Aplt. Br. 80.

We disagree. The totality of the circumstances support the conclusion that

Mr. Smith did in fact make a knowing and intelligent waiver of his Miranda

rights. First, while Mr. Smith’s intellectual functioning was limited, Dr.

Hopewell testified he would understand the role of police officers and the concept

of a criminal charge. E.H., vol. X, at 430-31. Second, the “Grisso test” Dr.

Hopewell administered took place years after Mr. Smith’s interrogation and the

6
In addition, Dr. Smith diagnosed Mr. Smith with dissociative identity
disorder (DID), more commonly known as “multiple personality disorder.” E.H.,
vol. IX, at 328. Dr. Hopewell concurred in this diagnosis, although tentatively.
E.H., vol. X, at 425-26. The federal district court, after having heard testimony
from Drs. Smith and Hopewell, as well as from the State’s experts, doubted this
new diagnosis. See Smith, No. CIV-98-601-R, at 37-38. That court was in a
much better position to evaluate the relative strength of expert testimony, and we
defer to its conclusions. See Anderson v. City of Bessemer City, 470 U.S. 564,
575 (1985) (citations omitted); Gonzales v. Thomas, 99 F.3d 978, 985 (10th Cir.
1996).

-24-
deterioration of his condition in jail could have affected the results. Additionally,

while Mr. Smith’s cognitive abilities may have mirrored those of a twelve-year-

old, id. at 403, this fact alone does not render his waiver ineffective. See Fare v.

Michael C., 442 U.S. 707, 725 (1979) (totality-of-the-circumstances approach

determines validity of even a juvenile’s waiver). The videotapes of Mr. Smith’s

confessions reveal that, while his memory was not wholly intact and his responses

to answers came slowly, he stated his understanding of the Miranda rights, he

comprehended the questions the officers presented, and he provided an accurate

description of the crimes and crime scene. St. Exs. 94, 124. Significantly, Mr.

Smith had prior experience with the criminal justice system. In 1986, he retained

counsel to defend him on an assault charge, eventually pled guilty, and served

time in prison. The concepts encompassed by Miranda were not foreign to him.

The detectives’ queries about Mr. Smith’s car accident and head injury do

not change the calculus. Contrary to Mr. Smith’s characterization, these

questions did not represent an “affirmative misrepresentation.” The officers were

interested in Mr. Smith’s whereabouts and activities in the days immediately

preceding the interview. They were also curious as to whether the accident

occurred before or after Mr. Smith committed the crimes. “The Constitution does

not require that a criminal suspect know and understand every possible

consequence of a waiver of the Fifth Amendment privilege.” Spring, 479 U.S. at

-25-
574. Nor does it require that police interrogations commence immediately with

the subject matter of the crime. The relevant inquiry is whether the suspect

understands the rights at stake and the consequences of waiving them. Id. at 574-

75. Regardless of the level of preparedness and vigilance Mr. Watson

demonstrated concerning Mr. Smith’s “knowing and intelligent” confession, Mr.

Smith cannot show he was prejudiced by his attorney’s performance.

Mr. Smith marshals the same evidence as proof that his waiver and

subsequent confession were involuntary and therefore Mr. Watson should have

sought more actively to have the court suppress them. The constitutional question

posed by such a claim is “whether a defendant’s will was overborne by the

circumstances surrounding the giving of a confession.” Dickerson v. United

States, 530 U.S. 428, 434 (2000) (quotation omitted). The Supreme Court has

held “coercive police activity” to be “a necessary predicate to the finding that a

confession is not ‘voluntary.’” Colorado v. Connelly, 479 U.S. 157, 167 (1986).

We assess voluntariness of a suspect’s waiver of his Miranda rights by examining

the totality of the circumstances. See United States v. Nguyen, 155 F.3d 1219,

1222 (10th Cir. 1998).

Factors relevant to determining voluntariness of a suspect’s waiver include

his “age, intelligence, and education, and the details of the interrogation, such as

whether the suspect was informed of his rights, the length of the detention and the

-26-
interrogation, and the use or threat of physical force.” Id. Although Mr. Smith

was an adult at the time of interrogation, his cognitive abilities were similar to

those of a twelve-year-old, E.H., vol. X, at 403, his intellectual functioning was

quite low, Tr., vol. VIII, at 15; E.H., vol. X, at 448; E.H., vol. XI, at 675, 693-94;

E.H., vol. XII, at 740, and his education was minimal, E.H., vol. XI, at 572. But

in response to Mr. Smith’s hesitant responses to questioning, the detectives in

both interrogations went over each of the Miranda rights slowly and repeatedly,

and Mr. Smith eventually reported he understood them. St. Exs. 94, 124. The

police questioning was fairly gentle, and the interviews were relatively brief. Id.

