## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 19 2004


### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARRY THOMAS ALLEN, Petitioner-Appellant,

v. MIKE MULLIN, Warden, Oklahoma, Respondent-Appellee. No. 02-6146

Appeal from the United States District Court for the District of Western District of Oklahoma

(D.C. No. CIV-98-1754-R)

Randy Bauman, Assistant Federal Public Defender (Patrick J. Ehlers, Jr., Assistant Federal Public Defender on the briefs), O klahoma City, Oklahoma, for Petitioner-Appellant. David M. Brockman, Assistant Attorney General, Crim inal Division (W.A. Drew Edmondson, Attorney General of Oklahoma with him onthe briefs), Oklahoma City, Oklahoma for Respondent-Appellee.

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

O’BRIEN , Circuit Judge.

Garry Thomas Allen was convicted of murder in the f irst degree in1 “A person commits murder in the first degree when t hat person unlawfully

and with malice aforethought causes the death of an other human being. Malice is that deliberate intention unlawfully to take away t he life of a human being, which is manifested by external circumstances capable of proof.” O KLA

. S TAT

. ANN

. TIT . 21, § 701.7A.
-2- 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 relie f. He appeals four issues certified for review, each turning on his competenc y. Exercising jurisdiction under 28 U.S.C. § 2253, we affirm. I. Background The essential facts of November 21, 1986, as set fo rth by the district court, are undisputed on appeal: Petitioner shot and killed his girlfriend, Gail Tit sworth (Titsworth), four days after she moved out of the home they shar ed with their sons, six-year old Anthony and two-year old Adrian. In the week leading up to the shooting, Petitioner and Titswort h had several angry confrontations when Petitioner tried repeated ly to persuade her to move back in with him. On November 21, 1986, Ti tsworth went to pick up her sons at their daycare center. Petit ioner came into the daycare center shortly after Titsworth arrived. Pe titioner and Titsworth argued briefly and then Petitioner left. A few minutes later, Titsworth left the daycare cen ter 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 d oor. Titsworth once again tried to get into the truck but was prev ented from entering it by Petitioner. The two argued briefly and Petit ioner reached down-3-

into his sock, retrieved a revolver and shot Titswo rth 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 im mediately thereafter. After she was shot, Titsworth began be gging Petitioner not to shoot her again and then fell to the ground. Petitioner asked Titsworth if she was alright. He then lifted up he r 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, T itsworth managed to get up and began running toward the building alo ng with a daycare center employee. As they were going up the steps l eading to the front door, Petitioner shoved the daycare worker th rough the door and pushed Titsworth down onto the steps. Petition er then shot Titsworth two times in the back at close range. Officer Mike Taylor of the Oklahoma City Police Dep artment was on patrol in the area and responded to the 911 call wi thin minutes of the shooting. As Officer Taylor was nearing the daycar e center, a witness to the shooting directed him to an alley wh ere Petitioner was apparently hiding. Officer Taylor spotted Petition er as he drove into the alley. Officer Taylor drew his service revolve r and ordered Petitioner to stop and remain still. Petitioner in itially complied with Officer Taylor’s order but then began walking away. Officer Taylor followed Petitioner and reached out to place his ha nd on him. Petitioner quickly turned around and grabbed Office r 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 fing er which was still on the trigger. Ultimately, Officer Taylor regaine d control of the gun and shot Petitioner in the face. Petitioner was rushed to the hospital where a CT sc an 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.2 The facts recited in the district court opinion dif fer slightly from those recited in the decision of Allen’s second direct ap peal. Allen v. Oklahoma, 923 P.2d 613, 616 (1996) (Allen II ). The discrepancy relates to the location of the parties when the second of four shots was fired. I t is immaterial to the disposition of this appeal.
-4- (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 o f Information filed November 24, 1986. The record of his arraignment o n January 21, 1987, when he was not represented by counsel, reflects he was pro vided a copy of the Information. Shortly before his scheduled prelimin ary hearing, Allen’s courtappointed attorney moved the state district court f or a competency hearing, pursuant to which the court on January 27, 1987, re manded Allen to the Eastern State Hospital for evaluation. The Oklahoma Court of Criminal Appeals (OCCA), in deciding one of Allen’s later appeals, succinctl y summed up the Oklahoma competency procedures in place when Allen was reman ded for evaluation: In the pre-trial context, the question of competenc y may be raised by the prosecutor, the defendant, defense counsel, or by the court sua sponte . Upon the filing of an application for determinat ion of competency, the court holds a hearing to examine th e 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 de fendant is ordered to undergo an examination by doctors or appropriate technicians. The examiner is ordered by the court to make the fo llowing determinations: 1) is this person able to appreciate the nature of the charges against him; 2) is this person able to con sult with his lawyer and rationally assist in the preparation of his def ense; 3) if the answer to question 1 or 2 is no, can the person att ain competency-5-

