Summary:

In December 1990, Wallace was arrested in Arkansas and charged with the abduction and attempted murder of Ross Allen Ferguson, who advised that he had been picked in a parking lot up by a man posing as a police officer. He was then taken to a nearby pond and stabbed 6 times. He pretended to be dead, then jumped up, pushed down his attacker, jumped in the car and took off.

Wallace was arrested later that night walking in the area of the abduction. Ferguson identified him in a lineup. Wallace later was sentenced to three life prison terms, plus 60 years, after pleading guilty to abducting four other teenagers and trying to kill Ferguson.

Wallace was questioned regarding two bodies previously found in a pond in Oklahoma. Mark Anthony McLaughlin, 14, was last seen on November 11, 1990, at a Van Buren convenience store. His body was found the next day. William Eric Domer, 15, was found on February 23, 1987.

Wallace confessed to the murders and led authorities to a pasture where a .22-caliber pistol was found, later identified as the same gun used to shoot both McLaughlin and Domer in the back of the head. According to the confession, Wallace paddled both teenagers with a paddle during the abduction. While in prison,

Wallace also confessed to 2 murders in North Carolina. At trial, Wallace took the witness stand and told the judge he wanted to die as quickly as possible.
 

Death Penalty Institute of Oklahoma

George Wallace - Executed August 10, 2000

George Kent Wallace was executed via lethal injection by the state of Oklahoma on August 10, 2000. He was pronounced dead at 9:27pm. Wallace was the 11th man executed by the state this year and the 30th since Oklahoma resumed executions in 1990. The only previous year in which Oklahoma executed more people was in 1933, when 14 persons were executed.

Background

On December 10, 1990, George Wallace, then age 50, from Fort Smith, Arkansas, was arrested. He was charged with the December 9, 1990, kidnapping and attempted murder of Ross Allen Ferguson, 18. Ferguson escaped despite multiple stab wounds and being bound in handcuffs and leg irons. Wallace was held on a $1.5 million bond.

Police reports indicate that Ferguson was picked up in a grocery store parking lot in Van Buren, Arkansas, by a man who posed as a police officer. He was then taken to a pond east of Greenwood.

Ferguson fled his kidnapper after being stabbed at least six times. He pretended to be dead, then jumped up and pushed down his attacker. Ferguson ran to the car and left his attacker stranded at the pond. He reached a home where residents called the police. Ferguson was taken to a hospital where he was in stable condition.

Wallace was arrested later that night walking in the area of the abduction. Ferguson identified him in a lineup. Isidro Hernandez, 19, also reported that a man claiming to be a police officer tried to pick him up, but Hernandez said he "talked his way out of it."

Another kidnapping victim, James Branson, 18, told police that a man posing as a plainclothes officer picked him up and took him to the Le Flore County pond. Branson was shackled and handcuffed but was set free because of his persistent kicking and screaming.

On December 20, 1990, the body of Alonzo Don Cade, 12, was found in a gas-well pit near Fort Chaffee. Cade had last been seen alive on November 24, 1990, at a Westark Community College basketball game.

Wallace was questioned regarding two bodies previously found in a Le Flore County pond. Mark Anthony McLaughlin, 14, was last seen on November 11, 1990, at a Van Buren convenience store. His body was found the next day. William Eric Domer, 15, was found on February 23, 1987.

Wallace led authorities to a pasture near Seminole, Oklahoma, where a .22-caliber pistol was found after a three hour search. According to Le Flore County district attorney investigator Claudie Higgins, McLaughlin and Domer were shot in the back of the head with a small-caliber weapon.

Wallace was also questioned, but not charged, regarding the 1976 death of Jeffrey Lee Foster and the 1982 death of Thomas Stewart Reed, both occurred in Forsyth County, North Carolina. Wallace moved to Fort Smith in 1986.

Before then, he lived in North Carolina. Wallace was sentenced to three life prison terms, plus 60 years, after pleading guilty to abducting four Arkansas teenagers and trying to kill one of them. First degree murder charges were filed in Oklahoma where authorities said they would seek the death penalty. Wallace waived extradition.

A Le Flore County district judge, Michael Lee, entered an innocent plea for Wallace and set a competency hearing. The judge ordered a mental competency evaluation.

The report, from the Carl Albert Mental Health Center in Heavener, indicated that Wallace was able to "appreciate the nature of the charges… and rationally assist in the preparation of his defense." The judge ordered further psychiatric tests. Doctors at Eastern State Hospital said that Wallace was competent to stand trial. Wallace’s attorney, Jeff Smith, entered an innocent plea, but also advised the court that his client wanted to plead guilty.

Prosecutors were seeking the death penalty based on Wallace’s previous felony convictions, claims that Wallace would be a continuing threat to society, and the crime alleged was "especially heinous, atrocious, or cruel."

Wallace took the witness stand and told the judge he wanted to die as quickly as possible. The judge issued two death sentences, one on each count. According to Smith, Wallace ignored his advice about pleading guilty and personally orchestrated a lack of defense. On March 27, 1995, the state Court of Criminal Appeals set Wallace’s execution for May 26, 1995.

The court decided that Wallace could waive his presentation of mitigating evidence. This execution was stayed by the U.S. Supreme Court to allow Wallace to file a petition for the high court to review his case. The petition was denied on October 2, 1995.

On October 29, 1995, the state Court of Criminal Appeals set Wallace’s execution for December 1, 1995. The state Court of Criminal Appeals granted a stay of execution on November 21, 1995, because Wallace changed his mind and wanted to appeal his convictions.

Wallace filed his application for Post-Conviction Relief on June 3, 1996. On June 19, 1996, the court issued an order granting additional time to comply with the rules of the court. Wallace filed his revised application on July 9, 1996.

On March 18, 1997, the court issued an Order Denying Post-Conviction Relief, Denying Request for Evidentiary Hearing and Discovery, and Denying Extension of Time to Amend.

Wallace commenced a habeas action in federal district court and again moved for discovery and evidentiary hearing. The federal district court denied all relief and denied a certificate of appealability. Wallace appealed to the Tenth Circuit of the United States Court of Appeals.

On September 10, 1999, his appeal was rejected. On June 9, 2000, the Oklahoma Court of Criminal Appeals set Wallace’s execution date for August 10.

Clemency Hearing

Wallace waived his right to a clemency hearing by the Oklahoma Pardon and Parole Board. Of the 29 inmates executed previously, 22 have sought clemency. All petitions for clemency have been denied. Since capital punishment was reinstated in Oklahoma, this was the 22nd clemency hearing held for a death row inmate. There has never been a vote in favor of clemency.
 

George Kent Wallace

ProDeathPenalty.com

George Kent Wallace, who was convicted of abducting and murdering 2 teenage Arkansas boys and dumping their bodies in Oklahoma, is scheduled to be executed Aug. 10. Wallace, 59, pled guilty to 2 murders in Oklahoma and later confessed to two murders in North Carolina.

Charlie Price, a spokesman for Attorney General Drew Edmondson, said that no legal barriers remain between Wallace and his date with the executioner. "No, there are no appeals outstanding," Price said. "We don't see anything to stop this."

Wallace was handed a death sentence in 1991 for the murders of William Von Eric Domer, 15, of Fort Smith, Ark., and Mark Anthony McLaughlin, 14, of Van Buren, Ark. The teens' bodies were found 3 years apart in the same pond near Pocola in LeFlore County.

Both had been beaten and then shot. Wallace, a former truck driver in Fort Smith, lured his victims by impersonating a police officer before driving them to rural areas and killing them. Wallace plans to meet Thursday with Allen Gentry, an assistant sheriff in Forsyth County, N.C.

As a convict in 1996, Wallace confessed to the 1976 murder of Jeffrey Lee Foster and the 1982 murder of Thomas Stewart Reed, Gentry said. Wallace asked Gentry to meet with him on Thursday.

Gentry said there were no outstanding cases involving Wallace in North Carolina but that he felt the need to come anyway. "When I talked to him in 1996, he said he might talk to me about a case in Oklahoma involving federal property," Gentry said. Although he said Oklahoma, Wallace could have been referring to the death of 12-year-old Alonzo Cade. Cade's body was found in a gas-well pit in Fort Chaffee -- federal property -- just east of Fort Smith.

Gary Grimes, the sheriff of Sebastian County, Ark., at the time of Wallace's arrest, said Wallace was the prime suspect in Cade's death. Cade's body was discovered shortly after Wallace was captured in December 1990. His death remains unsolved.

As of Wednesday, Wallace had not requested to speak to Grimes. Current Sebastian County Sheriff Frank Atkinson, who arrested Wallace, plans to attend Thursday's execution. Wallace spent more than 3 decades using the authority of phony badges to pick up unsuspecting teenage boys, who he would then beat with paddles and -- in at least 4 cases -- later kill.

While trying to continue that violent streak, Wallace finally met his match in a young man who "played possum," survived 6 stab wounds and then made a daring run to freedom. Wallace had been attempting to do the same when he picked up Ross Alan Ferguson, then 18, on Dec. 9, 1990.

According to reports at the time, Ferguson was in the lot of a Van Buren grocery store when Wallace approached him. He identified himself as an officer and told Ferguson he was wanted in connection with a nearby robbery.

Wallace shackled Ferguson's hands and ankles and drove him to a remote location in Sebastian County. As they were driving, Ferguson said he tried to ask why he was being taken to such a remote location. Once there, Wallace climbed into the back seat and began beating Ferguson.

After the beating, he walked the young man toward a pond. On the way there, he stopped and stabbed Ferguson 5 times in the back and once in the arm. Ferguson said he played possum, pretending to be dead as Wallace dragged him over the rocks to the bank of the pond.

There, Wallace took off the shackles and readied to throw the body into the pond. Ferguson jumped up and knocked Wallace to the ground. He then took off running for Wallace's car. He said he fell countless times before he got to the car. He credited God for picking him up and guiding him the last 10 feet to the car.

Once there, he locked the doors. Ferguson said he watched as a shocked Wallace stood outside the car panting. To his amazement, the car keys were still in the ignition.

Ferguson drove to a nearby house for help. Then Chief Deputy Sheriff Frank Atkinson was one of the officers who responded to the call. Along the way to the home where Ferguson had fled, Atkinson said he found Wallace walking in a ditch that ran along by the highway.

Ferguson, who is now a paramedic in Arkansas, and Atkinson, who is now Sebastian County sheriff, are 2 of the people scheduled to view Wallace's execution. 7 members of the families of Domer and McLaughlin are also planning to attend the execution, according to the Oklahoma Attorney General's Office.

8/11/00 - Nine members of the 2 boys' families attended Thursday's execution. Ross Alan Ferguson, whose escape led to Wallace's capture, also witnessed the executions, along with his wife and father. "It has been a long time coming," Ferguson said. "I'm here to honor Eric and Mark. That's why I'm here. "I want him executed for what he did to them -- not me."
 

George Kent Wallace

The Tulsa World

Dressed in dark clothes, toting handcuffs and ankle shackles, and flashing a mail-order badge, George Kent Wallace terrorized a strip of the Arkansas-Oklahoma border a decade ago and left 2 teenage boys dead. Dressed in the light-blue garb of an inmate and covered from the waist by a thin blanket, Wallace succumbed to the executioner's needle Thursday night. Wallace declined to offer any last words, merely mouthing "I love you" to 1 of his witnesses. He was pronounced dead at 9:27 p.m.

Immediately after he was declared dead, one of his victims' family members exulted with a clap and a few quick words. "Yes! Yes! Yes! Yes!" came a woman's voice from behind the darkened glass of the viewing room.

Wallace, 59, murdered William Von Eric Domer, 15, and Mark Anthony McLaughlin, 14, at a rural location near Pocola in eastern Oklahoma. Both victims had been beaten, then shot.

While in prison, Wallace also confessed to 2 murders in North Carolina. Domer's body was discovered Feb. 22, 1987, in a pond near Pocola in LeFlore County. He had been kidnapped a few miles away in Fort Smith, Ark., on Feb. 17. McLaughlin's body was found Nov. 12, 1990, in the same pond. He had been reported missing from Van Buren, Ark., earlier that day.