And despite Mr. Smith’s contentions, the questioning did not include “affirmative

misrepresentation.”

Mr. Smith’s mental impairments are nonetheless relevant to our scrutiny of

his interrogation because they enhance his “susceptibility to police coercion.”

Connelly, 479 U.S. at 165. Police may not “exploit[] this weakness with coercive

tactics.” Id. Our examination of the record reveals that the tactics used by police

in this case did not overbear Mr. Smith’s will. Taking into account the care with

which officers must question a person of Mr. Smith’s abilities, we see no

overreaching. Any lack of effort at suppression on Mr. Watson’s part is

irrelevant; the confessions were constitutionally admissible. Because Mr. Smith

has not established a constitutional violation, he cannot show he was prejudiced

-27-
by Mr. Watson’s performance in this regard. 7

Finally, Mr. Smith assails Mr. Watson’s performance in challenging the

state’s theory of motive, presenting mental health evidence, and failing to raise an

insanity defense. Having carefully reviewed the record, we see no prejudice. At

the evidentiary hearing in federal district court, counsel for Mr. Smith described

the evidence of Mr. Smith’s guilt as “overwhelming.” E.H., vol. X, at 477. The

state’s theory of motive—that Mr. Smith may have murdered his wife and

stepchildren to collect on their life insurance—was but a small part of this

“overwhelming” evidence, and we are convinced a successful challenge thereto

would have had no effect on the jury’s finding of guilt. The quantity and quality

of the evidence of Mr. Smith’s mental illness and retardation, as well as counsel’s

skill in presentation of this evidence, differed significantly at trial and at the

evidentiary hearing in federal district court. Nevertheless, the district court was

unconvinced by Dr. Smith’s new diagnosis of DID, see Smith, No. CIV-98-601-R,

at 34, and we must defer to this credibility determination. See Anderson v. City of

Bessemer City, 470 U.S. 564, 575 (1985) (citations omitted); Gonzales v. Thomas,

7
As with his incompetency claim, Mr. Smith challenges his confession
independently of his ineffective assistance claim. The state trial court held a
hearing pursuant to Jackson v. Denno, 378 U.S. 368, 378 (1964), see Tr., vol. III,
at 181-215, and the OCCA rejected this claim on the merits. See Smith, 932 P.2d
at 530. But for the ineffective assistance of counsel claim, our review of the
independent claim would have been narrowed by AEDPA, 28 U.S.C. §
2254(d)(1), and limited to the facts available to the state courts.

-28-
99 F.3d 978, 985 (10th Cir. 1996). Oklahoma follows the demanding rule of

M’Naghten’s Case, 8 Eng. Rep. 718 (1843), determining insanity by putting to the

jury the ultimate question of whether a defendant was capable of knowing right

from wrong at the time of the offense. Jacobson v. State, 684 P.2d 556, 561

(Okla. Crim. App. 1984). Even on the evidence available to Mr. Watson, should

he have obtained and presented it, an acquittal was highly unlikely.

Mr. Smith has not shown “there is a reasonable probability that, but for

counsel’s unprofessional errors,” the jury would have acquitted Mr. Smith of the

crimes for which he stood accused. Strickland, 466 U.S. at 694. Consequently,

he was not prejudiced by any deficiencies in his counsel’s performance during the

guilt phase of his trial. 8

IV.

SENTENCING

As errors in the sentencing stage of his trial, Mr. Smith cites (1) faulty jury

instructions on mitigation and life without parole and (2) ineffective assistance of

counsel. His claims as to the court’s instructions have no merit, but Mr. Smith is

entitled to relief on his ineffective assistance claim.

Mr. Smith posits the cumulative effect of errors in this case justify relief
8

from his conviction. “[C]umulative-error analysis aggregates only actual errors to
determine their cumulative effect.” United States v. Rivera, 900 F.2d 1462, 1470
(10th Cir. 1990). Because we have found no error with respect to Mr. Smith’s
conviction, there is “no error to cumulate, and no occasion to apply a cumulative-
error analysis.” Id. at 1472.

-29-
 The court gave two mitigation instructions to the jury at the sentencing

phase of the trial. Mr. Smith contends there is a reasonable likelihood the jury

applied these instructions in such a way as to preclude consideration of his mental

impairments, in violation of the Eighth and Fourteenth Amendments. The OCCA

disagreed, Smith, 932 P.2d at 534, so we cannot grant relief unless that court’s

conclusion is contrary to or an unreasonable application of federal law. 28 U.S.C.

§ 2254(d)(1). The instructions about which Mr. Smith complains read as follows:

Instruction Number 9, Determination of Mitigating
Circumstances:
Mitigating circumstances are those which, in fairness and mercy, may
be considered as extenuating or reducing the degree of moral
culpability or blame. The determination of what are mitigating
circumstances is for you as jurors to resolve under the facts and
circumstances of this case.

