McGregor v. Gibson

• Decision Date: 01 August 2000
• Docket Number: RESPONDENTS-APPELLEES,No. 99-7038,PETITIONER-APPELLANT,99-7038
• Citation: 219 F.3d 1245
• Parties: (10th Cir. 2000) BILLY KEITH MCGREGOR,, v. GARY GIBSON, WARDEN, OKLAHOMA STATE PENITENTIARY; DREW EDMONDSON, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1245

219 F.3d 1245 (10th Cir. 2000)

BILLY KEITH MCGREGOR, PETITIONER-APPELLANT, v. GARY GIBSON, WARDEN, OKLAHOMA STATE PENITENTIARY; DREW EDMONDSON, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, RESPONDENTS-APPELLEES.

No. 99-7038

U.S. Court of Appeals, Tenth Circuit

August 1, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 97-CV-120-B)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Petitioner-Appellant.

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

Before Tacha, Brorby, and Murphy, Circuit Judges.

Brorby, Circuit Judge.

Billy Keith McGregor appeals the denial of habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first degree malice murder conviction and death sentence. We affirm.

Mr. McGregor was convicted of murdering Virgie Plumb, the widow in whose home he had been a boarder for a short period of time. The victim disappeared the evening of May 22, 1983. She was last seen by a neighbor, at 7:00 P.M. that evening, riding as a passenger in her own car, which Mr. McGregor was driving.

At 10:00 P.M. that evening, Mr. McGregor attempted to sell an antique clock belonging to the victim, as well as her car. The next day, he cashed a check purportedly written to him by the victim. That same day, he attempted to cash a second such check, which was rejected for insufficient funds. Two days after the victim's disappearance, Mr. McGregor went to the police station to report that the victim had written him a bad check.

In the days immediately following the victim's disappearance, Mr. McGregor related two different stories. He reported to several people that he had taken the victim to her brother's home to visit. Later, he told people that he had dropped the victim off at a convenience store and that, when he went to pick her up, she was gone. After a number of interviews with police, Mr. McGregor confessed to killing the victim during a fight and leaving her body in a wooded rural area.

A jury convicted Mr. McGregor of first degree murder and sentenced him to death. The Oklahoma Court of Criminal Appeals reversed that conviction and death sentence, holding, under Ake v. Oklahoma, 470 U.S. 68 (1985), that Mr. McGregor was entitled to a court-appointed psychiatrist. See McGregor v. State, 754 P.2d 1216, 1218 (Okla. Crim. App. 1988). That reversal came after an evidentiary hearing revealed Mr. McGregor had a long and extensive history of mental illness. See id.

On remand, a jury found Mr. McGregor competent to stand trial. At his second murder trial, in 1989, Mr. McGregor did not deny the murder, but instead pled not guilty by reason of insanity. The jury rejected that defense and again convicted him of first degree murder.

At sentencing, the State charged that the murder was especially heinous, atrocious or cruel; Mr. McGregor committed the murder to avoid arrest and prosecution; and he presented a continuing threat to society. The jury found the existence of the first two aggravators, but found Mr. McGregor was not a continuing threat. The jury again sentenced him to death.

The Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence, and denied post-conviction relief. See McGregor v. State, 885 P.2d 1366 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 827 (1995); McGregor v. State, 935 P.2d 332 (Okla. Crim. App.), cert. denied, 521 U.S. 1108 (1997).

I. STANDARDS OF REVIEW

Because Mr. McGregor filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), that Act applies to this appeal. See Williams v. Taylor, 120 S. Ct. 1479, 1486 (2000). Mr. McGregor, therefore, will not be entitled to habeas relief unless the state court's adjudication of the merits of his claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent or "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).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).

If the state court has not addressed the merits of a claim, and "the federal district court made its own determination in the first instance," then this court reviews "the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

The district court granted Mr. McGregor a certificate of appealability on all of the following issues. See 28 U.S.C. § 2253(c).