After being arrested Dec. 9, 1990, for a similar abduction in which the intended victim managed to escape, Wallace confessed to the murders of the boys.

Wallace, who posed as a police officer in order to abduct his victims, received a death sentence for each murder. 9 members of the 2 boys' families attended Thursday's execution.

Ross Alan Ferguson, whose escape led to Wallace's capture, also witnessed the executions, along with his wife and father. "It has been a long time coming," Ferguson said. "I'm here to honor Eric and Mark. That's why I'm here. "I want him executed for what he did to them -- not me."

Since his conviction, Wallace confessed to two murders in North Carolina, authorities said. In 1996, Wallace confessed to the 1976 murder of Jeffrey Lee Foster and the 1982 murder of Thomas Stewart Reed, said Allen Gentry, Forsyth County, N.C., assistant sheriff.

Wallace was the 1st inmate to be executed at 9 p.m. Since reinstating the death penalty, executions in Oklahoma had taken place immediately after midnight on the date scheduled.

The early hour had been used as a means to ensure that executions were carried out on the proscribed day. Earlier this year, the Department of Corrections announced that it would be moving executions to the evening of the day they were scheduled. "We believe it will meet the needs of the victims' families better, so they're not forced to make long drives home so early in the morning afterward," Massie said. "It'll be closer to a normal workday for staff."

Wallace becomes the 11th condemned inmate to be put to death this year in Oklahoma the the 30th overall since the state resumed capital punishment in 1990. 3 women and 135 men remain on the state's death row.

Wallace also becomes the 59th condemned inmate to be put to death this year in the USA, and the 657th overall since America resumed executions on January 17, 1977.
 

Inmate Changes Mind on Appeal of Death Sentence

Shawnee Online

McALESTER, Okla. (AP) -- One of two Oklahoma death row inmates who appeared in federal court in an effort to have their executions moved up apparently has changed his mind, officials say.

George Kent Wallace appeared Tuesday before federal District Judge Michael Burrage and rescinded a letter he wrote to the court asking that his execution date be set, a court clerk said.

Wallace, of Fort Smith, Ark., pleaded guilty to two counts of first-degree murder for the deaths of William Von Eric Domer, 15, of Fort Smith, and Mark Anthony McLaughlin, 14, of Van Buren, Ark.

Their bodies were found in the same pond near Pocola in Le Flore County, Dormer's in 1987 and McLaughlin's in 1990. In 1991, Wallace had asked to waive his appeals, reports said. In 1995, he changed his mind a month before his scheduled Dec. 1 execution, records show.
 

Witness to an Execution

By Claire Schaeffer-Duffy - National Catholic Reporter Online

January 19, 2001

Oklahoma City - Last summer, Fr. Bryan Brooks, Tulsa priest and coordinator for the Office of Prison Ministry with the Tulsa diocese, witnessed the execution of George K. Wallace.

He did so at the request of Wallace’s appellate attorney. An inmate is allowed seven witnesses, and Wallace had no family members to attend.

“It was,” said Brooks after a long silence, “a very difficult experience. There is nothing that I can compare it to. There was no question of his guilt, but the actual experience was very intense as well as disgusting.” Wallace had murdered two young men and was a prime suspect in three other homicides. “It was particularly difficult,” said Brooks, “because the men killed were the same age as my nephew.”

Brooks was required to be at the penitentiary an hour before the execution. He was taken to the H-unit and then to a witness chamber reserved for those observing on behalf of the inmate. “The victims’ families were in a separate room,” he said.

After the blind was raised, a microphone was placed in front of the strapped-down Wallace, and he was asked if he had any statements to make. Wallace did not. It took him three minutes to die, Brooks said.

“I felt very numb,” said Brooks who, as a priest, has seen people die before. But the circumstances were different. “In hospital emergency rooms, I have seen people die while others are trying to keep them alive.” “Sterile” is the word Alyson Carson uses to describe executions at Oklahoma State Penitentiary in McAlester.

As victim witness coordinator for the Attorney General’s Office, she has observed at least 11 executions. Her job is to guide family members of the victim through the appeals process right up to the execution. “If we have a family that didn’t know the execution date, we do everything possible to let them know what is going on.”

For some families, Carson said, the time in the witness chamber is their first “reunion” since the murder, because family members often “stay away from one another” after a homicide. The execution brings “relief,” an assurance that they don’t have to hear the criminal’s name again, she said. “Every time they hear the person’s name it brings them back to the crime.”

Carson is impressed with the efficiency of the execution process at McAlester. “Once you’re there, everything is ready to go. The Corrections Department is very professional. They allow him or her to say a very few words and then go to sleep. That’s it.”

For appellate lawyer Janet Chesley, the execution of her client Charles Foster was “such a surreal thing.” “There is a long narrow room. There is a venetian blind in front of you. You kind of file in. The press comes in. It was so hard for me to believe this was happening.”

Chesley doesn’t know if Foster was scared. “Charles had an IQ of 64 and a deep abiding faith,” she said. On the day he died, she spent the afternoon with him. He told her “ to watch for that feeling” after his execution. “My soul is going to fly by and wave to you.”
 

Police Impersonator Executed in Oklahoma

APBNews

August 11, 2000

Convicted of Two Murders, Suspected in Four Others

McALESTER, Okla. (AP) - A former truck driver who lured his victims by impersonating a police officer was executed Thursday for the deaths of two Arkansas teens. George Kent Wallace, 59, was given a lethal dose of drugs at the Oklahoma State Penitentiary.

Wallace pleaded guilty in 1991 in the deaths of William Von Eric Domer, 15, of Fort Smith, Ark., and Mark Anthony McLaughlin, 14, of Van Buren, Ark. The teens' bodies were discovered almost four years apart -- in 1987 and 1990 -- in the same pond just across the state line in Oklahoma.

North Carolina killings - Wallace also confessed to killing two men in North Carolina -- Jeffrey Lee Foster in 1976 and Thomas Stewart Reed in 1982. He was suspected in the death of another boy in Arkansas and had indicated he would meet with authorities about the death of 12-year-old Alonzo Don Cade of Fort Smith, but later decided against it.

The boy's body was found in 1990 in a pond. Wallace was arrested after an 18-year-old supermarket employee managed to escape after being stabbed in the back and arm.

Eleventh execution this year in Oklahoma - The man, now 28, told police Wallace had said he was a police officer and was arresting him. He said Wallace put him in handcuffs and leg irons, then drove him to a pond and attacked him. He managed to escape by leaping into the car and driving away.

Wallace's execution was the 11th this year in Oklahoma, the most in a year since the state executed 14 men in 1933.

George Kent Wallace

Mayhem.net

August 11, 2000

Former truck driver George Kent Wallace, 59, was executed by lethal injection for the deaths of two Arkansas teens. Wallace pleaded guilty in the deaths of William Von Eric Domer, 15, of Fort Smith, Ark., and Mark Anthony McLaughlin, 14, of Van Buren, Ark.

The teens' bodies were discovered in 1987 and 1990 in the same pond just across the state line in Oklahoma. Wallace also confessed to killing two men in North Carolina - Jeffrey Lee Foster in 1976 and Thomas Stewart Reed in 1982.

Wallace indicated he would meet with authorities about the death of 12-year-old Alonzo Don Cade of Fort Smith, but later decided against it. The boy's body was found in 1990 in a pond.

Wallace was arrested after an 18-year-old supermarket employee managed to escape after being stabbed in the back and arm.

The man, now 28, told police Wallace had said he was a police officer and was arresting him. He said Wallace put him in handcuffs and leg irons, then drove him to a pond and attacked him. He managed to escape by leaping into the car and driving away.
 

1995 OK CR 19
893 P.2d 504

GEORGE KENT WALLACE, APPELLANT,
v.
THE STATE OF OKLAHOMA, APPELLEE

Case Number: C-91-309

Oklahoma Court of Criminal Appeals

Decided: 03/27/1995

An Appeal from the District Court of LeFlore County; Ted A. Knight, Associate District Judge.

GEORGE KENT WALLACE, Appellant, entered pleas of guilty to two charges of Murder in the First Degree (21 O.S.Supp. 1982 § 701.7 [21-701.7](A) and 21 O.S.Supp. 1989 § 701.7 [21-701.7](A) in LeFlore County Cases No. CRF-91-1 and CRF-91-2. Following a sentencing hearing, the trial court found the presence of three aggravating circumstances: Appellant had previously been convicted of a violent felony (21 O.S. § 701.12 [21-701.12](1)); the murders were especially heinous, atrocious or cruel (21 O.S. § 701.12 [21-701.12](4)); and Appellant posed a continuing threat to society (21 O.S. § 701.12 [21-701.12](7)). At a formal sentencing hearing, Appellant was sentenced to die by lethal injection. From these judgments and sentences this Court has conducted a Mandatory Sentence Review. AFFIRMED.

Jeffrey C. Smith, Poteau, Trial Counsel, for appellant at trial.

Anne M. Moore, Asst. Appellate Public Defender, Norman, Appellate Counsel, for appellant on appeal.

Mike Sullivan, Dist. Atty., Poteau, Trial Counsel, for appellee at trial.

Susan Brimer Loving, Atty. Gen., Diane Blalock, Asst. Atty. Gen., Oklahoma City, Appellate Counsel, for appellee on appeal.

OPINION ON MANDATORY SENTENCE REVIEW, ISSUANCE OF MANDATE,
AND SETTING OF EXECUTION DATE

LUMPKIN, Judge:

¶1 Appellant George Kent Wallace entered a plea of guilty to two charges of Murder in the First Degree (21 O.S.Supp. 1982 § 701.7 [21-701.7](A) and 21 O.S.Supp. 1989 § 701.7 [21-701.7](A) in LeFlore County Cases No. CRF-91-1 and CRF-91-2. The Hon. Ted A. Knight, Associate District Judge, ordered he be sentenced to death by lethal injection on each count.

¶2 This case is somewhat unique, in that Appellant presented no defense during his sentencing hearing; and in fact requested the death penalty. In Grasso v. State, 857 P.2d 802 (Okl.Cr. 1993), we addressed the situation which arises when a defendant does not wish to pursue his direct appeal. Here, we are presented with a problem peripherally addressed in Grasso: whether a criminal defendant can waive the presentation of mitigating evidence without running afoul of the ban against arbitrary and unreliable application of the death penalty implicit in the Eighth Amendment to the United States Constitution. See Id., 857 P.2d at 814 n. 5 (Chapel, J., Specially Concurring). We hold he can.

I.

¶3 Appellant's conviction in the murders of two teenage boys, William Von Eric Domer (CRF-91-1) and Mark Anthony McLaughlin (CRF-91-2) culminates a decades-long string of brutal, sadistic assaults.

¶4 In providing a factual basis for the Domer murder, Appellant told the court: "Basically, I picked the boy up, took him out to a secluded area, beat him, and then shot him." He accomplished this on February 17, 1987, by posing as a police officer, picking up the 15-year-old Domer in Arkansas, handcuffing and shackling him, and transporting him across the state line to Leard Pond near Pocola in LeFlore County, Oklahoma. There, he pulled down the boy's pants and underwear and began beating him with a paddle. When Domer resisted, he pulled up the boy's pants, got him out of the car, walked him to a nearby cemetery, and shot him twice in the back with a .25 caliber semiautomatic pistol. He then put the body in the pond.

¶5 The Mark Anthony McLaughlin murder occurred November 11, 1990 (Appellant had been in prison for a non-related offense in the interim). Appellant told the court: "Impersonating an officer, I picked him up in Van Buren [Arkansas], shackled him, took him out to Leard Pond, beat him, shot him, and then put him in the pond." As with Domer. Appellant first pulled down McLaughlin's pants and underwear and beat him, this time with a handle of a plunger used to unstop clogged drains and toilets. After the beating, he pulled up the 14-year-old boy's pants, got him out of the car and shot him once in the back with a .22 caliber pistol as they walked toward the pond. He would have shot him again, but the gun jammed. In each case, he had rented a car and had gone out specifically looking for someone to beat. He told investigators after his arrest that if he had not been caught, he would have killed again.

