Walker was executed for the Dec. 30, 1988, stabbing deaths of 17-year-old
Shelly Ellison and her uncle, 30-year-old Donald Gary Epperson.
Walker was the estranged boyfriend of Shelley Ellison and the father
of her 3-month old son, Joshua.
Walker went to the Epperson home where Ellison
was staying, but grew angry once inside the home in an argument over
custody and attacked Ellison with a hunting knife.
came out of a bedroom to help her and began fighting with Walker.
Ellison managed to dial 911 during the attack: "He's stabbing me.
I'm dead. Please."
When police arrived Ellison was dead. She had
been stabbed 32 times, including several times with an ice pick.
Donald Epperson suffered 11 stab wounds. Although he was conscious
when police arrived at the home, he later died from his wounds.
Ellison's grandmother, Juanita Epperson, was also
wounded in the attack, suffering a broken arm and a stab wound after
trying to stop Walker by hitting him with a pipe wrench.
Walker was arrested at the scene. Joshua Ellison,
the son of Walker and Shelly Ellison, who was three months old at
the time of the murders, wrote a letter to the state Pardon and
Parole Board in support of the execution.
Walker v. State, 887 P.2d 301 (Okl.Cr. 1994) (Direct Appeal).
Walker v. Oklahoma, 116 S.Ct. 166 (1995) (Cert. Denied).
Walker v. State, 933 P.2d 327 (Okl.Cr. 1997) (PCR).
Walker v. Oklahoma, 117 S.Ct. 2524 (1997 (Cert. Denied).
Walker v. Gibson, 228 F.3d 1217 (10th Cir. 2000) (Habeas).
Walker v. Gibson, 121 S.Ct. 2560 (2001) (Cert. Denied).
Oklahoma Executes 15th This Year
Russell, City Editor.
McAlester News-Capital &
August 30, 2001
It was over two minutes after it began. Jack Dale
Walker was pronounced dead at 9:09 Tuesday night, the 15th Oklahoma
death row inmate to be executed this year. Walker, 35, raised his
head as the blinds to the execution chamber at Oklahoma State
Penitentiary were raised. He grinned widely and nodded his head at
seven people who had come to witness the execution on his behalf.
Walker's witnesses - including two attorneys, one
defense investigator, a friend and an aunt - waved their right hands
as his smile grew broader, then lowered their arms as he rested his
head on the gurney to which he was strapped.
Asked if he had any
last words, Walker said "I'd just like to tell my family and friends
good-bye." He turned his head to look at the witnesses in the
execution room, seeming to focus particular attention on two
brunette women whose shoulders shook as they cried softly. "I love
you and I hope to see you soon," Walker said. "Take care." He spoke
Walker was executed for the Dec. 30, 1988,
stabbing deaths of 17-year-old Shelly Ellison and her uncle, 30-year-old
Donald Gary Epperson.
According to court documents, a co-worker
drove Walker to Juanita Epperson's home in Bixby. Walker grew angry
once he was inside the home and attacked Ellison with a hunting
Donald Epperson came out of a bedroom to help her and began
fighting with Walker. Ellison managed to dial 911 at some point
during the attack. "I need help," she told the dispatcher. "He's
stabbing me. I'm dead. Please."
When police arrived Ellison was dead. She had
been stabbed 32 times, including several times with an ice pick.
Donald Epperson suffered 11 stab wounds. Although he was conscious
when police arrived at the home, he later died from his wounds.
Ellison's grandmother, Juanita Epperson, was also wounded in the
attack. She suffered a broken arm and a stab wound after trying to
stop Walker by hitting him with a pipe wrench. Walker was arrested
at the scene.
Joshua Ellison, the son of Walker and Shelly
Ellison, was three months old at the time of the murders. Now 13,
Joshua Ellison wrote a letter to the state Pardon and Parole Board
in support of Walker's execution. "Sometimes I think about what life
would be like if my mom were alive, but then I come to my senses and
realize that was destroyed by one man, Jack Walker," he wrote. "I
think Jack Walker should pay for what he did to my mother. I think
he should die for taking my mom away from me."
Seventeen of Ellison's and Epperson's family
members witnessed the execution. Some said they regretted Walker's
death was so peaceful when compared with the deaths of their family
members. "The laws of Oklahoma would never allow for the type of
death we would have chosen for Walker," said Kathy Ellison, the
mother of one of Walker's victims and the sister of the other. "We
believe if you live by the sword, you should die by the sword. An
eye for an eye, a tooth for a tooth."
A small handful of death penalty opponents
gathered to sing and pray outside of the prison in the hours leading
up to Walker's execution. The Rev. Steve Austin said the protesters
pray for the inmate being executed and for his family, as well as
for the family and souls of the inmate's victims. Five protesters
were arrested outside a building that housed some offices of the
attorney general's office in Oklahoma City.
Jack Dale Walker, 35, is scheduled to be executed
Aug. 28 for the 1988 murders of his girlfriend, Shelley Deann
Ellison, and her uncle, Donald Gary Epperson. He fatally stabbed 17-year-old
Shelly and her uncle Donald Epperson at their home near Bixby in
He was convicted in 1989. Ellison had an infant
son who was fathered by Walker, and the stabbings occurred after an
argument about custody.
Ellison was cut and stabbed at least 32
times, and Epperson had 11 wounds. Walker received 2 death sentences
plus prison sentences totaling 40 years for felony assaults
involving other family members of Ellison's.
Jack Dale Walker was executed by lethal
injection almost 13 years after he stabbed his estranged girlfriend
and her uncle to death. Several members of the victims' families
watched the execution, including some who witnessed the vicious
attack by Walker at a mobile home in Bixby, a Tulsa suburb.
Shelly Ellison and Donald Epperson suffered deep
wounds from a hunting knife wielded by Walker, 35, on Dec. 30, 1988.
Ellison, 17-year-old mother of Walker's 3-month-old son, suffered 32
stab wounds. Epperson was stabbed 11 times.
During 20 minutes of terror that began about 8
a.m., Ellison broke free to dial 911. "I need help. He's stabbing
me. I'm dead. Please," she told the dispatcher. Children were
yelling and a baby could be heard crying in the background. Juanita
Epperson, mother of Donald Epperson, also was severely stabbed, but
At a clemency hearing, Walker apologized to the
victims' family "for all the pain I've caused them and for this
whole ordeal that has been tragic for a lot of people."
His plea for
a life sentence was rejected after several family members gave
eyewitness accounts of the vicious attack and said Walker had been
violent in the past and would be a continuing threat.
product of a broken home, had a history of drug and alcohol abuse.
Unlike many convicted murderers, Walker had no felony convictions,
but was prone toward violence, according to Ellison's relatives.
He was only 22 when he went to the Bixby home to try to persuade his
girlfriend to leave with him by threatening suicide. But on a police
tape immediately after his arrest, Walker said he went to the home
with "the full intention of either taking the baby or murdering her
or whoever got in the way."
Walker's son, now 13, wrote a letter to the
clemency board in support of his father's execution. "Sometimes I
think about what life would be like if my mom were alive, but then I
come to my senses and realize that was destroyed by one man, Jack
Walker," wrote Joshua Ellison, who has been adopted by his maternal
grandparents. "I think Jack Walker should pay for what he did to my
mother. I think he should die for taking my mom away from me."
Walker said he hopes his son will forgive him when he is older.
Death Penalty Institute of
Jack Dale Walker - Executed August 28, 2001, by
by Robert Peebles.
Jack Dale Walker, 35, was pronounced dead at
9:08pm on Tuesday, August 28. He was killed via lethal injection at
Oklahoma State Penitentiary in McAlester. He became the 15th person
executed by Oklahoma this year.
Oklahoma is now second in total executions for a
single year since the reinstatement of the death penalty in the US
25 years ago. Texas, with six times Oklahoma's population, executed
a record 40 people last year. This year Texas has executed 12 people.
Walker was killed for the December 30, 1988
murders of his estranged girlfriend, Shelly Ellison, and her uncle,
Donald Epperson. The 17-year-old Ellison was the mother of Walker's
3-month-old son. Walker stabbed her 32 times and stabbed Epperson 11
Walker -- who suffered from depression, drug and
alcohol abuse, borderline personality disorder and obsessive-compulsive
disorder -- had sought treatment at a Tulsa facility shortly before
the murders. He was discharged because he had no insurance. Vigils
and Protests - Vigils and protests were held at numerous locations
around the state. As always, a vigil was held outside the gates of
Oklahoma State Penitentiary in McAlester. Over 30 people attended
National Coalition to Abolish
the Death Penalty
Jack Walker Scheduled Execution:8/28/01, 10:00pm
Jack Walker, convicted in 1989 for the murders of
Shelly Ellison and Donnie Epperson, awaits his execution by the
state of Oklahoma, which is presently scheduled for August 25. Mr.
Walker’s lawyers contend that their client has been emotionally
disturbed for many years and should not have been deemed competent
to stand trial.
They argue that Mr. Walker’s original counsel never
requested a proper competency hearing. Under the effects of strong
psychiatric medication, Mr. Walker could not effectively function or
fully participate in his own defense during trial.
In late 1988, Walker visited ex-girlfriend Shelly
Ellison, then living in her grandmother’s trailer home, to see their
baby son. A fight broke out when Walker was told he could not see
When police arrived on the scene, Ms. Ellison was dead,
Donnie Epperson, Shelly’s uncle, was conscious but failing, and Mr.
Walker was unconscious after slashing his wrists and stabbing
himself in the throat. Walker was dealing with severe depression at
the time of his crimes.
He had threatened to commit suicide the day
before the murders, though he didn’t mention harm to anyone else. He
had attempted suicide two times previously and had been voluntarily
hospitalized two months prior to the incident during which time he
was diagnosed with depression and polysubstance abuse.
