Allen v. State, 923 P.2d 613 (Okla.Crim. App. 1996). (Direct Appeal)

Defendant was convicted in the District Court, Oklahoma County, Richard W. Freeman, J., after pleading guilty to first-degree murder, and he was sentenced to death. On appeal from resentencing, the Court of Criminal Appeals, Lane, J., held that: (1) omitted evidence did not undermine validity of resentencing hearing, as required for defendant to establish ineffective assistance of counsel; (2) trial judge's statement that he considered his decision “prayerfully” did not arbitrarily inject constitutional infirmity into sentencing proceedings; (3) trial judge's consideration of unspoken pleas for justice by victim and her family did not support defendant's allegation that trial judge allowed sympathy to overcome his reason; (4) admission of improper hearsay on victim's statements regarding defendant's conduct toward her was harmless beyond reasonable doubt; (5) trial judge cured error in prosecutor's questions on previous vehicular homicide by admonishing parties; (6) evidence was insufficient to prove beyond reasonable doubt that defendant knowingly created great risk of death to more than one person; (7) evidence was sufficient to prove that there was a probability defendant would commit criminal acts of violence that would be continuing threat to society; (8) continuing threat aggravator was not vague and overbroad in violation of Constitution; (9) defendant failed to demonstrate that his prosecution was based on impermissible discriminatory grounds, as required to establish that prosecutor's discretion to seek death penalty resulted in arbitrary imposition of death sentence; (10) reweighing of mitigating and aggravating evidence supported validity of death sentence; and (11) trial judge made appropriate finding in support of death sentence. Affirmed and certiorari denied. Lumpkin, J., filed opinion that concurred in result.

OPINION DENYING WRIT OF CERTIORARI

LANE, Judge:

Garry T. Allen pled guilty to First Degree Murder and was sentenced to death in Oklahoma County District Court Case CRF-86-6295. On original appeal judgment was affirmed and the sentence vacated on the grounds the trial court did not consider the sentencing option of life without parole which had gone into effect ten days prior to sentencing. Allen v. State, 821 P.2d 371 (Okl.Cr.1991); See 21 O.S.Supp.1992, § 701.10(A). A second sentencing hearing was held, and the trial court again imposed the death sentence. See 21 O.S.1991, § 701.10a(1). Allen is now before us on original appeal from this resentencing.

The trial judge found three aggravating factors to death qualify the defendant: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant knowingly created a great risk of death to more than one person; and (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, §§ 701.12(1), (2) and (7).

We find the evidence is not sufficient to prove beyond a reasonable doubt the defendant created a great risk of death to more than one person. Upon reweighing the mitigating evidence against the remaining aggravating factors, we find the death penalty is factually substantiated and properly imposed. Sentence is affirmed.

I. FACTS

Allen shot and killed his girl friend, Gail Titsworth, three days after she moved out with their sons, six-year-old Anthony and two year old Adrian. Angry confrontations punctuated those three days, as Allen tried repeatedly to persuade Titsworth to come back to him. Their last argument occurred on November 21, 1986 when Titsworth came to pick up their sons at Beulah's Day Care Center on N.W. 8th Street in Oklahoma City.

Allen confronted Titsworth inside the center, and the two moved to an empty room to argue. Allen left just ahead of Titsworth and the boys. When Titsworth opened the door of her truck, Allen came up behind her and shut it. She opened it again; again he shut it. This argument ended when Allen reached into his sock, pulled out a .38 caliber snub-nosed revolver, and shot Titsworth once in the chest. She fell, and he looked under her blouse before walking away. A day care employee ran to Titsworth to help her into the day care center. Just as she and Titsworth reached the front door, Allen pushed the woman inside and pushed Titsworth down on the outside steps. Allen shot her three times in the back at close range and walked away. He was captured in an alley less than a block away by the police officer who responded to the 911 call.

Because Allen appeals from resentencing, only sentencing issues are before us. These issues are framed by Appellant's brief in chief, his supplemental brief, and the State's responses to each.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant argues he was denied effective assistance of counsel as guaranteed by the Sixth Amendment, because his trial attorney did not present all of the available mitigating evidence. Trial counsel will not be found ineffective unless counsel's conduct so undermined the proper functioning of the adversarial process that the proceeding cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Our review begins with the presumption of competent representation and the appellant must carry the burden of demonstrating both deficient performance and resulting prejudice. Maxwell v. State, 775 P.2d 818, 820 (Okl.Cr.1989); Strickland, 466 U.S. at 689-91, 104 S.Ct. at 2065-66.

Appellant bases his claim on the following omitted evidence: (1) his mental diagnoses of inadequate personality disorder and organic brain damage; (2) the possibility he has Reye's syndrome; (3) the Boley State School at which he stayed for six months has a violent environment; (4) his mother's alcoholism and rejection of him; (5) his drug and alcohol abuse; and (6) his institutionalization for mental illness while in the Navy. Without this evidence, appellant argues, the sentencing proceeding was fundamentally unfair. The State counters by arguing the bulk of this evidence was, in fact, introduced and the rest does not render the sentencing unreliable.

The record shows extensive mitigating evidence was presented by defense expert, Dr. Nelda Ferguson. She testified Allen was raised in poverty and hunger in an unstable family led by an alcoholic mother who rejected him. As a teenager Allen suffered debilitating mood swings which resulted in five or six suicide attempts. He began to abuse alcohol and drugs when he was seventeen or eighteen years old. All of Allen's siblings are alcoholics. Even though Allen's IQ indicates he is bright, he ultimately dropped out of high school after a six month placement in the Boley State School. While serving in the Navy, Allen was hospitalized for psychological problems, and the abuse of alcohol and drugs. He had also been admitted into the Oklahoma City Veteran's Administration hospital for psychological problems.

Dr. Ferguson concluded the appellant was genetically predisposed to mental illness, and diagnosed Allen as having a personality disorder related to schizophrenia. He could not form and keep long-term relationships, he had little impulse control, and drinking greatly exacerbated these problems. Dr. Ferguson's testimony was supported by Allen's parents who testified to mental illness on both sides of the family, and Allen's ex-wife who testified to Allen's inability to control his temper. Allen himself testified he drank whenever possible. Most of the evidence on which appellant bases this claim was in fact introduced: the maternal rejection; the drug and alcohol abuse; the hospitalization while in the Navy; and the personality disorder. The only challenged evidence not introduced is the possibility Allen suffered from Reye's syndrome, the fact the environment of the Boley State Home was violent, and the specific label of organic brain damage. Given the very thorough mental health evidence presented by Dr. Ferguson, we find beyond a reasonable doubt the omission of this evidence did not undermine the validity of the resentencing hearing.

At oral argument appellate counsel argued trial counsel's failure to present Allen's Navy medical records to Dr. Ferguson was further evidence of ineffectiveness. Counsel argued the Navy records would have supported Dr. Ferguson's testimony which otherwise could be discounted by the trial judge.

The mere fact more evidence could have been presented is not, in itself, sufficient to support a finding of ineffectiveness. See Nguyen v. State, 844 P.2d 176, 179 (Okl.Cr.1992), cert. denied, 509 U.S. 908, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993). Given the fact in this case the evidence of mental and social disability was credible, well developed, and uncontroverted, the omission of previous medical records does not undermine our confidence in the sentencing decision. We find the appellant has failed to carry his burden to show either deficient performance by counsel, or prejudice from the omission of this evidence.

III. STATEMENTS BY THE TRIAL JUDGE

Three propositions of error are based on the following statement made by the trial judge to explain the process he used to decide on the death sentence: Over the weekend, I had the opportunity to review the evidence that was presented during the preceding week. I examined my trial notes. I took the Court file home with me. I went through that. I also read the Court of Criminal Appeals opinion on reversal and I reviewed the notes I made during the argument of counsel and I did consider all three punishments, life, life without parole and death. My consideration of these matters over the weekend, as I said, took place at my residence in seclusion in a leisurely and relaxed atmosphere. I carefully and prayerfully reviewed the facts, the testimony, the arguments. I was not influenced by passion of prejudice or any other arbitrary factor. I gave consideration to the pleas for mercy by the parents and the children of Mr. Allen and to those pleas that he made himself. I considered what I'm sure would have been the pleas, although unspoken, by Gail Titsworth for justice and those of her family, which also were not presented. It's not an easy case, of course, to decide. Upon consideration of all these various things that I've talked about I do find that the Bill of Particulars has been proven. The Defendant was previously convicted of a felony involving use of or threat of violence to the person. Number two, the Defendant knowingly created a great risk of death to more than one person and I believe there is the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society. And, accordingly, I find that the appropriate punishment in this case would be death and I do make that finding with his punishment in this Case CRF-86-6295 should be death. [emphasis added to challenged portions]

By considering the decision “prayerfully”, appellant argues, the trial judge arbitrarily injected his own religious beliefs in violation of Canon 2 of the Code of Judicial Conduct. 5 O.S.1991, Ch. 1, App. 4. This Canon provides a judge should not allow family, social or other relationships to influence judicial conduct or decision making. Id. The State responds with a semantic argument: “prayerfully” is not necessarily a religious reference, for it has the equally compelling secular meaning of “carefully thorough” or “earnestly”.

Trial context weakens the State's position. When Allen testified, he spoke extensively about his faith. He detailed his religious upbringing. He said he now devoted about three hours a day to Bible study and prayer and, if the judge spared his life, he would devote himself to the Lord. We believe the trial judge carefully chose his words to communicate two thoughts: that he had heard Allen's plea in the spirit it was made, and that he, too, had turned to prayer when considering Allen's future. Be that as it may, in order to win reversal the appellant must show both error and prejudice at trial; not mere conjecture or “vaporous speculation”. Russell v. State, 560 P.2d 1003, 1004 (Okl.Cr.), cert. denied, 431 U.S. 957, 97 S.Ct. 2683, 53 L.Ed.2d 275 (1977). Appellant's bald assertion the trial judge improperly injected his individualized belief structure is considerably weakened by the fact he does not tell us what that belief structure is, and how it harmed him. His argument is also considerably weakened by the strained reliance on Canon 2 which expressly addresses the relationships the judge has with other people.

More to the point, we find nothing to suggest the reference to prayer in itself injects constitutional infirmity into this sentencing proceeding. It is the allegiance to religious tenets at the expense of following one's oath which would yield a sentence which is constitutionally infirm. See Rojem v. State, 753 P.2d 359, 363 (Okl.Cr.), cert. denied, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988); Coleman v. State, 670 P.2d 596, 597 (Okl.Cr.1983); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Appellant's mere speculation grasps at straws, is unsupported by the record, and does not persuade. The record is explicitly clear; the trial court followed the law.

The next two arguments address the trial court's consideration of unspoken pleas for justice by the victim and her family. Appellant argues the trial court erred twice: first by being influenced improperly by sympathy for the victim, and then by going outside the record to receive this improper influence. Appellant cites no direct support for his first position, but argues by analogy from cases in which prosecutors committed reversible error by evoking improper juror sympathy for the victim. Relying on Mitchell v. State, 884 P.2d 1186, 1205 (Okl.Cr.); cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1994); Long v. State, 883 P.2d 167, 177 (Okl.Cr.1994), cert. denied, 514 U.S. 1068, 115 S.Ct. 1702, 131 L.Ed.2d 564 (1995); and Carter v. State, 879 P.2d 1234, 1253 (Okl.Cr.1994), cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995) the State responds by arguing a prosecutor may ask the jury for justice, and the trial court did nothing more than consider pleas for justice from both sides. The State bolsters its argument with the prosecutor's statement in closing which was made without objection:

The Defendant has his mother. He has his father. He has Chandra [His daughter]. Gail's mother and father and brothers and sisters and her children don't have her any more. They didn't get an opportunity to beg for Gail's life, although Gail did. She begged for her life. She begged the Defendant to let her live.... The defendant sat there in that chair, six years after he murdered Gail and he asked you to spare his life. What Gail would have given for those six years with Tony and Adrian, her mother and father and her sisters and brothers....

The Eighth and Fourteenth Amendments require a sentence of death to be based on reason, not caprice, emotion, or other arbitrary factor. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1989). As evidenced by the acceptance of victim impact evidence at sentencing, it is not sympathy for the victim per se, but sympathy that overcomes reason which is constitutionally unacceptable. See Neill v. State, 896 P.2d 537, 553-54 (Okl.Cr.1994); 22 O.S.Supp.1992, §§ 984, 984.1 and 991a. Nothing in the record supports Allen's allegation the trial judge allowed sympathy to overcome his reason. In fact, the trial court articulated quite clearly the rational basis for his sentencing decision. There is no error here. The final argument based on the judge's statement is that the trial judge improperly went outside the record to consider these pleas for justice. The State relies again on the prosecutor's statement in closing to argue the trial court did not go outside the record, but acknowledged the prosecutor's plea for justice. We agree. Acknowledgement of counsel's argument is not error. See Mitchell, 884 P.2d at 1205.