¶6 Appellant was apprehended by Arkansas authorities on December 9, 1990. Earlier that evening, Appellant had again posed as a police officer and had "arrested" Ross Allen Ferguson, who had recently graduated from high school. He transported the handcuffed and shackled Ferguson to an isolated place, pulled down his pants and underwear, and beat him with the same plunger handle he had used on McLaughlin. After the beating, he got Ferguson out of the car and began walking him down the road. Ferguson was aware of the McLaughlin murder, and asked Appellant if he were going to shoot him now. Appellant smiled and said he would not shoot Ferguson; he then stabbed him. Ferguson pretended to be dead and allowed himself to be dragged to a nearby pond, where Appellant removed the handcuffs and shackles. Ferguson then was able to surprise Appellant, run up to the car, drive it away and notify authorities. Appellant was arrested near the scene some 45 minutes later.

¶7 Appellant was returned to Oklahoma in late January 1991. He ignored his court-appointed attorney's advice and told authorities details of each murder. He also told them he wanted to receive the death penalty, preferring it to a lifetime in prison. The magistrate ordered Appellant evaluated to determine competency. After a hearing at which he was determined competent, Appellant waived preliminary hearing on February 13, 1991. Despite the earlier determination of competency and against the protests of both the prosecutor and Appellant's attorney, the trial court again ordered a "full psychological evaluation at Eastern State Hospital upon an application to determine competency," appointing an amicus curiae to represent Appellant during the competency proceedings. Appellant was again declared competent. The next day, on March 12, 1991, Appellant pled guilty to both murders. The court ordered a pre-sentence investigation.

¶8 At a sentencing hearing on April 4, 1991, the court found three aggravating circumstances: Appellant had previously been convicted of a violent felony (21 O.S. § 701.12 [21-701.12](1)); the murders were especially heinous, atrocious or cruel (21 O.S. § 701.12 [21-701.12](4)); and Appellant posed a continuing threat to society (21 O.S. § 701.12 [21-701.12](7)). Formal sentencing was delayed for the preparation of a presentence investigation until April 12, 1991, at which time Appellant was sentenced to die by lethal injection.

¶9 Appellant made it clear he did not want to appeal his convictions; indeed, he signed a waiver to that effect the day of formal sentencing.¹ The trial court on May 7, 1991, appointed the Oklahoma Indigent Defense System to represent him on appeal. This Court on July 9, 1991, remanded for an evidentiary hearing to determine Appellant's representation and to determine whether Appellant had in fact waived all appeals but his mandatory sentence review. The trial court filed its Findings and Conclusions with this Court on July 29, 1991, observing Appellant "has stated he wishes to waive all appeals other than the mandatory review of his sentence. He has not retracted those statements and this is his position even as of today." Despite that declaration, the trial court found there were issues which should be raised; and decided "he should be allowed a direct appeal of all issues in this matter."² This Court granted an appeal out of time on August 29, 1991.³ However, Appellant did not file an application to withdraw his plea of guilty, which is a jurisdictional requirement for a certiorari appeal from a plea of guilty. See 22 O.S. 1991, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 4.1. Therefore, the case is only before this Court for mandatory sentence review. See 21 O.S. 1991 § 701.13 [21-701.13].

¶10 At no time did Appellant present, or allow his attorney to present, any mitigating evidence on his behalf. That is the subject of the first proposition.

II.

A.

¶11 Appellant's attorney argues the Eighth Amendment to the United States Constitution requires the sentencer to consider mitigating evidence to reach a rational and individualized determination of the appropriate sentence; and because Appellant refused to present such evidence, the death sentence was imposed in an arbitrary and unreliable manner.

¶12 It is beyond question mitigating evidence is critical to the sentencer in a capital case. See Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, none of the United States Supreme Court cases cited by Appellant deal with the situation which occurs when a defendant willingly and knowingly refuses to place any mitigating evidence before the sentencer.

¶13 Appellant does not contest a defendant may waive his right to present mitigating evidence. We agree. See Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th Cir. 1992) (In dealing with the issue of incompetent counsel, the court stated: "If a defendant may be found competent to waive the right of appellate review of a death sentence, we see no reason why a defendant may not also be found competent to waive the right to present mitigating evidence that might forestall the imposition of such a sentence in the first instance."); Silagy v. Peters, 905 F.2d 986, 1008 (7th Cir. 1990) (Discussing a defendant's right to proceed pro se, the court observed: "The implication of the [Supreme] Court's decision in Blystone [v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990)], then, is that one can choose to forego the presentation of mitigation evidence even over the contrary advice of counsel and warnings of the court."); Clark v. State, 613 So.2d 412, 413 (Fla. 1992).⁴ However, Appellant's attorney argues that to ensure a sentence is imposed in a constitutionally reliable manner, the State must ensure mitigating evidence is presented even if it is against the wishes of the defendant.

¶14 The argument is not without authority. See State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989); Morrison v. State, 258 Ga. 683, 373 S.E.2d 506 (1988), cert. denied, 490 U.S. 1012, 109 S.Ct. 1658, 104 L.Ed.2d 172 (1989). However, there are countervailing arguments that persuade us no constitutional violation occurs if no mitigating evidence is presented in a defendant's behalf.

¶15 Initially, a rule requiring the presentation of mitigating evidence would not be enforceable. Even if the court could force an attorney to attempt to present mitigating evidence, it cannot force an unwilling defendant to provide that evidence to his attorney. See Gray v. Lucas, 677 F.2d 1086, 1094 (5th Cir. 1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983) (Noting petitioner steadfastly maintained that he did not want anyone to testify on his behalf and refused to identify any witnesses; court said the refusal did not negate the attorney's duty to investigate, but added "the scope of that duty was limited by Gray's refusal"); see also Hamblen v. State, 527 So.2d 800, 804 (Fla. 1988) ("there is no power that could have compelled [a defendant] to cooperate and divulge such information."). This holding is consistent with past holdings of this Court. See e.g., Brown v. State, 871 P.2d 56, 76 (Okl.Cr. 1994) (In discussing an appellant's allegation trial counsel was ineffective when an appellant failed to inform him of possible mitigating evidence, we said "[t]rial counsel cannot be ineffective for failing to raise claims as to which his client has neglected to supply the essential underlying facts when those facts are within the client's possession; clairvoyance is not required of effective trial counsel." (quoting Dooley v. Petsock, 816 F.2d 885, 890-91 (3d Cir. 1987)).

¶16 Additionally, to reverse a sentence because a defendant presented no mitigating evidence could be counterproductive. As the California Supreme court has observed:

A knowledgeable defendant desiring to avoid the death penalty could [proceed prose] and then decline to present any mitigating evidence at the penalty phase, secure in the knowledge that any death judgment would be reversed by this court, while a defendant genuinely desiring death could circumvent the rule by presenting a bare minimum of mitigating evidence. A rule so easily evaded or misused is clearly unsound. The sanction of appellate reversal is not the answer, nor has any alternative method been suggested to compel an unwilling defendant to present an effective penalty defense.

While the United States Supreme Court has frequently stated that the Eighth Amendment and evolving standards of societal decency impose a high requirement of reliability on the determination that death is the appropriate penalty in a particular case [citations], the high court has never suggested that this heightened requirement for reliability requires or justifies forcing an unwilling defendant to accept representation or to present an affirmative penalty defense in a capital case. . . . . Rather, the required reliability is attained when the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. A judgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendment reliability requirements.

People v. Bloom, 48 Cal.3d 1194, 774 P.2d 698, 718-19, 259 Cal. Rptr. 669, 688-90 (1989). See also People v. Sanders, 51 Cal.3d 471, 797 P.2d 561, 594, 273 Cal. Rptr. 537 (1990); People v. Lang, 49 Cal.3d 991, 782 P.2d 627, 652-53, 264 Cal. Rptr. 386 (1989). The same philosophy was enunciated in Hamblen, where the Florida Supreme Court observed:

Society's interest in the proper administration of justice is preserved by giving a defendant the right freely to present evidence in mitigation, by requiring the sentencing body to find aggravating factors before imposing the death penalty, and by requiring that a sentence of death be reviewed by this court. These practices are to assure that the death penalty will not be imposed arbitrarily.

Hamblen, 527 So.2d at 804 (quoting People v. Silagy, 101 Ill.2d 147, 181, 77 Ill.Dec. 792, 461 N.E.2d 415, 431-32 (1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984)).

¶18 We therefore hold Appellant's decision not to present mitigating evidence did not deprive the State of its interests in seeing that his sentence was imposed in a constitutionally acceptable manner. The prosecution was required to present evidence of aggravating circumstances, which the court was required to find beyond a reasonable doubt before it could impose the death sentence; the court was required to afford Appellant the opportunity to present mitigating evidence, which it did; and this Court is required to review the evidence in this case to determine if the sentence was imposed in an arbitrary or unreliable manner.

B.

¶19 Appellant points to Koon v. Dugger, 619 So.2d 246 (Fla. 1993), where the Florida Supreme Court established a prospective rule dealing with refusal to present mitigating evidence.⁵ We decline to adopt such a rule, as we foresee problems which would inevitably occur were we to force trial counsel to produce mitigating evidence when he receives absolutely no information from his client which he could use as a starting point to gather mitigating evidence.⁶

¶20 Nonetheless, we find merit in establishing guidelines to assist trial courts in dealing with a situation such as the one presented here. These guidelines must be used both in guilty/nolo contendere pleas and in a trial when a defendant refuses to allow the presentation of mitigating evidence in the sentencing stage.

¶21 Pursuant to Grasso, the court must fully determine a defendant is competent to waive the right to an appeal. There, we said:

[A] defendant sentenced to death will be able to forego a state appeal only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.

Id., 857 P.2d at 806 (quoting Franz v. State, 296 Ark. 181, 754 S.W.2d 839, 843 (1988)). This is the basic standard we use here. Toward that end, the court must ensure the defendant has an understanding of his or her rights both in the plea process and in the sentencing process:

(1) The court must inform the defendant of the right to present mitigating evidence, and what mitigating evidence is.

(2) The court must inquire both of the defendant and his attorney (if not pro se) whether he or she understands these rights.

(3) The court should also inquire of the attorney if he or she has attempted to determine from the defendant whether there exists any evidence which could be used to mitigate the aggravating circumstances proven beyond a reasonable doubt by the prosecution.

(4) If such information has been given, the attorney must advise the court what that mitigating evidence is; if the defendant has refused to cooperate, the attorney must relate that to the court.

(5) The trial court must inquire of a defendant and make a determination on the record whether the defendant understands the importance of mitigating evidence in a capital sentencing scheme, understands such evidence could be used to offset the aggravating circumstances proven by the prosecution in support of the death penalty, and the effect of failing to present that evidence.

(6) After being assured the defendant understands these concepts, the court must inquire of the defendant whether he or she desires to waive the right to present such mitigating evidence.

(7) Finally, the court should make findings of fact pursuant to Grasso of the defendant's understanding and waiver of rights.

¶22 By using these guidelines, trial courts can provide valuable information and help preserve the record for the mandatory sentence review.

C.

¶23 Appellant's attorney also argues the absence of mitigating evidence deprives this Court of its ability to perform its mandatory sentence review. We disagree. Section 701.13 of Title 21 reads in pertinent part:

A. Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Oklahoma Court of Criminal Appeals. . . . .

. . . .

C. With regard to the sentence, the court shall determine:

1. Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and

2. Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 701.12 of this title.

With this directive in mind, we shall examine the remainder of the testimony, the court-ordered presentence investigation and other evidence presented at Appellant's sentencing hearings.

¶24 Appellant's record shows he has been involved in violent behavior since 1966. His prior convictions consist of six (6) convictions for kidnapping; four (4) convictions for assault and battery on a minor with a deadly weapon; one (1) conviction for attempted murder; and two (2) convictions for felonious possession of a firearm. This evidence more than supports the trial court's finding Appellant has been convicted previously of a violent felony (21 O.S. § 701.12 [21-701.12](1)) in both CRF-91-1 and CRF-91-2.

¶25 As noted above, Appellant told investigating authorities he would have continued his sadistic practices in the future had he not been apprehended. This was re-enforced by Appellant's own statement at the hearing, when he told the court "It is also accurate to say that had I not been caught, I would be doing the same thing today." Appellant also told authorities he intended to use a butane fireplace lighter found in his glove compartment to torture future victims.

