Allen v. Mullin

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation368 F.3d 1220
Docket NumberNo. 02-6146.,02-6146.
PartiesGarry Thomas ALLEN, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma, Respondent-Appellee.
Decision Date19 May 2004

Randy Bauman, Assistant Federal Public Defender (Patrick J. Ehlers, Jr., Assistant Federal Public Defender on the briefs), Oklahoma City, OK, for Petitioner-Appellant.

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

Before KELLY, HARTZ and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Garry Thomas Allen was convicted of murder in the first degree in violation of Okla. Stat. tit. 21, § 701.7,1 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.

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).2 We will reference additional record facts as the discussion requires.

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.3 When asked whether he could offer an opinion as to the extent Allen's brain...

To continue reading

Request your trial
90 cases
  • United States v. Trujillo, No. 19-2057
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 27, 2020
    ...that, prior to entering his plea, he did not receive notice of the element from any other source. Id. at 1284 (citing Allen v. Mullin , 368 F.3d 1220, 1241 (10th Cir. 2004) ). Given a context "closely analogous to Henderson ," we found the defendant in Hicks carried his burden of showing hi......
  • State v. Alexander
    • United States
    • Utah Supreme Court
    • May 4, 2012
    ...18, 96 S.Ct. 2253 (“[I]ntent is such a critical element of the offense ... that notice of that element is required.”); Allen v. Mullin, 368 F.3d 1220, 1242 (10th Cir.2004) (“[W]e do not gainsay that the intent element of a criminal offense is a critical element of the charge.”). 66.Utah Cod......
  • Snow v. Sirmons
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 8, 2007
    ...district court's factual findings depend entirely on the state court record, we independently review that record." Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir. 2004) (citations AEDPA also governs Rocky's ability to obtain a remand to the district court for an evidentiary hearing on his c......
  • United States v. Yazzie
    • United States
    • U.S. District Court — District of New Mexico
    • May 6, 2014
    ..."[T]he 'knowing and voluntary' inquiry focuses on whether [a defendant] in fact did understand the proceedings." Allen v. Mullin, 368 F.3d 1220, 1240 (10th Cir. 2004). Yazzie's statements at the hearing indicate that he understood the proceedings, understood that he was giving up the right ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT