335 F.3d 1207 (10th Cir. 2003), 00-6090, Bryan v. Mullin

Docket Nº:00-6090
Citation:335 F.3d 1207
Party Name:Bryan v. Mullin
Case Date:July 21, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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335 F.3d 1207 (10th Cir. 2003)

Robert Leroy BRYAN, Petitioner-Appellant,


Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6090.

United States Court of Appeals, Tenth Circuit

July 21, 2003

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Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis (F. Andrew Fugitt, with him on the briefs), Oklahoma City, OK, for Petitioner-Appellant.

David M. Brockman, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the briefs), Oklahoma City, OK, for Respondent-Appellee.


MURPHY, Circuit Judge.


Robert Leroy Bryan was convicted in Oklahoma state court of first degree malice murder and sentenced to death. See Bryan v. State (Bryan I), 935 P.2d 338 (Okla.Crim.App.1997). After the Oklahoma Court of Criminal Appeals denied his state petition for post-conviction relief, see Bryan v. State (Bryan II), 948 P.2d 1230 (Okla.Crim.App.1997), Bryan filed the instant 28 U.S.C. § 2254 habeas petition in federal district court, alleging, inter alia: (1) the state failed to adduce sufficient evidence to support his conviction for first degree malice murder; (2) counsel labored under a conflict of interest; (3) counsel was ineffective at both the guilt and penalty phases of his trial because counsel failed to present mental health evidence; and (4) he was incompetent to stand trial. The district court denied relief. A panel of this court unanimously concluded that Bryan was not entitled to relief on his evidence-sufficiency, conflict of interest, and competency claims. See Bryan v. Gibson (Bryan III), 276 F.3d 1163, 1166-68, 1172-75, 1168-72 (10th Cir. 2001); id. at 1179, 1180 (Henry, J., concurring in part and dissenting in part). The panel, although divided, further held that trial counsel had not rendered ineffective assistance during either the guilt or penalty phase of the trial by failing to present mental health evidence. Compare id. at 1172-79 (panel majority), with id. at 1182-85 (Henry, J., concurring in part and dissenting in part).1

A majority of the active judges of this court ordered the case reheard en banc and requested that the parties brief whether trial counsel rendered constitutionally ineffective assistance when he failed to present evidence of Bryan's

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mental illness "during either the guilt or penalty phases of the trial."2 Upon consideration of the parties' briefs and submissions, we vacate that portion of the panel opinion addressing Bryan's claim of ineffective assistance of trial counsel, see id. at 1175-79, and affirm the denial of habeas relief for the reasons set out below. We do not reconsider as an en banc court the panel's denial of habeas relief as to Bryan's evidence-sufficiency, competency, or conflict of interest claims. See id. at 1166-68, 1168-72, 1172-75. Accordingly, all remaining portions of the panel opinion remain undisturbed.


A. Factual Background

The evidence presented at trial linking Bryan to the murder of his aunt, Inabel Bryan, was almost entirely circumstantial. Inabel disappeared from her home in September of 1993. A neighbor found tire marks at Inabel's home matching the tracks of a car Bryan had rented at that time. A potted plant was also found at Inabel's home; Bryan purchased that plant the day Inabel disappeared. Police found Inabel's body, and a receipt for the purchase of the plant, several days after her disappearance on a parcel of property owned by Bryan's parents. Inabel died from a gunshot wound to the forehead; a pillowcase was duct-taped over her head. There was a single set of vehicle tracks present at the scene; the tracks matched the tread pattern of the right rear tire on Bryan's rental car.

Authorities searched the property where Inabel's body was found because, several years earlier, Bryan had solicited an undercover police officer to kidnap and kill a local banker and dump the body at the same location. This solicitation scheme included plans to force the banker to sign a number of fraudulent promissory notes and personal checks. Similarly, in this case, Bryan possessed several handwritten promissory notes and agreements in which Inabel purportedly agreed she owed him millions of dollars as a result of an investment in his failed businesses. A handwriting expert testified Bryan wrote the agreements and forged Inabel's signature. Police also found in Bryan's possession several of Inabel's personal checks. According to the expert, Bryan had forged Inabel's signature on one of the checks and had made four others signed by Inabel payable to himself in varying amounts. Police found Inabel's checkbook just outside the Bryan home, burned in a can of ashes.