¶26 Additionally, the prosecution presented evidence from Robert Hill, a North Carolina resident. Hill testified that in 1976, when he was 15 years old, Appellant offered him a ride. As they reached Hill's destination and Hill attempted to get out of the car, Appellant locked Hill's door, grabbed him and shoved him head first into the floorboard, telling Hill to put his hands behind his back. When the boy refused, Appellant hit him at least six times with a claw hammer. Despite these repeated blows, Hill managed to stumble from the car and begin to run away. Appellant backed his car up in an attempt to pursue Hill, then sped off as Hill reached a place of safety. This evidence also amply supports the trial court's finding Appellant would likely commit future acts of violence which would constitute a continuing threat to society (21 O.S. § 701.12 [21-701.12](7)) in both CRF-91-1 and CRF-91-2.

¶27 The trial court also found in each case the murder was especially heinous, atrocious or cruel (21 O.S. § 701.12 [21-701.12](4)). This requires a more thoughtful look at the evidence. The medical examiner testified that both Domer and McLaughlin were likely killed instantly by the gunshots; then after they were dead were dragged to the pond and put in the water. Therefore, for this aggravating circumstance to stand, there must be evidence of torture or serious physical abuse before that point.

¶28 In McLaughlin's case, there is little doubt torture and serious physical abuse occurred before he was shot. The medical examiner reported McLaughlin's wrists and ankles bore contusions and abrasions from the handcuffs and leg irons Appellant had bound him with. In addition, there was considerable hemorrhaging on the boy's buttocks, indicating hard blows made by a rod-shaped instrument. The medical examiner noted the presence of least four or five such injuries, and Appellant told authorities the boy "received quite a few licks." This evidence of Appellant's sadistic behavior towards McLaughlin supports the trial court's finding in CRF-91-2 that torture or serious physical abuse occurred before death.

¶29 The evidence concerning Domer is less plentiful. Appellant told authorities the boy was "calm" when they arrived at the pond. Furthermore, although Appellant began to beat the boy, he resisted the beating by turning to a position where Appellant could not paddle him. Appellant himself confirmed this, saying "he didn't let me whip him long enough to cry," adding later "he was obviously determined not to take — uh — a beating." Appellant also told authorities the boy did not know he had a pistol; Appellant had not displayed it before shooting Domer in the back. He also told authorities the boy was "dead when he hit the ground." Based on this, we find insufficient evidence to support the trial court's findings in CRF-91-1 that the murder of Domer was especially heinous, atrocious or cruel.

¶30 Despite Appellant's refusal to present mitigating evidence, the trial court ordered a pre-sentence investigation, which was included in the record. An examination of that record reveals discussions of versions of the murders, criminal record, personal and family data, his residences, education background, employment history, health, military history, financial condition and future plans. It shows nothing by way of mitigation. The prosecutor made a statement to the court at the conclusion of the sentencing hearing during which he said:

In these two cases here today, I've looked at the facts, the circumstances, and all the evidence that surrounds those two murders. I've studied this defendant, his background, his remarks, the reports that we have on him, competency and otherwise. And without hesitation, I can tell this Court that I find no mitigating circumstances whatsoever in either murder.

(4-4 Tr. 111). In response, Appellant's attorney told the court he "cannot take issue with anything [the prosecutor] has said," adding "The defendant is bound to show mitigation in order for the Court to consider some other form of punishment, and we have shown none." (4-4 Tr. 115-16).

¶31 From this information, we conclude there was no real mitigating evidence to be presented to the trial court. In light of this lack of mitigation, and examining the record as we are required to do by 21 O.S. 1991 § 701.13 [21-701.13](C), we find in CRF-91-2 all three aggravating circumstances are supported by the record, and the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

¶32 In CRF-91-1, even though we have found insufficient evidence to support the finding the murder was especially heinous, atrocious or cruel, upon reweighing the remaining evidence we find the remaining two aggravating circumstances support the court's judgment of death; and find the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

D.

¶33 As another subproposition, Appellant's attorney contends the trial court failed to consider and weigh the mitigating evidence presented to the court. This assertion is not supported by the record. Even though the court took a relatively short time to make a decision after all the evidence was presented,⁷ it also delayed formal sentencing for over a week. At that time he observed he had ordered a presentence investigation,⁸ adding:

The Statutes do not require a presentence investigation in a capital case; but the Court ordered the presentence in an effort to receive other information about this defendant that was not presented in the case. And that has to do with his background history, his growing up, and things such as that that the Court feels is important to consider in entering a sentence in this type of case.

(4-12 Tr. 03-04). This indicates the court carefully studied the information available to him at the time he sentenced Appellant to death.⁹

¶34 Accordingly, Appellant's first proposition is without merit.¹⁰

III.

¶35 For his second proposition, Appellant's attorney contends the trial court violated the Eighth Amendment by using the same evidence to find the aggravating circumstances of prior violent felony and continuing threat.

¶36 We first reject the argument the evidence to prove each was exactly the same. The prior felonies were used in support of the continuing threat; but so also was Appellant's own statements to both authorities and the trial court he would have continued his sadistic practices in the future had he not been apprehended. He not only would have continued them, he would have expanded his methods of torture: he told authorities he intended to use a butane fireplace lighter found in his glove compartment to torture future victims.

¶37 In any case, we have rejected this argument before. Berget v. State, 824 P.2d 364, 376-77 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992); Pickens v. State, 850 P.2d 328, 337 (Okl.Cr. 1993); Smith v. State, 819 P.2d 270, 278 (Okl.Cr. 1991), cert. denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992). We do so again. This proposition is without merit.

IV.

A.

¶38 Appellant's attorney argues in the third proposition the orders finding Appellant competent to stand trial, to plead guilty and waive rights are erroneous. The contention is the trial court was not required to determine if Appellant had a rational and factual understanding of the proceedings against him. Appellant's attorney also argues the presumptions and burden of proof in Oklahoma's competency statutes are unconstitutional. The right to appeal this issue has been waived by failure to appeal the verdicts on competency in a timely manner after the court's verdict.

¶39 We find the arguments to be without merit. The record is saturated with documents showing Appellant both understood the nature of the charges against him and was able to assist his attorney in his defense. During the first competency hearing, evidence showed Appellant completed a form containing approximately five pages of questions asking him to describe court proceedings; who his attorney was; the nature of the discussions he would have with an attorney in a legal situation; and the nature and role of the judge. Authorities who had conversations with Appellant found him to be rational and able to understand the nature of the proceedings against him.

¶40 In preparation for the second hearing, Appellant was examined by a psychologist and a medical doctor and another psychologist who performed testing on Appellant. Dr. Jeanne Russell, a psychologist, testified Appellant completely understood the nature of the charges against him. He was not delusional and did not have hallucinations. Appellant also told authorities he had been examined seven or eight times to determine competency in other states during the course of other criminal proceedings; he was always found competent.

¶41 Appellant's case presents a unique situation. Here, there was never any real question of his competency; rather, the court took extra precautions to ensure that the guilty plea Appellant had announced he was going to enter could withstand the intense scrutiny that accompanies all capital cases. Under whatever standard by which this Court would choose to evaluate him, the evidence — in both competency hearings, during his guilty plea and sentencing — showed unequivocally Appellant was competent, as he had a rational understanding of the nature of the charges against him and was able to consult with his attorney with a reasonable degree of rational understanding. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

B.

¶42 Appellant's attorney also claims the statute is unconstitutional, as it shoulders a criminal defendant with the burden of proof; and requires him to prove incompetency by clear and convincing evidence. Appellant's counsel conceded in oral argument the issue of the competency statute is technically not a part of the mandatory sentence review. However, we note its inclusion here pursuant to the discussion in Grasso concerning a defendant's competency to waive an appeal, and consider it in that context.

¶43 This Court decided in Cooper v. State, 889 P.2d 293 (Okl.Cr. 1995) the provisions of 22 O.S. 1991 §§ 1175.1 [22-1175.1] through 1175.8 are constitutional and the allocation of a clear and convincing burden of proof to a criminal defendant "is not subject to proscription under the Due Process clause, because it does not `offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Medina [v. California], 505 U.S. [___] at ___, 112 S.Ct. [2572] at 2577, 120 L.Ed.2d [353] at 363 [(1992)] (quoting Patterson [v. New York], 432 U.S. [197] at 202, [97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)])." We find the Appellant was afforded the process due him in these proceedings, and therefore reject this third proposition of error.

V.

¶44 The fourth and last proposition of error presented deals once again with attacks on the constitutionality of the "continuing threat" and "heinous, atrocious or cruel" aggravating circumstances. The argument here, as before, is the terms are unconstitutionally vague.

¶45 Appellant's attorney concedes this Court has repeatedly rejected the argument the "continuing threat" aggravator is unconstitutionally vague, citing Boyd v. State, 839 P.2d 1363, 1371 (Okl.Cr. 1992) and Munson v. State, 758 P.2d 324, 335 (Okl.Cr. 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989). Likewise, counsel cites Nuckols v. State, 805 P.2d 672, 674 (Okl.Cr. 1991) to show us we have previously rejected the argument the "heinous, atrocious or cruel" aggravator is unconstitutionally vague. We agree with those assessments, and see no need to revisit either argument.

¶46 This proposition is also without merit.

¶47 Accordingly, the Judgments and Sentences of the District Court are AFFIRMED.

¶48 The trial court noted in its July 29, 1991, Findings and Conclusions that Appellant "has stated he wishes to waive all appeals other than the mandatory review of his sentence. He has not retracted those statements and this is his position even as of today." This finding is supported by the record. The mandatory sentence review is now completed. IT IS THEREFORE THE ORDER OF THIS COURT that the mandate be issued immediately. Further, it is the order of this Court that the execution of the judgment and sentence of death of the District Court of LeFlore County be carried out on MAY 26, 1995. 22 O.S.Supp. 1992 § 1001.1 [22-1001.1](A).

JOHNSON, P.J., and LANE, J., concur.

CHAPEL, V.P.J., specially concurs.

STRUBHAR, J., concurs in results.

Footnotes:

¹ The signed affidavit acknowledges he had pled guilty to and been convicted of two murders and sentenced to death in each one; that he was represented at all stages during the cases by an attorney; that the attorney had advised Appellant of "all my legal and constitutional rights at all phases and I have acted freely, knowingly and voluntarily at all phases and at all times"; that he had instructed his trial attorney not to pursue a direct appeal of his sentences, adding "I hereby waive my right to appeal freely and voluntarily with the full and complete understanding that this decision will hasten my execution. It is my desire that I be executed at the earliest possible date allowed by law"; and that he "strictly and expressly forbid[s] any person, persons or entities other than [trial counsel] to represent me and my interests in these cases. It is my desire that [trial counsel] alone direct the remnants of my defense." (CRF-91-1 O.R. 92-93); (CRF-91-2 O.R. 92-93).

² At the outset, we compliment the Hon. Ted A. Knight, trial judge, for the excellent job of preserving this record for appeal. The court went out of his way to ensure the record before this Court was thorough, as well as taking great pains to ensure that all of Petitioner's rights were protected. We also compliment the court for his prophetic ruling two years before Grasso that Petitioner's "appeal," in the form of a mandatory sentence review, could not be waived, and must be conducted by this Court.

³ The case was not at issue in this Court for nearly three (3) years after that Order. Appellant filed several applications for extensions of time in which to file the brief-in-chief. Those applications were granted before this Court began casting a wary eye toward numerous extensions. Appellant's attorney, as chief of the Capital Direct Appeals Division of the Oklahoma Indigent Defense System, then filed an Application for Order Setting Briefing Schedule with this Court requesting a final briefing schedule be set in ten (10) capital cases to allow timely filing in each case. Such an order was issued on May 17, 1993. In that order, Appellant's brief-in-chief was to be filed with the Clerk of this Court no later than April 15, 1994. Appellant's brief was filed on that date. The State's brief-in-chief was filed June 14, 1994.