Instruction Number 10, Circumstances Which May Be
Mitigating:
Evidence has been offered as to the following mitigating
circumstances:

1. Defendant surrendered himself to the Oklahoma City Police
Department;
2. Defendant informed the Police Detectives of the killings and their
details;
3. Defendant exhibited remorse;
4. Neither of the female children suffered stab wounds;
5. The Defendant did not attempt to flee the jurisdiction of the State.
6. The life of Roderick Smith has value to his friends and family.

Whether these circumstances existed, and whether these
circumstances are mitigating, must be decided by you.

O.R., vol. III, at 478-79.

-30-
 Mr. Smith likens these instructions to those held unconstitutional by the

Supreme Court in Penry v. Johnson, 532 U.S. 782 (2001) (Penry II). There, the

court instructed the jury it was to arrive at a sentence by answering three “special

issues”: “whether Penry acted deliberately when he killed Pamela Carpenter,

whether there was a probability that Penry would be dangerous in the future, and

whether Penry acted unreasonably in response to provocation.” Id. at 788-89.

The court then gave a supplemental instruction, directing the jury: “If you

determine, when giving effect to the mitigating evidence, . . . that a life sentence .

. . is an appropriate response to the personal culpability of the defendant, a

negative finding should be given to one of the special issues.” Id. at 790. The

Supreme Court held these instructions unconstitutional because there was “at the

very least, a reasonable likelihood that the jury . . . applied [them so as to]

prevent consideration of Penry’s mental retardation and childhood abuse.” Id. at

800 (citations, quotations, and alterations omitted). The problem with the quoted

instructions, the Court held, was that “it would have been both logically and

ethically impossible for a juror to follow both sets of instructions.” Id. at 799.

Because neither mental retardation nor childhood abuse “fit within the scope of

the special issues, answering those issues in the manner prescribed on the verdict

form necessarily meant ignoring the command of the supplemental instruction.”

Id.

-31-
 The trial court presented no such logical conundrum to the jury in Mr.

Smith’s case. Instruction Nine broadly defined mitigation, and Mr. Smith’s

mental impairments easily fit within it. The issue raised here is almost

indistinguishable from that in Cooks v. Ward, 165 F.3d 1283 (10th Cir. 1998), a

case in which we denied relief. The trial court in Cooks gave a general mitigation

instruction identical to Instruction Nine, then an additional instruction listing

particular mitigating factors presented by counsel. Id. at 1291-92. We “fail[ed]

to see how the specificity [of the second instruction] in any way undermined the

general directives of [the first instruction].” Id. at 1292. We went on to note that

“Mr. Cooks’ concerns with [the court’s instructions] appear to stem not so much

from the instructions themselves . . . , but from his own attorney’s failure to

present mitigating evidence on his behalf, or to offer any alternative or

supplemental instructions.” Id. Likewise, blame for the lack of mitigation

evidence before the jury in Mr. Smith’s case lies with counsel, not the trial court. 9

These instructions, materially similar to those in Cooks, 10 did not preclude

9
We discuss trial counsel’s performance with respect to sentencing at length
below.
10
It is true that the wording of the more specific instruction in Cooks was
slightly different than that given by the trial court in Mr. Smith’s case. The
Cooks instruction read “Minimum Mitigating Circumstances,” while the
instruction in Mr. Smith’s case read merely “Mitigating Circumstances.” The
general instructions in both cases, however, were identically expansive. We do
not believe the omission of the word “minimum” in Mr. Smith’s case precluded
(continued...)

-32-
consideration of mitigation evidence. Thus we cannot conclude the OCCA’s

determination of this claim constituted a decision contrary to federal law or an

unreasonable application thereof.

Mr. Smith also challenges the lack of jury instructions regarding the

possibility of a sentence of life without parole. In the penalty phase of his trial,

the first instruction the jury received stated pursuant to Oklahoma law that each

person convicted of first-degree murder “shall be punished by either life

imprisonment, life imprisonment without the possibility of parole, or death.”

O.R., vol. III, at 470. The court did not further define “life imprisonment” or

“life imprisonment without the possibility of parole.” Mr. Smith alleges this lack

of instruction was unconstitutional under the Supreme Court’s decisions in

Simmons v. South Carolina, 512 U.S. 154 (1994), and Shafer v. South Carolina,

532 U.S. 36 (2001).

Raising this claim for the first time in state post-conviction proceedings,

Mr. Smith sought to defeat the State’s asserted procedural bar with a claim of

ineffective assistance of counsel at trial and on direct appeal. Smith, 955 P.2d at

739. The OCCA held the claim procedurally barred and refused to consider its

merits. Id. Mr. Smith reasserts ineffective assistance of counsel as a means

10
(...continued)
the jury’s consideration of his mental impairments. The jury’s failure to consider
that evidence arose from trial counsel’s failure to present it.