IV. EVIDENTIARY ISSUES

A. Admission Of Hearsay

Appellant next argues the improper admission of hearsay evidence over defense objection resulted in an arbitrary sentence of death. This evidence included statements Titsworth made regarding the fact Allen slapped her during angry encounters, and her belief it was Allen who stole her purse, attempted to break into her apartment, and finally broke in and left raw meat dripping blood from her cupboards. The trial court allowed this hearsay to be introduced as evidence of future dangerousness. The State confesses the error, but argues it is harmless. This error may be found harmless on appeal only if it is apparent beyond a reasonable doubt the inadmissible hearsay did not contribute to the verdict. See Hooker v. State, 887 P.2d 1351, 1360 (Okl.Cr.1994), cert. denied, 516 U.S. 858, 116 S.Ct. 164, 133 L.Ed.2d 106 (1995); Moore v. State, 761 P.2d 866, 871 (Okl.Cr.1976). Properly admitted evidence established several angry encounters between Allen and Titsworth during the three days preceding her murder. Allen's former wife also testified to his violent confrontations with her. Given this admissible testimony, we find the improper hearsay is harmless beyond a reasonable doubt.

B. Cross-Examination Of The Defendant

During cross-examination the prosecutor asked Allen about a previous vehicular homicide for which the prosecutor had no proof. The trial court sustained the defense objection. Appellant argues the prosecutor committed reversible error by injecting this issue into the sentencing proceeding. We agree the prosecutor erred. See Nelson v. State, 288 P.2d 429, 434 (Okl.Cr.1955). However, as the State correctly argues, in the context of jury trials, the error may be cured by admonishment by the trial court. See Hicks v. State, 713 P.2d 18, 21 (Okl.Cr.1986); Beavers v. State, 709 P.2d 702, 705 (Okl.Cr.1985). In the present case the trial court cured the error by announcing his admonishment to the parties: No, I don't think I'll hear about it. I'm not concerned about it, about an automobile collision, assuming the automobile collision was one of those things that happened and there's been apparently no notice of it, so let's don't worry about it. Let's go on with what we know about it.

C. SUFFICIENCY OF THE EVIDENCE

1. Great Risk To More Than One Person

Appellant argues the evidence is insufficient to prove beyond a reasonable doubt he knowingly created a great risk of death to more than one person. 21 O.S.1991, § 701.12(2). The State points to five sources for the additional person(s): (1) either of the appellant's two sons; (2) children and day care employees on a day care bus; (3) the day care employee who tried to rescue Titsworth; (4) other workers inside the day care; and (5) the officer who apprehended Allen. As we examine the events immediately preceding the murder frame by frame to determine whether this aggravator is proven, we examine the facts as they are, not what might have been had the circumstances differed slightly. Keeping in mind an aggravating circumstance must be proven beyond a reasonable doubt, we begin our analysis with Allen's boys.

We cannot tell with any certainty whether Adrian was being held by his mother when she was shot or whether she had put him down. One eye-witness testified to each scenario. No evidence was presented regarding any injury to Adrian caused by falling or by the appellant. The State did not rely on Adrian at trial or on appeal to support this aggravator, and we agree, he does not support it.

The record is equally unclear as to where Anthony was during the shooting. He testified he had run back into the day care center; an eye-witness testified he was present. Danger during the first shot was not relied on by the State, rather Anthony's possible presence during the final three shots. The problem with this argument is that it is not supported by the facts. Allen shot Titsworth at point blank range as she lay on the steps. One bullet exited her body, but no evidence suggests this bullet exited with the force or direction to endanger Anthony, if he were present. A day care bus with workers and children aboard was parked immediately in front of Titsworth's truck. Had Allen shot wildly, or from a distance, these people may have been placed in great risk of death. However, as the evidence overwhelmingly proves Allen shot Titsworth at close range all four times, no evidence suggests any of the four shots posed a risk to any of the people in the bus.

At oral argument the State suggested the day care worker who tried to rescue Titsworth was placed at great risk of death. The record does not support this position, for uncontroverted facts establish Allen slammed the day care door on her before he shot Titsworth. She was inside during all four shots. Again, given the specific circumstances of this case, the shots fired at close range did not pose a great risk of death to her. The same rationale eliminates other workers inside the day care center as a source for the additional person put at great risk of death.

The only remaining source is Officer Taylor who responded to the 911 call. A subsequent attack which does not result in death may satisfy this aggravator if it occurs in “close proximity in terms of time, location and intent to the act of the killing itself”. Snow v. State, 876 P.2d 291, 297 (Okl.Cr.1994), cert. denied, 513 U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995). Oklahoma City Police Officer Michael Taylor was on patrol only a few blocks from the day care center when he responded to the 911 call. An eye-witness directed Officer Taylor to the alley Allen had entered. After Taylor pulled into the alley, Allen came out of hiding and approached the squad car. Taylor drew his service revolver and ordered Allen up against the passenger side of the squad car. Allen appeared momentarily to comply, then began to walk away. With his service revolver still drawn, Taylor ordered Allen to stop. Allen grabbed the revolver and a struggle ensued. With the barrel pointed at Taylor, Allen squeezed Taylor's finger on the trigger, trying to make Taylor shoot himself. Taylor shot as soon as he got the revolver pointed away from himself. The shot blew out Allen's left eye. This attack may satisfy the aggravator only if it has a proximity of time, place and intent with the murder of Titsworth. Sufficient proximity was found in Snow where a second attack occurred moments later in the same place as the murder. Id.

The record allows us to conclude that a block and a half, and less than five minutes separated Allen's attacks on Titsworth and Taylor. We do not determine whether the proximity of time and place are satisfied, for it is plain the events were not driven by the same intent. Allen's driving intent to kill Titsworth ended after he killed her on the day care steps; his attack on Officer Taylor was driven by the independent intent to escape. We find the evidence is insufficient to prove Allen knowingly created a great risk of death to more than one person.

2. Continuing Threat

Appellant next argues the evidence is insufficient to prove the existence of a probability he would commit criminal acts of violence that would constitute a continuing threat to society. See 21 O.S.1991, § 701.12(7). The State looks at the same evidence and argues it is sufficient. The evidence will be found sufficient on appellate review if, when taken in the light most favorable to the State, any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Powell v. State, 906 P.2d 765, 771 (Okl.Cr.1995). A pattern of violent conduct toward family and strangers is established beyond a reasonable doubt by the evidence properly admitted in this case. On Christmas Day, 1982, Allen and his nephew picked up a hitch hiker and held him at gun point while they went to a liquor store and discussed committing a robbery. The three then stopped at the home of one of the hitch hiker's friends, and held a woman and her children at gunpoint. Conviction for two counts of pointing a weapon resulted. Allen had violent arguments with his ex-wife as well as the girl friend he intended to marry, Gail Titsworth. The arguments with Titsworth escalated to the point he shot and killed her. After killing Titsworth Allen tried to kill Officer Taylor. This pattern was explained by Dr. Ferguson who testified Allen's poor impulse control was made worse by his drinking. Allen testified he drank whenever he could. Nothing in the record supports a conclusion this pattern of violence has been interrupted. Given these facts, the continuing threat aggravator is proven beyond a reasonable doubt.

V. CONSTITUTIONALITY OF OKLAHOMA DEATH PENALTY SCHEME

A. Continuing Threat Aggravator

Appellant next argues the continuing threat aggravator is vague and overbroad in violation of the Eighth and Fourteenth Amendments. To satisfy the Eighth and Fourteenth Amendments, a capital sentencing scheme must do two things: (1) channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance to minimize the risk of wholly arbitrary and capricious sentencing, and (2) make the process for imposing a death sentence subject to rational review. Arave v. Creech, 507 U.S. 463, 470, 113 S.Ct. 1534, 1540, 123 L.Ed.2d 188 (1993) (citations omitted). The fundamental question on review is whether the aggravating circumstance, as construed, genuinely narrows the class of persons eligible for the death penalty. Id. at 474, 113 S.Ct. at 1542. Constitutional infirmity does not arise merely because the aggravating circumstance is not subject to mechanical application, or because a wide range of circumstances satisfies it. Id. at 474-476, 113 S.Ct. at 1542-43.

The defining language of this aggravating circumstance is plain and easily understood: The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(7). In the universe of persons who commit first degree murder the subset of those for whom there exists the probability of committing future violent acts is large. However, this aggravating circumstance sets forth standards which offer guidance to the sentencer; it narrows the class of death qualified defendants; and it is subject to rational review. It therefore withstands constitutional challenge. See Rogers v. State, 890 P.2d 959, 976 (Okl.Cr.1995); Walker v. State, 887 P.2d 301, 318 (Okl.Cr.), cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995); Snow v. State, 879 P.2d at 150, Malone v. State, 876 P.2d 707, 717-718 (Okl.Cr.1994); Allen v. State, 871 P.2d 79, 104 (Okl.Cr.), cert. denied, 513 U.S. 952, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994); Woodruff v. State, 846 P.2d 1124 (Okl.Cr.), cert. denied, 510 U.S. 934, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993).

B. Prosecutor's Discretion To Seek Death Penalty

Appellant next argues the unbridled discretion of the prosecutor to seek the death penalty results in arbitrary imposition of the death sentence. We have recently rejected this argument. See Hooker, 887 P.2d at 1367; Carter, 879 P.2d at 1251; Brown v. State, 871 P.2d 56, 75 (Okl.Cr.), cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994). In order to prevail the petitioner must demonstrate the government's prosecution of him was based on impermissible discriminatory grounds. Carter, 879 P.2d at 1251. This he has failed to do.

VI. REWEIGHING OF MITIGATING AND AGGRAVATING EVIDENCE

When this Court invalidates an aggravating circumstance, and at least one valid aggravator remains, the Court may reweigh the mitigating evidence against the valid aggravating circumstances to determine whether the weight of the improper aggravator is harmless, and the sentence of death still valid. See Valdez v. State, 900 P.2d 363 (Okl.Cr.), cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995); Davis v. State, 888 P.2d 1018, 1022 (Okl.Cr.1995); McGregor v. State, 885 P.2d 1366, 1385-86 (Okl.Cr.), cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995); Snow, 876 P.2d at 299. Harmlessness will be found if the elimination of the invalid aggravator cannot affect the balance of mitigating and aggravating evidence beyond a reasonable doubt. McGregor, 885 P.2d at 1386; Stafford v. State, 853 P.2d 223, 224 (Okl.Cr.), cert. denied, 514 U.S. 1099, 115 S.Ct. 1830, 131 L.Ed.2d 751 (1995); Stouffer v. State, 742 P.2d 562, 564 (Okl.Cr.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). Having invalidated the “great risk of death to more than one person” aggravator, we now reweigh.

The valid remaining aggravating circumstances are: (1) the appellant was previously convicted of two counts of pointing a weapon which is a felony involving the threat of violence to the person; and (2) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The mitigating evidence includes the fact the appellant is loved by his parents and children, all of the evidence presented by Dr. Ferguson regarding the appellant's poverty, mental disorders, drug and alcohol abuse, and his lack of impulse control. Our task on appellate review is to determine what role the invalid aggravator played in sentencing, and whether the sentencing judge would have imposed the death penalty had he not considered the “great risk of death to more than one person” aggravator. McGregor, 885 P.2d at 1387. After careful, independent review and consideration of the evidence in support of the valid aggravating circumstances and the evidence in mitigation, this Court finds the sentence of death is factually substantiated and appropriate. Finally, Appellant argues the accumulation of error warrants relief. The identified errors are (1) the admission of hearsay testimony concerning acts committed by Allen, (2) the prosecutors' questions regarding the car accident, and (3) the failure to prove great risk of death to more than one person. Upon examination of each error individually we found the hearsay harmless, the prosecutor's error cured, and the elimination of the “great risk of death” aggravator not enough to warrant reversal or modification of sentence. The errors gain little weight in aggregate and when they are combined still do not warrant relief. We reject the appellant's position that the accumulation of error warrants relief.

VII. MANDATORY SENTENCE REVIEW

The Legislature has charged this Court to conduct a final analysis in all cases which impose the death penalty to determine (1) whether the sentence 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. See 21 O.S.1991, § 701.13(C). In the course of deciding this appeal and affirming the death sentence, we have specifically determined the sentence was not imposed under passion, prejudice, or any other arbitrary factor. We have also determined the evidence supports two of the three aggravating circumstances found by the sentencing judge. We have reweighed these valid aggravators against the mitigating evidence and determined the sentence of death is both appropriate and factually substantiated.