⁴ Of course, the Supreme Court has not required a defendant to present mitigating evidence. Rather, a survey of relevant cases reveals statements concerning the ability of a defendant to present such evidence are phrased permissively. See e.g., Blystone v. Pennsylvania, 494 U.S. 299, 307 n. 5, 110 S.Ct. 1078, 1083 n. 5, 108 L.Ed.2d 255 (1990) (". . . . The dissent ignores the fact that the three-Justice opinion in Jurck concluded the Texas statute fulfilled the requirement of individualized sentencing precisely because one of the special findings had been construed by Texas courts to permit the consideration of mitigating evidence."); McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 1774-75, 95 L.Ed.2d 262 (1987) ("States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant."); Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 1672-73, 90 L.Ed.2d 1 (1986) ("The resulting death sentence cannot stand, although the State is of course not precluded from again seeking to impose the death sentence, provided that it does so through a new sentencing hearing at which petitioner is permitted to present any and all relevant mitigating evidence that is available."); Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77, 77, 71 L.Ed.2d 1 (1982) ("Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence."); Id., 455 U.S. at 115 n. 10, 102 S.Ct. at 877 n. 10 ("We note that the Oklahoma death penalty statute permits the defendant to present evidence `as to any mitigating circumstances.' Okla. Stat., Tit. 21, Sec 701.10 (1980). Lockett requires the sentencer to listen."); Lockett v. Ohio, 438 U.S. 586, 604. 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (". . . we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.")

⁵ Under this procedure, when a capital defendant, against counsel's advice, refuses to present or permit the presentation of mitigating evidence in the penalty phase, defense counsel must inform the trial court on the record of that decision. Counsel must also indicate based on his investigation whether he reasonably believes mitigating evidence exists, what it is, and whether it could be presented. The trial court should then require the defendant to confirm on the record his counsel has discussed these issues with him and state that despite his counsel's wishes, the defendant desires to waive presentation of penalty phase evidence. Id. at 250.

⁶ Indeed, the case sub judice illustrates what could happen in a more extreme example. Appellant had no ties to Oklahoma; he had no relatives even in Arkansas where he was living. Despite this, his counsel in oral argument commented he did cooperate with her to the extent he gave some background concerning family and other information. Had he chosen to, he could have completely "stonewalled," refusing to give any information whatsoever. Had he done so, trial counsel would almost literally have no starting point from which to gather any information whatsoever. Counsel cannot advise a court of information he cannot gather.

⁷ The record indicates the trial court recessed for approximately 25 minutes before returning with its findings.

⁸ Appellant's attorney asserts the trial court did not consider this presentence investigation in determining punishment. This statement is simply not supported by the record. The presentence investigation was ordered on March 12, 1991, at the conclusion of the hearing at which Appellant pled guilty; the report was dated April 1; the sentencing hearing at which evidence was produced was held April 4; formal sentencing was held April 12. Therefore, there was plenty of time for the court to review the report. That the court did so is clearly indicated in the transcript of formal sentencing. Nor are we persuaded that the few omissions in the report would have influenced the court. While the court did not have a criminal record from the Federal Bureau of Investigation, the report clearly showed he had such a record; therefore, at most the record would have shown Appellant had more criminal convictions than the record before the court revealed. This could hardly be described as helpful. Nor do we think the court would have been swayed by official notification from learning institutions that Appellant had completed truck driving school or high school. By the same token, statements from past employers to verify that Appellant held jobs for brief periods of time would not have swayed any sentencer. Finally, official verification Appellant entered the Navy in 1959 and was kicked out in 1962 with a reduction in rank after spending time in the brig for convictions of assault and carrying a concealed deadly weapon would have done nothing in the way of mitigation for consideration by the trial court.

⁹ Appellant's attorney also notes in passing he had requested the death penalty. We mention this point only to show this desire had no bearing on the court's determination of punishment. In the trial judge's report required by 21 O.S. 1991 § 701.13 [21-701.13](A), the judge made the following comment:

The trial court observes this to be a very unusual situation where accused confesses to the crimes and desires the death penalty. However, when the evidence was presented and considered, it is very clear that this defendant should receive the death sentence.

This conclusion is reached without any consideration to this defendant's desire for death. The evidence presented at the sentencing hearing sufficiently established three statutory aggravating circumstances. The evidence in favor of the death sentence, in the trial judge's opinion, was overwhelming.

This further supports the determination Appellant's sentence was not imposed under the influence of passion, prejudice or other arbitrary factor.

¹⁰ As another subproposition, Appellant's attorney argued there was mitigating evidence which could have been presented at trial. In support of this, she filed with this Court a motion to supplement the record with an affidavit from Petitioner's aunt, who could have testified from personal knowledge about Petitioner's background and family history; and an affidavit of a Tulsa psychologist, who would express personal opinions about Petitioner's early childhood, his psychosocial and pathology development and his potential for future dangerousness. This Court denied that motion. Petitioner's attorney has missed the point. She has not argued whether a criminal defendant can waive his right to present mitigating evidence. Rather, she argued the court was constitutionally required to hear mitigating evidence. whether the defendant wished it or not. In light of our holding above there is no constitutional requirement compelling the introduction of mitigating evidence, the attorney's attempt to do so on appeal would be to contravene Petitioner's expressed wishes no such evidence be presented, which she virtually concedes on appeal he has a right to do.

*****

CHAPEL, Vice Presiding Judge, specially concurring:

¶1 I believe a competent defendant in a capital case can waive his right to direct appeal.¹ However. I cannot agree with the majority's reliance on Cooper v. State² and the discussion regarding due process which is contained in dicta in the Cooper opinion. In Cooper I concurred in result without writing because of the analysis of the Due Process Clause. I now find Cooper cited here for that purpose, and I must write to state my disagreement with the analysis in Cooper.

¶2 This issue is not before us; this Court need not attempt to precisely delineate the boundaries of due process in order to determine the validity of our competency statutes. Nevertheless, the majority correctly notes the difficulty in defining "due process" precisely but provides an unnecessarily narrow view of the principle.

¶3 The United States Supreme Court has said:

Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitutional — of whatever race, creed or persuasion."³

¶4 It is in this context that the Supreme Court declared that the Due Process Clause of the Fourteenth Amendment was "intended to guarantee procedural standards adequate and appropriate, then and thereafter, to protect, at all times, people charged with or suspected of crime by those holding positions of power and authority."⁴ Due process is "a summarized constitutional guarantee of respect for those personal immunities which . . . are so rooted in the traditions and conscience of our people as to be ranked as fundamental, or are implicit in the concept of ordered liberty." [citations omitted]⁵

¶5 The Supreme Court has "very narrowly" defined the "category of infractions that violate fundamental fairness" and thus violate due process.⁶ However, within those parameters, the Court's scope of review must "ascertain whether [proceedings] offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses."⁷ "The Due Process Clause places upon this Court the duty of exercising a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions."⁸

¶6 This Court has referred to due process as "that fundamental fairness essential to every concept of justice."⁹ "A fair and impartial administration of justice is one of the most sacred rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to the due and orderly course of law."¹⁰

¶7 In various contexts, due process has been held to require: 1) that invasive or brutal procedures cannot extract evidence from a prisoner to support his conviction;¹¹ 2) in the context of involuntary confessions, that a confession may not be coerced but must be the unconstrained product of free choice;¹² 3) that, upon arrest, a person must be brought before a magistrate within a reasonable time;¹³ 4) that a statute be explicit enough to inform those subject to it what conduct will render them liable to its penalties, and couched in terms not so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application;¹⁴ 5) that, upon arrest or conviction, any proceedings for revocation of bond shall at the least afford notice and an opportunity for a hearing, and orders shall not issue ex parte;¹⁵ 6) in criminal proceedings, that a defendant have competent counsel (or validly waive counsel), have an opportunity to confront all witnesses against him and to testify and bring witnesses on his own behalf, be advised of the charges against him, have a right to a public trial by jury in the locality in which the crime was committed, have the jury properly instructed, and have the assistance of experts necessary for his defense (upon showing of need);¹⁶ 7) that a defendant should not be tried before the jury in shackles or bonds;¹⁷ 8) that, in a criminal prosecution, the State shall provide the defense exculpatory material;¹⁸ 9) that, at trial, co-defendants with mutually antagonistic defenses shall not be forced to participate in a joint trial;¹⁹ 10) that the State refrain from engaging in egregious and overzealous prosecution which may affect a jury verdict and thus deprive a defendant of his right to a fair trial;²⁰ 11) that the State's knowing use of perjured testimony to convict a defendant result in a negation of the process normally afforded by notice and hearing;²¹ 12) that where a case is submitted to a jury on alternative theories and one of those theories is infirm, the conviction must be set aside;²² 13) in juvenile proceedings, that juveniles receive protection of appropriate procedures in both juvenile court and reverse certification proceedings;²³ 14) in mental incompetency proceedings, that, at a minimum, the ward receive written notice and a hearing in which the rights afforded a defendant at trial apply.²⁴

¶8 This list is illustrative only and does not begin to exhaust the myriad forms which due process may take. It clearly shows that while, at a minimum, due process requires both notice and an opportunity for a hearing according to established procedures, these elements cannot satisfy or even accurately describe the parameters of the Due Process Clause.²⁵ This Court has held:

[W]e are not unmindful that sustaining procedural rules that [sic] give form and symmetry to the law, but quite frankly we are inclined to the principle that these are but means to the end of overall justice, and where procedural rules become an obstacle to the administration of justice or the attainment of its end in a case, we would not hesitate to sweep them under the rug to reach the heart of the matter. . . ." [citations omitted]²⁶

¶9 Although I concur in the result reached by the majority, I am unable to join in the narrow view of the Due Process Clause as set forth in Cooper.

*****

Footnotes:

¹ A defendant cannot waive his mandatory sentence review, which remains a statutory obligation of this Court. Grasso v. State, 857 P.2d 802 (Okl.Cr. 1993).

² 889 P.2d 293, 66 O.B.J. 166, 170 (Okl.Cr. 1995).

³ Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed. 716 (1940).

⁴ Chambers, 309 U.S. at 236, 60 S.Ct. at 476-77.

⁵ Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937).

⁶ Medina v. California, 505 U.S. ___, ___, 112 S.Ct. 2572, 2576, 120 L.Ed.2d 353 (1992); Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990).

⁷ Rochin, 342 U.S. at 169, 72 S.Ct. at 208.

⁸ Id., 342 U.S. at 171, 72 S.Ct. at 209.

⁹ Mann v. State, 856 P.2d 992, 995 (Okl.Cr. 1993), cert. denied, 488 U.S. 877, 109 S.Ct. 193, 102 L.Ed.2d 163 (1988); In re Pate's Petition, 371 P.2d 500, 505 (Okl.Cr. 1962), cert denied, 373 U.S. 915, 83 S.Ct. 1304, 10 L.Ed.2d 415 (1963); Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941).

¹⁰ Ex parte Hollins, 54 Okl.Cr. 70, 14 P.2d 243, 246 (1932).

¹¹ Rochin, 342 U.S. at 173, 72 S.Ct. at 210.

¹² See, e.g., Culombe v. Connecticut, 367 U.S. 568, 581-84, 81 S.Ct. 1860, 1867-69, 6 L.Ed.2d 1037 (1961); Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945); Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682 (1936); In re Pate, 371 P.2d at 505; Lyons v. State, 77 Okl.Cr. 197, 138 P.2d 142 (1943), aff'd, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944).

¹³ Culombe, 367 U.S. at 584, 81 S.Ct. at 1869.

¹⁴ May v. State, 788 P.2d 408 (Okl.Cr. 1990); Whitney v. California, 274 U.S. 357, 368, 47 S.Ct. 641, 645-46, 71 L.Ed. 1095 (1926) (criminal syndicalism). Whitney also holds that the Due Process Clause is not violated where the state punishes speech which menaces the peace and welfare of the state. 274 U.S. at 371, 47 S.Ct. at 646-47. This Court cited Whitney when upholding a similar Oklahoma criminal syndicalism statute in Shaw v. State, 76 Okl.Cr. 271, 134 P.2d 999 (1943). Although the syllabus in Shaw suggests that due process is satisfied by legal procedures which operate on all alike without subjecting an individual to the arbitrary, unrestrained exercise of the powers of government, the opinion does not discuss due process beyond quoting the syllabus in Whitney.