within a reasonable time if provided with a course of treatment, therapy or training; 4) is the person a mentally i ll person or a person requiring treatment as defined by statute; and 5) if the person were released without treatment, therapy or training wou ld he probably pose a significant threat to the life or safety of himself or others. After these determinations have been made, a post-e xamination competency hearing is held. Evidence regarding competence to stand trial is presented, and the judge, or jury if reque sted by the defendant, decides whether the defendant is compete nt to stand trial. Allen v. Oklahoma, 956 P.2d 918, 919 (Okla. Crim. App. 1998), cert. denied, 525 U.S. 985 (1998) (citations and quotations omitted) (Allen III ). Within days of Allen’s commitment, Dr. Samuel J. Sh erman, a clinical psychologist at Eastern State Hospital, notified th e court that while Allen was able to appreciate the nature of the charges agains t 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 cap able of achieving competence. To that end, Allen was remanded to Eas tern State Hospital for
further treatment. About four months later, on June 12, 1987, Dr. Alle n Kirk, a psychiatrist at Eastern State Hospital, advised the court that Allen had achieved competency: he was able to appreciate the nature o f the charges against him, consult with his attorney, and rationally assist hi s attorney in his defense. Dr.
Kirk noted that Allen “has been stable on decreasin g doses of antipsychotic medication, and currently is on no antipsychotic me dication.” Also, Allen was “not experiencing any significant psychiatric sympt omatology.” (R. Vol. 4,-6-

Original R. (C-88-37) at 26-27.) He added Allen wa s scheduled for surgery, including plastic surgery, necessitated by the guns hot wound to his head. Upon receiving Dr. Kirk’s report, the court set the matt er 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 th en in receipt of a copy of the
Information. Prior to the competency trial (which was held Octob er 19 and 20, 1987) Allen requested appointment of “mental health experts, psychologists, and psychiatrists . . . and neuropsychologists to the e xtent that Mr. Allen . . . has brain damage and . . . to determine the extent of his bra in damage for purposes of present competency” acting under Ake v. Oklahoma, 470 U.S. 68, 83 (1985). (R. Vol. 3, Tr. Competency Hr’g at 7.) At Allen’s requ est, the court appointed Dr. Edith King, clinical psychologist, to examine him. Pursuant to the recommendation of his neurosurgeon, Dr. Stephen Cag le, Allen went back to the court and requested appointment of a neuropsycholog ist to examine him in order to ascertain if his brain injury affected his compe tency. The court denied the request. At the competency trial, Allen again moved for appo intment of a neuropsychologist. The court reserved ruling until conclusion of the o ther expert testimony. A. Competency Trial Because all issues raised on appeal revolve around Allen’s competency, we provide the following background material in signif icant detail. At the competency trial, Dr. Cagle, after first cautioning as to use of the term “brain3 Dr. Cagle went into some detail about Allen’s brain injury:

Mr. Allen, through this, from the first time I saw him until the last time, remained remarkably stable in terms of vital signs. He was always awake. He was conversing. He could move ev erything. From a neurological viewpoint his injury included l oss of left eye and vision, loss of control of the muscle function of the left side of the face, loss of hearing in the left ear, all of t hat due to peripheral comminution of the bone and the nerves that run thr ough the bone, getting to the ear, the eye. And he had some imbal ance which again is due to the balance nerve which is in the ear compartment which was shattered by the bullet. (R. Vol. 3, Tr. Competency Hr’g at 21-22.)

4 Dr. Cagle testified Allen was cooperative with him. When asked about Allen’s competency, however, he stated: “[c]ompeten cy is something frankly that we as neurosurgeons in this community do not make alot of statements about. Competency reflects a higher intellectual functioni ng and certain psychiatric considerations that I wouldn’t care to have an opin ion on.” (Id . at 26.)
-7- injury” and its connotation, testified Allen suffer ed 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 injury affected his competence, if at all, Dr. Cagle
testified he could not. 4 He recommended a psychiatrist or psychologist, to gether with a neuropsychologist, to make that judgment. A neuropsychologist could evaluate “[h]igher injury to the brain affecting th e more sophisticated thinking, emotional processes of the brain.” (Id. at 23.) Dr. Sherman, who first evaluated Allen after his in itial commitment and evaluated him again shortly before Dr. Kirk declare d Allen competent, agreed with Dr. Cagle’s recommendation for a neuropsycholo gist to test the effect of the brain injury on competence, specifically to test wh ether Allen had sufficient5 The presentence investigation report indicated a lo ng history of alcohol