Mr. Walker stated in an affidavit that his
medications made him confused and that this prevented him from
assisting his attorney during trial. He also asserted that his
dosage of antipsychotic medications was increased before trial, and
he had difficulties staying awake.
Several observers stated that
Walker’s face was expressionless during trial and that he had to be
supported while he walked. A minister testified that Mr. Walker’s
speech was slow and slurred, and that Mr. Walker had trouble
formulating ideas and articulating his thoughts.
A neuropharmacologist evaluated Walker and
diagnosed him with several psychiatric conditions, including
Borderline Personality Disorder and a condition called Paradoxical
Evaluating the effects that the antipsychotic
drugs may have had on Mr. Walker, the neuropharmacologist noted that
the defendant may have had a neurobiological disposition related to
his “experiencing psychoticism and dissociative explosive dyscontrol
under intense emotional stress.”
Quite simply, Walker’s
antipsychotic medications may have caused an impulsive, enraged
reaction. A psychologist also stated that Walker’s use of
medications “appeared to raise issues of competency.”
Mr. Walker argued that his trial attorney never
reviewed his jail medical records or presented evidence of certain
psychiatric diagnoses from his recent past. When Walker challenged
the ineffectiveness of his first lawyer, the state moved to quickly
dismiss his claims.
Under Oklahoma law, habeas relief can only be
obtained if the petitioner can establish both that the attorney was
deficient in his representation and that the jury’s decision would
have been different had counsel been more competent.
The Court’s decision curtly states that “there is
no reasonable probability the outcome at trial would have been
different but for counsel’s allegedly deficient performance”, a
notion that fails to acknowledge any effect such evidence may have
The district court denied Mr. Walker an evidentiary hearing on
his competency claims on the basis that he was not entitled to
habeas relief even if his evidence was true, in accordance with the
Psychiatric experts have argued that Walker has
suffered a long history of diagnosed mental illness. His actions
before and after the crime were consistent with several of his long-term
diagnoses, including Borderline Personality Disorder.
experts asserted that Mr. Walker’s violence level would decrease and
that he would not be a continuing threat if incarcerated.
Oklahoma has executed forty-three people since
1990, but thirteen of those killed have been in the last seven
months. As the state with the most executions in 2001, Oklahoma
embodies a dangerous trend of increased brutality in state
sanctioned punishment. Please support Jack Walker and protest
Oklahoma’s killing spree by writing to the following people and
United States Court of Appeals
the Tenth Circuit
JACK DALE WALKER, Petitioner-Appellant,
GARY GIBSON, Warden, Oklahoma
October 11, 2000
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-208 )
Before TACHA, BRORBY,
and MURPHY, Circuit Judges.
BRORBY, Circuit Judge.
Jack Dale Walker was convicted of two counts of
first degree murder and sentenced to death. The
Oklahoma Court of Criminal Appeals affirmed on
direct criminal appeal. See Walker v. State, 887
P.2d 301 (Okla. Crim. App. 1994), cert denied, 516
U.S. 859 (1995). That court also denied post-conviction
relief, as well as discovery and an evidentiary
hearing. SeeWalker v. State, 933aP.2d 327 (Okla.
Crim. App. 1997), cert. denied, 521aU.S. 1125
Walker unsuccessfully sought habeas corpus relief in
the federal district court. The district court
granted a certificate of appealability (COA) on the
following claims: (1) substantive and procedural due
process competency; (2) ineffective assistance of
trial counsel; (3) failure to instruct on the
presumption of innocence; (4) improper admission of
a sheriff's deputy's testimony; (5) lack of notice
of aggravating circumstances; and (6) prosecutorial
misconduct. This court expanded the COA to include
an additional issue: failure to give a first degree
manslaughter instruction. Exercising jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253(c), we affirm
the district court's denial of habeas corpus relief.
On December 30,
1988, at approximately 8:00 a.m., Mr. Walker stopped
at the trailer home where Shelly Ellison, the mother
of his baby son, was staying. The trailer belonged
to Juanita Epperson, Shelly's grandmother. At the
time, Shelly, the baby, Juanita, Juanita's son
Donnie Epperson, Donnie's wife Linda, and four other
grandchildren of Juanita's were staying there.
Hansel Norton, Mr.
Walker's co-worker, drove Mr. Walker to the trailer.
According to Hansel, Mr. Walker was upset, had a
knife, and asked Hansel to talk to him. Mr. Walker
told Hansel he had something to do before going to
When Mr. Walker
arrived at the trailer, he told Juanita he wanted to
talk to Shelly. Juanita invited him inside. He
talked to Shelly and apparently sought to take the
baby. Juanita explained the baby was sick and Mr.
Walker could not take him.
Mr. Walker then
attacked Shelly. She cried for Donnie to help her.
He emerged from a bedroom. A fight broke out. Mr.
Walker stabbed both Donnie and Shelly with the large,
sharpened knife he had brought with him. He also
stabbed Shelly with an ice pick. Sometime during the
fight, Shelly made a 911 call. Juanita tried to stop
Mr. Walker by hitting him with a pipe wrench. He hit
her, breaking her arm. Also, he stabbed her. Mr.
Walker threatened Linda and one of the grandchildren,
Brian Epperson, with the knife and chased them out
of the trailer.
Walker tried to stab himself in the throat with a
paring knife, but the knife broke. He then slashed
his wrist. When the police arrived, Shelly was dead
and Mr. Walker was lying unconscious on the front
porch of the trailer. Donnie was alert and conscious,
but he died thereafter. Shelly suffered more than
thirty-two stab wounds. Donnie sustained eleven.
The jury found Mr.
Walker guilty of two counts of first degree murder
for the deaths of Shelly and Donnie, one count of
assault and battery with a deadly weapon with
respect to Juanita, and two counts of assault with a
deadly weapon with respect to Linda and Brian. At
the second stage of trial, the jury found three
aggravators: (1) Mr. Walker created a great risk of
death to more than one person; (2) the murders were
especially heinous, atrocious, or cruel; and (3) Mr.
Walker constitutes a continuing threat to society.
Mr. Walker received the death penalty for the
murders and a total of forty years' incarceration
for the other offenses.
STANDARDS OF REVIEW
Because Mr. Walker
filed his habeas petition after the effective date
of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), the provisions of AEDPA govern this
appeal. See Williams v. Taylor, 120 S. Ct. 1495,
1518 (2000). Under AEDPA, if a claim was adjudicated
on its merits in state court, a petitioner is
entitled to federal habeas relief only if he can
establish that the state court decision "was
contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined
by the Supreme Court of the United States" or "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)(1), (2).
Under § 2254(d)(1), a federal court may grant a writ
of habeas corpus only if the state court reached a
conclusion opposite to that reached by the Supreme
Court on a question of law, decided the case
differently than the Supreme Court has decided a
case with a materially indistinguishable set of
facts, or unreasonably applied the governing legal
principle to the facts of the petitioner's case. See
Williams, 120 S. Ct. at 1523. "Under § 2254(d)(1)'s
'unreasonable application' clause . . ., a federal
habeas court may not issue the writ simply because
that court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly. Rather that application must also be
unreasonable." Williams, 120 S. Ct. at 1522. "In sum,
§ 2254(d)(1) places a new constraint on the power of
a federal habeas court to grant a state prisoner's
application for a writ of habeas corpus with respect
to claims adjudicated on the merits in state court."
Williams, 120 S. Ct. at 1523. AEDPA also requires
federal courts to presume state court factual
findings are correct, and places the burden on the
petitioner to rebut that presumption by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1).
"If[, however, a]
claim was not heard on the merits by the state
courts, and the federal district court made its own
determination in the first instance, we review the
district court's conclusions of law de novo and its
findings of fact, if any, for clear error." LaFevers
v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). If
the district court's factual findings are based only
on a review of the state court record, we conduct an
independent review. See Smallwood v. Gibson, 191
F.3d 1257, 1264 n.1 (10th Cir. 1999), cert. denied,
2000 WL 625676 (U.S. Oct. 2, 2000) (No. 99-9445).
Mr. Walker raises
both procedural and substantive due process
competency claims. He first argues he was deprived
of procedural due process when the trial court
applied an unconstitutional burden of proof at his
competency hearing. He also argues he was denied
substantive due process because he was actually
incompetent at the time of trial.
A. Procedural Due
Process Competency Claim
Mr. Walker argues
the trial court unconstitutionally required him to
prove his incompetency by clear and convincing
evidence in violation of Cooper v. Oklahoma, 517 U.S.
348 (1996). Cooper held the clear and convincing
evidence standard was "incompatible with the
dictates of due process," because it "allow[ed] the
State to put to trial a defendant who is more likely
than not incompetent." Id. at 369. Although the
trial court did not articulate the burden of proof
at the competency hearing,
Mr. Walker asserts the court presumably followed
Oklahoma law, which then required a defendant to
prove he was incompetent by clear and convincing
We agree that the
trial court presumably applied this law. Cf. Valdez
v. Ward, 219 F.3d 1222, 1243-44 (10th Cir. 2000) (presuming
Oklahoma Court of Criminal Appeals, which did not
cite standard, reviewed merits of ineffective
assistance of counsel claim under clear and
convincing evidence standard later held
unconstitutional in Cooper). Thus, Mr. Walker
properly asserts a procedural competency claim by
alleging the trial court held a hearing employing an
unconstitutional burden of proof. See Van Woudenberg
ex rel. Foor v. Gibson, 211 F.3d 560, 567 (10th Cir.
competency claims are subject to procedural default.
See Clayton v. Gibson, 199 F.3d 1162, 1170 & n.3
(10th Cir. 1999), cert. denied, 2000 WL 697188 (U.S.
Oct. 2, 2000) (No. 99-9630). The State argues this
claim is procedurally barred. We disagree.
