Walker v. Attorney General for State of Oklahoma, 97-5244

Decision Date22 February 1999
Docket NumberNo. 97-5244,97-5244
Citation167 F.3d 1339
Parties1999 CJ C.A.R. 1861 Gary Alan WALKER, Petitioner-Appellant, v. ATTORNEY GENERAL FOR THE STATE OF OKLAHOMA; Ron Ward, Respondents-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Gloyd L. McCoy, of Coyle & McCoy, Oklahoma City, Oklahoma (Jack Gordon, Jr., Gordon & Gordon, Claremore, Oklahoma, with him on the briefs), for Petitioner/Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondents-Appellees.

Before SEYMOUR, Chief Judge, LUCERO and MURPHY, Circuit Judges.

SEYMOUR, Chief Judge.

Gary Alan Walker was convicted of first degree murder in Tulsa County, Oklahoma, and sentenced to death. After exhausting his state court remedies, he filed this petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254, alleging that his conviction and death sentence are constitutionally infirm in several respects. The district court denied relief and Mr. Walker appeals, asserting that: (1) his state court competency proceedings were unconstitutional; (2) he was denied due process and equal protection when the state refused to provide funds for neurological testing; (3) he was denied a fair trial because the trial judge refused to instruct on lesser included offenses; and (4) the "continuing threat" aggravating circumstance, which is the only one supporting his death sentence, is unconstitutional on its face and as applied. We grant Mr. Walker's motion for a certificate of probable cause and affirm. 1

The facts underlying Mr. Walker's conviction are undisputed. The body of the victim, Eddie Cash, was discovered on the floor of his home. He had been beaten on the head with a brick and strangled with a vacuum cleaner cord. Mr. Walker was arrested for the crime and gave a detailed confession. He stated to police that he met Mr. Cash when he was hitchhiking and Mr. Cash gave him a ride. During the trip, Mr. Walker decided to burglarize Mr. Cash's home and learned that he lived in Broken Arrow, Oklahoma. Mr. Walker subsequently obtained Mr. Cash's address and went to the residence. As Mr. Walker stood on the front porch and knocked on the door to make sure no one was home, Mr. Cash pulled into his driveway. Fearing Mr. Cash would call the police, Mr. Walker ran around to the side of the home and picked up a brick. He returned to the front door, knocked, went inside, and killed Mr. Cash. Mr. Walker then took several items from the residence, including Mr. Cash's shoes and his van.

Mr. Walker did not deny the above events at trial, instead presenting evidence in support of an insanity defense. The state court record reveals that Mr. Walker suffered severe physical and sexual abuse as a child. He was repeatedly beaten by his step-father Although the Hospital recommended that Mr. Walker be placed outside the home, his parents refused. At age fourteen he was convicted for the first time in the juvenile justice system for car theft, and at age nineteen he was hospitalized at Eastern State Mental Hospital. In the following years, Mr. Walker was hospitalized there eight times for lengthy periods and was diagnosed as having a severe psychiatric disorder of a schizophrenic type. He was given anti-psychotic medications and a course of twenty electroconvulsive shock treatments. During this period, Mr. Walker was also convicted of several non-violent offenses and was hospitalized while in prison at least four times for mental problems. He was ultimately rediagnosed with bipolar disorder and treated with lithium.

and at one point was threatened by him with a rifle. His mother had a succession of men in the home, and when Mr. Walker was ten to twelve years old she engaged in sexual relations with him, as well as with his friends. He did poorly in school, and at age thirteen the school referred him to Children's Medical Hospital. Mr. Walker stayed there three months and was thoroughly evaluated. He was diagnosed at that time with a personality disorder, and with poor control over his behavior, impulses, and emotions.