-33-
around the state procedural bar, but we need not consider counsel’s

ineffectiveness concerning the instruction because we may more easily dispose of

the claim on the merits. See Miller, 354 F.3d at 1297.

In Simmons, the Supreme Court held that:

where a capital defendant’s future dangerousness is at issue, and the
only sentencing alternative to death available to the jury is life
imprisonment without the possibility or parole, due process entitles
the defendant “to inform the jury of [his] parole ineligibility, either
by jury instruction or in arguments by counsel.”

Shafer, 532 U.S. at 39 (quoting Ramdass v. Angelone, 530 U.S. 156, 165 (2000)

(describing Simmons’ premise and plurality opinion)). We previously addressed

an argument identical to Mr. Smith’s in Mayes v. Gibson, 210 F.3d 1284 (10th

Cir. 2000), where we held Simmons to be inapposite. Id. at 1294. In Simmons,

the jury “was given a choice between life in prison and death, which, because the

jury might have thought the defendant could be released on parole, ‘creat[ed] a

false choice between sentencing petitioner to death and sentencing him to a

limited period of incarceration.’” Id. The court in Mr. Mayes’ case, like the

court in Mr. Smith’s, instructed the jury to choose between life imprisonment, life

imprisonment without the possibility of parole, and death. Id. We concluded the

“three-way choice fulfills the Simmons requirement that a jury be notified if the

defendant is parole ineligible,” and denied relief. Id.

Mr. Smith believes the Supreme Court’s subsequent opinion in Shafer

-34-
undermines our holding in Mayes. Shafer concerned a post-Simmons South

Carolina statute under which, if the jury found a single statutory aggravator, only

two sentencing options remained: death or life imprisonment without the

possibility of parole. Shafer, 532 U.S. at 41. Mr. Shafer’s counsel sought either

an instruction on parole ineligibility or permission to inform the jury of that

ineligibility in closing argument, but the court denied those requests. Id. at 42.

Several hours into its deliberations, the jury sent the judge a note asking if there

were “any remote chance for someone convicted of murder to become elig[i]ble

for parole” and “under what conditions would someone convicted for murder be

elig[i]ble.” Id. at 44. The judge merely instructed the jury that its “consideration

[was] restricted to what sentence to recommend,” “life imprisonment means until

the death of the offender,” and “[p]arole eligibility is not for your consideration.”

Id. at 45. The Supreme Court held these circumstances contravened its holding in

Simmons. Id. at 51. In so holding, however, the Court repeatedly emphasized the

lack of a third choice in South Carolina’s sentencing scheme. Id. at 41, 50, 51.

Given the two-way choice in Shafer, and the clear evidence of jury confusion, that

case is distinguishable from our decision in Mayes. Because Mr. Smith’s case is

identical to Mayes and suffers none of Shafer’s identified short-comings, Mr.

Smith is not entitled to relief from his sentence on these grounds.

-35-
 Finally, and most significantly, Mr. Smith challenges Mr. Watson’s

assistance to him at sentencing. While the same constitutional principles that

guided our examination of Mr. Watson’s guilt stage performance apply to his

performance at sentencing, we are particularly vigilant in guarding this right when

the defendant faces a sentence of death. See Williamson v. Ward, 110 F.3d 1508,

1514 (10th Cir. 1997) (“In assessing counsel’s conduct, we are mindful of the

Supreme Court’s observation that ‘[o]ur duty to search for constitutional error

with painstaking care is never more exacting than it is in a capital case.’”)

(quoting Burger v. Kemp, 483 U.S. 776, 785 (1987)). Our heightened attention

parallels the heightened demands on counsel in a capital case. See ABA

Standards for Criminal Justice 4-1.2(c) (3d ed. 1993) (“Since the death penalty

differs from other criminal penalties in its finality, defense counsel in a capital

case should respond to this difference by making extraordinary efforts on behalf

of the accused.”).

“The sentencing stage is the most critical phase of a death penalty case.

Any competent counsel knows the importance of thoroughly investigating and

presenting mitigating evidence.” Romano, 239 F.3d at 1180. Mr. Smith contends

Mr. Watson proved woefully incompetent in this regard. According to Mr. Smith,

Mr. Watson failed to understand that Mr. Smith’s “borderline mental retardation,

mental illness, and organic brain impairment” constituted mitigating evidence to

-36-
be presented at the penalty stage of Mr. Smith’s capital trial. We are cognizant of

“the overwhelming importance of the role mitigation evidence plays in the just

imposition of the death penalty.” Mayes, 210 F.3d at 1288. The district court

concluded Mr. Watson’s meager presentation of mitigating evidence fell below

the constitutional minimum, Smith, No. CIV-98-601-R, at 20, and we agree.