¹⁵ Nauni v. Cannon, 628 P.2d 372 (Okl.Cr. 1981); Petition of Humphrey, 601 P.2d 103, 107 (Okl.Cr. 1979).

¹⁶ Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Brown, 297 U.S. at 286, 56 S.Ct. at 465; Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932); Rogers v. State, 890 P.2d 959 (Okl.Cr. 1995); Green v. State, 881 P.2d 751, 752 (Okl.Cr. 1994); Ward v. State, 444 P.2d 255, 261 (Okl.Cr. 1968), cert. denied, 393 U.S. 1040, 89 S.Ct. 665, 21 L.Ed.2d 588 (1969); Hollins, 14 P.2d at 245-6.

¹⁷ French v. State, 377 P.2d 501, 502-3, 505 (Okl.Cr. 1962), overruled in part, Peters v. State, 516 P.2d 1372, 1374 (Okl.Cr. 1973) (majority opinion and Bussey, J., concurring).

¹⁸ Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Sadler v. State, 846 P.2d 377 (Okl.Cr. 1993).

¹⁹ Neill v. State, 827 P.2d 884 (Okl.Cr. 1992).

²⁰ McCarty v. State, 765 P.2d 1215, 1222 (Okl.Cr. 1988); Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935) (use of perjured testimony).

²¹ Hysler v. Florida, 315 U.S. 411, 413, 62 S.Ct. 688, 86 L.Ed. 932 (1942); Mooney, 294 U.S. at 112, 55 S.Ct. at 342.

²² Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Tibbs v. State, 819 P.2d 1372, 1373 (Okl.Cr. 1991) (alternative theories of guilt).

²³ In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); M.L.R. v. State, 740 P.2d 1201 (Okl.Cr. 1987); Edwards v. State, 591 P.2d 313, 321-22 (Okl.Cr. 1979).

²⁴ In re Guardianship of Deere, 708 P.2d 1123, 1126 (Okl.Cr. 1985).

²⁵ Powell, 287 U.S. at 68, 53 S.Ct. at 64.

²⁶ In re Pate, 371 P.2d at 518.

*****

STRUBHAR, Judge, concurring in result.

¶1 I agree with the majority that the judgment and sentence in this case should be affirmed. However, I write separately to address the Majority's erroneous conclusion that a sentencer may impose the death penalty without considering mitigating evidence and not run afoul of the Eighth Amendment's bar against arbitrary and unreliable impositions of the death penalty. See, Majority, op. at 510-12.

¶2 I agree with the Majority that a competent defendant may waive his personal right to present mitigating evidence. See, 21 O.S. 1991 § 701.10 [21-701.10](C).¹ I further agree that Appellant's wishes not to present mitigating evidence in the instant case did not deprive the State of Oklahoma of its interests that Appellant's sentence be imposed in a constitutionally sound manner because mitigating evidence was considered by the sentencer. See, Majority, op. at 512.

¶3 However, I cannot agree that a sentencer may impose the death penalty without considering mitigating evidence present in a case simply because the defendant elects not to present any evidence in mitigation. Under our statutory scheme, a sentencer may impose the death penalty only if the aggravating circumstances proven beyond a reasonable doubt outweigh the mitigating circumstances beyond a reasonable doubt. See, 21 O.S. 1991 § 701.11 [21-701.11] If the sentencer does not hear the mitigating evidence, it cannot discharge its statutory duty. A reliable capital sentencing trial requires an individualized determination on the basis of the character of the individual and the circumstances of the crime. Therefore, the sentencer should hear and consider all relevant testimony and evidence in mitigation of punishment. Such a procedure not only protects the interests of the accused, but also protects the interests of the State of Oklahoma to enact and enforce a constitutional death penalty scheme.

¶4 As Judge Knight recognized in this case, his responsibilities were much broader than Appellant's wishes, and the imposition of the death penalty would be authorized only if, as here, the court satisfied itself 1) that the existence of at least one statutory aggravating circumstance was proven beyond a reasonable doubt, and 2) considering all the facts and circumstances presented to the court, the death sentence was the appropriate punishment. 21 O.S. 1991 § 701.11 [21-701.11].

¶5 In view of the concern for reliability inherent in our death penalty procedures, including the mandatory sentence review by this Court, see 21 O.S. 1991 § 701.13 [21-701.13](C), the trial court in a case like this has an obligation to conduct an independent investigation into the possible existence of evidence in mitigation. Oftentimes, mitigating evidence such as youth, bouts of mental illness and substance abuse will be apparent from the record without a defendant supplying such information. The trial court here undertook to inform itself about Wallace's background and evidence of mitigation by ordering a pre-sentence investigation report prior to sentencing.² Even though Judge Knight was under no obligation to order a pre-sentence investigation report, he wisely did so. The report contained mitigating evidence for the judge to consider. The record reflects Judge Knight considered the mitigating evidence and found that the aggravating circumstances outweighed the mitigating circumstances found beyond a reasonable doubt. Thus, no error occurred in this case when the death penalty was imposed.

Footnotes:

¹ Title 21 O.S. 1991 § 701.10 [21-701.10](C) provides in pertinent part:

In the sentencing proceeding, evidence may be presented as to any mitigating circumstances . . .

² Clearly, under the language of 22 O.S. 1991 § 982 [22-982], the trial court was under no statutory obligation to order such an investigative report.

UNITED STATES COURT OF APPEALS
For the Tenth Circuit

GEORGE KENT WALLACE, Petitioner-Appellant,
v.
RON WARD, Warden, Oklahoma State Penitentiary,

Respondent-Appellee.

No. 98-7116

September 10, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-213-B)

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Petitioner George Kent Wallace, an Oklahoma state prisoner, entered guilty pleas to two counts of first degree murder and sought the death penalty, which the state trial court imposed. After direct criminal appeal and post-conviction proceedings, petitioner filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court denied relief.

On appeal, petitioner argues (1) application of the new standards of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA) would have an impermissible retroactive effect; (2) the trial court violated his due process rights by analyzing his competency under the "clear and convincing evidence" standard prohibited by Cooper v. Oklahoma, 517 U.S. 348 (1996); and (3) his trial counsel was ineffective due to a conflict of interest and his failure to investigate mitigating evidence. Petitioner also argues the federal district court abused its discretion in denying his request for discovery on the conflict issue. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253, and we affirm the federal district court's judgment.

I. BACKGROUND

On February 17, 1987, petitioner, posing as a police officer, pretended to arrest fifteen year old William Von Eric Domer in Van Buren, Arkansas. Petitioner frisked, handcuffed, and shackled Domer and then put him in the back seat of petitioner's rental car. Petitioner drove across the Arkansas state border to Leard Pond near Pocola, Oklahoma.

There, petitioner pulled down Domer's pants and underpants and attempted to beat him with a paddle. After Domer resisted, petitioner pulled up his clothing, removed him from the car, and walked him down a hill. Petitioner shot Domer twice in the back with a .25 caliber pistol. Thereafter, petitioner removed the handcuffs and leg irons, dragged Domer's body, and threw the body into the pond.

On November 11, 1990, petitioner, again posing as a police officer, stopped fourteen year old Anthony McLaughlin in Van Buren. Petitioner pretended to arrest McLaughlin, frisked him, placed handcuffs and leg irons on him, and then put him in the back seat of petitioner's rental car. As with Domer, petitioner drove to Leard Pond.

Upon arriving, petitioner got in the back seat with McLaughlin, pulled down his pants and underpants, and spanked him with a wooden plunger handle. After doing so, petitioner pulled up McLaughlin's clothing, got him out of the car, walked him to the pond, and shot him in the back once with a .22 caliber pistol. Thereafter, petitioner removed the handcuffs and leg irons and threw McLaughlin's body in the pond.

Arkansas authorities arrested petitioner on December 9, 1990. On that day, petitioner again impersonated a police officer when he pretended to arrest Ross Allen Ferguson in Van Buren. Petitioner placed handcuffs and leg irons on Ferguson and then put him in the backseat of another rental car.

Petitioner drove to a country road, parked the car, climbed in the backseat, pulled down Ferguson's pants and underpants, and beat him with a rod. After the beating, petitioner removed Ferguson from the car and began walking him down the road. Ferguson, who was aware of the McLaughlin murder, asked petitioner if he intended to shoot him.

Petitioner replied that he would not and proceeded to stab Ferguson six times with a knife. Feigning death, Ferguson allowed petitioner to drag him to a nearby pond. When petitioner removed the handcuffs and leg irons, Ferguson ran to the rental car, drove away, and notified Arkansas authorities. Petitioner was arrested near the scene a short while later.

Petitioner confessed to the two murders and pleaded guilty to two counts of first degree murder. After the State presented its aggravating evidence at the punishment trial, petitioner took the stand himself and requested that the trial court impose the death penalty.

The trial court found three aggravating circumstances: petitioner had previously been convicted of a felony involving the threat or use of violence, the murders were especially heinous, atrocious or cruel, and petitioner would pose a continuing threat to society. The trial court imposed the death penalty. At sentencing, the trial court advised petitioner of his appeal rights, including the Oklahoma requirement that he withdraw his guilty pleas in order to appeal his convictions. See Tr. of 4/12/91 Hr'g at 7-12.⁽¹⁾

Petitioner waived his appeal rights both verbally and in writing and did not attempt to withdraw his guilty pleas. Instead, he expressed his desire to be executed as soon as possible. See id. at 10-12.

Because Oklahoma provides for mandatory sentence review, see Okla. Stat. tit. 21, § 701.13(A), the trial court appointed counsel to represent petitioner on appeal. The Oklahoma Court of Criminal Appeals remanded the case to the trial court to determine, among other things, who represented petitioner on appeal, whether petitioner waived an appeal other than mandatory sentence review, and whether petitioner's request for an appeal out of time should be granted. After holding a hearing, the trial court found that petitioner had waived an appeal, except mandatory sentence review, but, nonetheless, he should be allowed an appeal.

The Oklahoma Court of Criminal Appeals granted an appeal out of time, determined petitioner had waived all issues other than mandatory sentence review because he did not file an application to withdraw his guilty plea, and upheld the death sentences. See Wallace v. State, 893 P.2d 504, 509-10, 517 (Okla. Crim. App.), cert. denied, 516 U.S. 888 (1995).⁽²⁾ That court later denied post-conviction relief, discovery, and an evidentiary hearing. See Wallace v. State, 935 P.2d 366 (Okla. Crim. App.), cert. denied, 521 U.S. 1108 (1997).

Petitioner commenced a habeas action in federal district court, and again moved for discovery and an evidentiary hearing. The district court denied all relief and denied a certificate of appealability (COA). See 28 U.S.C. § 2253(c). This court granted COA on the issues listed above and denied it on all others.⁽³⁾

II. APPLICABILITY OF AEDPA'S STANDARDS OF REVIEW

Petitioner first argues the district court erred in applying the standards of review set forth in AEDPA, even though he filed his habeas petition after the effective date of AEDPA. Petitioner submits that application of AEDPA's new standards to state court proceedings completed before enactment or effectiveness of AEDPA is unconstitutionally retroactive. This court has held to the contrary, determining that AEDPA applies to cases filed after its effective date, regardless of when state court proceedings occurred. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999); see also Berget v. Gibson, No. 98-6381, 1999 WL 586986, at *2-*4 (10th Cir. Aug. 5, 1999) (unpublished order and judgment in capital case citing Rogers and holding that application of AEDPA to cases filed after its effective date is not impermissibly retroactive); Mueller v. Angelone, 181 F.3d 557, 565-72 (4th Cir. 1999).

Under AEDPA,

a state prisoner will be entitled to federal habeas corpus relief only if he can establish that a claim adjudicated by the state courts "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 "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).] Further, "a determination of a factual issue made by a State court shall be presumed to be correct." [Id.] § 2254(e)(1). That presumption of correctness is rebuttable only "by clear and convincing evidence." Id.