Mr. Walker filed
his direct appeal before the Supreme Court decided
Cooper. He therefore raised a Cooper claim for the
first time in post-conviction proceedings. The
Oklahoma Court of Criminal Appeals held Mr. Walker
had waived the issue because he failed to raise it
on direct appeal. See Walker, 933 P.2d at 338-39. In
so holding, the court applied the 1995 amendments to
Oklahoma's post-conviction procedures. See id. at
339 & n.55 (citing Okla. Stat. tit. 22, §
amendments limit a petitioner's ability to bring
claims in a post-conviction application that were
not raised on direct appeal, including new claims
based on an intervening change in law. See Clayton,
199 F.3d at 1171. Mr. Walker's direct appeal,
however, was decided in 1994, before the effective
date of the 1995 amendments.
This court has
held, when considering Cooper claims, that the 1995
amendments are not an adequate state ground for
procedural default, if the claims did not exist at
the time of the default. See id.; Walker v.
Oklahoma, 167 F.3d 1339, 1345 (10th Cir. ), cert.
denied, 120 S. Ct. 449 (1999). Because Mr. Walker's
Cooper claim would not have been barred under pre-1995
standards, the State's procedural bar is not
adequate to preclude habeas review. See Valdez, 219
F.3d at 1240; Walker, 167 F.3d at 1345.
The State asserts
this court's decision in Walker, 167 F.3d at
1344-45, is insufficient to support a conclusion
that the Oklahoma Court of Criminal Appeals would
consider Cooper to be an intervening change of law
excusing procedural default. To support this
argument, the State cites the unpublished decision
of Smith v. State, No. PC 97-1656 at 6-9 (Okla. Crim.
App. July 27, 1999) (citing Walker, 933 P.2d at
339). But see Valdez v. State, 933 P.2d 931, 933 n.7
(Okla. Crim. App. 1997) (recognizing Cooper is
intervening change of law); Okla. Ct. Crim. App. R.
3.5(C)(3) (providing unpublished opinion is not
binding precedent). Contrary to the State's argument,
Walker is binding law in this circuit. See Thomas v.
Gibson, 218 F.3d 1213, 1226 & n.14 (10th Cir. 2000).
We therefore address the merits of Mr. Walker's
procedural due process competency claim, reviewing
the district court's decision de novo, seeLaFevers,
182 F.3d at 711.
The criminal trial
of one who is incompetent violates due process.
SeeMcGregor v. Gibson, 219 F.3d 1245, 1250 (10th
Cir. 2000) (citing Cooper, 517 U.S. at 354) (petition
for rehearing en banc was granted). Because the
trial court presumably held Mr. Walker to an
unconstitutional burden of proof, we afford no
presumption of correctness to the trial court's
finding of competency. See Wallace v. Ward, 191 F.3d
1235, 1242 (10th Cir. 1999), cert. denied, 120 S. Ct.
claim based upon procedural due process involves a
defendant's constitutional right, once a bona fide
doubt has been raised as to competency, to an
adequate state procedure to insure that he is in
fact competent to stand trial." Barnett v. Hargett,
174 F.3d 1128, 1133-34 (10th Cir. 1999). 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 v. United
States, 362 U.S. 402, 402 (1960) (quotation omitted).
In order to
prevail on a procedural due process competency claim,
a petitioner must establish that the trial judge
ignored facts, viewed objectively, raising a bona
fide doubt regarding the petitioner's competency to
stand trial. See Walker, 167 F.3d at 1343, 1345. "Evidence
of irrational behavior, demeanor at trial, and prior
medical opinion regarding competence are relevant to
a bona fide doubt inquiry." Wallace, 191 F.3d 1243.
Other relevant factors include evidence of mental
illness and any representations of defense counsel
about the defendant's incompetence. See Drope v.
Missouri, 420 U.S. 162, 177 n.13, 181 (1975).
We review this
claim in light of the evidence available to the
trial court. Cf. Valdez, 219 F.3d at 1240 (requiring
petitioner to establish trial court ignored evidence
raising bona fide doubt regarding competency);
Walker, 167 F.3d at 1343 (same). Examination of this
evidence does not persuade us there was a bona fide
doubt as to Mr. Walker's competence to stand trial.
Mr. Walker does
have a history of mental illness. He received
professional help after his grandmother died and he
attempted to commit suicide. In 1986, he received
treatment focusing on anger. Seven weeks before the
murders he was treated primarily for depression for
one week as an inpatient at Parkside Hospital. He
was diagnosed with organic mood disorder secondary
to polysubstance abuse. Mr. Walker's history of
mental problems and substance abuse alone, however,
do not establish incompetency to stand trial. See
McGregor, 219 F.3d at 1251 (petition for rehearing
en banc was granted); Miles v. Dorsey, 61 F.3d 1459,
1474 (10th Cir. 1995) (citing cases).
The record does
not reflect that either prior to or during trial any
mental health expert had found Mr. Walker
incompetent to stand trial. Dr. Nicholson, who had
examined Mr. Walker two weeks before trial,
testified at the competency hearing that Mr. Walker
He testified that
he interviewed Mr. Walker on five occasions for
approximately eight hours, and Mr. Walker attended
to questions, listened carefully, and responded
appropriately. He admitted having no difficulty
examining Mr. Walker. Although Dr. Nicholson had not
evaluated Mr. Walker for competency, he reluctantly
stated, because he was asked, that he believed Mr.
Walker was competent. Dr. Nicholson can be
considered an expert on competency. He had done
extensive research and published articles on
competency and competency testing.
During his first
stage trial testimony, he recited the correct
competency standard and admitted conducting 200
competency examinations. In a post-conviction
affidavit, dated August 8, 1996, more than seven
years after trial, Dr. Nicholson stated he should
have refused to offer his opinion on Mr. Walker's
competency because the trial court's order had not
asked him to address competency and he had not done
a competency evaluation. He did not, however,
actually indicate Mr. Walker was not competent to
At no time prior
to or during trial did defense counsel raise
concerns about Mr. Walker's competency. "Defense
counsel is often in the best position to determine
whether a defendant's competency is questionable."
Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir.
1999), cert. denied, 120 S. Ct. 1566 (2000); see
also Medina v. California, 505 U.S. 437, 450 (1992).
But seeMcGregor, 219 F.3d at 1251-52 (discounting
value of defense counsel's concerns about competency
where counsel alone expressed concerns about
competency) (petition for rehearing en banc was
On the first
morning of trial, counsel explicitly denied raising
to the court that Mr. Walker was not competent to
stand trial. Counsel objected to any questions
presented to Dr. Nicholson about competency because
the defense never raised the issue of competency and
instead hired Dr. Nicholson to examine Mr. Walker
for insanity and to assess whether he created a
great risk to others or whether he was a continuing
threat. At no time did counsel request a competency
evaluation or hearing. This court has recognized the
importance of defense counsel's failure to raise a
competency issue at trial when concluding no bona
fide doubt about competency exists. SeeSmallwood,
191 F.3d at 1279; Walker, 167 F.3d at 1346.
in his post-conviction affidavit, prepared August 7,
1996, over seven years after trial, that he did not
spend enough time with Mr. Walker to determine
whether competency was an issue. He indicated Mr.
Walker never volunteered any information and was
sheepish, docile, unemotional, and tired. Counsel
also noted Mr. Walker had no reactions at trial, not
even when the death sentence was announced.
In the affidavit,
counsel wondered if Mr. Walker was aware of what was
going on, recognized he did not contribute to his
defense, and later realized medication was the
reason he was unable to aid in his defense. We give
little credence to this belated affidavit in light
of counsel's failure to raise any competency
concerns during trial and his objections during the
The trial judge,
who was cognizant of a competency issue as a result
of the pretrial inquiry, did not express any
concerns after having ample opportunity to observe
Mr. Walker during trial. See McGregor, 219 F.3d at
1252 (citing cases) (petition for rehearing en banc
was granted). Indeed, the trial judge's report
indicated Mr. Walker was able to cooperate
intelligently in his own defense. Nothing in the
record indicates Mr. Walker's conduct or demeanor at
trial was so bizarre and irrational that it raised a
bona fide doubt regarding his competency. See id.
Walker's history of mental illness, he has not
established a bona fide doubt regarding his
competency at the time of trial. SeeWalker, 167 F.3d
at 1346-47. At the time of trial, no expert had
deemed him incompetent. Neither the trial judge nor
defense counsel expressed any concerns about his
competency during trial. Nothing in the trial record
indicates Mr. Walker was in a medication-induced
stupor during trial which prevented him from
understanding the proceedings or communicating with
counsel. See Van Woudenberg, 211 F.3d at 568 (discerning
nothing in record indicating petitioner engaged in
irrational or unusual behavior during trial which
would have alerted court to question competency).
conclude Mr. Walker has failed to show a bona fide
doubt regarding his ability to understand the
proceedings or to assist his counsel in preparing a
Due Process Competency Claim
A petitioner may
make a substantive due process competency claim by
alleging he was, in fact, tried and convicted while
mentally incompetent. SeeWalker, 167 F.3d at 1344.
Although the Oklahoma Court of Criminal Appeals
deemed Mr. Walker to have procedurally defaulted
this claim, seeWalker, 933 P.2d at 340, a
substantive due process mental competency claim may
not be procedurally barred, see Rogers v. Gibson,
173 F.3d 1278, 1289 (10th Cir. 1999), cert. denied,
120 S. Ct. 944 (2000). To prevail on a substantive
due process competency claim, a petitioner must
demonstrate by clear and convincing evidence a real,
substantial, and legitimate doubt regarding his
competence to stand trial.
See id. at 1291 n.13.