The appellant argues mandatory sentence review is impossible because the sentencing judge failed to make a complete record of his findings in support of the death sentence. This argument is not supported by the record. In non-jury sentencing the trial judge shall designate in writing, and sign, the statutory aggravating circumstance(s) which are found beyond a reasonable doubt. 21 O.S.1991, § 701.11. The trial judge did this. The record contains three sentence verdict forms and the death sentence form is signed by the trial judge. There is no statutory requirement the jury or judge list or state the facts supporting its finding of aggravating circumstances or the exact process used to weigh the aggravators against the mitigating evidence.

The record is very clear. The trial court's sentence was based on the rational application of the appropriate law to the facts of this case. No passion, prejudice, or any other arbitrary factor influenced the imposition of the death sentence. The sentencing judge skillfully conducted the proceedings and in reaching his decision carefully considered all of the evidence and argument of counsel. In the context of mandatory sentence review, the Appellant also urges this Court to find his death sentence is excessive and disproportionate. In 1985 the Legislature modified 21 O.S.1991, § 701.13(C) and eliminated the requirement that this Court determine whether a sentence of death is excessive or disproportionate. This Court no longer conducts such a review, notwithstanding any language to the contrary in McCracken v. State, 887 P.2d 323, 334 (Okl.Cr.), cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). JOHNSON, P.J., and CHAPEL, V.C.J., concur. LUMPKIN and STRUBHAR, concur in result.

LUMPKIN, Judge, concurring in results.

I concur in the Court's decision to affirm the judgment and sentence in this case. However, I do not agree with the application of Snow v. State, 876 P.2d 291, 297 (Okl.Cr.1994), to the facts of this case. The Court seeks to apply an interpretation to the language in Snow which does not comport with either the criteria or the analysis in Snow. In effect, the Court's contorted view of the application of the surmised intent of a defendant would ensure a vacating of the “to knowingly create a great risk of death to more than one person” aggravator in toto. I strongly disagree with that interpretation. The evidence in this case, when properly viewed in light of our construction of the statutory aggravator, is more than sufficient to support the “to knowingly create a great risk of death to more than one person” aggravator. Therefore, the Court is not required to reweigh the evidence to find the death penalty is supported by the law and facts in this case.

Allen v. State, 956 P.2d 918 (Okl.Cr.App. 1998). (On Remand from U.S. Supreme Court)

Defendant was convicted in the District Court, Oklahoma County, Richard W. Freeman, J., after pleading guilty to first-degree murder, and he was sentenced to death. The Court of Criminal Appeals, Lane, P.J., vacated and remanded death sentence, 821 P.2d 371. On appeal from resentencing, the Court of Criminal Appeals, Lane, J., affirmed death sentence, 923 P.2d 613. The United States Supreme Court granted certiorari on issue of incompetence to enter plea and remanded, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498. The Court of Criminal Appeals, Lane, J., held that plea proceeding was not tainted by postexamination competency hearing held three weeks earlier. Affirmed; prior opinions reinstated.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

LANE, Judge:

¶ 1 Garry Thomas Allen entered a blind plea of guilty to the crime of First Degree Murder in Oklahoma County District Court Case No. CRF-86-6295. He was sentenced to death. This Court affirmed judgment, but vacated and remanded the death sentence, for the trial court had not considered the sentencing option of life without possibility of parole which had gone into effect ten days earlier. Allen v. State, 1991 OK CR 35, 821 P.2d 371 (C-88-37) ( Allen I). On remand Allen was again sentenced to death, and we affirmed the sentence in Allen v. State, 1996 OK CR 9, 923 P.2d 613 (C-93-1121) ( Allen II ). The United States Supreme Court granted certiorari on the issue of Allen's competence to enter a plea, and remanded the cause to us for reconsideration in light of Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498.FN1 FN1. The issue of competency to enter a plea was raised in Case. No. C-88-1991 ( Allen I ), not Case No. C-93-1121 ( Allen II ).

¶ 2 An overview of the state's competency procedures is the necessary starting point for consideration of this issue. A criminal defendant must be competent to go to trial or to enter a plea. In the pre-trial context, the question of competency may be raised by the prosecutor, the defendant, defense counsel, or by the court sua sponte. 22 O.S.1991, § 1175.2. Upon the filing of an application for determination of competency, the court holds a hearing to examine the application and determine if sufficient facts are alleged to create “a doubt” as to the competency of the defendant. 22 O.S.1991, § 1175.3. If the court finds “a doubt” as to the competency of the defendant at this hearing, the defendant is ordered to undergo an examination by “doctors or appropriate technicians.” Id.

¶ 3 The examiner is ordered by the court to make the following determinations: 1) is this person able to appreciate the nature of the charges against him; 2) is this person able to consult with his lawyer and rationally assist in the preparation of his defense; 3) if the answer to question 1 or 2 is no, can the person attain competency within a reasonable time if provided with a course of treatment, therapy or training; 4) is the person a mentally ill person or a person requiring treatment as defined by statute; and 5) if the person were released without treatment, therapy or training would he probably pose a significant threat to the life or safety of himself or others. 22 O.S.1991, § 1175.3(E).

¶ 4 After these determinations have been made, a post-examination competency hearing is held. 22 O.S.1991, § 1175.4 Evidence regarding competence to stand trial is presented, and the judge, or jury if requested by the defendant, decides whether the defendant is competent to stand trial. This is where Cooper comes into play. At the post-examination competency hearing the defendant is presumed competent to stand trial, and bears the burden to prove incompetence. The pre- Cooper standard of clear and convincing proof was held violative of due process, for it could force a defendant to trial who, more likely than not, was incompetent. Cooper, 517 U.S. at 368-69, 116 S.Ct. at 1384. Oklahoma has modified this standard to a preponderance of the evidence. 22 O.S. Supp.1996, § 1175.4(B).

¶ 5 In the plea context, the trial judge is charged in every case with the duty to determine whether the defendant is competent to enter the plea. King v. State, 1976 OK CR 103 ¶ 10, 553 P.2d 529, 534. This is accomplished by: 1) appropriate interrogation of the defendant, and defense counsel if the defendant is represented, regarding the defendant's past and present mental state; and 2) observation of the defendant's behavior before the court. Id. If a “substantial question” as to the defendant's competency exists, the defendant shall be committed for a competency evaluation as provided in 22 O.S.1991, § 1172. Id. In practice there is no difference in the quantum of proof required to raise a “doubt” as to competence in the pre-trial context, or a “substantial doubt” in the plea context. With these procedures in mind, we move to the facts of the case before us.

¶ 6 Garry Thomas Allen originally planned to go to trial. His attorney filed a motion requesting a competency hearing. A doubt was raised as to Allen's competency to proceed to trial, and the court ordered Allen committed to the Department of Mental Health for observation, treatment and examination. Allen remained committed for four months.

¶ 7 At the end of this period the examining psychiatrist specifically found Allen was: 1) able to appreciate the nature of the charges against him; 2) able to consult with his lawyer and rationally assist in the preparation of his defense; 3) not a mentally ill person and did not require treatment; and 4) if he were released without treatment, therapy or training he probably would not pose a significant threat to the life or safety of himself or others. As provided by statute, the matter was set for post-examination competency hearing. Allen requested, and was granted a jury trial on the matter.

¶ 8 Allen's witnesses consisted of the neurosurgeon who operated on him to repair damage from a gunshot wound to the face which he sustained during his arrest, the clinical psychologist whose finding of incompetence supported his original motion for a competency evaluation, his father, his sister, and one of his defense attorneys. The neurosurgeon testified Allen suffered some physical damage to the frontal lobe of the brain, but he could form no opinion as to Allen's competence to stand trial. The clinical psychologist testified to the reasons he found Allen incompetent originally, and on cross-examination testified he agreed with the most recent report that Allen was now competent to stand trial. Allen's father and sister testified Allen would not discuss details of the case with them. The only evidence supporting a finding that Allen was unable to assist with his defense was presented by testimony from one of his defense attorneys who, the record indicates, was withdrawing from the case because he was leaving the Public Defender's office and going into private practice.

¶ 9 The state presented evidence from the licensed psychiatric resident who performed the court-ordered evaluation, the ocularist who constructed Allen's artificial eye and who had approximately seven hours of contact with Allen, the doctor at the Oklahoma County jail who saw Allen twice a week during the previous six months, the surgeon who performed an ear operation on Allen to remove debris and infection resulting from the gunshot wound, a jail LPN nurse, and the court-appointed psychologist who examined Allen on behalf of the defense. Each of these witnesses testified to Allen's ability to communicate rationally, and to their belief he was competent to stand trial.

¶ 10 The court-appointed psychologist who examined Allen on behalf of the defense testified she administered the following tests: 1) the Wechsler Adult Intelligence Scale which tests for long term memory; 2) the Wechsler Vocabulary Test which indicates general intelligence; 3) the Bender Gestalt Visual Motor Test which screens for organic brain problems; and 4) the “draw-a-person” test which reveals intellectual and personality information. She found “soft organic signs” evidencing “some visual motor problems”, but concluded these did not impact on Allen's competency to stand trial. The psychiatrist who performed the court-ordered competency evaluation noted Allen's depression and history of substance abuse and concluded these did not cause him to lack competence to proceed to trial.

¶ 11 The question of Allen's competence to stand trial was then given to the jury. The jury was instructed on the clear and convincing standard of proof, and found Allen competent to stand trial. Had Allen proceeded to trial, further analysis under Cooper would be relevant. However, Allen did not proceed to trial, he decided to plead guilty.

¶ 12 Three weeks after the post-examination competency hearing, Allen appeared before another district court judge to enter a blind plea of guilty. Prior to accepting the plea, the trial court asked Allen and his attorney appropriate questions to determine Allen's present competency to enter a plea as required by King. 1976 OK CR 103, ¶ 10, 553 P.2d at 534. The following exchange occurred between the trial judge, Allen, and his attorney: Q: (By the Court) Your judgment is good today? A: (Allen) I think so. Q: Do you know what you are doing here? A: Yes. Q: And you know why you are here? A: Yes. Q: Have you ever been treated by a doctor or confined in a hospital for mental illness? A: No. COUNSEL: Judge, he was sent to Eastern State Hospital and spent about 4 months there. He was there for evaluation and treatment, after November of '86 he was returned as competent. Q: That was not just for competency determination, but for actual treatment? COUNSEL: I believe he was given medication while he was there and the determination at the very beginning was that he was not competent, and then some 4 months later he was in fact returned as competent. We did have a competency trial last month before Judge Cannon, and at that time the jury returned a verdict of competent as well. Q: The jury determined him to be competent? COUNSEL: Yes, sir. Q: What was the date of the competency hearing? Would that be October the 20th? COUNSEL: I believe it started on the 19th and the verdict was returned on the 20th of October? Q: Ms. Baumann, do you have any reason to believe that Mr. Allen is not mentally competent to appreciate and understand the nature, purpose and consequences of this proceeding? A: No your honor. Q: Has he assisted you in presenting any defense he may have to this charge? A: Yes, your honor. Q: Do you have any reason to believe he was not mentally competent to appreciate and understand his acts at the time they were committed and out of which this charge arose? A: Not at this time, Your Honor.

¶ 13 Finding no question as to Allen's competency to enter a plea, the trial court proceeded with the plea procedure. The trial court advised Allen of the trial rights he was waiving as a result of entering a plea, he determined the plea was voluntary, and he established a factual basis for the plea on the record. Nothing in the transcript of these proceedings, or in the original record as a whole suggests Allen was not competent to enter his plea.

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

¶ 15 Given the procedural posture and facts of this case, the plea proceeding was not tainted by the post-examination competency hearing held three weeks earlier. At the plea hearing the trial judge relied on his personal interrogation of Allen, his personal interrogation of Allen's counsel, and his personal observation of Allen's demeanor. None of the evidence raised any doubt as to Allen's competence to enter a plea.

DECISION

¶ 16 We have reconsidered our finding that Allen was competent to enter a plea of guilty to the charge of First Degree Murder in light of Cooper. We affirm the finding of competence, we find Cooper has no relevance to this case, and we reinstate the opinions set forth in Allen I, and Allen II. CHAPEL, P.J., and STRUBHAR, V.P.J., and LUMPKIN and JOHNSON, JJ., concur.

Allen v. Mullin, 368 F.3d 1220 (10th Cir. 2004). (Habeas)

Background: Petitioner, convicted in state court of murder and sentenced to death, 956 P.2d 918, sought federal habeas relief. The United States District Court for the Western District of Oklahoma, David L. Russell, J., denied petition. Petitioner appealed.

Holdings: The Court of Appeals, O'Brien, Circuit Judge, held that: (1) trial court's refusal to appoint neuropsychologist to assist petitioner during competency trial did not violate due process; (2) trial court sufficiently inquired into petitioner's competence to enter guilty plea; (3) petitioner was competent to enter plea; (4) plea was knowing and voluntary; (5) state court's determination that claim of ineffective assistance of counsel was barred under Oklahoma law did not preclude federal habeas review; and (6) petitioner was not prejudiced by counsel's alleged deficient performance. Affirmed.