While Mr. Watson was an experienced criminal lawyer, he had never

represented a client facing the death penalty prior to his defense of Mr. Smith,

had never been involved in death penalty litigation, had never attended any

seminars or continuing legal education courses dedicated to capital defense, and

had never even handled a case in which psychiatric issues were presented. E.H.,

vol. VIII, at 10. While Mr. Watson brought in co-counsel “in the days just prior

to trial,” this case was co-counsel’s first capital case as well. Id. at 93. Mr.

Watson also enlisted the assistance of the state public defender’s office. Id. at

119. The trial judge approved use of these services after Mr. Watson confessed

he “didn’t feel competent,” that “there was no money” and that the case

“deserve[d] more than [he] could give it with [his] limited resources.” Id. He

suggested to the court: “either take me off this case and give it to the public

defender’s office or give me some other ideas.” Id. The reason for this

suggestion is clear. At the evidentiary hearing in federal district court, Mr.

Watson testified: “I mean, I had a caseload that I had to work with. I wasn’t

-37-
getting any money . . . out of this case. . . . I was over my head at that point. . . .

[It was] something that I had never dealt with before.” Id. at 41. After more than

a year on the case—one which generated ten volumes of trial testimony

alone—Mr. Smith’s mother had paid Mr. Watson “somewhere in the

neighborhood of $1,500 to $2,000.” Id. at 12.

This lack of resources and expertise plus the press of Mr. Watson’s other

caseload worked to Mr. Smith’s detriment. Astoundingly, Mr. Watson admitted at

the evidentiary hearing that he was unaware Mr. Smith’s “mental state or mental

illness could be introduced as mitigation in the second stage” of trial. Id. at 48.

The record of the sentencing proceeding fully supports this assertion. At

sentencing, Mr. Watson called Mr. Smith’s family and friends to testify that they

loved Mr. Smith and that he was a kind and considerate person. See Tr., vol. X,

at 33-64. But this testimony encompasses a mere thirty pages out of hundreds in

the trial transcript. Mr. Watson made no attempt to explain how this kind and

considerate person could commit such a horrendous crime, although mental health

evidence providing such an explanation was at his fingertips.

In mitigation, Mr. Watson offered six considerations: (1) “Defendant

surrendered himself to the Oklahoma City Police Department,” (2) “Defendant

informed the Police Detectives of the killings and their details,” (3) “Defendant

exhibited remorse,” (4) “Neither of the female children suffered stab wounds,” (5)

-38-
“The Defendant did not attempt to flee the jurisdiction of the State,” and (6) “The

life of Roderick Smith has value to his friends and family.” O.R., vol. III, at 479.

But he then minimized the value of these circumstances:

We set out these six mitigating circumstances for your
consideration. We drew on what little we had to draw on, what little
has come, what favorable items have come out of this case that favor
Roderick. And we picked six. We picked his family and his friends
who can come to you and say, spare his life . . . . Do for him as he
would not do for Jennifer. . . . That’s all we’re asking. And it seems
awful small to ask when you’ve got five victims, but that’s the only
thing we’ve got left. . . .
What we’re saying is that you have to look at these mitigating
factors, however slight they may be. . . .
Most of you said that the death penalty was not apropos across
the board, there are certain cases. And this is probably one of those
cases.

Tr., vol. X, at 92-93 (emphasis added).

The State makes much of the fact that the court incorporated all guilt stage

evidence into the penalty phase of Mr. Smith’s trial and that Mr. Watson

referenced Mr. Smith’s mental illness in the second stage. The State’s own

characterization of the first stage mental health evidence calls into question its

worth in the second stage of trial. At the evidentiary hearing, the State asked Mr.

Watson:

And you didn’t understand, necessarily, all the things [the doctors]
said. I read them and I’m not sure I understand them. But they
seemed to be saying there’s mental issues here, mental problems, and
throw a lot of words to the jury? . . . And so they accomplished the
purpose. They looked and smelled and tasted like they were experts
because they had all the words, and if you asked them a question,

-39-
 they could give you a long answer with lots of long words and the
bottom line was they say he’s not competent?

E.H., vol. VIII, at 107-08. Mr. Watson agreed with this assertion.

Mr. Watson’s penalty phase references to mental health evidence were at

best belittling of the evidence and at worst damning of Mr. Smith. “I tried to

point out with the testimony of the psychiatrist and the psychologist a real defense

to this case,” Mr. Watson told the jury. “Well, you took that credibility away.”