and drug abuse.
-8- memory of the events surrounding Titsworth’s killin g to assist his counsel. On the other hand, he agreed with Dr. Kirk’s report to the court that Allen was competent. He added he detected no psychosis in Allen and agre ed a person can suffer from brain injury and still be competent. Dr. Kirk, who certified Allen’s competency to the c ourt as a lead-up to the competency trial, testified the only mental illness from which Allen suffered was long-term depression, with an associated history of substance abuse. 5 This diagnosis did not bear on competency. As he did in his report to the court, Dr. Kirk testified Allen was competent. He added that Allen suffered some organic brain damage evidenced by an electroencephalogram a nd a neurological
evaluation. When asked whether an evaluation by a neuropsycholo gist would aid in a determination of competency, Dr. Kirk testifie d he did not believe it was necessary in Allen’s case. He conceded Allen suffered from some short-term and long-term memory loss. However, the deficits were spotty. Dr. Gregory McNamara, the jail physician who was se eing Allen twice a week, as he had for the previous six months, testif ied Allen communicated rationally with him, and he believed he was compete nt. As he put it, “He has appeared and functioned as a man of average intelli gence in all the time that I’ve seen him.” (Id. at 103.) Several other health providers testified Allen was able to communicate well with them. Dr. David Simms, Allen ’s ear, nose and throat surgeon, testified he had rational conversations wi th Allen, including one in6 While his academic record is spotty, between 1977 a nd 1986 Allen

completed twenty-eight hours of college instruction and earned a G.P.A. of 3.125. At his second sentencing hearing, Dr. Nelda Ferguso n testified for Allen and stated he was a “bright man” of “high intelligence. ” (R. Vol. 3, Tr. ReSentencing Hr’g, Vol. II at 95.) He tested in 1993 with a verbal I.Q. of 117, in the bright range, and a performance I.Q. of 104, re sulting in a full scale I.Q. of 111, also in the bright range. Six years later, Dr . Michael Gelbort tested Allen again, at which time he scored a verbal I.Q. of 79, a performance I.Q. of 73 and a full scale I.Q. of 75.
-9- which Allen explained how he sustained his injury a nd did not claim to be without memory of the events surrounding his injury. Apparently anticipating unfriendly testimony, Allen declined to call as a witness the one expert he had retained through his Ake request: Dr. Edith King. Instead, the State called Dr. King. She testified she interviewed Allen and administered a number of screening tests, including the Wechsler Adult Intelligence Scale for long-term memory and intelli gence 6 and the Bender Gestalt Visual Motor Test for organic dysfunction. From th e latter test, she detected “at least soft organic signs that there might be some v isual motor problems.” (Id. at 117.) These signs did not affect her opinion that Allen was competent to stand trial. Dr. King conceded neuropsychological testin g, which required a specialist, would enable a deeper probe into the nature and ext ent of brain injury and, from that, further observations about legal competency. Nonetheless, she hewed to her opinion that under the standards enunciated in the Oklahoma statute, Allen was competent to stand trial. She indicated Allen had a reticence about discussing his
case: “I feel he is able but doesn’t want to reveal things about himself. I think he can if he will.” (Id. at 119.)7As the court put it: “[a]fter hearing all the testi mony in the case and all of

the doctors and all the witnesses for both sides why, it’s my opinion that there’s no need in any way, shape or form to appoint any ne w medical witnesses to assist the defense in this case.” (R. Vol. 3, Tr. Compete ncy Hr’g at 144.)
-10- The only witness to testify to Allen’s incompetence was one of his trial attorneys, Mr. Opio Toure. Although he conceded Al len understood the charges,
it was Toure’s belief Allen could not assist counse l in preparation of a defense. “I do believe he knows the charges and he understan ds the charges but he has not been able to assist me in the preparation of his de fense as I’ve been talking with
him.” Id. at 68. According to Toure, the gist of the proble m was that: [A]s I tried to get to talk to [Allen] about the ch arge, about the evidence, about our defense, I was not able to get through the entire conversation with him or just nearly an entire sent ence without him interrupting me to the extent that up to this pointthe conversations that I’ve had with Mr. Allen had been incomplete in terms of me being able to discuss the trial with him, discuss h is options with him, discuss the procedures and to give him advice. (Id. at 67.) At the conclusion of the evidence, the court revisi ted and denied Allen’s request for appointment of a neuropsychologist. 7 The jury was instructed that Allen was presumed competent and he bore the burden to establish his incompetency by clear and convincing evidence. The jury found Allen did not meet his burden of proof, thus finding him competen t to stand trial. B. Plea of Guilty Less than a month later, on November 10, 1987, Alle n changed tack and8 Defined as “[a] guilty plea made without the promis e of a concession from