O'BRIEN, Circuit Judge.

Garry Thomas Allen was convicted of murder in the first degree in violation of Okla. Stat. tit. 21, § 701.7,FN1 for which he was sentenced to death. After extended state court proceedings, he filed a petition for writ of habeas corpus with the federal district court under 28 U.S.C. § 2254. The district court held a limited evidentiary hearing and denied relief. He appeals four issues certified for review, each turning on his competency. Exercising jurisdiction under 28 U.S.C. § 2253, we affirm. FN1. “A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.” Okla. Stat. Ann. tit. 21, § 701.7A.

I. Background

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

A few minutes later, Titsworth left the daycare center with her sons and went into the parking lot. As she was opening the door to her truck, Petitioner came up behind her and shut the door. Titsworth once again tried to get into the truck but was prevented from entering it by Petitioner. The two argued briefly and Petitioner reached down into his sock, retrieved a revolver and shot Titsworth twice in the chest. It is unclear whether Titsworth was holding her youngest son at the time of the shooting or had picked him up immediately thereafter. After she was shot, Titsworth began begging Petitioner not to shoot her again and then fell to the ground. Petitioner asked Titsworth if she was alright. He then lifted up her blouse, apparently attempting to figure out the extent of her injuries. At the time of the shooting, some of the daycare employees were in the parking lot and several of the children were in a van parked a few feet from Titsworth's truck. After the shooting, Titsworth managed to get up and began running toward the building along with a daycare center employee. As they were going up the steps leading to the front door, Petitioner shoved the daycare worker through the door and pushed Titsworth down onto the steps. Petitioner then shot Titsworth two times in the back at close range.

Officer Mike Taylor of the Oklahoma City Police Department was on patrol in the area and responded to the 911 call within minutes of the shooting. As Officer Taylor was nearing the daycare center, a witness to the shooting directed him to an alley where Petitioner was apparently hiding. Officer Taylor spotted Petitioner as he drove into the alley. Officer Taylor drew his service revolver and ordered Petitioner to stop and remain still. Petitioner initially complied with Officer Taylor's order but then began walking away. Officer Taylor followed Petitioner and reached out to place his hand on him. Petitioner quickly turned around and grabbed Officer Taylor's gun. A struggle ensued, during which Petitioner obtained partial control of Officer Taylor's gun. Petitioner attempted to make Officer Taylor shoot himself by applying pressure to Taylor's finger which was still on the trigger. Ultimately, Officer Taylor regained control of the gun and shot Petitioner in the face. Petitioner was rushed to the hospital where a CT scan revealed an air pocket in the front part of his brain and cerebral spinal fluid leaking from his nose and ear. Petitioner remained in the hospital approximately two months for treatment for injuries to his face, left eye, and brain. As a result of the gunshot wound, Petitioner lost his left eye and suffered permanent brain damage. (R. Vol.1, Doc. No. 35, pp. 2-3) (record citations omitted).FN2 We will reference additional record facts as the discussion requires.

FN2. The facts recited in the district court opinion differ slightly from those recited in the decision of Allen's second direct appeal. Allen v. Oklahoma, 923 P.2d 613, 616 (1996) ( Allen II ). The discrepancy relates to the location of the parties when the second of four shots was fired. It is immaterial to the disposition of this appeal.

Allen was charged with first degree murder by way of Information filed November 24, 1986. The record of his arraignment on January 21, 1987, when he was not represented by counsel, reflects he was provided a copy of the Information. Shortly before his scheduled preliminary hearing, Allen's court-appointed attorney moved the state district court for a competency hearing, pursuant to which the court on January 27, 1987, remanded Allen to the Eastern State Hospital for evaluation. The Oklahoma Court of Criminal Appeals (OCCA), in deciding one of Allen's later appeals, succinctly summed up the Oklahoma competency procedures in place when Allen was remanded for evaluation:

In the pre-trial context, the question of competency may be raised by the prosecutor, the defendant, defense counsel, or by the court sua sponte. Upon the filing of an application for determination of competency, the court holds a hearing to examine the application and determine if sufficient facts are alleged to create a doubt as to the competency of the defendant. If the court finds a doubt as to the competency of the defendant at this hearing, the defendant is ordered to undergo an examination by doctors or appropriate technicians. The examiner is ordered by the court to make the following determinations: 1) is this person able to appreciate the nature of the charges against him; 2) is this person able to consult with his lawyer and rationally assist in the preparation of his defense; 3) if the answer to question 1 or 2 is no, can the person attain competency within a reasonable time if provided with a course of treatment, therapy or training; 4) is the person a mentally ill person or a person requiring treatment as defined by statute; and 5) if the person were released without treatment, therapy or training would he probably pose a significant threat to the life or safety of himself or others.

After these determinations have been made, a post-examination competency hearing is held. Evidence regarding competence to stand trial is presented, and the judge, or jury if requested by the defendant, decides whether the defendant is competent to stand trial. Allen v. Oklahoma, 956 P.2d 918, 919 (Okla.Crim.App.1998), cert. denied, 525 U.S. 985, 119 S.Ct. 451, 142 L.Ed.2d 405 (1998) (citations and quotations omitted) ( Allen III ).

Within days of Allen's commitment, Dr. Samuel J. Sherman, a clinical psychologist at Eastern State Hospital, notified the court that while Allen was able to appreciate the nature of the charges against him, he was not presently able to consult with his lawyer and rationally assist in the preparation of his defense. He added that Allen could attain competency within a reasonable time with appropriate treatment. The court conducted a post-examination competency hearing and concluded Allen was incompetent but capable of achieving competence. To that end, Allen was remanded to Eastern State Hospital for further treatment. About four months later, on June 12, 1987, Dr. Allen Kirk, a psychiatrist at Eastern State Hospital, advised the court that Allen had achieved competency: he was able to appreciate the nature of the charges against him, consult with his attorney, and rationally assist his attorney in his defense. Dr. Kirk noted that Allen “has been stable on decreasing doses of antipsychotic medication, and currently is on no antipsychotic medication.” Also, Allen was “not experiencing any significant psychiatric symptomatology.” (R. Vol. 4, Original R. (C-88-37) at 26-27.) He added Allen was scheduled for surgery, including plastic surgery, necessitated by the gunshot wound to his head. Upon receiving Dr. Kirk's report, the court set the matter for competency trial before a jury. Another arraignment took place on August 7. This time, Allen was represented by counsel. The record shows he was then in receipt of a copy of the Information.

Prior to the competency trial (which was held October 19 and 20, 1987) Allen requested appointment of “mental health experts, psychologists, and psychiatrists ... and neuropsychologists to the extent that Mr. Allen ... has brain damage and ... to determine the extent of his brain damage for purposes of present competency” acting under Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). (R. Vol. 3, Tr. Competency Hr'g at 7.) At Allen's request, the court appointed Dr. Edith King, clinical psychologist, to examine him. Pursuant to the recommendation of his neurosurgeon, Dr. Stephen Cagle, Allen went back to the court and requested appointment of a neuropsychologist to examine him in order to ascertain if his brain injury affected his competency. The court denied the request. At the competency trial, Allen again moved for appointment of a neuropsychologist. The court reserved ruling until conclusion of the other expert testimony.

A. Competency Trial

Because all issues raised on appeal revolve around Allen's competency, we provide the following background material in significant detail. At the competency trial, Dr. Cagle, after first cautioning as to use of the term “brain injury” and its connotation, testified Allen suffered some structural brain injury as a result of the gunshot wound.FN3 When asked whether he could offer an opinion as to the extent Allen's brain injury affected his competence, if at all, Dr. Cagle testified he could not.FN4 He recommended a psychiatrist or psychologist, together with a neuropsychologist, to make that judgment. A neuropsychologist could evaluate “[h]igher injury to the brain affecting the more sophisticated thinking, emotional processes of the brain.” ( Id. at 23.)

FN3. Dr. Cagle went into some detail about Allen's brain injury: Mr. Allen, through this, from the first time I saw him until the last time, remained remarkably stable in terms of vital signs. He was always awake. He was conversing. He could move everything. From a neurological viewpoint his injury included loss of left eye and vision, loss of control of the muscle function of the left side of the face, loss of hearing in the left ear, all of that due to peripheral comminution of the bone and the nerves that run through the bone, getting to the ear, the eye. And he had some imbalance which again is due to the balance nerve which is in the ear compartment which was shattered by the bullet. (R. Vol. 3, Tr. Competency Hr'g at 21-22.) FN4. Dr. Cagle testified Allen was cooperative with him. When asked about Allen's competency, however, he stated: “[c]ompetency is something frankly that we as neurosurgeons in this community do not make a lot of statements about. Competency reflects a higher intellectual functioning and certain psychiatric considerations that I wouldn't care to have an opinion on.” ( Id. at 26.)

Dr. Sherman, who first evaluated Allen after his initial commitment and evaluated him again shortly before Dr. Kirk declared Allen competent, agreed with Dr. Cagle's recommendation for a neuropsychologist to test the effect of the brain injury on competence, specifically to test whether Allen had sufficient memory of the events surrounding Titsworth's killing to assist his counsel. On the other hand, he agreed with Dr. Kirk's report to the court that Allen was competent. He added he detected no psychosis in Allen and agreed a person can suffer from brain injury and still be competent.

Dr. Kirk, who certified Allen's competency to the court as a lead-up to the competency trial, testified the only mental illness from which Allen suffered was long-term depression, with an associated history of substance abuse. FN5 This diagnosis did not bear on competency. As he did in his report to the court, Dr. Kirk testified Allen was competent. He added that Allen suffered some organic brain damage evidenced by an electroencephalogram and a neurological evaluation. When asked whether an evaluation by a neuropsychologist would aid in a determination of competency, Dr. Kirk testified he did not believe it was necessary in Allen's case. He conceded Allen suffered from some short-term and long-term memory loss. However, the deficits were spotty. FN5. The presentence investigation report indicated a long history of alcohol and drug abuse.

Dr. Gregory McNamara, the jail physician who was seeing Allen twice a week, as he had for the previous six months, testified Allen communicated rationally with him, and he believed he was competent. As he put it, “He has appeared and functioned as a man of average intelligence in all the time that I've seen him.” ( Id. at 103.) Several other health providers testified Allen was able to communicate well with them. Dr. David Simms, Allen's ear, nose and throat surgeon, testified he had rational conversations with Allen, including one in which Allen explained how he sustained his injury and did not claim to be without memory of the events surrounding his injury.

Apparently anticipating unfriendly testimony, Allen declined to call as a witness the one expert he had retained through his Ake request: Dr. Edith King. Instead, the State called Dr. King. She testified she interviewed Allen and administered a number of screening tests, including the Wechsler Adult Intelligence Scale for long-term memory and intelligence FN6 and the Bender Gestalt Visual Motor Test for organic dysfunction. From the latter test, she detected “at least soft organic signs that there might be some visual motor problems.” ( Id. at 117.) These signs did not affect her opinion that Allen was competent to stand trial. Dr. King conceded neuropsychological testing, which required a specialist, would enable a deeper probe into the nature and extent of brain injury and, from that, further observations about legal competency. Nonetheless, she hewed to her opinion that under the standards enunciated in the Oklahoma statute, Allen was competent to stand trial. She indicated Allen had a reticence about discussing his case: “I feel he is able but doesn't want to reveal things about himself. I think he can if he will.” ( Id. at 119.)

FN6. While his academic record is spotty, between 1977 and 1986 Allen completed twenty-eight hours of college instruction and earned a G.P.A. of 3.125. At his second sentencing hearing, Dr. Nelda Ferguson testified for Allen and stated he was a “bright man” of “high intelligence.” (R. Vol. 3, Tr. Re-Sentencing Hr'g, Vol. II at 95.) He tested in 1993 with a verbal I.Q. of 117, in the bright range, and a performance I.Q. of 104, resulting in a full scale I.Q. of 111, also in the bright range. Six years later, Dr. Michael Gelbort tested Allen again, at which time he scored a verbal I.Q. of 79, a performance I.Q. of 73 and a full scale I.Q. of 75.

The only witness to testify to Allen's incompetence was one of his trial attorneys, Mr. Opio Toure. Although he conceded Allen understood the charges, it was Toure's belief Allen could not assist counsel in preparation of a defense. “I do believe he knows the charges and he understands the charges but he has not been able to assist me in the preparation of his defense as I've been talking with him.” Id. at 68. According to Toure, the gist of the problem was that: [A]s I tried to get to talk to [Allen] about the charge, about the evidence, about our defense, I was not able to get through the entire conversation with him or just nearly an entire sentence without him interrupting me to the extent that up to this point the conversations that I've had with Mr. Allen had been incomplete in terms of me being able to discuss the trial with him, discuss his options with him, discuss the procedures and to give him advice. (Id. at 67.)