Boyd v. Ward, 179 F.3d 904, 911-12 (10th Cir. 1999). If, however, a state court did not decide a claim on its merits and instead the federal district court decided the claim in the first instance, this court reviews the district court's conclusions of law de novo and factual findings, if any, for clear error. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

We have applied, but not defined, AEDPA's standards. See Bryson v. Ward, No 97-6435, 1999 WL 590738, at n.3 (10th Cir. Aug. 6, 1999). The United States Supreme Court has granted certiorari to review the Fourth Circuit's interpretation of the standards. See Williams v. Taylor, 119 S. Ct. 1355 (1999); see also 67 U.S.L.W. 3608 (Apr. 6, 1999) (listing issues presented). Under any possible interpretation, the outcome of this appeal will be the same. Thus, we decline to interpret the standards in this case.

III. COMPETENCY

Petitioner argues that his due process rights were violated when the trial court used the "clear and convincing" evidence standard prohibited by Cooper v. Oklahoma, 517 U.S. 348 (1996), to determine whether he was competent to stand trial and to enter guilty pleas. Petitioner contends that the federal district court erred in assessing whether he was competent and instead should have looked at what process the trial court used to determine competency.⁽⁴⁾

Petitioner further argues the district court erred in affording the state court factual findings a presumption of correctness because the trial court used the wrong standard for assessing competency and because his trial counsel did not investigate and raise an issue of incompetency.

Oklahoma law in effect at the time the state trial court determined petitioner's competency required criminal defendants to prove incompetence by "clear and convincing evidence." Okla. Stat. tit. 22, § 1175.4(B). The Supreme Court struck down the "clear and convincing" evidence standard holding that "[b]ecause Oklahoma's procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process." Cooper, 517 U.S. at 369. Thus, we must determine whether the trial court applied an unconstitutional standard when conducting petitioner's competency proceedings.

On direct criminal appeal, which was pre-Cooper, petitioner presented the Oklahoma Court of Criminal Appeals with the competency issue presented here. See Wallace, 893 P.2d at 516-17. That court determined petitioner waived any argument he was not competent to stand trial, plead guilty, or waive rights, because he did not withdraw his guilty pleas. See id. at 510, 516.

Nonetheless, the court decided, based on the evidence before the trial court, that petitioner's competency arguments were without merit "[u]nder whatever standard," as there was never any real question about his competency. Id. (citing Dusky v. United States, 362 U.S. 402 (1960)).

On post-conviction review, despite recognizing the Supreme Court's intervening opinion in Cooper, the Oklahoma Court of Criminal Appeals first declined to address the issue because it had been raised and addressed on direct appeal. See Wallace, 935 P.2d at 371. Even if the claim were not barred by res judicata, that court alternatively determined, after carefully and thoroughly examining all portions of the record concerning competency, it would not grant relief because competency to stand trial was never factually controverted by petitioner or really in doubt by the parties or the trial court. See id. at 371 n.4. Thus, the court believed that petitioner was never in a position of having to meet an unconstitutional burden of proof. See id. at 372 n.4.

The federal district court, although finding procedural bar due to petitioner's failure to withdraw his guilty pleas, addressed the merits for the reason that competency bears upon the knowing waiver of constitutional rights. See Dist. Ct. R. vol. VII, doc. 40 at 14, 20. The court concluded the record supports the state court determinations that petitioner was competent.

On appeal, respondent notes that the district court correctly recognized the state jurisdictional rule requiring petitioner to withdraw his guilty pleas. Respondent, however, does not actually assert procedural bar. Instead, he cites to recent Tenth Circuit authority, Walker v. Attorney General, 167 F.3d 1339, 1344 (10th Cir. 1999), and proceeds to discuss the merits of this claim. See Appellee's Br. at 8-9. Because respondent does not specifically argue procedural bar, we turn to the merits of petitioner's claim. See Hooks v. Ward, No. 98-6196, 1999 WL 502608, at *9 (10th Cir. July 16, 1999) (holding State is required to raise procedural bar as affirmative defense or it is waived).

The state trial court held two competency hearings. We consider each separately to determine whether the state trial court applied the unconstitutional "clear and convincing" evidence standard prohibited by Cooper.

Before petitioner's initial appearance, his counsel filed an application for determination of competency expressing his doubts about petitioner's ability to understand the gravity of his situation and stating that petitioner was incompetent. See O.R. (CRF-91-1, CRF-91-2) at 16; see also Tr. of 1/29/91 Hr'g at 3 (noting trial counsel filed application for determination of competency at court's request).

The trial court ordered a competency examination. At the first competency hearing, Judge Lee stated "the defendant is presumed to be competent for purposes of the allocation of the burden of proof, and the burden of going forward with the evidence. . . . I think that puts the burden on the defendant to go forward with the evidence." Tr. of 2/4/91 Hr'g at 8-9. At the conclusion of the hearing and in his order, Judge Lee determined petitioner to be competent and denied petitioner's request for further examination. See id. at 29; O.R. (CRF-91-1, CRF-91-2) at 30-31.

Under these circumstances, we assume Judge Lee applied Oklahoma law, the "clear and convincing" evidence standard held unconstitutional by Cooper. Because the state trial court utilized an unconstitutional standard of proof, its decision would "not [be] entitled to a presumption of correctness, and [would be] analogous to no competency hearing at all." Barnett v. Hargett, 174 F.3d 1128, 1135 (10th Cir. 1999); see also Walker, 167 F.3d at 1345.⁽⁵⁾

Petitioner would be entitled to habeas relief if he establishes "a bona fide doubt as to his competency" at the time he entered his guilty plea. Barnett, 174 F.3d at 1135; see also Rogers, 173 F.3d at 1290; Walker, 167 F.3d at 1343, 1345. A defendant is competent to stand trial if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and if] he has a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402 (quotation omitted); see also Godinez v. Moran, 509 U.S. 389, 399 (1993) (holding same competency standard applies to defendants who plead guilty). Evidence of irrational behavior, demeanor at trial, and prior medical opinion regarding competence are relevant to a bona fide doubt inquiry. See Rogers, 173 F.3d at 1290; Walker, 167 F.3d at 1346.

The record reveals no bona fide doubt as to petitioner's competency. A mental health expert, called by petitioner, testified at the hearing and submitted a report stating that petitioner appreciates the nature of the charges against him and can consult with his attorney and rationally assist in the preparation of his defense. See Tr. of 2/4/91 Hr'g at 15 & ex. p. 8. Although she testified that she had found approximately seventy-five percent of the people she had examined to be incompetent, she had no doubt as to petitioner's competency. See id. at 13-14, 16, 18.

The State called a criminal investigator, who had interviewed petitioner. He also testified that petitioner understood the charges against him and could assist his attorney. See id. at 24. Thus, no evidence at the first hearing raised any doubt about petitioner's competency.

At arraignment, two weeks later, after learning petitioner intended to change his pleas to guilty, Judge Knight, who was now hearing proceedings in petitioner's case, ordered a complete psychological evaluation of petitioner out of an abundance of caution, and not because he had a doubt regarding petitioner's competency. See Tr. of 2/21/91 Hr'g at 4, 6, 8. Petitioner objected, and his attorney stated he had no doubt petitioner was competent to assist with his defense, if he desired to do so. See id. at 4-5, 7. The State also objected. See id. at 6.

Nonetheless, Judge Knight appointed an amicus attorney to file an application to determine competency. The application did not raise any doubts regarding petitioner's competency, but merely indicated it was filed on the court's motion to protect petitioner's due process rights. See O.R. (CRF-91-1, CRF-91-2) at 35-36.

At the second competency hearing, held five weeks after the first hearing, petitioner presented no witnesses and the State presented a psychologist who had examined petitioner. She testified that petitioner appreciated the nature of the charges against him and the possible consequences and that he could consult with his attorney and assist with his defense. See Tr. of 3/11/91 Hr'g at 9 & ex. p. 12. She had no doubt that petitioner was competent. See id. at 11.

Defense counsel did not cross-examine the psychologist, since he and petitioner did not think competency was an issue. See id. Judge Knight found, based upon the evidence presented, that the State established petitioner's competence by "clear and convincing" evidence. See id. at 16-17; O.R. (CRF-91-1, CRF-91-2) at 50, 51; see also Tr. of 3/12/91 Hr'g at 8 (finding of Judge Knight, based on the two evaluations and the court's observations of petitioner, that petitioner was competent).

Based on these facts, we conclude Judge Knight did not place the "clear and convincing" burden held unconstitutional in Cooper on petitioner at the second hearing. Judge Knight requested examination and held the hearing only out of an abundance of caution. Petitioner presented no evidence and indeed did not contest his competency. Only the State presented evidence. Judge Knight determined the State proved petitioner was competent by "clear and convincing" evidence.

Thus, petitioner was not held to the unconstitutional burden of proving his incompetence by "clear and convincing" evidence. Accordingly, with respect to the second competency hearing, we afford the state court's finding of competency a presumption of correctness unless petitioner rebuts the presumption by clear and convincing evidence. See Bryson, 1999 WL 590738.

Petitioner apparently attempts to rebut the presumption by arguing his trial counsel did not investigate or raise an issue of competency. Petitioner does not present any specific evidence tending to show he was incompetent. The evidence petitioner mentions on appeal, but which was not presented to the trial court, of his personal mental illness; family history of mental illness; possible organic brain disease; dysfunctional, abnormal, and impoverished home environment; sexual abuse by an uncle; head injury; and difficult childhood, does not suggest he actually was incompetent.

Rather, the record reflects that petitioner had been examined several times during the preceding years as a result of his lengthy criminal history and was always determined to be competent. See Tr. of 3/12/91 Hr'g at 6; O.R. (CRF-91-1, CRF-91-2) at 90. His behavior, understanding, and demeanor during the court proceedings did not suggest incompetency. Also, petitioner himself believed he was competent. See Tr. of 3/12/91 Hr'g at 7-8.⁽⁶⁾

Petitioner has thus failed to point to clear and convincing evidence rebutting the presumption of correctness of the state trial court's finding of competence. See 28 U.S.C. §2254(e)(1). Nor was the state court's competency decision based upon an unreasonable determination of the facts in light of the evidence presented. See id. § 2254(d)(2).

IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Petitioner presents two claims of ineffective assistance of trial counsel: (1) counsel labored under a conflict of interest and (2) counsel failed to investigate mitigating evidence. Although respondent argued in the district court that both claims are procedurally barred, he does not continue to assert procedural bar to this court. See Appellee's Br. at 10-15. Accordingly, we address the merits of these claims. See Hooks, 1999 WL 502608, at *9.

A. CONFLICT OF INTEREST AND DISCOVERY

Four months before being appointed to represent petitioner, trial counsel had been employed as first assistant district attorney (DA) in the office investigating the Domer homicide. Petitioner argues that he was not fully informed of counsel's involvement in the prosecution of this case before counsel left office and therefore his waiver of conflict-free counsel was not fully informed. Also, petitioner "believe[s]" defense counsel "may" have entered into a book or movie contract during his representation of petitioner. Appellant's Br. at 20-21. This allegedly was not disclosed to petitioner before he made his waiver. Additionally, petitioner urges that this court reverse the district court's denial of discovery on these conflict issues.

Petitioner first presented a federal conflict of interest claim in state post-conviction proceedings. The Oklahoma Court of Criminal Appeals determined the claim was procedurally barred because petitioner waived a direct criminal appeal. See Wallace, 935 P.2d at 369-70. The federal district court agreed, but nevertheless addressed the merits of the claim, determining petitioner knowingly and voluntarily waived any conflict of interest.

The court further determined petitioner personally made the decision to enter guilty pleas and there was not a remote possibility that petitioner would have insisted on going to trial if counsel had more fully disclosed any potential conflicts. Accordingly, the district court denied discovery on the issue. Because the federal district court decided this claim on its merits in the first instance, we review that court's conclusions of law de novo. See LaFevers, 182 F.3d at 711.

Effective assistance of counsel includes the right to representation that is free from conflicts of interest. See Wood v. Georgia, 450 U.S. 261, 271 (1981); Stouffer v. Reynolds, 168 F.3d 1155, 1161 (10th Cir. 1999). A petitioner may waive his right to conflict-free counsel. See Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978). Any waiver must be knowing, voluntary, and done with awareness of relevant circumstances and likely consequences. See Stouffer, 168 F.3d at 1162; see also Brewer v. Williams, 430 U.S. 387, 404 (1977) (determining waiver is "an intentional relinquishment or abandonment of a known right or privilege") (further quotation omitted). Because petitioner's competence is not in doubt, he can knowingly and intelligently waive his rights. See Medina v. California, 505 U.S. 437, 450 (1992). This court indulges every reasonable presumption against waiver, however. See Stouffer, 168 F.3d at 1162.

