Lay v. Royal

• Decision Date: 26 June 2017
• Docket Number: No. 15-5111,15-5111
• Parties: Wade Greely LAY, Petitioner–Appellant, v. Terry ROYAL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

860 F.3d 1307

Wade Greely LAY, Petitioner–Appellant,

v.Terry ROYAL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.

No. 15-5111

United States Court of Appeals, Tenth Circuit.

FILED June 26, 2017

Susanna M. Gattoni of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma (Patti Palmer Ghezzi, Assistant Federal Public Defender, Oklahoma City, Oklahoma, with her on the briefs), for Petitioner–Appellant.

Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent–Appellee.

Before KELLY, BRISCOE, and McHUGH, Circuit Judges.

KELLY, Circuit Judge.

Petitioner–Appellant Wade Greely Lay appeals from the district court's denial of his petition for writ of habeas corpus made pursuant to 28 U.S.C. § 2254 and from the district court's refusal to issue a competency-based stay. Lay v. Trammell , No. 08-CV-617-TCK-PJC, 2015 WL 5838853 (N.D. Okla. Oct. 7, 2015). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

In May 2004, Mr. Lay and his son, Chris Lay, attempted to rob a bank in Tulsa, Oklahoma. The Lays entered the bank wearing ski masks and gloves and were armed. Chris immediately ordered a bank employee to get on the ground, which caught the security guard's attention. A shootout resulted in the security guard's death. Injured, the Lays fled without any cash. They did not get very far; authorities apprehended them later that day.

The Lays were tried together in September 2005. Chris was represented by counsel and Mr. Lay chose to proceed pro se. Both admitted guilt, but argued their actions were justified because the government had become tyrannical, and they needed funds from the bank to start a patriotic revolution as was done by the Founding Fathers. Chris and Mr. Lay were convicted of first-degree murder and attempted robbery with a firearm. The jury sentenced Chris to life in prison without parole and Mr. Lay to death. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Lay's sentence and conviction on direct appeal, Lay v. State , 179 P.3d 615 (Okla. Crim. App. 2008), abrogated on other grounds by Harmon v. State , 248 P.3d 918, 938–39 (Okla. Crim. App. 2011), and rejected both of his applications for post-conviction relief, Lay v. State , No. PCD–2006–1013 (Okla. Crim. App. Sept. 26, 2008) (unpublished); Lay v. State , No. PCD–2010–407 (Okla. Crim. App. Oct. 13, 2010) (unpublished); see also Aplt. Br. Attachs. B & C.

In September 2009, Mr. Lay filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2011, the district court stayed the habeas proceedings due to Mr. Lay's alleged mental incompetence. It also ordered Mr. Lay to participate in a psychiatric evaluation, and it set an evidentiary hearing. Almost two years later, but before an evidentiary hearing was held, the Supreme Court held in Ryan v. Gonzales that habeas petitioners on death row do not have a statutory right to be competent during habeas proceedings. 568 U.S. 57, 133 S.Ct. 696, 702–03, 706, 184 L.Ed.2d 528 (2013). The district court then lifted the stay, explained that an evidentiary hearing would be unnecessary, and denied habeas relief. It also granted a certificate of appealability (COA) on five of Mr. Lay's claims insofar as they relate to competency or effective assistance of counsel:

Claim No. 2: Mr. Lay was incompetent to stand trial and incompetent to make trial decisions without the assistance of counsel throughout all trial proceedings in violation of his Sixth, Fourteenth, and Eighth Amendment rights.

Claim No. 3: [Mr. Lay] was deprived of his Sixth Amendment right to the assistance of counsel and his due process right to a fair trial by the trial judge's acceptance of his invalid and uninformed purported waiver of counsel despite anemic warnings to him about handling his own defense, all in violation of his Eighth Amendment right to a reliable sentencing hearing.

Claim No. 4: The trial court's egregious error in appointing standby counsel for pro-se petitioner in this capital case, but preventing standby counsel from providing the assistance of counsel envisioned by the United States Constitution, resulted in an inadequate waiver of such counsel, in violation of the Sixth Amendment and prevented Mr. Lay from receiving a fair trial under the Fourteenth Amendment, resulting in a death sentence that violates the Eighth Amendment.