At the conclusion of the evidence, the court revisited and denied Allen's request for appointment of a neuropsychologist.FN7 The jury was instructed that Allen was presumed competent and he bore the burden to establish his incompetency by clear and convincing evidence. The jury found Allen did not meet his burden of proof, thus finding him competent to stand trial. FN7. As the court put it: “[a]fter hearing all the testimony in the case and all of the doctors and all the witnesses for both sides why, it's my opinion that there's no need in any way, shape or form to appoint any new medical witnesses to assist the defense in this case.” (R. Vol. 3, Tr. Competency Hr'g at 144.)

B. Plea of Guilty

Less than a month later, on November 10, 1987, Allen changed tack and entered a blind plea of guilty.FN8 In preparing to take the plea, the court inquired of Allen, “[h]ave you ever been treated by a doctor or confined in a hospital for mental illness?” (R. Vol. 3, Tr. Change-of-Plea at 3.) Allen answered in the negative. This colloquy between the court and trial counsel followed and constitutes the sum of the discussion of the prior competency determination: FN8. Defined as “[a] guilty plea made without the promise of a concession from either the judge or the prosecutor.” Black's Law Dictionary 1171 (7th ed.1999).

MS. BAUMANN: Judge, he was sent to Eastern State Hospital and spent about 4 months there. He was there for evaluation and treatment, after November of ' 86, and he was returned as competent. Q. That was not just for competency determination, but for actual treatment? MS. BAUMANN: I believe he was given medication while he was there and the determination at the very beginning was that he was not competent, and then some 4 months later he was in fact returned as competent. We did have a competency trial last month before Judge Cannon, and at that time the jury returned a verdict of competent as well. Q. The jury determined him to be competent? MS. BAUMANN: Yes, sir. ( Id. at 3-4.)

Critical to our review, the court then inquired of Baumann, who also represented Allen at the competency trial, “do you have any reason to believe that Mr. Allen is not mentally competent to appreciate and understand the nature, purposes and consequences of this proceeding?” ( Id. at 4.) To this question, Baumann responded in the negative and assured the court that Allen had assisted her in presenting any available defense to the charge. Allen assured the court he had reviewed with counsel the charges and possible penalties. The court then engaged in the familiar plea colloquy with Allen, who told the court he understood all of his enumerated rights and had reviewed them with counsel. Contemporaneous with his plea, Allen filed a document with the court entitled “Plea of Guilty Without Sentencing-Summary of Facts” in which he certified in writing he understood the charges, the penalties and the rights he was giving up in pleading guilty. He also certified he had discussed the charges with counsel; counsel, in turn, certified her client was competent, and she countersigned the document. (R. Vol. 4, Original R. (C-88-37) at 232-33.)

In aid of establishing a factual basis for the plea, Allen submitted an affidavit in his own hand in which he stated the facts of the crime. He wrote simply: “I shot & killed Gail Titsworth. I had no justifiable cause.” ( Id. at 234.) The court confirmed in colloquy with Allen that this was a true and correct statement. Baumann helped him prepare it. There is little disagreement that Allen had incomplete recollection of the killing; his admission was essentially based on acceptance of witness and police reports. FN9 After its inquiry of Allen, including eliciting assurances from him that his judgment was good, he understood what he was doing and he was acting voluntarily, the court found him competent, found the plea to be knowingly and voluntarily entered and accepted the plea. FN9. His trial counsel, Eugenia Baumann, testified at the federal evidentiary hearing: “His recollection [of the killing] was very sketchy due to the gunshot wound to his head. We had many conversations. There were some things prior to that time and after that time he remembered and during the time it was all very sketchy.” (R. Vol. 2 at 11.) “Neither of us had any belief that he hadn't done substantially what [Allen's factual basis affidavit submitted to the court at plea hearing] says.” ( Id. at 13.)

C. Sentencing

At sentencing, in answer to questions from his counsel, Allen explained his decision to plead guilty and his reticence to discuss the particulars of his case: Q. What happened that caused you to think that there might be a problem? Did something happen on a Monday, Tuesday or Wednesday or Thursday? A. I really don't want-I don't want to talk about what problems we were having. Q. I know that. A. There is just so many things I wanted to avoid by pleading guilty. Q. Like what? A. Well, like for example just discussing what I did. I did not want my family involved in this and I honestly thought when I pleaded guilty that that would be the end of this. That a sentence would be passed. That was the impression that I got. I had already taken my family through enough. I had already taken her family through enough and I had no desire to take them through more by going to trial and I had no idea that things were going to come down to this where my family would be called on the stand and her family would be called up on the stand and everybody just has to go through more stuff. I just thought you know, that if I committed the crime and admitted committing the crime that that would end it for everybody because to stretch things out does nobody any good. It does nobody any more good. I just don't see it as doing any one any good. I just don't see it. I don't see anything constructive about discussing problems we were having. I just don't see it. What motivated us to go to church, I just fail to see any reason for even being asked that. Q. In fact have you and I had some discussions about that, pretty heated discussions where- A. As a matter of fact I asked you not to have my family up here. I knew I couldn't do anything about her family. I was hoping that they wouldn't have to appear either, because this just stretches things out. I have already put people through stuff and I did not want to put them through any more. Why we have to keep on going over why I did what I did you know, and my family has to tell what kind of person I was, and her family has to tell what kind of person she was, and I just can't see putting either family or anyone through that and I see kids getting up there and crying and I see my ex wife getting up there crying and my mother-and it just doesn't make any sense. I thought I could avoid all of this by just entering a plea of guilty. I had no desire, I never had any desire to go to trial. I made every effort at a much earlier date than this to enter a plea of guilty. Just to bring things to an end, and it might kind of make people have wrong ideas about things by my family being called up there, it is like they are trying to cover for me or something like that, you know? But it is not that way at all. I don't want it to be misconstrued. I did not want them to get on the stand. I did not want them to go through any more. It wasn't just my family. I just don't see any point in hurting anybody any more. I just don't see that. I have told you that and I asked my relatives not to come. I couldn't tell my relatives anything, but when I first entered that plea I didn't think anybody was going to have to go through anything. I can't see making a bad matter worse-bringing up the problems we were having and what motivated me to do what I did. It just makes things worse than ever. * * * Q. Just one more question for you Garry. How do you feel about what you have done, how do you feel about how this has affected the lives of your family and those of Gail's? A. To her family it did a whole lot more damage to them than my family. And that's another reason I didn't want any of this to happen here in Court, because it just makes what's already a troubled situation worse and I pointed that out to you time and time again and I wanted to avoid things like this. I told you time and time again. I asked my family not to come because they weren't required to come unless they were subpoenaed and I just didn't want to put people through this. I just didn't want to do that. Man, the people might look at my family and they might associate that my family has been in some way responsible for what happened but it was solely my actions. It was something that I did and I don't want people to have misconceptions about my family, you know. Because I have a pretty good family and Gail's family was a pretty good family. They were always nice to me and like when her little kid-I mean when the boy got up on the stand yesterday and he started crying that just kind of set it up for the whole thing, you know, and I just-people are just going through things that are not necessary for them to go through. I told you things like that and then I told you that before this day came up and I told you while this day was going on, this day and yesterday. It just didn't seem to me to be necessary to be dragging other people in because I am the one responsible for this crime. (R. Vol. 3, Tr. Sentencing Hr'g at 298-300, 303-04) (emphasis added).)

After he was sentenced to death, Allen moved to withdraw his guilty plea on the grounds there was insufficient evidence to support imposition of the death penalty. The court denied the motion. Allen appealed, arguing the plea was invalid because the trial court did not adequately inquire into his competency to enter it, he did not understand the elements of the charged offense and there was no factual basis to support the plea. Although the OCCA affirmed the trial court's denial of the motion to withdraw the plea, it remanded the case for resentencing to enable the trial court to consider the newly-available sentencing option of life without parole. Allen v. Oklahoma, 821 P.2d 371, 375 (Okla.Crim.App.1991) ( Allen I ).

D. Resentencing

At resentencing, Allen suggested another reason for his inability to remember the events surrounding his murder of Titsworth, his practice of regularly intoxicating himself: Q. Now, before this event, before November the 21st of 1986, how often did you drink; alcoholic beverages I'm talking about? A. How often did I drink? Q. Uh-huh. A. I drank just about as often as I could. Q. How much could you drink? A. I could drink as much as I could afford to get. Q. Well, could you drink a fifth? A. Easily, if I could afford to get it. I'd always find some kind of way. I could drink just as much as I could. Q. How often would you get drunk, say in a week? A. I'd get drunk as many days in the week as I could. * * * Q. What's the last thing that you remember before that 5:00 p.m. on November the 21st of 1986? A. I can remember drinking a lot and I don't even know if it was on that day, but I was drinking just about every day at that point. (R. Vol. 3, Tr. Resentencing Hr'g, Vol. II at 175-76, 182.) FN10 FN10. Years later, in the federal evidentiary hearing, Baumann testified Allen was severely intoxicated at the time of the killing, and this contributed to his inability to remember the particulars of the event. Hospital records indicated his blood alcohol content around the time of admission for his gunshot wound was 0.27.

The court resentenced Allen to death. Allen appealed on a number of grounds, none of them relevant to our review, and the OCCA again affirmed. Allen v. Oklahoma, 923 P.2d 613 (Okla.Crim.App.1996) ( Allen II ). The United States Supreme Court granted certiorari, vacated the judgment and remanded to the OCCA for further consideration in light of Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (holding the Oklahoma requirement that defendant prove incompetence by clear and convincing evidence, rather than by a preponderance of the evidence, violates due process). Allen v. Oklahoma, 520 U.S. 1195, 117 S.Ct. 1551, 137 L.Ed.2d 699 (1997).

On remand, the OCCA first recognized the general rule that “[a] criminal defendant must be competent to go to trial or to enter a plea.” Allen v. Oklahoma, 956 P.2d 918, 919 (Okla.Crim.App.1998), cert. denied, 525 U.S. 985, 119 S.Ct. 451, 142 L.Ed.2d 405 (1998) ( Allen III ). It pointed out that Cooper was not implicated because the flawed burden of proof was applied in a competency trial in expectation that Allen would proceed to trial if found competent. When Allen changed tack and decided to plead guilty, the presiding judge in the trial court concluded afresh that Allen was competent to enter his plea.

In the plea context, the trial judge is charged in every case with the duty to determine whether the defendant is competent to enter the plea. This is accomplished by: 1) appropriate interrogation of the defendant, and defense counsel if the defendant is represented, regarding the defendant's past and present mental state; and 2) observation of the defendant's behavior before the court. If a substantial question as to the defendant's competency exists, the defendant shall be committed for a competency evaluation as provided in 22 O.S.1991, § 1172. Id. (quotation and citations omitted). After carefully reviewing the plea colloquy, the OCCA concluded the prior competency determination by the jury did not taint the fresh competency determination. “At the plea hearing the trial judge relied on his personal interrogation of Allen, his personal interrogation of Allen's counsel, and his personal observation of Allen's demeanor. None of the evidence raised any doubt as to Allen's competence to enter a plea.” Id. at 921. The OCCA placed special significance on the colloquy between Allen's counsel and the trial court:

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

E. State Post-Conviction Relief

Allen applied to the OCCA for post-conviction relief, raising seven propositions of error. Material to this appeal are those alleging: 1) Allen was convicted while incompetent, and 2) ineffective assistance of trial counsel in permitting entry of a guilty plea when Allen was incompetent. In an unpublished decision, Allen v. Oklahoma, 956 P.2d 918 (Okla.Crim.App.1998) ( Allen IV ), the OCCA concluded the incompetence issue was procedurally barred because it had previously been raised and decided in Allen III, on remand from the Supreme Court. It concluded the ineffective assistance of trial counsel claim was waived because it could have been raised, and was not, on direct appeal. Of particular interest during the post-conviction proceedings was an affidavit submitted by Dr. Michael M. Gelbort, a clinical psychologist, in which he recounted the results of a neuropsychological evaluation he conducted on Allen in February 1997. He indicated, “the patient has no recollection for the incident and this is as would be expected due to the neurotrauma he sustained.” (Appellant Br., Attach. K at 5.) Based on his findings, he concluded “the patient is able to appear or ‘present’ more normally than he is actually able to function or perform as he has some of the basic skills present but lacks or is flawed on the higher level abilities.” ( Id. at 4.) He added:

As a result of the brain damage and associated cognitive deficits or impaired thinking abilities, the patient is and has been unable to comprehend the meaning of the proceedings in which he is involved in post-conviction relief work and is unable to assist his attorney in any meaningful way. This impairment and his resulting inability to assist counsel is present now, would have been and was present since the time of his brain injury/gun shot wound, and, if it has changed since the time of the brain damage, would have improved rather than worsened. This is to say that the patient is equally or more able to assist counsel now as compared with the time of his original trial and that he is not able to assist counsel at this time. ( Id. at 6.) He was critical of the previous assessments of Allen by other examiners, including those involved in the competency trial nearly ten years earlier.