In addition to the
evidence discussed above, Mr. Walker submits his
jail medical records and various affidavits to
support this substantive competency claim. The jail
records showed Mr. Walker had mental health problems
and was a suicide risk. Up to thirty-six days before
trial, he had bad dreams, heard voices, cried,
huddled in the corner, and was depressed. Thirty-six
days before trial, the last date of the jail records,
it appears he was benefitting from the medications
since he was sleeping. He, however, suffered from
nervous side effects.
Mr. Walker was
taking anti-psychotic medications at the time of
trial. His dosages of Artane and Loxitane were at
but the dosage of Asendin was low. He maintains that
the medications caused him to be "constantly tired,
uncaring, and steely eyed." Appellant's Br. at 14.
Although "[a]ntipsychotic drugs [do] have the
capacity to severely and even permanently affect an
individual's ability to think and communicate[,]"
Bee v. Greaves, 744 F.2d 1387, 1394 (10th Cir.
1984), the jail records are not clear and convincing
evidence of a real, substantial, and legitimate
doubt that Mr. Walker was incompetent at the time of
affidavits, prepared over seven years after trial,
indicated Mr. Walker did not appear competent at
trial. Cf. Foster v. Ward, 182 F.3d 1177, 1184 (10th
Cir. 1999) (noting affidavits prepared ten years
after trial raised questions regarding their
veracity, but treating factual allegations in
affidavits as true because State did not rebut
affidavits), cert. denied, 120 S. Ct. 1438 (2000).
In light of the other evidence, these affidavits are
of little assistance.
In his own self-serving
affidavit, Mr. Walker stated he felt "out of it" the
whole time he was in jail before trial, he slept all
the time, his medications made him confused, and he
was not a help to his attorney. Vol. I, tab 17, app.
4 at 2-3. According to Mr. Walker, his medications
were increased during the trial and he therefore had
problems staying awake. He further stated that
officers stood on either side of him holding him up
when he walked to and from the courtroom. Overall,
he did not remember much of the trial. A minister
who visited Mr. Walker in jail before trial said Mr.
Walker had trouble formulating ideas and putting
thoughts into words.
He further noted
that Mr. Walker's speech was slow and slurred and he
had difficulty staying awake. The minister stated Mr.
Walker did not react to anything at trial. Also, Mr.
Walker's mother stated in her affidavit that he had
a blank look and no reaction at trial. Mr. Walker's
grandfather swore Mr. Walker was expressionless at
trial and shuffled his feet like he could not walk.
Dr. Lippman, a
neuropharmacologist, who studies the effects of
drugs on the brain, evaluated Mr. Walker in May of
1996, seven years after his trial. He diagnosed Mr.
Walker as suffering from Paradoxical Benzodiazepine
Rage or Dyscontrol, Borderline Personality Disorder,
Dysthymic Disorder and Major Depression.
Dr. Lippman noted
Mr. Walker had "a predisposing neurobiological
vulnerability to drug abuse and also to his
experiencing psychoticism and dissociative explosive
dyscontrol under intense emotional stress, a form of
the Borderline Syndrome, complicated by the effects
of chronic drug abuse during the years of formative
neurological and personality development." Id. app.
2 at 2. It was the doctor's opinion that Mr. Walker
was not competent at the time of trial due to drug
treatment. Cf. Riggins v. Nevada, 504 U.S. 127, 134
(1992) (noting antipsychotic drugs can have serious
He reached this
opinion based on witness descriptions of Mr. Walker
and Mr. Walker's own report, not on medical records.
Indeed, he had no medical records regarding Mr.
Walker's response to treatment. Thus, Dr. Lippman
merely speculated any symptoms of somnolence and
ataxic gait were side effects of medication.
Dr. Watson, a
psychologist who examined Mr. Walker in June of
1996, speculated Mr. Walker was in and out of a daze
during trial due to significant psychological
medication. He believed the use of the medications "appear[ed]
to raise issues of competency." Vol. I, tab 17, app.
16 at 23.
The opinions of Dr
Lippman and Dr. Watson, conducted over seven years
after trial, do not establish by clear and
convincing evidence a real, substantial, and
legitimate doubt as to Mr. Walker's competency at
the time of trial. Cf.Foster, 182 F.3d at 1191 (competency
evaluation, made ten years after trial, does not
necessarily generate sufficient doubt).
Because Mr. Walker
has not shown a bona fide doubt as to his competency
and does not provide sufficient additional new
evidence of his incompetency at the time of trial,
we conclude he cannot meet the more stringent
substantive due process competency standard. See
Valdez, 219 F.3d at 1241.
Assistance of Counsel
Mr. Walker argues
that trial counsel's failure to ask for a proper
competency hearing or to investigate and present
evidence which would have shown a bona fide doubt
regarding his competency was ineffective assistance
of counsel. According to Mr. Walker, counsel never
reviewed his jail medical records; never presented
evidence he had been hospitalized two months before
the crimes and at that time was diagnosed as
suffering from polysubstance abuse, major depression,
personality disorder, and organic mood disorder; and
never inquired about his odd behavior or
investigated his medication. The federal district
court rejected this argument based upon its
conclusion that Mr. Walker's procedural and
substantive due process competency claims failed.
assistance of counsel claims are mixed questions of
law and fact. See, e.g., Williamson v. Ward, 110
F.3d 1508, 1513 (10th Cir. 1997). The constitutional
right to effective assistance of counsel is defined
in Strickland v. Washington, 466 U.S. 668 (1984).
See Williams, 120 S. Ct. at 1499. To obtain habeas
relief, a petitioner must establish both that his
attorney's representation was deficient, measured
against an objective standard of reasonableness, and
that there is a reasonable probability that but for
counsel's deficient performance, the result of the
proceeding would have been different. See Strickland,
466 U.S. at 687, 688, 694.
This court may
address the performance and prejudice components in
any order and need not address both if a petitioner
fails to make the requisite showing for one. See
Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir.
1998), cert. denied, 120 S. Ct. 94 (1999).
whether counsel's performance was deficient, Mr.
Walker was not prejudiced. As discussed above, even
considering the new evidence, the record does not
show Mr. Walker was unable to consult with trial
counsel "'with a reasonable degree of rational
understanding,' or that he lacked a rational and
factual comprehension of the proceedings against him."
Valdez, 219 F.3d at 1244 (quoting Walker, 167 F.3d
There is no
reasonable probability the outcome at trial would
have been different but for counsel's allegedly
deficient performance. Mr. Walker therefore has
failed to establish prejudice stemming from
counsel's alleged failure to obtain and present
evidence. SeeMcGregor, 219 F.3d at 1252 (petition
for rehearing en banc was granted).
generally argues the district court erred in denying
an evidentiary hearing on his competency claims. He
presented affidavits to support these claims in
post-conviction proceedings and sought an
evidentiary hearing. His attempt to develop the
factual basis of these claims in state court frees
him from the limitations of 28 U.S.C. § 2254(e)(2).
See Williams v. Taylor, 120 S. Ct. 1479, 1490-91
(2000); Mayes v. Gibson, 210 F.3d 1284, 1287 n.2
(10th Cir. 2000). Thus, Mr. Walker is entitled to an
evidentiary hearing "if his allegations, if true and
not contravened by the record," entitle him to
habeas relief. Mayes, 210 F.3d at 1287. We conclude
Mr. Walker is not entitled to an evidentiary hearing,
because even if his evidence is true, it does not
entitle him to habeas relief.
Assistance of Trial Counsel
Mr. Walker argues
four other instances of ineffective assistance of
trial counsel: (1) failure to comply with the trial
court's discovery order; (2) failure to seek
suppression of Mr. Walker's statements; (3) failure
to present evidence of Mr. Walker's heavy medication
during trial; and (4) failure to investigate and
present second stage evidence.
A. Procedural Bar
review, the Oklahoma Court of Criminal Appeals
refused to consider Mr. Walker's claims of
ineffective assistance of trial counsel because they
had not been raised on direct appeal. See Walker,
933 P.2d at 332. The State, however, does not now
assert an affirmative defense of procedural bar. See
Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999).
Moreover, the claim is not procedurally barred
because Mr. Walker had the same counsel at trial and
on appeal, see English v. Cody, 146 F.3d 1257, 1264
(10th Cir. 1998), even though his appellate counsel
was not lead counsel at trial. Accordingly, we
consider this claim on its merits, reviewing the
district court's decision de novo. SeeLaFevers, 182
F.3d at 711.
1. Failure to
comply with the trial court's discovery order
Prior to trial,
counsel failed to produce a copy of Dr. Nicholson's
on or before May 1, 1989, as ordered. The trial
court sanctioned Mr. Walker by allowing the State to
examine Dr. Nicholson about the contents of the
report. According to Mr. Walker, this caused his
first and second stage defenses to be revealed prior
to trial, giving the State a strategic advantage.
Also, he complains the trial court, as part of the
sanction, allowed examination into competency, which
was beyond the scope of the report. The federal
district court determined Mr. Walker failed to show
prejudice because he merely asserted the effects of
the examination were "incalculable."
Mr. Walker fails
to argue deficient performance to this court.
Nonetheless, counsel's performance was not deficient.
On direct criminal appeal, the Oklahoma Court of
Criminal Appeals, upon considering whether the trial
court's decision to allow the State to cross-examine
Dr. Nicholson before trial violated Mr. Walker's
right to a fair trial, stated "[t]he trial court's
order requiring [Mr.] Walker to give to the State a
copy of Dr. Nicholson's report was in fact improper
according to caselaw in effect at that time." Walker,
887 P.2d at 309.
Also, failure to
disclose the report was not prejudicial. The
Oklahoma Court of Criminal Appeals noted that
because the State would have been entitled to the
doctor's report during cross-examination, the trial
court's error in providing the information before
trial was harmless. See id. Also, the court found
the pretrial disclosure did not violate any
constitutional principles. See id. During the short
in camera hearing, which did not rise to the level
of a deposition, the State asked Dr. Nicholson what
conclusions the report contained, not how he reached
those conclusions. See id. at 310.