either the judge or the prosecutor.” Black’s Law D ictionary 1171 (7th ed. 1999).
-11- entered a blind plea of guilty. 8 In preparing to take the plea, the court inquired of Allen, “[h]ave you ever been treated by a doctoror confined in a hospital for mental illness?” (R. Vol. 3, Tr. Change-of-Plea at3.) Allen answered in the negative. This colloquy between the court and tria l counsel followed and constitutes the sum of the discussion of the prior competency determination: MS. BAUMANN: Judge, he was sent to Eastern State Ho spital and spent about 4 months there. He was there for evaluation and treatment, after November of ’86, and he was returned as competent. Q. That was not just for competency determination,

but for actual treatment? MS. BAUMANN: I believe he was given medication whil e he was there and the determination at the very beginning was that he was not competent, and then some 4 months later he was in fact returned as competent. We did have a competency trial last month before Judge Cannon, and at that time the jury returned a verdict of competent as well. Q. The jury determined him to be competent? MS. BAUMANN: Yes, sir. (Id. at 3-4.) Critical to our review, the court then inquired of Baumann, who also represented Allen at the competency trial, “do you have any reason to believe that9 His trial counsel, Eugenia Baumann, testified at th e federal evidentiary

hearing: “His recollection [of the killing] was very sketchy due to the gunshot
-12- Mr. Allen is not mentally competent to appreciate a nd understand the nature, purposes and consequences of this proceeding?” (Id. at 4.) To this question, Baumann responded in the negative and assured the c ourt that Allen had assisted her in presenting any available defense to the char ge. Allen assured the court he had reviewed with counse l the charges and possible penalties. The court then engaged in the familiar plea colloquy with Allen, who told the court he understood all of his enumerated rights and had reviewed them with counsel. Contemporaneous with h is plea, Allen filed a document with the court entitled “Plea of Guilty Wi thout Sentencing - Summary of Facts” in which he certified in writing he under stood the charges, the penalties and the rights he was giving up in pleading guilty. He also certified he had discussed the charges with counsel; counsel, in tur n, certified her client was competent, and she countersigned the document. (R. Vol. 4, Original R. (C-88- 37) at 232-33.) In aid of establishing a factual basis for the plea , Allen submitted an
affidavit in his own hand in which he stated the fa cts of the crime. He wrote simply: “I shot & killed Gail Titsworth. I had no justifiable cause.” (Id. at 234.) The court confirmed in colloquy with Allen that thi s was a true and correct statement. Baumann helped him prepare it. There i s little disagreement that Allen had incomplete recollection of the killing; h is admission was essentially based on acceptance of witness and police reports. 9 After its inquiry of Allen,wound to his head. We had many conversations. The re were some things prior to

that time and after that time he remembered and dur ing the time it was all very sketchy.” (R. Vol. 2 at 11.) “Neither of us had a ny belief that he hadn’t done substantially what [Allen’s factual basis affidavitsubmitted to the court at plea hearing] says.” (Id. at 13.)
-13- including eliciting assurances from him that his ju dgment was good, he understood what he was doing and he was acting volu ntarily, the court found him competent, found the plea to be knowingly and volun tarily entered and accepted the plea. C. Sentencing At sentencing, in answer to questions from his coun sel, Allen explained his decision to plead guilty and his reticence to discu ss the particulars of his case:

Q. What happened that caused you to think that there might be a problem? Did something happen on a Monday, Tuesday or Wednesday or Thursday? A. I really don’t want – I don’t want to talk about what problems we were having. Q. I know that. A. There is just so many things I wanted to avoid by pleading guilty. Q. Like what? A. Well, like for example just discussing what I did