F. Federal Habeas Review

Having failed to obtain relief through state post-conviction procedures, Allen filed his federal habeas petition under 28 U.S.C. § 2254 on August 3, 1999. In it, he raised eight grounds for relief. After a limited evidentiary hearing, FN11 the district court denied the petition in a Memorandum Opinion. Five issues have been certified for review, one has been abandoned, leaving four for our consideration. These are: 1) a procedural competency claim (including sub-claims of a violation of Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and ineffective assistance of appellate counsel for failing to raise the Ake claim), 2) a substantive competency claim, 3) an ineffective assistance of trial counsel claim based on counsel permitting Allen to enter a plea of guilty despite his alleged incompetency, and 4) a claim that Allen's plea was not knowing, voluntary and intelligent. FN12

FN11. Although the district court granted an evidentiary hearing on only one ground for relief (ineffective assistance of trial counsel due to conflict of interest in motion to withdraw guilty plea), it considered the evidence adduced at the hearing in resolving all issues presented. FN12. Allen declines to argue on appeal a claim of ineffective assistance of counsel due to a conflict of interest in the motion to withdraw plea, one of eight grounds for relief presented in the habeas petition and one of the five issues the district court certified for review. We therefore consider this claim abandoned. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994) (citation omitted). Allen requested us to expand the certificate to include three additional issues: 1) a claim pursuant to Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), that he not be executed because he is insane, 2) denial of an evidentiary hearing on all but one of the grounds for relief presented in the habeas petition, and 3) cumulative error. Judge Porfilio, in his Case Management Order issued on behalf of this Court, adopted the certificate of appealability issued by the district court and declined to expand it as requested. In spite of the limited certificate, Allen argues the Ford claim and cumulative error claim we have already declined to certify. Not being certified, we do not consider them. 28 U.S.C. § 2253(c)(1)(A). Only four issues are presented for our review.

Our review begins with the testimony of Allen's trial counsel, Baumann, at the evidentiary hearing. Her testimony echoed statements she made in a 1997 affidavit provided in the state post-conviction proceeding and in a 1999 written declaration submitted in the federal habeas proceeding. She testified it was always her belief that Allen was incompetent to plead. In her view, Allen did not fully understand the possible sentence he could face in the event he pled guilty; nor did he understand the rights he was giving up by pleading guilty, including the right to a lesser-included offense instruction on manslaughter and a voluntary intoxication instruction. She failed to inform the trial judge of her belief in Allen's incompetency because a jury had found him competent and, in any event, it was Allen's wish to plead guilty. FN13 She wanted to take the case to trial. She believed Allen had a viable defense of voluntary intoxication and an opportunity for an instruction on manslaughter as a lesser-included offense.

FN13. As Baumann put it, “My opinion never changed. At that particular point in time, having had the jury trial where he was found mentally competent, I didn't believe it was my decision to tell this man he couldn't plead guilty.” (R. Vol. 2 at 31.) “I felt it was in his best interest to go to trial. He did not want to go to trial. I felt like he had the right to make that decision because he was a legally competent man.” ( Id. at 34.)

Notwithstanding her reversal on Allen's competence, Baumann averred numerous times in her testimony that her primary objective in filing an appeal was to undo the death penalty, not the conviction: Q. You wanted an appeal? A. Yes. Q. Because you needed to get out from underneath the death penalty, right? Your client did at least? A. Yes. Q. You wanted to advance that goal, correct? A. Yes. I never thought he should have gotten the death penalty in the first place. He shouldn't have it now. (R. Vol. 2 at 43.) She later added: Bottom line was I didn't think the man should have gotten the death penalty and I wish that some court along the line would recognize that fact and give the man some relief. He shouldn't have gotten the death penalty the first time, he shouldn't have gotten it the second time. ( Id. at 57.)

II. Standard of Review

We defer to a state court's legal conclusions if it has previously addressed a habeas claim on the merits. Our deference is guided by the following: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In so doing, we review the district court's legal analysis of the state court decision de novo. Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.2000), cert. denied, 532 U.S. 979, 121 S.Ct. 1618, 149 L.Ed.2d 481 (2001).

We first inquire whether the federal law in question was clearly established. If so, we turn to whether the state court decision was contrary to or involved an unreasonable application of it. Id. at 1229. A federal habeas court may issue the writ under the ‘contrary to’ clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the ‘unreasonable application’ clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and ... an unreasonable application is different from an incorrect one. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citations omitted).

If a state court has not previously heard a habeas claim on the merits, we review the district court's legal conclusions de novo and factual findings for clear error. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001). If the district court's factual findings depend entirely on the state court record, we independently review that record. Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir.2000), cert. denied, 533 U.S. 933, 121 S.Ct. 2560, 150 L.Ed.2d 725 (2001). A state court factual finding is presumed correct. The applicant for a writ of habeas corpus has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. Discussion

A. Procedural Competence

We begin by noting that in support of his argument for procedural incompetence, Allen relies on deficiencies in the competency trial including: 1) the failure of the trial court to instruct the jury on the correct standard for incompetency, see Cooper, 517 U.S. at 369, 116 S.Ct. 1373, and 2) the failure of the trial court, after a timely defense request, to appoint a neuropsychologist to examine Allen in accord with Ake. Allen's focus on the competency trial is misplaced because he waived any objection to it when, several weeks after the jury found him competent, he changed tack by abandoning any claim of incompetence and entering a plea of guilty. See United States v. Salazar, 323 F.3d 852, 856 (10th Cir.2003) (voluntary and unconditional guilty plea waives all non-jurisdictional defenses preceding plea; only voluntary and intelligent character of plea may thereafter be challenged). Therefore, the proper focus of our review is the plea proceeding. See Allen I & Allen III. While we generally construe Allen's claim to be one of procedural incompetence, it includes sub-claims for violations of the Fourteenth and Sixth Amendments, premised on Ake, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which requires the state to assure a defendant access to a competent psychiatrist when sanity is at issue. We have interpreted Ake to apply to pre-trial competency proceedings. Walker v. Oklahoma, 167 F.3d 1339, 1348-49 (10th Cir.), cert. denied, 528 U.S. 987, 120 S.Ct. 449, 145 L.Ed.2d 366 (1999). It is important to distinguish Allen's claim and sub-claims because each requires its own standard of review.

1) Ake Sub-Claims

Each of the sub-claims is based on the refusal of the trial court to appoint a neuropsychologist to examine Allen in aid of his claim of incompetence to stand trial. In the first instance, Allen alleges that his Fourteenth Amendment right to due process was violated by the state trial court's failure to comply with Ake. Secondly, he alleges appellate counsel was ineffective, in violation of the Sixth Amendment, for failing to raise on direct appeal the trial court's refusal to appoint a neuropsychologist as required by Ake.FN14 Allen first raised these sub-claims in state post-conviction proceedings. In that venue, he did not present the alleged Ake violation as a stand-alone claim. Rather, he presented it as evidence supporting his ineffective assistance of appellate counsel claim. Now presented as a stand-alone claim in the federal habeas petition, it is vulnerable to the argument it cannot be heard because it has not been exhausted in state proceedings, 28 U.S.C. § 2254(b)(1)(A), or, in the alternative, because it is procedurally barred. Harris v. Champion, 48 F.3d 1127, 1131 n. 3 (10th Cir.1995). Notwithstanding these concerns, the district court considered the Ake claim on its merits, citing to § 2254(b) ( subsection (b)(2) permits denial of a claim on the merits even though it is not exhausted) and Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir.) (allowing review of claim on merits, in spite of possibility of procedural bar, in interest of judicial economy), cert. denied, 531 U.S. 982, 121 S.Ct. 434, 148 L.Ed.2d 441 (2000). For like reasons, we do the same. As to the ineffective assistance of appellate counsel claim, it has been inadequately briefed. We will therefore not consider it. Gross v. Burggraf, 53 F.3d 1531, 1547 (10th Cir.1995). Also, since it is resolved by the merits of the independent Ake claim, there is no need to consider it further. Inasmuch as the Oklahoma courts have not previously adjudicated the merits of the Ake claim, we review de novo. Mitchell, 262 F.3d at 1045.

FN14. Allen also claims, without elaboration, that the refusal of the trial court to appoint a neuropsychologist amounts to state-induced ineffective assistance of counsel in violation of the Sixth Amendment. We will not review this perfunctory, undeveloped claim. Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir.1994). Having settled on the plea proceeding as the focus of our review, we liberally construe Allen's Ake argument to be that failure to appoint a neuropsychologist in the competency trial tainted the trial court's finding of competence when Allen entered his plea. Because we conclude Allen was not entitled to appointment of a neuropsychologist at the competency trial, we need not reach the manner in which or the degree to which the alleged Ake violation tainted the competency determination at entry of the plea.

Ake stands for this proposition: When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense ... the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake, 470 U.S. at 82-83, 105 S.Ct. 1087. As we noted earlier, its rule extends to pre-trial competency proceedings. Walker, 167 F.3d at 1348-49. Although we interpret Ake broadly, id. at 1348, “[g]eneral allegations supporting a request for court appointment of a psychiatric expert, without substantive supporting facts, and undeveloped assertions that psychiatric assistance would be beneficial to the defendant will not suffice to require the appointment of a psychiatrist to aid in the preparation of a criminal defense.” Liles v. Saffle, 945 F.2d 333, 336 (10th Cir.1991), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). Even if we identify an Ake violation, we disregard the error if it is harmless. Walker, 167 F.3d at 1348.

The record reveals the trial court granted Allen's Ake request for appointment of an expert to inquire into his competency to stand trial. Therefore, we are not presented with a claim that the trial court failed altogether to make an Ake appointment. Instead, we are presented with a claim that additional expert appointment was required to complete the evaluation of Allen's competence, and the additional appointment was unconstitutionally denied. We construe Allen's claim to be that the failure to make the additional appointment rendered the appointment of Dr. King, standing on its own, noncompliant with Ake. We previously addressed this very issue in Walker. There, a defense psychiatrist testified to Walker's insanity at the time of commission of the crime. In preparation for trial, he urged that Walker be subjected to neurological testing to flesh out the etiology of his mental illness. To this end, Walker was examined by a neurologist to test for the presence of minimal brain damage. The neurologist suggested re-administration of an electroencephalogram to rule out seizure disorder and a CT scan to evaluate for physical brain abnormalities. “[D]ue either to lack of time or lack of funds, Mr. Walker was denied the opportunity to conduct the additional neurological testing recommended by the experts who examined him before trial.” Walker, 167 F.3d at 1348. We concluded the failure to provide the additional neurological testing violated Ake, although we also concluded the error was harmless. Id. at 1348-49.

We distinguish the facts presented in Walker from those presented here. In Allen's case every witness who testified to his competence, including Allen's own Ake expert, Dr. King, testified he was competent. None qualified his or her opinion, as did the psychiatrist in Walker, with a recommendation for further testing. Although Dr. Sherman, who first examined Allen and examined him again after Dr. Kirk found him to be competent, testified that he agreed with Dr. Cagle (the neurosurgeon who did not offer an opinion on competency) that consultation with a neuropsychologist might illuminate the degree to which Allen's brain injury affected his memory of the events surrounding the killing, he nonetheless agreed with Dr. Kirk that Allen was competent. He also agreed a person can suffer brain injury and still be competent. The psychiatrist, Dr. Kirk, testified Allen was competent. While he acknowledged that Allen suffered some organic brain damage evidenced by an electroencephalogram and a neurological evaluation, and conceded some loss of both short and long-term memory, in his opinion further evaluation by a neuropsychologist was not necessary to a determination of competency. While Dr. King, like Dr. Kirk, conceded some brain damage, it was her opinion that neuropsychological testing, while it would enable further investigation into the nature and extent of the brain injury, was unnecessary to reach a conclusion about legal competence. In view of this series of expert opinions of competency, none of them qualified by recommendation for further testing, refusal of the trial court to appoint a neuropsychologist for Allen did not implicate Ake.