State did not use the in camera testimony to impeach
Dr. Nicholson on cross-examination at either stage
of trial. See id. The record does not reflect, and
Mr. Walker does not make a particularized showing,
that the State actually secured a strategic
Nicholson would not have been placed in a position
of having to state whether Mr. Walker was competent
if counsel had disclosed the report, Mr. Walker
cannot show prejudice because, as shown, he has
failed to establish sufficient doubt concerning his
competency. We agree with the district court that Mr.
Walker has failed to prove ineffective assistance of
2. Failure to
seek suppression of Mr. Walker's statements
Mr. Walker argues
counsel should have moved to suppress statements he
involuntarily made while he was hospitalized and
medicated. The federal district court determined Mr.
Walker failed to show prejudice. As discussed in
section V, Mr. Walker's underlying claim is without
merit. Thus, his ineffectiveness claim likewise
fails. See Foster, 182 F.3d at 1186.
3. Failure to
present evidence of Mr. Walker's heavy medication
Mr. Walker argues
counsel failed to inform the jury that he was
medicated due to his severe mental illness. In a
post-conviction affidavit, an investigator stated
that two jurors had noted Mr. Walker's lack of
emotion or remorse and they had not known he was
medicated. Without deciding prejudice, the federal
district court determined Mr. Walker failed to make
any argument supporting his conclusory statement
that counsel's performance was deficient.
In a post-conviction
affidavit, trial counsel admits he should have
explained to the jury that Mr. Walker was heavily
medicated. Regardless of whether this is sufficient
to show deficient performance, we conclude Mr.
Walker has not shown prejudice. Assuming without
deciding that we may consider the jurors' statements,
we conclude they are merely speculative and do not
compel a finding of believability. They were
prepared by an investigator at the direction of an
attorney and taken more than seven years after trial.
individual expressions of opinions are rarely
helpful in reviewing the actions of the entire jury.
See Jacobs v. Marathon County, 73 F.3d 164, 169 (7th
Cir. 1996). The jury's verdict, not the individual
expression of the jurors after trial, carries legal
weight. See id. Therefore, we conclude Mr. Walker
has failed to show a reasonable probability the
outcome at trial would have been different if the
jury had known of his heavy medication.
4. Failure to
investigate and present second-stage evidence
Mr. Walker argues
counsel failed to present additional evidence of his
traumatic upbringing, mental disease, family history
of drug abuse and alcoholism, and drug abuse
exacerbating his mental illness. He also suggests
counsel should have learned of and presented
evidence regarding his Paradoxical Benzodiazepine
Rage or Dyscontrol.
district court determined that the omitted evidence
was insufficient to affect the outcome of trial.
Also, the court determined counsel's performance was
not deficient because at the second stage counsel
presented witnesses, cross-examined all of the
State's witnesses, and had a reasonable strategy.
Counsel has a duty
to make a reasonable investigation for mitigating
evidence or to make a reasonable decision that
particular investigation is unnecessary. See
Strickland, 466 U.S. at 691. The reasonableness of
counsel's investigation depends on the circumstances
of the case. See id. at 688. Nevertheless, in a
capital case, an attorney's duty to investigate all
possible lines of defense is strictly observed. See,
e.g., Boyd v. Ward, 179 F.3d 904, 915 (10th Cir.
1999), cert. denied, 120 S. Ct. 1188 (2000).
whether Mr. Walker could show deficient performance,
we conclude he fails to satisfy Strickland's
prejudice requirement. Trial counsel did in fact
prepare and present much mitigating evidence, as Mr.
Walker recognizes. All first stage evidence was
incorporated into the second stage.
During the first
stage, defense counsel presented evidence, through
Mr. Walker's friends and family, of (1) his
depression at the time of the crimes; (2) the fact
that he began living with his grandparents at the
age of thirteen; (3) his threats to commit suicide
when a former girlfriend broke up with him and his
actual suicide attempt by stabbing his wrist with an
ice pick; (4) his threat to commit suicide the day
before the crimes without mentioning harming anyone
but himself; (5) his violence to a former girlfriend;
and (6) his lack of comprehension when he lost his
temper and control.
In addition, Dr.
Nicholson testified that Mr. Walker was depressed
and had lost control at the time of the crimes. He
diagnosed Mr. Walker as suffering from Borderline
Personality Disorder, which is characterized by
intense interpersonal relationships, unstable moods,
self damaging acts, abuse of drugs, reckless
behavior, and manipulative suicidal gestures or
threats. Dr. Nicholson also believed Mr. Walker
suffered from dysthymia, a chronically depressed
mood disorder, and drug abuse.
At the second
stage, defense counsel presented evidence that (1)
Mr. Walker had been abused as a child; (2) his
natural father was in prison for two murders; (3) Mr.
Walker had mood swings; (4) he had been sexually
abused by an older stranger; (5) after he acted
violently toward a former girlfriend, he would cry,
apologize, and try to hurt himself; (6) after his
grandmother died, he became a loner and tried to
commit suicide; (7) his grandfather sought
professional help for him; (8) he was only violent
if he was really depressed; (9) the day before the
murder, Shelly came to his home with the baby to
visit; (10) he received treatment focusing on anger
after an argument with his brother; (11) he was
voluntarily hospitalized for one week approximately
two months before the crimes for depression and was
diagnosed with depression and polysubstance abuse;
(12) he had two prior suicide attempts; (13) his
substance abuse and suicide attempts were consistent
with Borderline Personality Disorder; (14) at the
time of the murders he was fluctuating between
depression and rage; (15) he suffered from a mental
disease causing him to be unable to control his
actions; (16) he would not be a continuing threat if
he was incarcerated; and (17) his violence level
Much of the
evidence Mr. Walker complains counsel did not
present was actually presented. Cumulative evidence
would not have caused the jury to reach a different
result. See Moore v. Reynolds, 153 F.3d 1086, 1099
(10th Cir. 1998); see also Nguyen v. Reynolds, 131
F.3d 1340, 1349 (10th Cir. 1997) (even if evidence
had been presented, it would have been insufficient
to offset, explain, or justify murders).
Additionally, this court has held, in a number of
cases, that "evidence of a troubled childhood
involving physical, emotional, sexual and/or
substance abuse does not outweigh evidence
supporting the conviction and evidence supporting
multiple aggravating circumstances." Foster, 182
F.3d at 1189 (citing cases).
This case is not
an exception. See id. Considering the strength of
the government's case and the number of aggravating
circumstances found, along with the additional and
largely cumulative mitigating evidence that might
have been presented and the mitigating evidence
actually presented, see Mayes, 210 F.3d at 1290,
there is not a reasonable probability that, absent
the alleged inadequate investigation, the jury would
have concluded the balance of aggravating and
mitigating circumstances did not warrant death, see
Strickland, 466 U.S. at 695. We conclude the
district court correctly denied habeas relief on
III. Presumption of
Mr. Walker argues
the trial court violated his constitutional rights
by failing to instruct the jury that he was presumed
innocent. The trial court instead instructed the
jury that Mr. Walker was "presumed to be not guilty."
See O.R. vol. II at 206.
Mr. Walker argues this error was structural and
therefore not subject to a harmless error analysis
and, even if it were subject to a harmless error
analysis, the federal district court applied an
improper harmless error standard.
A. Procedural Bar
Mr. Walker first
raised this claim in state post-conviction
proceedings. The Oklahoma Court of Criminal Appeals
recognized that "[i]n Flores v. State, [896 P.2d
558, 562 (Okla. Crim. App. 1995)], handed down five
years after [Mr.] Walker filed his direct appeal
brief-in-chief, this Court reversed a conviction on
the basis of this flawed instruction, holding that
it unconstitutionally diluted the presumption that
guilt is to be proven beyond a reasonable doubt."
Walker, 933 P.2d at 337 (footnote omitted).
because Mr. Walker did not raise this claim on
direct appeal, the court determined it was waived
since he could not demonstrate that the claim could
not have been raised on direct appeal. See id. at
337-38. Because the State does not argue in this
appeal that this claim is procedurally barred, we
may consider it on its merits. See Hooks, 184 F.3d
at 1216. We review the district court's
determination of the claim de novo. See LaFevers,
182 F.3d at 711.
district court determined it is unclear whether the
instruction is unconstitutional. That court, however,
decided giving the instruction was not structural
error requiring automatic reversal of the conviction.
It held the substantial evidence against Mr. Walker
was the determining factor in the jury's guilty
decision, not the semantic difference between "presumed
innocent" and "presumed to be not guilty." Thus, the
court concluded any error was harmless, as it did
not have substantial or injurious effect on the
jury's verdict. See Brecht v. Abrahamson, 507 U.S.
619, 637 (1993).
Like the district
court, we do not decide whether the given
instruction is unconstitutional.
Instead, we first consider whether any error was
structural, and we conclude it is not.
constitutional errors are amenable to harmless error
analysis, see Sullivan v. Louisiana, 508 U.S. 275,
279 (1993), the deprivation of the right to trial by
jury, "with consequences that are necessarily
unquantifiable and indeterminate, unquestionably
qualifies as 'structural error,'" id. at 281-82.
The Supreme Court
has found structural error, subject to automatic
reversal, only in a very small number of cases. See
Neder v. United States, 527 U.S. 1, 8 (1999) (citing
Johnson v. United States, 520 U.S. 461, 468 (1997),
which cited Gideon v. Wainwright, 372 U.S. 335
(1963) (complete denial of counsel); Tumey v. Ohio,
273 U.S. 510 (1927) (biased trial judge); Vasquez v.
Hillery, 474 U.S. 254 (1986) (racial discrimination
in grand jury selection); McKaskle v. Wiggins, 465
U.S. 168 (1984) (denial of right to self-representation
at trial); Waller v. Georgia, 467 U.S. 39 (1984) (denial
of public trial); Sullivan, 508 U.S. 275 (defective
reasonable doubt instruction)).