. I did not want my family involved in this and I honestly thought when I pleaded guilty that that would be the end of this. That a sentence would be passed. That was the impression that I got. I had already taken my family through enough. I had already taken her family through enough and I-14- had no desire to take them through more by going to trial and I had no idea that things were going t o come down to this where my family would be called on the stand and her family would be called up on the stand and everybody just has to go through more stuff. I just thought you know, that if I committed the crime and admitted committing the crime that that would end it for everybody because to stretch things out does nobody any good. It does nobody any more good. I just don’t see it as doing any one any good. I just don’t see it. I don’t see anything constructive about discussing problems we were having. I just don’t see it. What motivated us to go to church, I just fail to see any reason for even being asked that. Q. In fact have you and I had some discussions about that, pretty heated discussions where - - A. As a matter of fact I asked you not to have my family up here. I knew I couldn’t do anything about her family. I was hoping that they wouldn’t have to appear either, because this just stretches things out. I have already put people through stuff and I did not want to put them through any more. Why we have to keep on going over why I did what I did you know, and my family has to tell what kind of person I was, and her family has to tell what kind of person she was, and I just can’t see putting either family or anyone through that and I see kids getting up there and crying and I see my ex wife getting up there crying and my mother – and it just doesn’t make any sense. I thought I could avoid all of this by just entering a plea of guilty. I had no desire, I never had any desire to go to trial. I made every effort at a much earlier date than this to enter a plea of guilty. Just to bring things to an end, and it might kind of make people have wrong ideas about things by my family being called up there, it is-15- like they are trying to cover for me or something like that, you know? But it is not that way at all

. I don’t want it to be misconstrued. I did not want them to get on the stand. I did not want them to go through any more. It wasn’t just my family. I just don’t see any point in hurting anybody any more. I just don’t see that. I have told you that and I asked my relatives not to come. I couldn’t tell my relatives anything, but when I first entere d that plea I didn’t think anybody was going to have to go through anything. I can’t see making a bad matter worse – bringing up the problems we were having and what motivated me to do what I did. It just makes things worse than ever.

*** Q. Just one more question for you Garry. How do youfeel about what you have done, how do you feel about how this has affected the lives of your family and thos e of Gail’s? A. To her family it did a whole lot more damage to t hem than my family. And that’s another reason I didn’twant any of this to happen here in Court, because it jus t makes what’s already a troubled situation worse and I pointed that out to you time and time again and I w anted to avoid things like this. I told you time and tim e again. I asked my family not to come because they weren’t required to come unless they were subpoenaed and I just didn’t want to put people through this. I just did n’t want to do that. Man, the people might look at my family and they might associate that my family has been in some way responsible for what happened but it wa s solely my actions. It was something that I did and I don’t want people to have misconceptions about my family, you know. Because I have a pretty good fam ily and Gail’s family was a pretty good family. They w ere always nice to me and like when her little kid – I mean when the boy got up on the stand yesterday and he-16- started crying that just kind of set it up for the whole thing, you know, and I just – people are just going through things that are not necessary for them to g o through. I told you things like that and then I to ld you that before this day came up and I told you while t his day was going on, this day and yesterday. It just didn’t seem to me to be necessary to be dragging other peo ple in because I am the one responsible for this crime. (R. Vol. 3, Tr. Sentencing Hr’g at 298-300, 303-04) (emphasis added).) After he was sentenced to death, Allen moved to withdraw his guilty plea on the grounds there was insufficient evidence to s upport imposition of the death penalty. The court denied the motion. Allen appea led, arguing the plea was invalid because the trial court did not adequately inquire into his competency to enter it, he did not understand the elements of the charged offense and there was no factual basis to support the plea. Although the OCCA affirmed the trial court’s denial of the motion to withdraw the plea, it remanded the case for resentencing to enable the trial court to consider the newly-available sentencing option of life without parole. Allen v. Oklahoma, 821 P.2d 371, 375 (Okla. Crim. App. 1991) (Allen I

). D. Resentencing At resentencing, Allen suggested another reason forhis inability to remember the events surrounding his murder of Titsw orth, his practice of regularly intoxicating himself:

Q. Now, before this event, before November the 21st of 1986, how often did you drink; alcoholic beverages I’m talking about?
A. How often did I drink?10 Years later, in the federal evidentiary hearing, Ba umann testified Allen

was severely intoxicated at the time of the killing , and this contributed to his inability to remember the particulars of the event. Hospital records indicated his blood alcohol content around the time of admission for his gunshot wound was 0.27.
-17-

Q. Uh-huh. A. I drank just about as often as I could. Q. How much could you drink? A. I could drink as much as I could afford to get. Q. Well, could you drink a fifth? A. Easily, if I could afford to get it. I’d always find some kind of way. I could drink just as much as I could. Q. How often would you get drunk, say in a week? A. I’d get drunk as many days in the week as I could.