We are bolstered in our conclusion by Dr. King's testimony about Allen's reticence to discuss details of the killing. It is significant because it parallels Allen's own testimony about speaking of the crime and offers a non-neuropsychological explanation for his reserve. Recall Dr. King's observation, “I feel he is able but doesn't want to reveal things about himself. I think he can if he will.” (R. Vol. 3, Tr. Competency Hr'g at 119.) The only witness at the competency hearing to testify that Allen was not competent was one of his attorneys, Toure. In his opinion, although Allen understood the charges, he was not able to assist his legal team in preparing a defense. To a large degree, Toure based his opinion of incompetence on Allen's inability or unwillingness to communicate with his defense team about the crime. At sentencing, Allen explained his reticence was due to his unhappiness at having to discuss the particulars of the crime. He wanted to spare his family and the victim's family from re-living the event. As he put it, “I can't see making a bad matter worse-bringing up the problems we were having and what motivated me to do what I did. It just makes things worse than ever.” (R. Vol. 3, Tr. Sentencing Hr'g at 300.) At resentencing, Allen offered an alternative explanation for his lack of recall. He revealed that in the days leading up to the day of the crime, and possibly even on the day of the crime itself, he was drinking to the point of intoxication. “I'd get drunk as many days in the week as I could.” (R. Vol. 3, Tr. Re-Sentencing Hr'g, Vol. II at 176.) FN15 To be sure, the gunshot wound he sustained likely impaired his memory of events. Nonetheless, the record leads to the inescapable conclusion that at least some of what appeared to examiners and his own attorney to be memory loss, capable of more exact determination through a neuropsychological exam, was actually an unwillingness to discuss the crime or a memory obscured by the effects of alcohol. In any event, there is no dispute as to the facts surrounding the killing, notwithstanding Allen may not recall all of them. Under these circumstances, impaired memory does not implicate due process. United States v. Borum, 464 F.2d 896, 900 (10th Cir.1972). FN15. See n.10.

In support of his claim of an Ake violation, Allen offers the affidavit of Dr. Gelbort from the state post-conviction proceeding, given nearly ten years after the competency hearing and nearly eleven years after Allen killed Titsworth. Dr. Gelbort is a clinical psychologist. He administered a neuropsychological evaluation to Allen. He attributed Allen's inability to recall events surrounding the killing to the neurotrauma he sustained when he was shot. He concluded Allen's apparent ability to communicate masked an inability to function at a higher intellectual level. In his opinion, Allen was incompetent at the time of his competency hearing.

The district court considered Dr. Gelbort's dated (1997) evaluation and concluded that it is not sufficiently persuasive to tip the balance in favor of an Ake violation when viewed alongside the testimony of several experts (including a psychiatrist and two clinical psychologists) who examined Allen within a year of the killing.FN16 While correct in its conclusion, the district court was overly charitable in even considering and evaluating the Gelbort material on this issue. The results of a 1997 examination do not inform a debate about the propriety of a 1987 decision relating to the need for a fourth mental health expert (neuropsychologist) to explore peripheral issues; that decision is tested by reference to contemporaneous materials, not post hoc opinions. Allen failed to make the “ ex parte threshold showing,” necessary to require appointment of a neuropsychologist. Ake, 470 U.S. at 82. FN16. We also note a number of Allen's other, non-mental health care providers testified consistently as to his ability to rationally communicate with them on a regular basis.

2) Procedural Competence Claim

Having settled the Ake question, we turn to the broader question of procedural competency. It was raised initially in Allen I. There, the issue was framed as whether the trial court had sufficiently inquired into Allen's competence to enter a plea. Allen, 821 P.2d at 373. The OCCA found that it had. Id. The issue was not raised again in Allen II, the decision affirming Allen's resentencing. We only mention Allen II because when the Supreme Court granted certiorari, it did so not for the purpose of further reviewing the resentencing, but rather, for the purpose of vacating the judgment itself and remanding the case to the OCCA “for further consideration in light of Cooper v. Oklahoma.” Allen v. Oklahoma, 520 U.S. 1195, 117 S.Ct. 1551, 137 L.Ed.2d 699 (1997) (citations omitted). As we have mentioned, Cooper concerned the standard of proof to be applied in a pre-trial competency determination. Cooper, 517 U.S. at 369, 116 S.Ct. 1373. In Allen III, the OCCA conducted the review ordered by the Supreme Court and found Cooper to be inapposite where a defendant did not stand trial, but instead entered a plea of guilty. Allen, 956 P.2d at 920. It then reviewed the trial court's pre-plea competency determination for Allen and found it to be without error. It also concluded the prior competency trial conducted with an unconstitutional burden of proof did not taint the court's fresh determination of competency for purposes of entry of the plea. It reinstated its original competency decision in Allen I (together with the resentencing decision in Allen II ). Id. at 921. The Supreme Court allowed these decisions to stand. Allen v. Oklahoma, 525 U.S. 985, 119 S.Ct. 451, 142 L.Ed.2d 405 (1998). In sum, because the OCCA, in Allen I and Allen III, adjudicated on the merits Allen's claim of incompetency when he entered his plea, we review its decisions with the deference required by 28 U.S.C. § 2254(d).

We first note there is no record evidence to support the argument that the judge who took Allen's guilty plea was influenced or otherwise tainted in his determination of competency by the earlier jury verdict of competency (irrespective of whether an additional Ake expert was appointed). The judge at the plea proceeding was not the same judge who conducted the competency trial; in fact, he did not preside over any of the pre-trial competency proceedings. The record is silent as to whether he was familiar with them at all prior to the plea proceeding. We do know from his questioning of Allen and his colloquy with trial counsel that it appears he was being informed for the first time, just prior to taking Allen's plea, of the course of the earlier competency proceedings. We also know he engaged in his own fresh inquiry as to Allen's competence to enter a plea. This record does not even suggest taint.

The law of competency is well-settled. “[T]he criminal trial of an incompetent defendant violates due process. This prohibition is fundamental to an adversary system of justice.” McGregor v. Gibson, 248 F.3d 946, 951 (10th Cir.2001) (quotations and citation omitted). The test for determining competency to stand trial is this: “[t]he trier of fact must consider ‘whether [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Id. at 952 (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). The standard of competence to enter a guilty plea is identical. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).

Competency claims may be based on violations of both procedural and substantive due process. “A procedural competency claim is based upon a trial court's alleged failure to hold a competency hearing, or an adequate competency hearing, while a substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent.” McGregor, 248 F.3d at 952. The standards of proof for procedural and substantive competency claims differ. To make out a procedural competency claim, a defendant “must raise a bona fide doubt regarding his competency to stand trial....” Id. This requires a demonstration that “a reasonable judge should have doubted” the defendant's competency. Id. at 954. It does not require proof of actual incompetency. Id. A substantive competency claim, on the other hand, requires the higher standard of proof of incompetency by a preponderance of the evidence. Cooper, 517 U.S. at 368-69, 116 S.Ct. 1373; Walker, 167 F.3d at 1344.

In evaluating a procedural competency claim, we look only at the evidence available to the trial court when the plea was entered to determine if the judge ignored evidence that objectively would have raised doubt about the defendant's fitness to proceed. Walker, 228 F.3d at 1227; see also McGregor, 248 F.3d at 954 (“[E]vidence of ... irrational behavior ... demeanor ... and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required.” (quotation omitted)). Defense counsel is often in the best position to evaluate a client's competence. Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir.1999), cert. denied, 529 U.S. 1058, 120 S.Ct. 1566, 146 L.Ed.2d 469 (2000). “[A]ssessment of a procedural competency claim requires us to form a judgment on the aggregate not the segment. We examine the totality of the circumstances: all evidence should be considered together, no single factor stands alone.” McGregor, 248 F.3d at 955 (quotation and alteration omitted). “The question is ... whether the trial court failed to give proper weight to the information suggesting incompetence which came to light....” Id. (quotation omitted).

With these principles in mind, we examine the record. As we have already explained in discussing the Ake claim, all of the expert testimony at the competency trial, including that adduced from Allen's own Ake expert, was that Allen was competent to stand trial. Moreover, during the plea proceeding, Allen exhibited no irrational behavior. To the contrary, he appeared cogent and rational in colloquy with the court. He assured the court he had reviewed with counsel the charges and possible penalties, and he gave every indication he understood the rights the court explained to him and the fact he would waive those rights in pleading guilty. He added he had discussed his rights with counsel. As further indication of his understanding of the proceedings, Allen filed a document with the court entitled “Plea of Guilty Without Sentencing-Summary of Facts” in which he again certified he understood the charges, the penalties and the rights he was giving up by pleading guilty, and that he had discussed the charges with counsel. (R. Vol. 4, Original R. (C-88-37) at 232-33.) Allen continued to demonstrate an equally rational demeanor at sentencing, which is reflective to some degree of his mental condition at the time he pled guilty.

Although one of Allen's attorneys, Toure, testified at the competency trial that his client was not competent, we discount his testimony for the same reasons given in our Ake discussion. An additional and compelling reason to disregard his testimony is that at the plea proceeding, only three weeks after Toure's testimony, Allen's remaining attorney, Baumann, assured the court that Allen appreciated the nature, purposes and consequences of the proceeding and had assisted her in presenting any available defense. The trial court properly relied on Baumann's representation as to the competency of her client. See Bryson, 187 F.3d at 1201. Based on the totality of the evidence, we conclude Allen has not demonstrated the trial court ought to have entertained a bona fide doubt as to his competency to enter a plea. This being so, we find no error in the state court determinations in Allen I and Allen III, especially when we accord those determinations the deference required by § 2254(d).

B. Substantive Competence

We construe Allen I and Allen III to dispose of Allen's substantive competency claims as well as procedural ones. Therefore, we again review with § 2254(d) deference. “[T]o succeed in stating a substantive incompetency claim, a petitioner must present evidence that creates a real, substantial and legitimate doubt as to his competency to stand trial.” Walker, 167 F.3d at 1347 (quotations omitted). At the plea proceeding there was insufficient evidence to justify even a hearing on incompetency. A fortiori, there was insufficient evidence to support a claim of substantive incompetency. Id. Allen is not aided by Dr. Gelbort's affidavit or Baumann's testimony. As we earlier noted, Dr. Gelbort's observations are insufficient to undermine the accumulated contemporaneous testimony of competency adduced at the competency trial. As to Baumann, in her 1997 affidavit (submitted in support of Allen's state post-conviction petition), her 1999 declaration and her 2001 testimony (both submitted in support of federal habeas relief), she disavows her assurance of Allen's competence given to the trial court when the guilty plea was accepted and solemnly declares him to have been incompetent at the time. Her about-face on the competency issue strongly suggests a willingness to “fall on the sword” in order to derail a death sentence. The motive is transparent, if not misguided.

C. Invalid Guilty Plea

“In addition to determining that a defendant who seeks to plead guilty ... is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.” Godinez, 509 U.S. at 400, 113 S.Ct. 2680. The competency inquiry focuses on a defendant's ability to understand the proceedings; the “knowing and voluntary” inquiry focuses on whether he in fact did understand the proceedings. Id. at 401 n. 12, 113 S.Ct. 2680. “[A] plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (quotation omitted). Allen claims he was not informed of the intent element (malice aforethought) of the crime with which he was charged and to which he pled guilty, and as a consequence his plea was not knowing and voluntary. He previously raised this issue in Allen I, and the state court denied relief. Therefore, we review with § 2254(d) deference.

Allen relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), a case in which the Supreme Court vacated a conviction on the grounds the plea of guilty was not knowing and voluntary because there was no evidence the defendant understood the intent element of the crime with which he was charged. The defendant had been charged with first degree murder and was informed in open court as to this charge, including its intent element of having “willfully” committed the act. Id. at 642, 96 S.Ct. 2253. He pled guilty to second degree murder without a formal substitute charge having been filed. The intent element for second degree murder was an “intent to cause ... death.” Id. at 643, 96 S.Ct. 2253. In federal habeas, the district court found that neither counsel nor the trial court informed the defendant of the intent element of second degree murder before he pled to the charge. FN17 Id. at 640, 96 S.Ct. 2253. The narrowness of the Court's holding is evidenced by this passage in its opinion:

FN17. The Court drew a fine but significant distinction between whether a factual basis supports the presence of the requisite intent and whether a defendant understands that the requisite intent is an element of the crime. A demonstration of the former does not satisfy the requirement of the latter. Henderson, 426 U.S. at 645-46, 96 S.Ct. 2253. We have exhaustively reviewed the record of Allen's case, and conclude it establishes a factual basis for the charge of first degree murder, including its intent element. This conclusion alone, however, does not settle the question whether Allen had notice of the intent element and understood it.

Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent. Id. at 647, 96 S.Ct. 2253.

In order to establish an involuntary plea under Henderson, we require a petitioner to: “(1) show that the [intent] element was a critical element of [the charge]; (2) overcome the presumption that his attorney explained this element to him at some other time prior to his guilty plea; and (3) demonstrate that, prior to his guilty plea, he did not receive notice of this element from any other source.” Miller v. Champion, 161 F.3d 1249, 1255 (10th Cir.1998); Henderson at 647, 96 S.Ct. 2253. As to the second requirement, we will not indulge the presumption unless there is factual basis in the record to support it. Id. “Malice aforethought” is defined in both the murder statute under which Allen was charged and in an Oklahoma pattern jury instruction. The statute provides, in pertinent part: “Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.” Okla. Stat. tit. 21, § 701.7A. Malice aforethought means a deliberate intention to take away the life of a human being. As used in these instructions, malice aforethought does not mean hatred, spite or ill-will. The deliberate intent to take a human life must be formed before the act and must exist at the time a homicidal act is committed. No particular length of time is required for formation of this deliberate intent. The intent may have been formed instantly before commission of the act. OUJI-CR (2d) 4-62. Williams v. Oklahoma, 22 P.3d 702, 714 (Okla.Crim.App.2001) (quotations omitted). Put simply, malice aforethought denotes a deliberate killing where the intent to kill may be formed right up to the commission of the act. This is not a difficult concept for the ordinary person to grasp, particularly when assisted by legal counsel. It admits of no subtlety. The question presented is whether Allen understood both the meaning of the term and that it was an element of the crime to which he pled guilty. To answer this question, we look to the record.