Tr., vol. X., at 93. At times, counsel’s references to Mr. Smith’s mental condition

read like an argument for the State:

I submit to you, whether you believe Dr. Murphy, Dr. King
who didn’t testify or whoever, there is no question that this man has
acted bad in the past and there’s no doubt in my mind if he’s out in
society he’s going to continue to act bad. But if he’s confined
behind the bars for the rest of his life they might have doctors there,
and I don’t know whether they do or don’t, but there’s a chance, who
will be able to get him to come out. . . .
I’ll also submit to you that, be it right or be it wrong, this
person has some type of an abnormality. It’s not normal for human
beings, male human beings, to go out and want to stab on female
human beings. That’s not normal behavior. I also submit to you it’s
not normal behavior to stab people, kill five people and then wanting
to go to sleep. That’s not normal behavior. . . .
[N]o logical person, no person acting in their right mind . . .
would commit this type of act without some driving force.

Tr., vol. X, at 85-86, 88, 91. What that “driving force” might have been,

however, Mr. Smith’s counsel never sought to define. It was left to the

prosecution to fill in the blank: Mr. Smith was a “cold-blooded, vicious killer[].”

See, e.g., id. at 96, 97, 101, 103, 105, 106, 107.

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 The mitigation evidence available for presentation was significant. Mr.

Smith is completely illiterate. E.H., vol. X, at 388. Even the State’s experts and

prison doctors determined Mr. Smith’s IQ to be in the mentally retarded or

borderline mentally retarded range. E.H., vol. XI, at 675, 694; E.H., vol. XII, at

740. “His understanding and his emotional development and his ability to relate

all seem to be fairly similar to what we would perceive to be a 12-year-old child.”

E.H., vol. X, at 403. When he was quite young, Mr. Smith nearly drowned and

the resulting lack of oxygen caused brain damage, or hypoxia. E.H., vol. XI, at

565-66; E.H., vol. X, at 374. At the evidentiary hearing, Dr. Hopewell explained

the consequences of this injury:

Brain damage generally affects three different components.
One is the component we call intellectual thinking or cognitive.
Another component of our development is our motor behavior, motor
control. . . . And the third area is . . . emotional control and
emotional regulation. The other two areas also affect that.
The brain injury, in general, will cause damage to the centers
of the brain and an injury like an hypoxic injury is known to cause
damage to the particular and specific centers of the brain that are
involved in emotional regulation. These are generally called the
limbic areas of the brain and that’s what helps to regulate and
modulate our emotions.
Injury of those areas can cause all sorts of problems.
Primarily, . . . when a person is stressed or put in a stressful
situation, their control over their emotions may break down even
further.
In addition to that would be intellectual and cognitive
problems of brain injury. . . . For example, intellectually they don’t
understand what’s going on because of the intellectual component of
the brain injury, then their emotional regulation is also disrupted, and
so their behavior becomes erratic or out of control or aggressive, and

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 any number of emotional problems can result that are usually not
consistent with whatever is going on in the environment around
them, and that represents the direct cause of the brain injury, as well
as an inability to cope or interact with stress or what’s going on in
the environment in a way that most of us would see to be reasonable
or prudent or understandable.

E.H., vol. X, at 375-76.

Eva Cates, Mr. Smith’s mother, corroborated Dr. Hopewell’s conclusion

that the near-drowning incident caused Mr. Smith’s mental impairments. She

testified at the evidentiary hearing that when he returned from the hospital, he

was “slower, . . . he didn’t act like he understood whatever I said to him.” E.H.,

vol. XI, at 566. These changes led to taunting from other children, the taunting

grew into tormenting, and eventually Mrs. Cates discovered her son was being

beaten by his classmates. Id. at 571. As a result, Mrs. Cates kept Mr. Smith out

of school for an entire year. Id. He eventually finished high school in a special

education program. Id. at 572. He never received a driver’s license, Tr., vol. V,

at 99, and he lived with his mother until he moved in with his wife and her four

children, E.H., vol. XI, at 572. Mrs. Cates understood that Mr. Smith had mental

impairments, but was unable to afford any treatment. Id. at 567. In addition to

testimony about Mr. Smith’s mental condition, Mrs. Cates’ evidentiary hearing

testimony, unlike that at the penalty phase of his trial, described the unstable

home in which Mr. Smith was raised and abuse at the hands of an aunt charged

with his care. Id. at 559-65.

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 Clearly, evidence of Mr. Smith’s mental retardation, brain damage, and

troubled background constituted mitigating evidence. The Supreme Court has,

time and again, cited “the standards for capital defense work articulated by the

American Bar Association (ABA) . . . as ‘guides to determining what is

reasonable’” performance. Wiggins, 123 S. Ct. at 2536-37 (quoting Strickland,

466 U.S. at 688; Williams v. Taylor, 529 U.S. 362, 396 (2000)). Those standards

repeatedly reference mental health evidence, describing it as “of vital importance

to the jury’s decision at the punishment phase.” See ABA Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases 1.1,

4.1, 10.4, 10.7, 10.11. It was patently unreasonable for Mr. Watson to omit this

evidence from his case for mitigation. Mr. Smith has thus cleared Strickland’s

first hurdle.