Before Inabel's disappearance, Bryan rented a car from a local dealership. When making the arrangements, he requested a car with a large trunk. When he returned the car two days after Inabel's disappearance, he could not pay the rental fee. He did, however, show the owner of the dealership one of the forged checks. Police found a hair in the trunk similar to the hair of the victim. They also found grass and vegetation, like that on the property where Inabel's body was discovered, throughout the car's undercarriage. Fibers lining the trunk were similar to those on Inabel's clothes and tape found on or near her body.

Police located additional evidence in Bryan's bedroom tying Bryan to the murder. They discovered a roll of duct tape of the same type as pieces found near Inabel's body and on the pillowcase over her head. An expert testified that the edges

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of the tape taken from Bryan's bedroom matched the edges of one of the pieces of tape near Inabel's body. Police also found ammunition in Bryan's bedroom consistent with the type of ammunition used to kill Inabel and consistent with a bullet in the rental car. A metallurgy study indicated that all the bullets--the one that killed Inabel, the one in the rental car, and the ones in the Bryan home--were manufactured at the same time and could have come from the same box.

B. Additional Background

The issues before this court turn on evidence of Bryan's mental health at the time of the murder and the non-use of that evidence during both the guilt and penalty phases of Bryan's trial. As a consequence, some brief additional background is in order.

Bryan has a history of organic brain disease, possibly related to his severe case of diabetes mellitus, dating back to his mid-twenties. In 1989, when Bryan was forty-nine-years-old, he was charged with solicitation of murder relating to the scheme to kidnap and kill the banker described above. He was initially found incompetent to stand trial and was sent to Eastern State Hospital in March of 1989 for treatment. Bryan was diagnosed as suffering from an organic delusional disorder and was considered severely psychotic at the time of his admission to the hospital. Doctors also discovered that Bryan's brain exhibited significant signs of atrophy. Doctors treated Bryan's diabetes and medicated him with Navane, an antipsychotic drug, until Bryan was determined competent in 1990.

After Bryan was charged in 1993 with Inabel's murder, Bryan's family hired Raymond Munkres to represent Bryan. At the arraignment, Munkres expressed serious doubt as to Bryan's competency and made an oral motion for a competency determination. A jury trial on the question of Bryan's competency was eventually held on December 30, 1993. Because it was beyond the financial resources of Bryan's family, Munkres did not present any medical testimony at the hearing. Instead, Munkres adduced the testimony of Mike Jackson, an individual who volunteered his services to Munkres as an investigator. The essence of Munkres' presentation at the competency hearing was that Bryan was incompetent because the version of events he described surrounding the murder had no basis in reality, but that Bryan nonetheless sincerely believed in the veracity of his version of events. The jury concluded that Bryan had failed to demonstrate that he was incompetent to undergo further criminal proceedings.3

On January 3, 1994, just four days after the competency trial was completed, Bryan filed a letter with the trial court indicating as follows: "I wish to advise the court that as [of] this date I am dismissing my attorney of record because of philosophical differences in how this case should proceed in my best and most aggressive defense to the charges leveled against me." The trial court allowed Munkres to withdraw from the case and appointed the Oklahoma Indigent Defense System ("OIDS") to represent Bryan.

Wesley Gibson of the OIDS replaced Munkres as Bryan's attorney. Like

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Munkres, Gibson could not verify Bryan's version of the events surrounding the murder. Gibson hired Dr. J.R. Smith, a board-certified psychiatrist, to evaluate Bryan. It was Dr. Smith's opinion that Bryan's "delusional system and circumstantiality of thought (as well as the fluctuating blood sugar levels) affect his ability to assist his attorney in his own defense. He produces volumes of information that are irrelevant and often erroneous (but believed by the patient)." Based on the information provided by Dr. Smith, Gibson requested a second competency hearing. At a hearing on the application, the trial court considered the testimony of Gibson and the sheriff in charge of the jail where Bryan was housed, as well as the affidavit of Dr. Smith. The trial court denied the application for a new competency hearing, concluding that there was no doubt that Bryan was then...

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