The Supreme Court,
however, has never addressed structural error
regarding the presumption of innocence. "[I]f[,
however,] the defendant had counsel and was tried by
an impartial adjudicator, there is a strong
presumption that any . . . errors that may have
occurred are subject to harmless error analysis."
Rose v. Clark, 478 U.S. 570, 579 (1986).
of innocence, although not articulated in the
Constitution, is a basic component of a fair trial
under our system of criminal justice." Estelle v.
Williams, 425 U.S. 501, 503 (1976); see also Cool v.
United States, 409 U.S. 100, 104 (1972) (per curiam)
("constitutionally rooted presumption of innocence").
The presumption serves as a reminder to the jury
that the State has the burden of proving every
element of the offense beyond a reasonable doubt.
See Delo v. Lashley, 507 U.S. 272, 278 (1993) (per
A presumption of
innocence instruction is not constitutionally
required in every case, however. See Kentucky v.
Whorton, 441 U.S. 786, 789 (1979) (per curiam).
Rather, "[a]n instruction is constitutionally
required only when, in light of the totality of the
circumstances, there is a genuine danger that the
jury will convict based on something other than the
State's lawful evidence, proved beyond a reasonable
doubt." Lashley, 507 U.S. at 278 (quotations omitted).
While use of the
particular phrase 'presumption of innocence' or any
other form of words may not be constitutionally
mandated, the Due Process Clause of the Fourteenth
Amendment must be held to safeguard against dilution
of the principle that guilt is to be established by
probative evidence beyond a reasonable doubt.
Kentucky, 436 U.S. 478, 485-86 (1978) (quotation
omitted); see also Tillman v. Cook, 215 F.3d 1116,
1123 (10th Cir. 2000) (determining trial judge has
discretion to tailor jury instructions, as long as
instructions correctly state law and fairly and
adequately cover issues presented).
Based on these
principles, it is clear any error here does not defy
analysis by harmless error standards. See Sullivan,
508 U.S. at 281. The error, if any, did not affect
the trial framework or the entire trial process,
depriving Mr. Walker of basic protections for
determining guilt or innocence, and rendering the
trial fundamentally unfair. See Neder, 527 U.S. at
8-9. Instead, any error may be assessed in the
context of the other evidence presented. See
Sullivan, 508 U.S. at 281. The error, if any, did
not affect the composition of the record. See Rose,
478 U.S. at 579 n.7. Mr. Walker had a full
opportunity to put on evidence and make argument.
See id. at 579.
He was tried by an
impartial jury, supervised by an impartial judge and
had counsel. Apart from the challenged instruction,
the jury was instructed to find Mr. Walker guilty
beyond a reasonable doubt of either first or second
degree murder. See generally United States v. Doyle,
130 F.3d 523, 535 (2d Cir. 1997) (reasonable doubt
standard is means by which presumption of innocence
is implemented, citing In re Winship, 397 U.S. 358,
363 (1970)). Thus, the State was required to prove
each element of the offenses beyond a reasonable
doubt and no burdens shifted to Mr. Walker.
Because the error,
if any, was trial and not structural error, we next
consider whether the error was harmless. See Arizona
v. Fulminante, 499 U.S. 279, 307-08 (1991) (recognizing
harmless error analysis applies when there is trial
error); see also California v. Roy, 519 U.S. 2, 5
(1996) (per curiam). Mr. Walker argues the Chapman "beyond
a reasonable doubt" harmless error standard applies.
This court has held, however, that the "'substantial
and injurious effect or influence'" standard, set
forth in Brecht, 507 U.S. at 623, 637 (quoting
Kotteakos v. United States, 328 U.S. 750, 776
(1946)), which the federal district court applied,
is the proper standard. See Crespin v. New Mexico,
144 F.3d 641, 649 (10th Cir. 1998).
analysis looks at the basis upon which the jury
rested its verdict. See Sullivan, 508 U.S. at 279.
In light of the totality of the circumstances,
including the given instructions and the
overwhelming evidence of guilt,
we have no doubt that Mr. Walker had a
constitutionally fair trial. He was not judged on
anything but the overwhelming evidence presented at
trial. SeeTaylor, 436 U.S. at 486. Because the trial
record establishes guilt beyond a reasonable doubt,
the interest in fair and correct judgments has been
satisfied. See Rose, 478 U.S. at 579. The
Constitution entitled Mr. Walker to a fair trial,
which he received, not a perfect trial. See Delaware
v. Van Arsdall, 475 U.S. 673, 681 (1986).
Assistance of Appellate Counsel
Mr. Walker argues
that he was denied effective assistance of appellate
counsel due to counsel's failure to raise this claim
on direct appeal. On post-conviction review, the
Oklahoma Court of Criminal Appeals concluded Mr.
Walker failed to establish that counsel's
performance was deficient. SeeWalker, 933 P.2d at
335-36. The Oklahoma appellate court's determination
that counsel's performance was not deficient was not
unreasonable. See 28 U.S.C. § 2254(d).
attorney's performance may be deficient and may
prejudice the defendant only if counsel fails to
argue a "dead-bang winner," which is defined as "an
issue which was obvious from the trial record, . . .
and one which would have resulted in a reversal on
appeal." United States v. Cook, 45 F.3d 388, 395
(10th Cir. 1995). A petitioner has the burden of
proving appellate counsel omitted a "dead-bang
winner." See Parker v. Champion, 148 F.3d 1219, 1221
(10th Cir. 1998).
Mr. Walker cannot
meet that burden. Because, as discussed above, the
instructional error, if indeed there was error, was
harmless, and therefore not a "dead bang winner,"
counsel's performance was neither deficient nor
IV. Lesser Included
Mr. Walker argues
his due process rights were violated when the trial
court refused to instruct on the lesser included
offense of first degree manslaughter. He asserts the
evidence shows he committed the homicides in a heat
On direct appeal,
the Oklahoma Court of Criminal Appeals determined as
The evidence did
not in fact support a first degree manslaughter
instruction. . . . Walker went to the trailer with a
concealed, sharpened knife. He became angry with
Shelly and began either hitting or stabbing her.
When her uncle, Donnie, came running to her rescue,
Walker stabbed him in the stomach.
stabbed each of them numerous times, ultimately
telling Donnie that he should have minded his own
business. At one point, he went to the kitchen
cabinets, found an ice pick, and returned to stab
Shelly with it. He took Shelly's pulse to make
certain she was dead.
In his statement
to the police, he admitted that he intended to kill
anyone who tried to prevent him from taking the baby.
This evidence did not show that Walker killed the
two victims in a heat of passion and without a
design to effect their deaths. The trial judge
properly denied Walker's requested instruction on
Walker, 887 P.2d
at 313 (footnotes omitted). Based on a careful
review of the record, we conclude this determination
was not unreasonable.
See 28 U.S.C. § 2254(d).
requires that a lesser included offense instruction
be given when the evidence warrants such an
instruction. See Hopper v. Evans, 456 U.S. 605, 611
(1982). Oklahoma defines first degree manslaughter
as homicide "perpetrated without a design to effect
death, and in a heat of passion, but in a cruel and
unusual manner, or by means of a dangerous weapon;
unless it is committed under such circumstances as
constitute excusable or justifiable homicide." Okla.
Stat. tit. 21, § 711(2).
elements of heat of passion first degree
manslaughter are (1) adequate provocation; (2)
passion or emotion such as anger, rage, fear, or
terror; (3) homicide occurring during a state of
passion and before there is a reasonable opportunity
for the passion to cool; and (4) the existence of a
causal connection between the provocation, passion,
and homicide. See Charm v. State, 924 P.2d 754, 760
(Okla. Crim. App. 1996).
"a design to effect death" with "an intent to kill."
See Hogan v. Gibson, 197 F.3d 1297, 1308 (10th Cir.
1999) (citing Smith v. State, 932 P.2d 521, 532-33 (Okla.
Crim. App. 1996)), petition for cert. filed, 68
U.S.L.W. 3774 (U.S. June 8, 2000) (No. 99-1976).
[E]ven if a person
kills in the heat of passion, the killing may not be
classified as first-degree manslaughter if the
person intended death to result from the act. A
defendant is thus entitled to a manslaughter
instruction only if the evidence at trial would
allow a jury to rationally conclude the defendant's
rage rendered him . . . incapable of forming a
design to effect death.
Id. (citing Allen
v. State, 821 P.2d 371, 374 (Okla. Crim. App.
statement of his own intent is somewhat ambiguous.
In his statement to the police, Mr. Walker first
indicated he was going to take the baby or murder
Shelly or whoever got in his way and he had thought
about it for months. He, for the most part, was able
to remember the criminal events. As the Oklahoma
Court of Criminal Appeals recognized in the fact
section of its direct appeal opinion, Mr. Walker
later contradicted himself by indicating he did not
want to kill Shelly and instead wanted to kill
himself because he knew someone needed to take care
of the baby. Also, he indicated that he intended to
stab himself if things "didn't work out" between
himself and Shelly. Vol. 1, tab 17, app. 5 at 12. He
did not remember killing or doing anything to Donnie,
but did realize he had stabbed Donnie after he had
testified that Mr. Walker's behavior was more
consistent with a lack of intent to commit murder
and a loss of control. Dr. Nicholson characterized
Mr. Walker's actions as a manipulative suicide
attempt followed by a loss of control. Nonetheless,
Dr. Nicholson also believed Mr. Walker knew the
nature of his actions at the time of the murder,
such that he knew what he was doing and knew it was
Any ambiguity in
Mr. Walker's statement did not permit reasonable
inferences of both first degree murder and first
degree manslaughter in light of the other evidence
set forth in the Oklahoma Court of Criminal Appeals'
opinion and Dr. Nicholson's belief that Mr. Walker
knew what he was doing. Although Mr. Walker may have
acted in a rage, the evidence shows he intended to
kill both Shelly and Donnie. See Walker, 167 F.3d at
Thus, Mr. Walker
has failed to show "the evidence presented at trial
would permit a rational jury to find him guilty of
first-degree manslaughter and acquit him of first-degree
murder." Hogan, 197 F.3d at 1307 (citing Hopper, 456
U.S. at 610).