The district court concluded Mr. Smith failed to demonstrate prejudice from

Mr. Watson’s ineffective assistance at the penalty stage. We disagree. In

considering Strickland’s prejudice prong, “we evaluate the totality of the

evidence—both that adduced at trial, and the evidence adduced in habeas

proceedings.” Wiggins, 123 S.Ct. at 2543 (italics, quotations, and citations

omitted). In order to grant relief, we must discern a reasonable probability that

the jury would have concluded the “balance of aggravating and mitigating

circumstances did not warrant death.” Mayes, 210 F.3d at 1290. A “reasonable

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probability” is less than a preponderance of the evidence, but “sufficient to

undermine confidence in the outcome.” Fisher, 282 F.3d at 1307 (quoting

Strickland, 466 U.S. at 694).

We first note that the mitigating evidence omitted in Mr. Smith’s trial is

exactly the sort of evidence that garners the most sympathy from jurors. Death

penalty litigation expert Dr. Craig Haney testified at the evidentiary hearing that

“[j]uries respond to and find mitigating [this type of evidence,] and [they] are

more likely to vote for life rather than death sentences in cases where there is . . .

clear and clearly presented evidence that the defendant has suffered from some

form of mental illness . . . .” E.H., vol. X, at 479-80. The available empirical

evidence as to juror attitudes supports Dr. Haney’s conclusions. See Stephen P.

Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98

C OLUM . L. R EV . 1538, 1559 (1998) (finding evidence of mental retardation and

mental illness to be the most persuasive mitigation evidence and to have

practically no aggravating effect); Samuel P. Gross, Update: American Public

Opinion on the Death Penalty—It’s Getting Personal, 83 C ORNELL L. R EV . 1448,

1468-69 (1998) (finding mental retardation to be “much more” mitigating than

other potential factors). See also Glenn v. Tate, 71 F.3d 1204, 1211 (6th Cir.

1996) (citing empirical evidence of juror sympathy to claims of “organic brain

problems”); Brewer v. Aiken, 935 F.2d 850, 862 (7th Cir. 1991) (Easterbrook, J.,

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concurring) (same).

The district court dismissed much of the mitigation evidence Mr. Smith

presented because it “tends to portray [Mr. Smith] as an unstable individual with

very little control over either his impulses or his ‘alter’ personalities” and would

have “negated much of the mitigation evidence actually presented to the jury of

[Mr. Smith’s] good work history and friend’s and relatives perception of [Mr.

Smith] as a kind hearted person.” See Smith, No. CIV-98-601-R, at 23-24. These

statements reveal a fundamental misunderstanding of the purpose for which such

mitigation evidence would have been presented. The jury already had evidence of

Mr. Smith’s impulsiveness and lack of emotional control. 11 What the jury wholly

11
In each case the district court cited in support of this alleged “double-
edged” nature of mental health evidence Mr. Smith sought to present, any
aggravating “edge” to such evidence had not previously been placed before the
jury. See Davis v. Executive Dir. of Dep’t of Corr., 100 F.3d 750, 760, 761 (10th
Cir. 1996) (defense attorney failed to present any evidence of defendant’s
alcoholism, but such evidence would have revealed to an otherwise unaware jury
defendant’s increased violence towards women when drinking); Smith v. Massey,
235 F.3d 1259, 1282 (10th Cir. 2000) (evidence of defendant’s mental
impairments, which were exacerbated by drugs and alcohol, was not before the
jury and would have included otherwise unadmitted evidence of their causing
violent outbursts); McCracken v. Gibson, 268 F.3d 970, 979-80 (10th Cir. 2001)
(evidence of defendant’s family history of schizophrenia and his own
psychological problems had not been presented to the jury; such evidence could
have undermined “residual doubt” defense and also introduced otherwise
unadmitted negative testimony about defendant’s behavior when consuming
alcohol); Cannon v. Gibson, 259 F.3d 1253, 1277-78 (10th Cir. 2001) (no
evidence of defendant’s mental illness was before the jury and petitioner’s
proffered evidence would have shown jury his instability and impulsiveness).
Here, whatever aggravating “edge” there was to Mr. Smith’s mental impairments
(continued...)

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lacked was an explanation of how Mr. Smith’s organic brain damage caused these

outbursts of violence and caused this “kind hearted” person to commit such a

shocking crime.