II. COMPETENCY TO STAND TRIAL

A. Unconstitutional Burden of Proof

Following the reversal of his first conviction, a jury determined Mr. McGregor was competent to stand trial. At that competency proceeding, however, the trial court unconstitutionally required him to prove his incompetence by clear and convincing evidence. See Cooper v. Oklahoma, 517 U.S. 348, 350, 369 (1996).

Mr. McGregor challenged the application of that burden of proof for the first time in state post-conviction proceedings. Applying the 1995 amendments to Oklahoma's post-conviction procedures, the Oklahoma Court of Criminal Appeals declined to consider his Cooper claim. See McGregor, 935 P.2d at 333, 334. Respondents assert that Mr. McGregor has thus procedurally defaulted his Cooper claim. This procedural due process claim is subject to procedural default. See, e.g., Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 567 (10th Cir. 2000).

The Oklahoma Court of Criminal Appeals decided Mr. McGregor's direct criminal appeal in 1994; the United States Supreme Court denied certiorari in October 1995. The 1995 amendments to Oklahoma's post-conviction procedure became effective November 1, 1995. See Rogers v. Gibson, 173 F.3d 1278, 1290 n.12 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). The Supreme Court did not decide Cooper until April 1996. ¹ Because "[t]he 1995 Oklahoma statutory amendments greatly circumscribed the court's power to apply intervening changes in the law to post-conviction applicants" and because "a defendant cannot be expected to comply with a procedural rule that did not exist at the time of the purported default," this state procedural bar is not adequate to preclude federal habeas review. James v. Gibson, 211 F.3d 543, 550-51 (10th Cir. 2000) (quotation omitted); see also, e.g., Clayton, 199 F.3d at 1171.

Clearly established Supreme Court precedent provides that the criminal trial of one who is incompetent violates due process. See Cooper, 517 U.S. at 354, citing cases. Because the jury in this case determined Mr. McGregor's competency under an unconstitutional burden of proof, this court cannot presume its competency finding to be correct. See, e.g., Van Woudenberg, 211 F.3d at 567 n.5. Rather, this court must review his competency claim as if there had been no competency hearing at all. See, e.g., id.

"A competency claim based upon procedural due process involves a defendant's constitutional right, once a bona fide doubt has been raised as to competency, to an adequate state procedure to insure that he is in fact competent to stand trial." Barnett v. Hargett, 174 F.3d 1128 1133-34 (10th Cir. 1999). The issue presented, therefore, is whether a bona fide doubt exists as to Mr. McGregor's competence at the time of his trial. See, e.g., Van Woudenberg, 211 F.3d at 567.

A defendant will be deemed competent to stand trial if at the time of trial he had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and . . . a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 . . . (1960). Although not limited to these factors, a court conducting a competency inquiry should consider defendant's demeanor at trial, any evidence of irrational behavior by defendant, and perhaps most important, any prior medical opinions regarding competency.

Clayton, 199 F.3d at 1171.

Careful review of the record fails to persuade us that there was a bona fide doubt as to Mr. McGregor's competency at the time of trial. Mr. McGregor does have a long history of mental illness and treatment with psychotropic medication. That alone, however, is insufficient to establish that he was incompetent to stand trial. See, e.g., United States v. Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000).

A treating psychiatrist deemed him competent prior to his first trial, in 1983. Although the trial court, prior to his second trial in 1989, found "initial doubt" sufficient to necessitate a psychiatric evaluation, the subsequent examining psychologist's report, concluding Mr. McGregor was competent, dispelled that initial concern. Foster v. Ward, 182 F.3d 1177, 1191 (10th Cir. 1999), cert. denied, 120 S. Ct. 1438 (2000). Although these competency determinations did rest on Mr. McGregor's continued treatment with antipsychotic medication, the evidence fails to indicate any significant disruption in his medication during trial. ² See Walker v. Attorney Gen., 167 F.3d 1339, 1346 (10th Cir.) (...