As to Miller's first requirement, we do not gainsay that the intent element of a criminal offense is a critical element of the charge. See Miller, 161 F.3d at 1255. As to Miller's second requirement,FN18 whether Allen has overcome the presumption that his trial counsel explained to him the intent element of malice aforethought, we first point out that Allen was charged by way of Information reciting the offense and its included intent element. FN19 Conceding our focus in evaluating the validity of the plea is on whether Allen did in fact understand the charge and not on whether he was capable of understanding it, the fact that all of the mental health experts who testified at the competency hearing testified that he was capable of understanding the charge lays a necessary predicate for a finding he did in fact understand it. At the competency trial, one of Allen's attorneys, Toure, testified that while it was his opinion that Allen was not competent because he could not assist counsel in preparing a defense (the second prong of the competency test), he did in fact understand the charges (the first prong of the competency test). At the plea proceeding, Allen assured the court he had reviewed the charges with Baumann, his counsel. He certified the same in writing in the “Plea of Guilty Without Sentencing-Summary of Facts” which he filed with the court and which Baumann countersigned. ( Id.) In open court, Baumann informed the court that Allen had assisted her in presenting any defenses he might have to the charge. In our view, this statement necessarily includes, because it would not otherwise make sense, an assurance that she had reviewed with Allen the intent element of the charge. We next weigh in the mix Allen's affidavit of factual basis submitted to the court at the plea hearing. Penned in his own handwriting, it is both simple and inartful: “I shot & killed Gail Titsworth. I had no justifiable cause.” ( Id. at 234.) Although it is curt, the statement admits to a deliberate and unexcused act of homicide, fitting well within the definition of malice aforethought. It evidences Allen understood the intent element through discussion with his attorneys. In fact, Baumann testified she helped him prepare it.

FN18. For purposes of its analysis, the district court assumed, without finding, that Allen's counsel failed to advise him of the intent element of the charge. (R. Vol. 1, Doc. 35 at 46.) It resolved the Miller test against Allen on the basis of the third requirement of the test. It concluded Allen had acquired notice of the intent element from sources other than his attorney. ( Id. at 50-51.) We do not indulge this assumption. See n. 22. FN19. The Information reads in pertinent part: On or about the 21st day of November, 1986 A.D., the crime of murder in the first degree was feloniously committed in Oklahoma County, Oklahoma, by Garry Thomas Allen who wilfully, unlawfully and with malice aforethought, killed Lawanna Gail Titsworth by shooting her with a handgun, inflicting mortal wounds which caused her death.... (R. Vol. 4, Original R. (C-88-37) at 1.) The record provides sufficient factual basis to engage the presumption that Allen's counsel informed him of the intent element for the offense with which he was charged.FN20 The only evidence Allen submits in his effort to overcome the presumption are Baumann's conclusions,FN21 memorialized a decade or more after the fact, that Allen did not understand the required intent.FN22 We have already characterized these statements and need not elaborate further, except to say they are at significant variance with other evidence contemporary to the plea, including Baumann's own assurances to the trial court. None of her statements overcomes the presumption Allen was appropriately advised. FN20. We distinguish Miller. There, as in Henderson, the defendant was charged with first degree murder and pled guilty to second degree murder (involving a different intent element) without benefit of a substitute charging instrument having been issued and served which would have alerted to the new intent element. See Henderson, 426 U.S. at 645, 96 S.Ct. 2253; Miller v. Champion, 161 F.3d 1249, 1256 (10th Cir.1998). In Miller, the record was devoid of any other evidence, direct or indirect, that Miller's counsel or the court advised him of the intent element for second degree murder. Id. at 1254-55. FN21. Allen's reliance on Dr. Gelbort's affidavit is misplaced for the reasons discussed in the previous section. FN22. In her statements Baumann does not say she neglected to perform an attorney's fundamental duty of explaining the elements of a charged crime to a client. Instead, her statements blur acts and conclusions. Moreover, they conflate Allen's ability to understand the meaning of ‘malice aforethought’ (intent element of first degree murder) with the intent element of manslaughter (a potential lesser-included offense). In the 1999 declaration she prepared for federal habeas relief, Baumann is silent as to the operative fact question-whether she explained “malice aforethought” to Allen. (Appellant Br., Attach. J, ¶ 11.) However, quite unequivocally, she makes a different fact statement-she never explained manslaughter as a lesser-included offense. She then states her conclusion-Allen was “incapable of understanding ‘malice aforethought’ both because he did not remember the crime and because he was not able to conceptualize the intent element.” ( Id.) Her conclusions may trigger a need for further inquiry, but only if adequately supported by facts. We do not find such factual support.

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

The district court avoided deciding whether Baumann had discussed the intent element of first degree murder with Allen and made no findings in that regard. It resolved the voluntariness of the plea on the basis of Miller's third requirement. See n.18. While we agree with the district court on the third requirement we are less charitable with regard to the second. The record does not demonstrate a credible factual predicate for Baumann's conclusions, so Allen fails to meet Miller's second requirement. To be sure the trial court might have engaged in a more exhaustive plea colloquy with Allen to assure he understood both the meaning of malice aforethought and that it was an important element of the charge against him. However, we are satisfied from the record as a whole that Allen obtained a sufficient understanding of the required intent from his counsel.

Even if we were to conclude that Allen satisfied the second requirement of the Miller test, he fails to satisfy the third, being a demonstration he was not put on notice of the intent element from sources other than his counsel. First, the record of his two arraignments shows he was provided a copy of the Information each time. Unlike many of the complex and convoluted federal indictments, the Information in Allen's case clearly and succinctly sets forth the elements of the crime charged. See supra n. 19. And under Oklahoma law the language is neither subtle or arcane. See supra, pp. 1242-1243. Moreover, as we earlier noted, he acknowledged reviewing the charge with counsel. The language of the Information, focused by the sobering knowledge that he faced the death penalty,FN23 would alert even an unsophisticated man that he was charged 1) with killing another, 2) the killing was intentional-not the result of mistake, accident, or other innocent reason, and 3) the killing was not, somehow, excused. In spite of perhaps unfamiliar language the concept is not elusive. FN23. The trial court assured itself at the plea proceeding that Allen understood that the penalty he faced in the event of a plea of guilty was life in prison or death. (R. Vol. 3, Tr. Change-of-Plea at 4-5.)

Second, Allen attended the preliminary hearing and heard the State present its case, which included the testimony of two witnesses who said Allen first shot Titsworth twice in the chest, examined her body for wounds, and then, after she stood up and tried to escape by entering the daycare center, he pushed her down and shot her again twice in the back, at close range. See Worthen v. Meachum, 842 F.2d 1179, 1183 (10th Cir.1988) (presence of defendant at preliminary hearing an ingredient to consider when evaluating a claim of lack of knowledge of elements of crime). The testimony evidences a cool, deliberate and merciless intent to kill, certainly sufficient for one to infer malice aforethought. And one such as Allen, with the Information in hand, could consider and compare the evidence presented at the preliminary hearing with the charging language and reason accordingly, drawing reasonable inferences about the deliberate nature of the offense.

While we acknowledge the reasoning process we attribute to Allen is not singularly compelling and would be insufficient, standing alone, to support a conclusion he understood the intent element, we are comforted in our conclusion that Allen fails to meet the third requirement of the Miller test by the assurances he gave to the trial court at the plea hearing that he was acting knowingly and voluntarily and that his factual basis statement was correct. As an appellate court, we do not enjoy the trial court's advantage of having personally observed and evaluated the synergistic effect of Allen's behavior, demeanor and statements when he entered his plea. This being so, we place special reliance on the trial court's measure of Allen's understanding of the nature and consequence of his plea. The trial court's evaluation is necessarily based not only on the bare colloquy of the record that we see but also on its intuitive sense, undergirding the colloquy, that Allen understood the elements of the crime to which he was pleading. And this is true whether Allen's understanding emanated from discussion with counsel, sources independent of counsel or both.

Taken together, the indicia of the record demonstrate Allen acquired knowledge of the intent element of the crime from sources other than his counsel and that he entered his plea with the benefit of this knowledge. Failing two of the three Miller requirements, the claim that Allen did not knowingly and voluntarily enter his plea goes wanting. Our role is not to undo what in hindsight may seem to Allen to have been an unwise choice to plead guilty to murder. Our role, instead, is to assure that the proceedings leading to his conviction and sentence were free of constitutional error. We conclude they were, and the determination of the state court in Allen I that Allen's plea was knowingly and voluntarily entered comfortably survives review under § 2254(d).

D. Ineffective Assistance of Trial Counsel

Allen claims trial counsel was ineffective because she misrepresented his competency to the trial court and permitted him to enter a blind plea of guilty to first degree murder instead of litigating his case in front of a jury when he had persuasive defenses (manslaughter as a lesser-included offense, involuntary intoxication, temporary insanity) that would have avoided a conviction in the liability stage of the trial and, failing that, would have avoided the punishment of death in the penalty stage. Allen first raised this claim in state post-conviction proceedings. The OCCA procedurally barred the claim on the ground it was apparent from the trial court record and could have been, and was not, raised on direct appeal. Allen v. Oklahoma, No. PC 97-311 (Okla.Crim.App. July 20, 1998) ( Allen IV ) (citing to Okla. Stat. Ann. tit. 22, § 1089, a provision of Oklahoma's Post-Conviction Procedure Act, Okla. Stat. Ann. tit. 22, §§ 1080-1089). In federal habeas review, the district court, citing to Walker, 167 F.3d at 1345, elected not to recognize the procedural bar because it was based on a 1995 amendment to § 1089 that post-dated Allen's direct appeal. It reviewed the claim on its merits. On appeal, the state objects to the district court's disregard of the state procedural bar, maintaining that even prior to the 1995 amendment claims of ineffective assistance which could have been, and were not, raised on direct appeal were regularly barred. We agree with the district court, both for the reason it gave and because of our previously expressed skepticism as to the adequacy of Oklahoma's procedural bar of ineffective assistance of counsel claims not brought on direct appeal. See English v. Cody, 146 F.3d 1257 (10th Cir.1998). We review de novo. Mitchell, 262 F.3d at 1045.

In order to make out a claim of ineffective assistance of counsel, Allen must show counsel's performance was deficient and it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient assistance of counsel is representation that “[falls] below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Recall Baumann assured the trial court that Allen was competent to enter a plea; a decade later, she declared to the contrary. We avoid a discussion of whether Baumann's performance was deficient, assume for the sake of analysis that it was, and turn straight to an evaluation of prejudice. Id. at 697, 104 S.Ct. 2052.

Prejudice to the defense “requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. By way of preface, we identify an apparent illogic in Allen's position. On the one hand, he argues Baumann's deficient performance caused him to plead guilty while he was incompetent. On the other hand, he argues her deficient performance deprived him of a jury trial where certain defenses would have exonerated him or, at the very least, would have enabled him to avoid the death penalty. We are perplexed because if Allen was incompetent to enter a plea he would have been remanded for treatment. See Okla. Stat. Ann. tit. 22, § 1175.6. He would not have been permitted to proceed to trial. Perhaps Allen is suggesting that if and when he recovered competency after treatment he would have elected a jury trial. Whatever may be the camouflaged logic of his argument, we take up his claims.

We evaluate whether, absent Baumann's failure to advise the trial court of her client's incompetency, the court would have nonetheless found him competent to enter a plea. While the observations of defense counsel are valuable, “the concerns of counsel alone are insufficient to establish doubt of a defendant's competency.” Bryson, 187 F.3d at 1202. In this case, the record as a whole contains compelling evidence of Allen's competence. Every expert witness who testified at the competency trial, including Allen's own Ake expert, testified he was competent. Furthermore, the court conducted its own evaluation of Allen's competency through colloquy with him and observation of his behavior. Id. at 1201 (“A trial court may rely on its own observations of the defendant's comportment.”). At sentencing, Allen articulately explained his wish to plead guilty. Based on this record, we conclude Allen has not demonstrated the trial court would have prevented him from entering a plea on the basis of incompetency if only his counsel had been truthful with the court in her estimation of his mental state. Thus, even assuming trial counsel misrepresented Allen's competence to the trial judge and was ineffective in so doing, no prejudice resulted and Allen fails in his claim of ineffective assistance of counsel.

IV. Conclusion