Prior to trial, Mr. Walker's attorney made a request for a competency determination and Mr. Walker was examined by Samuel J. Sherman, Ph.D., who determined that Mr. Walker was competent at the time of examination. Dr. Sherman cautioned that he had not been provided with the records of Mr. Walker's prior hospitalizations, that Mr. Walker's refusal to continue his lithium treatment could affect his future competency, and that Mr. Walker should be given a complete evaluation. Nonetheless, no post-evaluation competency hearing was conducted before trial as required by then-applicable state law. See Okla. Stat. tit. 22, § 1175.4 (1981). 2

Dr. Thomas Goodman, a psychiatrist, testified at trial in support of Mr. Walker's insanity defense. In addition to reviewing Mr. Walker's medical records, Dr. Goodman had conducted a series of examinations of Mr. Walker in five one-hour sessions, and in one two-hour session while Mr. Walker was under the influence of sodium amytal. Dr. Goodman expressed the opinion that although at the time of the killing Mr. Walker probably knew right from wrong, his perception of the person he was killing was so distorted that he believed the victim was his step-father. Dr. Goodman further testified that in his opinion Mr. Walker did not believe killing his step-father was wrong. The jury rejected Mr. Walker's insanity defense, convicted him of first degree murder, and sentenced him to death.

I. COMPETENCY

Although the issues of Mr. Walker's competency to stand trial and the failure to hold a pre-trial competency hearing were not raised on direct appeal, Mr. Walker subsequently raised the matters in an application for state post-conviction relief. The state district court determined that a retrospective post-evaluation competency hearing was feasible, and held a hearing in 1988 at which the court found that Mr. Walker was competent at the time of his trial in 1984. In making this determination, the court held that Mr. Walker had failed to overcome the presumption of competency by clear and convincing evidence.

The state district court denied Mr. Walker's petition for state post-conviction relief and Mr. Walker appealed, contending inter alia that the retrospective competency hearing was inadequate both constitutionally and as a matter of state law to cure the failure to hold a hearing pretrial. Mr. Walker also asserted the evidence was insufficient to show either that a retrospective competency determination was feasible or that he was in fact competent at the time of trial. The Mr. Walker argues that the competency proceedings held in state court were constitutionally defective in two regards. He contends the state trial court used the wrong burden of proof in its retrospective competency determination, and the retrospective hearing was an inadequate substitute for a pretrial hearing on the issue in any event. As discussed below, we conclude that neither claim entitles Mr. Walker to federal habeas relief.

Oklahoma Court of Criminal Appeals rejected these arguments. In considering Mr. Walker's assertion that the evidence was insufficient to show his competency, the Court ruled that he had failed to meet the burden of proof set out by Okla. Stat. tit. 22, § 1175.4(B) (1981), which required a defendant to establish incompetency by clear and convincing evidence. See Walker v. State, 826 P.2d 1002, 1005 (Okla.Crim.App.1992).

A. Burden of Proof

Mr. Walker first contends he is entitled to federal habeas relief because the state court used an unconstitutional burden of proof at his competency hearing. In 1996, the Supreme Court struck down the "clear and convincing evidence" standard applied by the state courts here, holding that "[b]ecause Oklahoma's procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process." Cooper v. Oklahoma, 517 U.S. 348, 369, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). The Court pointed out that "the State's power to regulate procedural burdens was subject to proscription under the Due Process Clause if it 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' " and that "[t]his case involves such a rule." Id. at 367, 116 S.Ct. 1373 (quoting Patterson v. New York, 432 U.S. 197, 201-202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)).

Before the Supreme Court handed down its decision in Cooper, Mr. Walker filed the present petition for writ of habeas corpus. After Cooper was decided, he supplemented his federal habeas petition to add a claim based on that case. The federal district court stayed action on the petition to permit Mr. Walker to exhaust his state remedies by filing an application for post-conviction relief with the Oklahoma Court of Criminal Appeals. See Walker v. Ward, 934 F.Supp. 1286, 1294 (N.D.Okla.1996). The state court ruled the claim procedurally barred for failure to raise it on direct appeal or in Mr. Walker's first post conviction proceeding under amendments to the state's statutory post-conviction procedures enacted subsequently in 1995. See Walker v. State, 940 P.2d 509, 510 (Okla.Crim.App.1997).

The federal district court thereafter ruled that the claim was procedurally barred. In so doing, the court concluded that the issue involved a matter of procedural rather than substantive due process and was therefore waivable. The court rejected Mr. Walker's contention that the relevant procedural default rule is the one in place at the time the alleged procedural default actually occurred. Although we disagree with the district court's ruling that this claim is procedurally barred, for the following reasons we conclude it does not provide grounds for habeas relief.

1. Applicable Legal Standards

A...

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