*** Q. What’s the last thing that you remember before that 5:00 p.m. on November the 21st of 1986? A. I can remember drinking a lot and I don’t even know if it was on that day, but I was drinking just about every day at that point. (R. Vol. 3, Tr. Resentencing Hr’g, Vol. II at 175-7 6, 182.) 10 The court resentenced Allen to death. Allen appeal ed on a number of grounds, none of them relevant to our review, and t he OCCA again affirmed.-18-

Allen v. Oklahoma, 923 P.2d 613 (Okla. Crim. App. 1996) (Allen II ). The United States Supreme Court granted certiorari , vacated the judgment and remanded to the OCCA for further consideration in light of Cooper v. Oklahoma, 517 U.S. 348 (1996) (holding the Oklahoma requirement that defen dant prove incompetence by clear and convincing evidence, rather than by a pre ponderance of the evidence, violates due process). Allen v. Oklahoma, 520 U.S. 1195 (1997). On remand, the OCCA first recognized the general ru le that “[a] criminal defendant must be competent to go to trial or to en ter a plea.” Allen v. Oklahoma, 956 P.2d 918, 919 (Okla. Crim. App. 1998), cert. denied, 525 U.S. 985 (1998) (Allen III

). It pointed out that Cooperwas not implicated because the flawed burden of proof was applied in a competency trial i n expectation that Allen would proceed to trial if found competent. When Allen ch anged tack and decided to plead guilty, the presiding judge in the trial court concluded afresh that Allen was competent to enter his plea. In the plea context, the trial judge is charged in every case with the duty to determine whether the defendant is competen t to enter the plea. This is accomplished by: 1) appropriate int errogation of the defendant, and defense counsel if the defendant is represented, regarding the defendant's past and present mental s tate; and 2) observation of the defendant's behavior before the court. If a substantial question as to the defendant's competen cy exists, the defendant shall be committed for a competency evalu ation as provided in 22 O.S. 1991, § 1172.
Id. (quotation and citations omitted). After carefull y reviewing the plea colloquy, the OCCA concluded the prior competency determinati on by the jury did not taint the fresh competency determination. “At the plea h earing the trial judge relied on-19-

his personal interrogation of Allen, his personal i nterrogation of Allen's counsel, and his personal observation of Allen's demeanor. None of the evidence raised any doubt as to Allen's competence to enter a plea. ” Id. at 921. The OCCA placed special significance on the colloquy between Allen’s counsel and the trial

court: Three weeks earlier at the post-examination compete ncy hearing, she had questioned co-counsel regarding Allen's abilityto assist with his defense. The elicited testimony was the only eviden ce supporting the allegation Allen was not competent to stand trial. At the plea hearing, as an officer of the court, defense counse l told the presiding judge Allen had assisted her with his defense. Thu s, the one issue which raised a question as to Allen's competence atthe post-examination competency hearing, his ability to assist counsel with his defense, had been resolved. There was no longer any evidence to support a doubt as to Allen's competenc e.
Id. Based on the plea colloquy and the record as a whol e, the OCCA determined Allen was competent to enter his plea. Id.
E. State Post-Conviction Relief Allen applied to the OCCA for post-convic tion relief, raising seven propositions of error. Material to this appeal are those alleging: 1) Allen was convicted while incompetent, and 2) ineffective ass istance of trial counsel in permitting entry of a guilty plea when Allen was in competent. In an unpublished decision, Allen v. Oklahoma , No. PC 97-311 (Okla. Crim. App. July 20, 1998) (Allen IV ), the OCCA concluded the incompetence issue was pr ocedurally barred because it had previously been raised and decided i n Allen III, on remand from the Supreme Court. It concluded the ineffective as sistance of trial counsel claim was waived because it could have been raised, and w as not, on direct appeal.-20-

Of particular interest during the post-conviction p roceedings was an affidavit submitted by Dr. Michael M. Gelbort, a cl inical psychologist, in which he recounted the results of a neuropsychological ev aluation he conducted on Allen in February 1997. He indicated, “the patient has n o recollection for the incident and this is as would be expected due to the neurotr auma he sustained.” (Appellant Br., Attach. K at 5.) Based on his find ings, he concluded “the patient is able to appear or ‘present’ more normally than h e is actually able to function or perform as he has some of the basic skills present but lacks or is flawed on the higher level abilities.” (Id. at 4.) He added: As a result of the brain damage and associated cogn itive deficits or impaired thinking abilities, the patient is and has been unable to comprehend the meaning of the proceedings in which he is involved in post-conviction relief work and is unable to ass ist his attorney in any meaningful way. This impairment and his result ing inability to assist counsel is present now, would have been and was present since the time of his brain injury/gun shot wound, and, i f it has changed since the time of the brain damage, would have impr oved rather than worsened. This is to say that the patient is equal ly or more able to assist counsel now as compared with the time of his original trial and that he is not able to assist counsel at this time. (Id. at 6.) He was critical of the previous assessment s of Allen by other examiners, including those involved in the competen cy trial nearly ten years
earlier.
F. Federal Habeas Review Having failed to obtain relief through state post-c onviction procedures, Allen filed his federal habeas petition under 28 U. S.C. § 2254 on August 3, 1999.11 Although the district court granted an evidentiary hearing on only one