Claim No. 5: The trial court unfairly exposed [Mr. Lay] to a fundamentally unfair trial by allowing a pro se petitioner to be the ultimate authority on whether his trial would be severed from that of his son's without obtaining a knowing, intelligent, and voluntary waiver of his rights and all in violation of his Sixth, Eighth, and Fourteenth [Amendment] rights under the United States Constitution....

Claim No. 10: Mr. Lay was denied effective assistance of prior counsel in violation of the Sixth and Fourteenth Amendments.

Lay , 2015 WL 5838853, at *4–5, *56–57.

We granted a COA on an additional issue: "whether the district court should have ordered a temporary stay of the underlying habeas proceedings until [Mr. Lay] could be restored to competency." Order, Feb. 23, 2016. We address this issue first, and then consider the following: (2) procedural and substantive competence, (3) waiver of the right to counsel, (4) ineffective assistance of counsel, and finally, (5) the joint trial.

Discussion

Under § 2254(d), how much deference we give to a state court's factual and legal conclusions depends on whether the state court reached the merits of the claim. If it did, we cannot grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." This standard is highly deferential—we must give the state court the "benefit of the doubt," Woodford v. Visciotti , 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002), and our review "is limited to the record that was before the state court that adjudicated the claim on the merits," Cullen v. Pinholster , 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Factual determinations made by the state court are presumed correct, unless an applicant rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Our review is not a substitute for appeal, but a "guard against extreme malfunctions in the state criminal justice systems." Ryan , 568 U.S. at 75, 133 S.Ct. at 708 (internal quotation marks and citation omitted). If the state court did not reach the merits, we review the federal district court's legal determinations de novo and factual findings for clear error. Hooks v. Workman , 689 F.3d 1148, 1163–64 (10th Cir. 2012).

A. Competency-based Stay

We review the district court's refusal to grant a competency-based stay in habeas proceedings for an abuse of discretion. See Ryder ex rel. Ryder v. Warrior , 810 F.3d 724, 736 (10th Cir. 2016). District courts may stay habeas proceedings to determine whether the defendant is mentally competent to proceed.

Ryan , 568 U.S. at 73, 133 S.Ct. at 708. Granting a competency-based stay is an abuse of discretion for claims that (1) the state court resolved on the merits; (2) turn on questions of law; or (3) are unexhausted and procedurally barred. Ryder , 810 F.3d at 737.

The district court was well within its discretion to deny Mr. Lay's request for a competency-based stay. Mr. Lay's claims have either been resolved on the merits by the OCCA or are unexhausted and procedurally barred. Therefore, we are limited to the record that was before the OCCA, even assuming present incompetence and eventual restoration to competence.¹ See Ryan , 568 U.S. at 68–71, 133 S.Ct. at 705–06. Given our standards of review, Mr. Lay could offer little assistance in developing his arguments. Ryder , 810 F.3d at 737 ; see Ryan , 568 U.S. at 76–77, 133 S.Ct. at 709.

B. Procedural and Substantive Incompetence

Mr. Lay argues that he was both procedurally and substantively incompetent during trial. "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 v. Gibson , 248 F.3d 946, 952 (10th Cir. 2001) (en banc). This issue was raised in Mr. Lay's first state application for post-conviction relief. Aplt. Br. Attach. B at 2–3. The OCCA concluded that this contention was waived and therefore procedurally barred because it should have been raised on direct appeal. Id. at 3. But the OCCA nevertheless rejected the merits of Mr. Lay's claim and found that there was insufficient evidence to warrant a competency hearing. Id. Therefore, we may only grant habeas relief if the OCCA's decision was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts available to the OCCA. Pinholster , 563 U.S. at 181–82, 131 S.Ct. 1388.

To resolve Mr. Lay's procedural incompetence claim, we must determine whether "a reasonable judge should have had a bona fide doubt" regarding Mr. Lay's competence at trial. McGregor , 248 F.3d at 954. "There are ... no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed." Drope v. Missouri , 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). "That said, we look to longstanding precedent for guidance regarding the factors to be considered in assessing a petitioner's procedural competency claim. ‘[E]vidence of ... irrational behavior, ... demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in...