McGregor v. Gibson, 99-7038

• Decision Date: 11 April 2001
• Docket Number: No. 99-7038,99-7038
• Citation: 248 F.3d 946
• Parties: (10th Cir. 2001) BILLY KEITH MCGREGOR, PETITIONER - APPELLANT, v. GARY GIBSON, WARDEN, OKLAHOMA STATE PENITENTIARY, RESPONDENT - APPELLEE
• Court: U.S. Court of Appeals — Tenth Circuit

Page 946

248 F.3d 946 (10th Cir. 2001)

BILLY KEITH MCGREGOR, PETITIONER - APPELLANT, v. GARY GIBSON, WARDEN, OKLAHOMA STATE PENITENTIARY, RESPONDENT - APPELLEE.

No. 99-7038

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 11, 2001

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. CIV-97-120-B) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for the Petitioner-Appellant.

William L. Humes, Assistant Attorney General (w.a. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before Tacha, Chief Judge, Seymour, Baldock, Brorby, Ebel, Kelly, Briscoe, Lucero and Murphy, Circuit Judges.

Lucero, Circuit Judge

Billy Keith McGregor was convicted under Oklahoma law of first- degree murder and sentenced to death. A panel of this Court affirmed the district court's denial of habeas relief to McGregor. We subsequently granted rehearing en banc to review our standard for assessing procedural competency claims. This standard is of particular importance in the aftermath of the Supreme Court's unanimous decision in Cooper v. Oklahoma, 517 U.S. 348 (1996), holding unconstitutional the Oklahoma law requiring criminal defendants to prove incompetency to stand trial by clear and convincing evidence.

I. Background

McGregor was convicted by an Oklahoma jury of murdering Virgie Plumb, the owner of a home in which he was a boarder. The victim disappeared on May 22, 1983, and was last seen as a passenger in her own car driven by McGregor.

The day after Plumb's disappearance, McGregor attempted to sell an antique clock and a car, both of which belonged to the victim. The following day he cashed a check allegedly written to him by the victim. Later that day, a second similar check was rejected for insufficient funds, and McGregor went to the police to report the "bad check."

In the following days, McGregor related several different stories to people about his interactions with the victim. He told some that he had taken her to her brother's home and others that he had taken her to a convenience store and when he came to pick her up she was gone. After interviews with the police, McGregor confessed to killing Plumb and leaving her body in a wooded rural area.

McGregor was convicted by a jury of first-degree murder and sentenced to death. Pursuant to the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68 (1985), McGregor's conviction and death sentence were reversed by the Oklahoma Court of Criminal Appeals. McGregor v. Oklahoma, 754 P.2d 1216, 1218 (Okla. Crim. App. 1988) (holding that McGregor was entitled to a court-appointed psychiatrist because a "[s]ufficient showing [was]... made to reflect that appellant's sanity at the time of the offense [might] be a significant factor at trial").

In 1989, McGregor was tried again for the murder of Plumb and raised the defense of not guilty by reason of insanity. The jury rejected his defense and, for the second time, convicted him of first- degree murder. At sentencing, the jury found aggravating circumstances and sentenced McGregor to death. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed McGregor's conviction and death sentence. McGregor v. Oklahoma, 885 P.2d 1366 (Okla. Crim. App. 1994).

Before McGregor's second trial, a competency proceeding was held and a jury found McGregor competent to stand trial. At that proceeding, the jury was instructed that McGregor had to prove incompetency by clear and convincing evidence.¹ The Supreme Court subsequently held the clear and convincing evidence standard "incompatible with the dictates of due process" because it allowed a state to "put to trial a defendant who [was] more likely than not incompetent." Cooper, 517 U.S. at 369. Accordingly, McGregor brought state post-conviction proceedings to challenge, inter alia, the application to him of the unconstitutional burden of proof. McGregor v. Oklahoma, 935 P.2d 332 (Okla. Crim. App. 1997). His Cooper challenge was denied as procedurally barred, see id. at 334, and McGregor sought habeas relief in federal court. The district court also held that McGregor's procedural competency claim was barred, McGregor v. Ward, No. CIV-97-120-B, at 12-16 (E.D. Okla. Feb. 5, 1999) (unpublished order), but assessed the merits and found McGregor did not meet his burden of raising a bona fide doubt as to his competency during his criminal trial, id. at 16.