ground for relief (ineffective assistance of trial counsel due to conflict of interest in motion to withdraw guilty plea), it considered t he evidence adduced at the hearing in resolving all issues presented.

12Allen declines to argue on appeal a claim of ineffe ctive assistance of counsel due to a conflict of interest in the motion to withdraw plea, one of eight grounds for relief presented in the habeas petition and one of the five issues the district court certified for review. We therefore consider this claim abandoned. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (citation omitted). Allen requested us to expand t he certificate to include three additional issues: 1) a claim pursuant to Ford v. Wainwright, 477 U.S. 399, 410 (1986), that he not be executed because he is insan e, 2) denial of an evidentiary hearing on all but one of the grounds for relief pr esented in the habeas petition, and 3) cumulative error. Judge Porfilio, in his Ca se Management Order issued on behalf of this Court, adopted the certificate of ap pealability issued by the district court and declined to expand it as requested. In s pite of the limited certificate, Allen argues the Ford

claim and cumulative error claim we have already d eclined to certify. Not being certified, we do not conside r them. 28 U.S.C. § 2253(c)(1)(A). Only four issues are presented for our review.
-21- In it, he raised eight grounds for relief. After alimited evidentiary hearing, 11 the district court denied the petition in a Memorandum Opinion. Five issues have been certified for review, one has been abandoned, leaving four for our consideration. These are: 1) a procedural compete ncy claim (including subclaims of a violation of Ake v. Oklahoma, 470 U.S. 68, 83 (1985), and ineffective assistance of appellate counsel for failing to rais e the Ake claim), 2) a substantive competency claim, 3) an ineffective assistance of t rial counsel claim based on counsel permitting Allen to enter a plea of guilty despite his alleged incompetency, and 4) a claim that Allen’s plea was not knowing, voluntary and intelligent. 12 Our review begins with the testimony of Allen’s tri al counsel, Baumann, at13 As Baumann put it, “My opinion never changed. At t hat particular point

in time, having had the jury trial where he was fou nd mentally competent, I didn’t believe it was my decision to tell this man he coul dn’t plead guilty.” (R. Vol. 2 at 31.) “I felt it was in his best interest to go to trial. He did not want to go to trial. I felt like he had the right to make that decision because he was a legally competent man.” (Id. at 34.)
-22- the evidentiary hearing. Her testimony echoed stat ements she made in a 1997 affidavit provided in the state post-conviction pro ceeding and in a 1999 written declaration submitted in the federal habeas proceed ing. She testified it was always her belief that Allen was incompetent to ple ad. In her view, Allen did not fully understand the possible sentence he could fac e in the event he pled guilty; nor did he understand the rights he was giving up b y pleading guilty, including the right to a lesser-included offense instruction on manslaughter and a voluntary
intoxication instruction. She failed to inform the trial judge of her belief in Allen’s incompetency because a jury had found him c ompetent and, in any event, it was Allen’s wish to plead guilty. 13 She wanted to take the case to trial. She believed Allen had a viable defense of voluntary in toxication and an opportunity for an instruction on manslaughter as a lesser-incl uded offense. Notwithstanding her reversal on Allen’s competence, Baumann averred numerous times in her testimony that her primary objective in filing an appeal was to undo the death penalty, not the conviction: Q. You wanted an appeal?

A. Yes. Q. Because you needed to get out from underneath the death penalty, right? Your client did at least?-23-

A. Yes. Q. You wanted to advance that goal, correct? A. Yes. I never thought he should have gotten the d eath penalty in the first place. He shouldn’t have it now. (R. Vol. 2 at 43.) She later added:
Bottom line was I didn’t think the man should have gotten the death penalty and I wish that some court along the line w ould recognize that fact and give the man some relief. He shouldn ’t have gotten the death penalty the first time, he shouldn’t have gotten it the second time. (Id. at 57.) II. Standard of Review We defer to a state court’s legal conclusions if ithas previously addressed a habeas claim on the merits. Our deference is guide d by the following: An application for a writ of habeas corpus on behal f of a person in custody pursuant to the judgment of a State court s hall not be granted with respect to any claim that was adjudicated on t he merits in State court proceedings unless the adjudication of the cl aim (1) resulted in a decision that was contrary to, or involved an unr easonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the f acts in light of the evidence presented in the State court proceedin g. 28 U.S.C. § 2254(d). In so doing, we review the di strict court’s legal analysis of
the state court decision de novo. Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir. 2000), cert. denied, 532 U.S. 979 (2001). We first inquire whether the federal law in questio n was clearly established. If so, we turn to whether the state court decision was contrary to or involved an-24-