We have previously emphasized that mitigation evidence “affords an

opportunity to humanize and explain.” Romano, 239 F.3d at 1180 (quoting

Mayes, 210 F.3d at 1288) (emphasis added). In granting relief from a death

sentence under circumstances quite similar to those before us, the Supreme Court

noted that evidence of borderline mental retardation and childhood privation and

abuse is “consistent with the view that [the petitioner’s] behavior was a

compulsive reaction rather than the product of cold-blooded premeditation.”

Williams, 529 U.S. at 398; see also Simmons v. Luebbers, 299 F.3d 929, 936 (8th

Cir. 2002) (granting relief from a death sentence and noting: “The jury was

already aware of Simmons’s anger towards women. [A psychiatrist’s] report

would have introduced the possibility that Simmons’s inability to control his

violent behavior was caused by childhood trauma and abuse. This information

could have been used in his favor at the penalty stage. Instead, the jury was

11
(...continued)
was squarely before the jury in the guilt phase of the trial. It is the mitigating
“edge” Mr. Watson failed to present. The district court also cited Humphreys v.
Gibson, 261 F.3d 1016 (10th Cir. 2001), but that case is wholly inapposite as in
that case extensive mitigating evidence reached the sentencer and further
evidence the petitioner cited to the habeas court was merely cumulative. Id. at
1020-21.

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allowed to conclude that Simmons’s violent behavior was simply the result of his

wicked and aggressive nature.”)

The jury in Mr. Smith’s case never received an explanation for his

behavior. As described by the State, at the guilt phase Mr. Watson threw medical

testimony at the jury and hoped something would stick. E.H., vol. VIII, at 107-

08. In the penalty phase, he negated whatever value this mental health evidence

had, essentially telling the jury not to consider it. He then presented the sort of

“halfhearted mitigation case” derided by the Supreme Court in Wiggins. See

Wiggins, 123 S. Ct. at 2538.

The State’s case in favor of the death penalty was strong. The jury found

four aggravating circumstances as to Mrs. Smith’s death and five as to the deaths

of each child. O.R., vol. III, at 542-51. But the aggravating evidence in

Williams, where the Supreme Court reversed a death sentence for ineffective

assistance of counsel, was also strong. As Justice Rehnquist pointed out in

dissent over the Court’s finding of prejudice:

The murder of Mr. Stone was just one act in a crime spree that
lasted most of Williams’s life. Indeed, the jury heard evidence that,
in the months following the murder of Mr. Stone, Williams savagely
beat an elderly woman, stole two cars, set fire to a home, stabbed a
man during a robbery, set fire to a city jail, and confessed to having
strong urges to choke other inmates and to break a fellow prisoner’s
jaw.

Williams, 529 U.S. at 418 (quotations omitted). As we noted above, the

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mitigation case presented by Mr. Watson was pitifully incomplete, and in some

respects, bordered on the absurd. 12 We conclude, much as the Supreme Court did

in Wiggins, that “had the jury been able to place” Mr. Smith’s background, brain

damage, and mental retardation—this compelling explanation for his

behavior—“on the mitigating side of the scale, there is a reasonable probability

that at least one juror would have struck a different balance.” 13 Wiggins, 123 S.

Ct. at 2543; see also Williams, 529 U.S. at 398 (“[T]he graphic description of

Williams’ childhood, filled with abuse and privation, or the reality that he was

‘borderline mentally retarded,’ might well have influenced the jury’s appraisal of

his moral culpability.”).

In sum, Mr. Smith presented evidence sufficient to undermine our

confidence in his death sentence. Mr. Smith’s counsel failed to afford him a

constitutionally adequate representative in the sentencing phase of his trial, and

he therefore is entitled to relief under Strickland, 466 U.S. at 694.

12
The state made quick work of Mr. Watson’s plea that the jury find
mitigation in a lack of stab wounds on Shemeka and Kanesha Carter:
He wants you to give him credit because he squeezed them to death
instead of stabbed them. Does the fact that he squeezed the life out
of them, . . . that he took them and squeezed their little bodies until
they no longer could breathe, and we don’t know how long that took
and how they suffered while he was doing that, does that reduce the
degree of moral culpability or blame?
Tr., vol. X, at 73.
13
The jurors at Mr. Smith’s trial had to reach a unanimous recommendation
of death. O KLA . S TAT . tit. 21, § 701.11.

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 V.

CONCLUSION

While the bulk of Mr. Smith’s claims are without merit, he is entitled to

relief as a result of his trial counsel’s ineffective assistance at sentencing. We,

therefore, AFFIRM the district court’s denial of the writ as to Mr. Smith’s

conviction, but REVERSE the judgment of the district court denying the writ as

to sentencing. We grant the writ with respect to the death sentence with the

condition that the state resentence Mr. Smith within a reasonable time.

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