In light of the highly deferential standard with
which we review the Oklahoma Court of Criminal
Appeals' decision that there was not sufficient
evidence in the record to support an instruction on
first degree manslaughter, we conclude that decision
was not unreasonable. See 28 U.S.C. § 2254(d).
Contrary to the
Oklahoma Court of Criminal Appeals' determination,
see Walker, 887 P.2d at 313 & n.54, Mr. Walker
argues he did not elect a second degree murder
defense over manslaughter. Regardless of whether he
made such an election, the trial court reasonably
refused to give a first degree manslaughter
V. Admission of
Statements Overheard by Deputy Fritz
Mr. Walker argues
his constitutional rights were violated by the
testimony of Deputy Fritz. Mr. Walker made certain
statements to a medical doctor, which were overheard
by Deputy Fritz, who guarded Mr. Walker while he was
being hospitalized for his self-inflicted wounds.
Deputy Fritz testified he heard Mr. Walker tell the
doctor that he knew he had killed Shelly and he was
glad he had done so; he was sorry he had killed
Donnie, but it was none of Donnie's business; two
months before the murders he had planned to kill his
parents with a gun because his parents had beaten
him as a child; and he was taking steroids and no
one could push him around.
Mr. Walker argues
his statements were protected by the physician-patient
relationship. See Okla. Stat. tit. 12, § 2503(4)(B).
Also, he argues there was no evidence he knowingly
and intelligently waived his right to counsel and
against self-incrimination and no waiver may be
implied due to his "drug induced disorientation and
psychotic condition." Appellant's Br. at 62.
On direct appeal,
the Oklahoma Court of Criminal Appeals determined Mr.
Walker failed to show his communications to the
doctor were privileged and were not intended to be
disclosed to third persons, because he spoke loudly
enough for Deputy Fritz to hear and Mr. Walker was
cognizant of what was happening. See Walker, 887
P.2d at 321. The federal district court held that Mr.
Walker failed to prove that any error denied him due
rulings on the admissibility of evidence may not be
questioned in federal habeas proceedings unless they
render the trial so fundamentally unfair as to
constitute a denial of federal constitutional rights."
Duvall v. Reynolds, 139 F.3d 768, 787 (10th Cir.
1998) (quotation omitted); see also Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Having carefully
reviewed the record, we conclude admission of the
evidence did not deprive Mr. Walker of a fair trial.
In a post-conviction
affidavit, prepared over seven years after trial, Mr.
Walker stated he did not remember talking to the
doctor and did not intend for the deputy to hear the
conversation. This belated, self-serving affidavit
is insufficient to show a denial of due process.
Even if admission of Deputy Fritz' testimony was
erroneous, it was harmless in light of the other
overwhelming evidence in the case. The Oklahoma
Court of Criminal Appeals' determination was not
unreasonable. See 28 U.S.C. § 2254(d).
argument that he did not knowingly and intelligently
waive his right to counsel and against self-incrimination
is conclusory and unsupported. "We do not consider
unsupported and undeveloped issues." Moore v. Gibson,
195 F.3d 1152, 1180 n.17 (10th Cir. 1999), cert.
denied, 120 S. Ct. 2206 (2000).
VI. Notice of
Evidence to Support Aggravators
Mr. Walker argues
the State's failure to provide sufficient and timely
notice of the evidence to support the aggravators
deprived him of due process. Mr. Walker received
notice more than one and one half months before
trial that the State intended to seek the death
The State filed an
amended Bill of Particulars four days later. Over
three weeks before trial the State filed another
amended Bill of Particulars. Mr. Walker contends the
notice was not timely because the amended notices
changed the nature of the proceedings, denying him a
chance to rebut the evidence used to support the
death penalty. Additionally, he argues the State
presented evidence not specified in the amended
The Oklahoma Court
of Criminal Appeals determined the notice was
sufficient. See Walker, 887 P.2d at 316-17. The
federal district court determined the notice was
both timely and sufficient.
The Due Process
Clause mandates that a defendant receive adequate
notice that he could receive the death penalty.
SeeLankford v. Idaho, 500 U.S. 110, 127 . . .
(1991). Similarly, a defendant must have a
meaningful opportunity to deny or explain the
State's evidence used to procure a death sentence.
See Gardner v. Florida, 430 U.S. 349, 362 . . .
The record does
not support Mr. Walker's argument that he was denied
due process. The State gave him notice within a
reasonable amount of time prior to trial that it
would seek the death penalty upon conviction of the
capital offenses. Cf. Carpenter v. State, 929 P.2d
988, 995 (Okla. Crim. App. 1996) (finding no
evidence that one months' notice was insufficient
where counsel did not request continuance); Mayes v.
State, 887 P.2d 1288, 1299-1301 (Okla. Crim. App.
1994) (sufficiently timely notice provided four days
before trial, where defendant was apprized long
before that prosecution intended to seek death
penalty). Thus, "'[t]he problem of trial by ambush
did not arise in this case.'" Duvall, 139 F.3d at
797-98 (quoting Long v. State, 883 P.2d 167, 172 (Okla.
Crim. App. 1994)). Nor does the record show any
prejudice due to the timing of the notice. SeeMayes,
210 F.3d at 1292.
Mr. Walker further
complains the State presented aggravating evidence
not specified in the amended Bill of Particulars:
(1) the State introduced slides rather than
photographs; (2) the medical examiner testified
Shelly had been injured before making the 911 call;
and (3) the prosecutor impeached mitigation
witnesses with allegations Mr. Walker had no notice
would be used. The Oklahoma Court of Criminal
Appeals noted that Okla. Stat. tit. 21, § 701.10 "does
not require the State to give a detailed description
of anticipated second stage evidence." Walker, 887
P.2d at 316. Rather, the State need only provide a
summary of the second stage evidence and a list of
possible witnesses. Seeid. at 316-17.
This court is
bound by the Oklahoma Court of Criminal Appeals'
interpretation of state law. See Estelle, 502 U.S.
at 67-68. Under that interpretation, Mr. Walker
received sufficient notice. The Oklahoma Court of
Criminal Appeals reasonably determined (1) the
slides were sufficiently described as autopsy
photographs; (2) the notice need not describe the
medical examiner's exact testimony; and (3) the
notice requirement did not extend to proper cross-examination
questions. See Walker, 887 P.2d at 317.
Also, the court
noted that all matters Mr. Walker complained of had
been introduced at the guilt stage of trial. See id.
Because Mr. Walker had sufficient notice of the
nature of the State's second stage evidence, we
conclude the Oklahoma Court of Criminal Appeals'
determination that the pretrial notice requirement
was met was reasonable. See 28 U.S.C. § 2254(d).
Mr. Walker argues
that several instances of prosecutorial misconduct
violated his right to a fair and impartial trial.
The Oklahoma Court of Criminal Appeals denied relief,
addressing in detail those comments which were
objected to at trial and addressing for plain error
those comments which were not objected to at trial,
finding them not so prejudicial as to affect the
right to a fair trial. SeeWalker, 887 P.2d at 315,
321. Because the state court disposed of all aspects
of the prosecutorial misconduct claim on its merits,
we apply AEDPA standards to all aspects of this
In doing so, we
uphold the Oklahoma appellate court's result with
respect to the unobjected to comments if our
independent review persuades us the decision was not
contrary to or an unreasonable application of
clearly established federal law, or based upon an
unreasonable determination of the facts in light of
the evidence presented. See Aycox v. Lytle, 196 F.3d
1174, 1177-78 (10th Cir. 1999). Thus, we give
deference to the state court's result, even when its
reasoning was not expressly stated. See id. at 1177.
prosecutor's improper remark will require reversal
of a state conviction only if the remark
sufficiently infected the trial, making it
fundamentally unfair and, therefore, a denial of due
process. See Donnelly v. DeChristoforo, 416 U.S.
637, 643, 645 (1974). Inquiry into fundamental
fairness requires examination of the entire
proceedings. See id. at 643. It also requires a
review of the strength of the evidence against the
petitioner. See Fero v. Kerby, 39 F.3d 1462, 1474
(10th Cir. 1994). Ultimately, this court considers
the jury's ability to judge the evidence fairly in
light of the prosecutor's conduct. Seeid. "[I]t is
not enough that the prosecutor's remarks were
undesirable or even universally condemned." Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (quotation
omitted). Counsel's failure to object to many of the
comments, while not dispositive, is relevant to a
fundamental fairness assessment. See Trice v. Ward,
196 F.3d 1151, 1167 (10th Cir. 1999), cert. denied,
2000 WL 656673 (U.S. Oct. 2, 2000) (No. 99-9518).
If, however, the
alleged prosecutorial misconduct denied the
petitioner a specific constitutional right, a habeas
claim may be established without requiring proof the
entire trial was rendered fundamentally unfair. See
Paxton v. Ward, 199 F.3d 1197, 1217 (10th Cir.
A. Jury Selection
Citing only state
law, Mr. Walker argues the prosecutor improperly
stated three times during voir dire his personal
opinion that Mr. Walker deserved the death penalty.
As the Oklahoma Court of Criminal Appeals determined,
these unobjected to comments did not render the
trial fundamentally unfair. The prosecutor admitted
he was not a neutral participant and he had the
burden of proof. Also, he informed the prospective
jurors they must reach a verdict based on the law
and the evidence.