On appeal, a panel of this Court affirmed the district court's denial of habeas relief under 28 U.S.C. § 2254. McGregor v. Gibson, 219 F.3d 1245 (10th Cir. 2000). The panel was divided; Judge Murphy filed a dissenting opinion expressing his disagreement with the "majority's resolution of McGregor's procedural competency claim." Id. at 1257. We granted en banc review to consider this important issue: When may a defendant found competent to stand trial under an unconstitutional "clear and convincing evidence" burden of proof and then convicted succeed in habeas on a procedural competency claim?

II. Standard of Review

Because McGregor filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that Act govern this appeal. See Williams v. Taylor, 529 U.S. 362, 402 (2000). Inasmuch as the state court did not hear the merits of petitioner's claim and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its factual findings for clear error. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). "If the district court's factual findings are based only on a review of the state court record, we conduct an independent review." Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citation omitted).

III. Competency to Stand Trial

A. Background

It is well-settled that the "criminal trial of an incompetent defendant violates due process." Medina v. California, 505 U.S. 437, 453 (1992). This "prohibition is fundamental to an adversary system of justice." Drope v. Missouri, 420 U.S. 162, 172 (1975). The rule, rooted in the common law, is likely a "by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself." Id. at 171 (quoting Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832, 834 (1960)).²

The test for determining competency to stand trial is well- established. The 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." Dusky v. United States, 362 U.S. 402, 402 (1960). "That defendant can recite the charges against [him], list witnesses, and use legal terminology are insufficient" to demonstrate that he had a rational, as well as factual, understanding of the proceedings. United States v. Williams, 113 F.3d 1155, 1159 (10th Cir. 1997).

"[C]ompetency claims can raise issues of both substantive and procedural due process." Walker v. Att'y Gen., 167 F.3d 1339, 1343 (10th Cir. 1999). 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. Id. at 1343-44. Accordingly, an individual raising a procedural competency claim is held to a lower burden of proof than one raising a substantive competency claim. See id. at 1344.

At issue in this appeal is McGregor's procedural competency claim rooted in his Fourteenth Amendment right to due process of law. Because the conviction of an accused person while legally incompetent violates due process, states must provide adequate procedures to protect accused individuals. See Pate v. Robinson, 383 U.S. 375, 378 (1966). The burden of providing these procedures persists throughout trial; thus, "[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Drope, 420 U.S. at 181.

B. Procedural Incompetency Claims After Cooper

McGregor's claim is one of many procedural incompetency claims this Court has reviewed in the wake of the Supreme Court's decision in Cooper. See, e.g., Walker v. Gibson, 228 F.3d at 1226-29; Valdez v. Ward, 219 F.3d 1222, 1239-41 (10th Cir. 2000); Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 567-68 (10th Cir. 2000); Clayton v. Gibson, 199 F.3d 1162, 1168-72 (10th Cir. 1999); Barnett v. Hargett, 174 F.3d 1128, 1133-36 (10th Cir. 1999); Rogers v. Gibson, 173 F.3d 1278, 1289-91 (10th Cir. 1999); Walker v. Att'y Gen., 167 F.3d at 1342-47. We have held repeatedly that when a criminal defendant's competency was determined under an unconstitutional burden of proof, the prior competency determination merits no presumption of correctness. See, e.g., Walker v. Gibson, 228 F.3d at 1227; Van Woudenberg, 211 F.3d at 567 n.5; Clayton, 199 F.3d at 1171; Barnett, 174 F.3d at 1135; Walker v. Att'y Gen., 167 F.3d at 1345. Under such circumstances, this Court will review the trial as if no competency hearing was held at all. Van Woudenberg, 211 F.3d at 567 n.5 ("Because the state trial court held [petitioner] to an unconstitutional standard for proving incompetency, its decision is not entitled to a presumption of correctness and it is as if no competency hearing was held at all." (citations omitted)); see also Barnett, 174 F.3d at 1135; Walker v. Att'y Gen., 167 F.3d...