The record shows that petitioner was advised of a conflict of interest relating to counsel's former employment and that he knowingly, voluntarily and intelligently waived his right to conflict-free representation. Before petitioner entered his guilty pleas, the trial court learned of the potential conflict.

The court held a hearing, advised petitioner of the conflict, and informed him that other counsel could be appointed to represent him. Petitioner indicated that counsel had discussed the possible conflict with him and that he waived appointment of other counsel. See Tr. of 2/4/91 Hr'g at 4-5 & ex. p. 7 (written waiver). Also, counsel indicated that he had informed petitioner of the possible conflict. See id. at 3.

Petitioner believes that this hearing and counsel's disclosure were insufficient and that he needs discovery to show that the conflict was not fully disclosed. Petitioner maintains that the federal district court abused its discretion in refusing his request for discovery. First, petitioner sought to discover counsel's involvement in the Domer murder investigation. Petitioner believes that discovery would show that the office investigator reported either to the DA or to defense counsel, who was first assistant DA. Petitioner also maintains that the DA's office did not turn over its entire file. Petitioner believes information remaining in the file would be relevant to whether his waiver of conflict-free counsel was made after full disclosure.

Petitioner also sought to obtain the entire trial file kept by counsel. According to petitioner, counsel removed documents from the file. Petitioner admits having no knowledge of the contents of the documents, but suspects they show the existence of a contract to sell literary rights to his case.

Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts permits discovery in the discretion of the trial judge upon a showing of "good cause." See LaFevers, 182 F.3d at 723. Good cause is established "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (further quotation omitted).

We conclude the district court did not abuse its discretion in denying discovery. See Stouffer, 168 F.3d at 1173. Petitioner's suggestion that counsel had greater involvement in the prosecution of the Domer case than counsel originally disclosed was general and conclusory. Furthermore, the evidence presented to the trial court strongly indicated that counsel did not have a role with regard to that investigation. See Tr. of 2/4/91 Hr'g at 2-3, 5, 6 (testimony of counsel and criminal investigator; statement by prosecutor). It also appears that a book or movie contract is pure speculation, and petitioner does not actually assert that there was a contract. Thus, we conclude petitioner knew all material facts pertinent to his waiver of representation by conflict-free counsel, and he knowingly, voluntarily, and intelligently made the waiver.

Even if we were to conclude petitioner was not fully informed of counsel's conflict, petitioner cannot show his waiver was not knowing, voluntary, and intelligent. Under the clear, unequivocal facts presented here, it is not "impossible" to determine how petitioner would have responded if counsel had made further disclosure, and we need not engage in "unguided speculation" to determine that any failure of counsel to more fully disclose was harmless. Holloway, 435 U.S. at 491.

At all times, petitioner was articulate, forthright, and adamant about pleading guilty and obtaining the death penalty, even against counsel's advise. Before his return to Oklahoma, petitioner had rejected the advice of his Arkansas counsel and confessed to the Domer homicide and refused that counsel's presence during the confession. See Tr. of 4/4/91 Hr'g at ex. p. 95 (exhibits 23 & 24).

The presentence report indicated petitioner was well aware of the criminal justice system as he had spent much of his adult life in prison or in the criminal justice system. See O.R. (CRF-91-1, CRF-91-2) at 89. Furthermore, petitioner consistently indicated his satisfaction with trial counsel. See, e.g., Tr. of 3/12/91 Hr'g at 13; Tr. of 4/12/91 Hr'g at 10. We conclude that further disclosure of conflict, if any, would not have affected petitioner's decision to waive his right to conflict-free counsel, because petitioner fully understood what he was doing, knew the consequences of his actions, and would never have deviated from his course to plead guilty and seek the death penalty.

B. FAILURE TO INVESTIGATE AND PRESENT MITIGATION EVIDENCE

Petitioner argues that even if he waived his right to conflict-free counsel, he made no waiver of his right to effective representation. Essentially, petitioner complains counsel did not investigate and present mitigating evidence. According to petitioner, counsel failed to investigate his background; did not interview his family members; and failed to request or review records regarding his previous incarcerations, hospitalizations, and commitments. If counsel had done so, petitioner believes he would have found evidence of physical and sexual abuse, a family history of mental illness, and a previous "horrific" incarceration in Arkansas.

Also, petitioner complains that counsel did not present evidence about his cooperation in prison. Because counsel allegedly conducted no investigation, petitioner maintains the decision not to present mitigating evidence was not an informed tactical decision.

On direct criminal appeal, the Oklahoma Court of Criminal Appeals held petitioner was permitted to waive presentation of mitigating evidence. See Wallace, 893 P.2d at 508, 515 n.10. The court determined if counsel had presented mitigating evidence, he would have contravened petitioner's wish that no evidence be presented. See id. at 515 n.10.

On post-conviction review, the Oklahoma appellate court first determined petitioner had waived his claims that ineffective assistance of counsel deprived him of mitigating evidence and that his waiver of the presentation of mitigating evidence was not knowing, intelligent, and voluntary. See Wallace, 935 P.2d at 370. The Oklahoma Court of Criminal Appeals, however, recognized that it had made a determination on direct appeal that

Petitioner had the capacity to understand the choice between life and death and to knowingly and intelligently waive all rights to present mitigating evidence. Petitioner knew what mitigating evidence was, as his attorney discussed it with him. He likewise knew he had the right to present mitigating evidence. Petitioner refused to cooperate with his attorney in the presentation of mitigating evidence; indeed, Petitioner would not even let his attorney cross-examine prosecution witnesses during the sentencing hearing.

Id. at 376. The court concluded "[p]etitioner understood the nature of mitigating evidence, understood the choice between life and death, and knowingly and intelligently waived all his rights to present mitigating evidence." Id.

The federal district court determined that counsel did as petitioner wished and that petitioner failed to show he would not have pleaded guilty if counsel had more thoroughly investigated mitigating evidence.

Claims of ineffective assistance of counsel are mixed questions of law and fact. See Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998) (applying AEDPA). "To establish ineffective assistance of counsel, a petitioner must prove that counsel's performance was constitutionally deficient and that counsel's deficient performance prejudiced the defense . . . ." Boyd, 179 F.3d at 913 (citing Strickland, 466 U.S. at 687); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding this two-part test applies to challenges to guilty pleas based upon ineffectiveness of counsel).

To prove deficient performance, petitioner must overcome the presumption that counsel's conduct was not constitutionally defective. See Boyd, 179 F.3d at 914. Judicial scrutiny of counsel's performance is highly deferential. See Strickland, 466 U.S. at 689. To establish prejudice, petitioner must show that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See id. at 694.

"[C]ounsel's duty to investigate all reasonable lines of defense is strictly observed in capital cases." Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998); see also Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th Cir. 1994) (in context of sentencing phase, attorney has duty to conduct reasonable investigation, which includes investigation into defendant's background; failure to conduct reasonable investigation "may" be deficient performance). Counsel, however, may make a reasonable decision that investigation is unnecessary. See Strickland, 466 U.S. at 691; Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997).

A decision not to investigate is assessed for reasonableness, giving deference to the attorney's judgment. See Strickland, 466 U.S. at 691; Williamson, 110 F.3d at 1517. The reasonableness of counsel's decision not to investigate may be determined or greatly influenced by the petitioner's statements or behavior. See Strickland, 466 U.S. at 691.

Failure to present mitigating evidence is not per se ineffective assistance of counsel. See Boyd, 179 F.3d at 918. Where available mitigating evidence is not presented, this court focuses on the reason for the decision not to present the evidence. See Brecheen, 41 F.3d at 1368. "'[T]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements and actions.'" See id. at 1370 (quoting Strickland, 466 U.S. at 691).

Although the decision to introduce mitigating evidence is a nonfundamental right which is waivable by the defense attorney on the defendant's behalf, see id. at 1368-69, petitioner here actually waived investigation and presentation of mitigating evidence himself after conferring with counsel. At all times, counsel acted in accordance with petitioner's wishes not to cross-examine State witnesses, object to State evidence, or present mitigating evidence. See Tr. of 4/4/91 Hr'g at 51-52, 58-59, 67, 70-71, 84, 97, 102-03, 105 (counsel stated that at petitioner's request and instructions he would not cross-examine witnesses; petitioner confirmed counsel's statements and said he understood he could receive death penalty and death penalty was what he wanted; petitioner stated he did not want counsel to object to the videotape deposition of Ferguson; counsel stated that at petitioner's direction he would not object to exhibits and petitioner confirmed).

Petitioner, the only defense witness at the punishment trial, testified: (1) counsel presented no defense at his instructions; (2) he understood counsel could have vigorously presented a defense if he had desired one; (3) he pleaded guilty against his attorney's advice and he informed counsel from the outset he wanted the death penalty; (4) the aggravating evidence was overwhelming and damning; (5) he instructed counsel not to cross-examine witnesses or to object to the evidence because his goal was to obtain the death penalty; (6) if he had not been caught, he would engage in the same behavior again; and (7) he had no desire to present mitigating evidence. See id. at 106-08. Defense counsel's closing statement confirmed that he represented defendant's professed interests. See id. at 115-16.

At sentencing, petitioner again declined to present any evidence to mitigate punishment. See Tr. of 4/12/91 Hr'g at 5. Based on the unique facts of this case, counsel's decision not to investigate or present mitigating evidence was completely determined by petitioner and was within the realm of reasonable tactical decisions. Cf. Brecheen, 41 F.3d at 1369 (deciding failure to present additional mitigating evidence was tactical decision where petitioner did not want to delay proceedings). We conclude petitioner has failed to show that counsel's performance was deficient.

Also, petitioner has not shown prejudice. He has not shown that but for any failure of counsel to investigate he would not have pleaded guilty or sought the death penalty. See Hill, 474 U.S. at 59. Rather, the record shows petitioner was absolutely determined to plead guilty and to obtain the death penalty.

Because petitioner has failed to make the required showings under Strickland and Hill, we conclude the state court decisions that counsel was not ineffective and that petitioner waived presentation of mitigating evidence are not unreasonable. See 28 U.S.C. § 2254(d).

V. CONCLUSION

For the reasons stated above, the judgment of the district court is AFFIRMED.

FOOTNOTES

^1. To appeal from a guilty plea, a defendant must file an application to withdraw the plea within ten days of judgment. See Okla. R. Crim. App. 4.1, Okla. Stat. tit. 22, ch. 18, app. (1991). If the motion is denied, the conviction may be appealed within ninety days of conviction by a petition for writ of certiorari to the Oklahoma Court of Criminal Appeals. See Okla. Stat. tit. 22, § 1051(a).

^2. The Oklahoma Court of Criminal Appeals "found insufficient evidence to support the finding the [Domer] murder was especially heinous, atrocious or cruel." Wallace, 893 P.2d at 514. Upon reweighing the evidence, the court found the remaining two aggravators supported imposition of the death penalty for the Domer murder. See id.

^3. This court denied COA on the following issues: (1) either the State's failure to disclose exculpatory evidence or trial counsel's failure to present mitigating evidence deprived him of an accurate sentencing determination; (2) the especially heinous, atrocious or cruel aggravating circumstance is unconstitutionally vague; (3) the state appellate court failed to consider mitigating evidence; (4) the continuing threat aggravator is unconstitutional; and (5) petitioner is entitled to discovery with respect to his claim the State failed to disclose exculpatory evidence.

^4. Petitioner conceded at oral argument that he is raising only a procedural, and not a substantive, due process claim.

^5. We recognize the district court reached its decision before this court decided Barnett and Walker.

^6. To the extent petitioner is arguing ineffective assistance of counsel, we conclude he has not succeeded in showing trial counsel was ineffective for failing to investigate or raise a further issue of his competency. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (requiring petitioner to show counsel's performance fell below objective standard of reasonableness and reasonable probability that but for counsel's errors outcome of proceedings would have been different).