B. First Stage
Again citing only
state law, Mr. Walker argues the prosecutor
improperly questioned defense witnesses about his
alleged propensity for violence. The Oklahoma Court
of Criminal Appeals held that defense counsel's
direct examination of the defense witnesses, other
than Dr. Nicholson, opened the inquiry to violent
tendencies enabling the State to cover this subject
on cross-examination. See Walker, 887 P.2d at 314.
The court also
held the State was permitted to cross-examine Dr.
Nicholson regarding specific instances of Mr.
Walker's previous violent acts because the questions
contradicted Dr. Nicholson's testimony that Mr.
Walker was incapable of forming specific intent to
kill and helped the jury to understand what
information the doctor used to diagnose Mr. Walker.
See id. at 315. Viewing the prosecutor's questions
in the context of the proceedings, the questioning
was not improper. See United States v. Young, 470
U.S. 1, 11-12, 18 (1985)
contends the prosecutor appealed solely to the
jurors' passion when he asked Mr. Walker's
grandfather if Mr. Walker would need the large knife
used for the crimes to do masonry work. The Oklahoma
Court of Criminal Appeals reasonably concluded the
State properly asked this question to show malice
aforethought. See Walker, 887 P.2d at 315. The court
determined that although defense counsel called this
witness to support the theory that Mr. Walker did
not intend to kill his victims, because he was on
his way to work, the evidence showed he left home in
possession of the murder weapon rather than a tool
useful for his employment. See id.
Citing only state
authority, Mr. Walker argues it was prejudicial for
the prosecutor to ask a defense witness whether she
could say Mr. Walker had not stabbed Donnie eleven
times and Shelly thirty-two times. The Oklahoma
Court of Criminal Appeals reasonably found this was
proper impeachment for testimony elicited by defense
counsel that Mr. Walker had not threatened any one
the night before the murders. See id.
Again citing only
state law, Mr. Walker argues the prosecutor tried to
prejudice the jury during closing argument by
suggesting the jury should do its business. It was
not fundamental error to suggest that the jury was
in the business of deciding whether to convict.
Mr. Walker argues
the prosecutor improperly commented on his right to
remain silent. A prosecutor's comment on a criminal
defendant's failure to testify implicates a specific
constitutional right. See Griffin v. California, 380
U.S. 609, 613-15 (1965). Here, however, the
prosecutor properly commented on Mr. Walker's
failure to present evidence or call witnesses.
SeeTrice, 196 F.3d at 1167. He did not improperly
call attention to Mr. Walker's failure to testify.
SeeNguyen, 131 F.3d at 1358.
C. Second Stage
Mr. Walker argues
the prosecutor asserted personal opinion by
commenting that prison society is not excluded from
the continuing threat to society aggravator and
stating Mr. Walker deserved the death penalty. The
former is an accurate statement of Oklahoma law. See,
e.g., Salazar v. State, 973 P.2d 315, 326 (Okla.
Crim. App. 1998), cert. denied, 120 S. Ct. 226
(1999); Hain v. State, 919 P.2d 1130, 1148 (Okla.
Crim. App. 1996). With respect to the latter, the
prosecutor admitted he was not neutral and was an
advocate for the State.
Also, as the
Oklahoma Court of Criminal Appeals reasonably
determined, the latter was based solely on the
evidence presented. See Walker, 887 P.2d at 321; cf.
Bowser v. Boggs, 20 F.3d 1060, 1065 (10th Cir. 1994)
(although prosecutor's expression of his personal
opinion in closing argument was arguably improper,
it did not render trial fundamentally unfair,
because prosecutor did not rely on evidence outside
record or misstate or misrepresent facts).
Mr. Walker argues
the prosecutor erred by telling the jurors to check
the aggravators once they found them before
balancing them against the mitigators and deciding
to impose the death penalty. He maintains the jurors
may have believed the death penalty was automatic
after checking the aggravators. This is unlikely in
light of the instructions to weigh the mitigating
and aggravating evidence. We assume the jury
followed the instructions. See Fero, 39 F.3d at
1474. Also, the prosecutor acknowledged the jury
must weigh the aggravating and mitigating evidence
before deciding whether the death penalty should be
Mr. Walker argues
the prosecutor implied the death penalty was
mandatory by suggesting the only way for Mr. Walker
to pay is with his own life. In light of the
weighing instructions, the jury would not have
believed the death penalty was mandatory.
Mr. Walker argues
the prosecutor improperly told the jurors they had
discretion to consider the mitigating evidence. The
trial court instructed the jury to consider and
determine the mitigating evidence. We assume the
jury followed the instructions. See id.
Mr. Walker argues
the prosecutor appealed to the jurors' passions and
prejudices by telling them Mr. Walker had made his
actions the jurors' business. As in the first stage,
this comment did not cause the trial to be
Citing only state
law, Mr. Walker complains the prosecutor improperly
sought sympathy for the victims by referring to
Donnie as cold in his grave and by suggesting
Juanita would take Donnie's comments seeking help
with her to her grave. The Oklahoma appellate court
found the second remark improper, but harmless given
the overwhelming evidence supporting the aggravating
circumstances. See Walker, 887 P.2d at 321-22.
court does not condone prosecutorial remarks
encouraging the jury to allow sympathy to influence
its decision, it is likely the nature of the crime
itself produced sympathy before the prosecutor made
any comments. See Duvall, 139 F.3d at 795. The
prosecutor's appeals to emotion were not sufficient
to render the trial fundamentally unfair.
According to Mr.
Walker, the prosecution belittled the mitigating
evidence, including his abusive childhood, lack of
criminal record and mental illness, and urged the
jury not to consider the mitigating evidence. The
prosecutor is permitted to comment upon and to argue
the appropriate weight to be given mitigating
factors. See Fox v. Ward, 200 F.3d 1286, 1299-1300
(10th Cir. 2000), petition for cert. filed, (U.S.
June 30, 2000) (No. 00-5995). Furthermore, the
comments did not contradict the jury instructions
directing the jury to determine what circumstances
were mitigating. See id. at 1299.
Mr. Walker argues
the prosecutor attempted to diminish the jury's
responsibility in violation of Caldwell v.
Mississippi, 472 U.S. 320, 323, 328-29 (1985). The
Oklahoma Court of Criminal Appeals found no error
because the prosecutor was responding to defense
comments and the prosecutor emphasized the jury had
the responsibility to decide whether the death
penalty was warranted. See Walker, 887 P.2d at 322 (citing
The Oklahoma Court
of Criminal Appeals did not unreasonably apply
Caldwell. See Pickens v. Gibson, 206 F.3d 988, 1000
(10th Cir. 2000). Placing the comments in the
context of the entire trial, see Greer v. Miller,
483 U.S. 756, 766 (1987), the jury would not have
felt less responsible than it should, see Romano v.
Oklahoma, 512 U.S. 1, 9 (1994). Furthermore, the
jury instructions informed the jury it had the duty
to determine the proper penalty.
considered either individually or cumulatively, did
not violate Mr. Walker's constitutional rights or
impede the jury's ability to consider the evidence
fairly. The trial court instructed the jury at the
first stage that counsels' arguments and remarks
were not evidence and at the end of the second stage
that the jury should rely on its recollection of the
evidence and not counsels' remarks.
In light of the
strong evidence of guilt and the weight of the
aggravating circumstances, there is not a reasonable
probability the outcome at either stage of trial
would have been different without the alleged
misconduct. See Hoxsie v. Kerby, 108 F.3d 1239,
1244-45 (10th Cir. 1997). The Oklahoma Court of
Criminal Appeals' decision is not contrary to or an
unreasonable application of Supreme Court precedent
and is not based on an unreasonable determination of
the facts in light of the evidence presented. See 28
U.S.C. § 2254(d)(1), (2).
We have considered
all of Mr. Walker's arguments on appeal and are not
persuaded constitutional error affected his trial.
Accordingly, we AFFIRM the federal district court's
denial of habeas corpus relief.
Judge, concurring in part and concurring in the
I concur in the
majority opinion with the exception of section I.A.
As to that section, I concur only in the result. In
resolving Walker's procedural competency claim, the
majority relies heavily on McGregor v. Gibson, 219
F.3d 1245, 1250-52 (10th Cir. 2000).
I continue to adhere to the view that McGregor was
wrongly decided. See id. at 1257-63 (Murphy, J.,
dissenting). In particular, I believe the majority
in McGregor improperly compartmentalized each of the
factors bearing upon the question of bona fide doubt,
analyzing only whether each individual factor,
considered in isolation, created a bona fide doubt
as to competency. More importantly, the McGregor
majority significantly undervalued the repeated,
serious statements of trial counsel, made in open
court, that McGregor was unable to assist in his own
defense or grasp the seriousness of the proceedings.
Because McGregor sets the tone for the majority's
resolution of Walker's procedural competency claim,
I cannot join section I.A. of the majority opinion.
I concur, however,
with the majority that Walker has not stated a
viable procedural competency claim. Rather than
recapitulating the factors set out in the majority
opinion, I simply note that viewing all that
occurred at trial holistically, it cannot be said
that the trial judge ignored facts which, viewed
objectively, raise a bona fide doubt as to Walker's
competency to stand trial. See Walker v. Attorney
General, 167 F.3d 1339, 1343-45 (10th Cir. 1999). In
particular, Walker's attorney specifically disavowed
any question as to Walker's competency at trial;
although Walker does have a history of mental
illness, there was no medical testimony that should
have placed the trial judge on notice that a
competency question existed; there were no instances
of bizarre or irrational behavior that should have
caused the trial judge to question Walker's
competency; and, although Walker was taking
psychotropic medication at the time of trial, there
is no indication that the dosage changed during the
trial or that Walker was receiving his medication
irregularly. Accordingly, I concur in the majority
opinion except as to Section I.A. and concur in the