unreasonable application of it. Id. at 1229. A federal habeas court may issue the writ under the ‘contrary to’ clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the ‘unreasonable applicatio n’ clause if the state court correctly identifies the governing lega l principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whethe r the state court's application of clearly established federal law is o bjectively unreasonable, and . . . an unreasonable application is different from an incorrect one. Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted). If a state court has not previously heard a habeas claim on the merits, we review the district court’s legal conclusions de no vo and factual findings for clear

error. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001). If the distr ict court’s factual findings depend entirely on the state court record, we independently review that record. Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000), cert. denied, 533 U.S. 933 (2001). A state court factual findi ng is presumed correct. The applicant for a writ of habe as corpus has the burden of rebutting the presumption of correctness by clear a nd convincing evidence. 28 U.S.C. § 2254(e)(1).
III. Discussion A. Procedural Competence We begin by noting that in support of his argument for procedural incompetence, Allen relies on deficiencies in the c ompetency trial including: 1) the failure of the trial court to instruct the jury on the correct standard for-25-

incompetency, see Cooper, 517 U.S. at 369, and 2) the failure of the trial co urt, after a timely defense request, to appoint a neurop sychologist to examine Allen in
accord with Ake . Allen’s focus on the competency trial is misplac ed because he waived any objection to it when, several weeks afte r the jury found him competent, he changed tack by abandoning any claim of incompetence and entering a plea of guilty. See United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003) (voluntary and unconditional guilty pleawaives all non-jurisdictional defenses preceding plea; only voluntary and intelli gent character of plea may thereafter be challenged). Therefore, the proper f ocus of our review is the plea proceeding. See Allen I & Allen III. While we generally construe Allen’s claim to be one of procedural incompetence, it includes sub-claims for violations of the Fourteenth and Sixth Amendments, premised on Ake, 470 U.S. 68, 83 (1985), which requires the state to assure a defendant access to a competent psychiatrist when sanity is at issue. We have interpreted Ake to apply to pre-trial competency proceedings. Walker v. Oklahoma, 167 F.3d 1339, 1348-49 (10th Cir.), cert. denied, 528 U.S. 987 (1999). It is important to distinguish Allen’s claim and su b-claims because each requires
its own standard of review.

1) Ake Sub-Claims Each of the sub-claims is based on the refusal of t he trial court to appoint a neuropsychologist to examine Allen in aid of his cl aim of incompetence to stand trial. In the first instance, Allen alleges that h is Fourteenth Amendment right to due process was violated by the state trial court’s failure to comply with Ake

.14Allen also claims, without elaboration, that the re fusal of the trial court to

appoint a neuropsychologist amounts to state-induce d ineffective assistance of counsel in violation of the Sixth Amendment. We wi ll not review this perfunctory, undeveloped claim. Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
-26- Secondly, he alleges appellate counsel was ineffect ive, in violation of the Sixth Amendment, for failing to raise on direct appeal th e trial court’s refusal to appoint a neuropsychologist as required by Ake

. 14 Allen first raised these subclaims in state post-conviction proceedings. In th at venue, he did not present the alleged Ake violation as a stand-alone claim. Rather, he pres ented it as evidence supporting his ineffective assistance of appellate counsel claim. Now presented as a stand-alone claim in the federal habeas petiti on, it is vulnerable to the argument it cannot be heard because it has not been exhausted in state proceedings, 28 U.S.C. § 2254(b)(1)(A), or, in the alternative, because it is procedurally barred. Harris v. Champion, 48 F.3d 1127, 1131 n.3 (10th Cir. 1995). Notwithstanding these concerns, the distric t court considered the Ake claim on its merits, citing to § 2254(b) (subsectio n (b)(2) permits denial of a claim on the merits even though it is not exhausted ) and Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir.) (allowing review of cla im on merits, in spite of possibility of procedural bar, in interest of judic ial economy), cert. denied, 531 U.S. 982 (2000). For like reasons, we do the same. As to the ineffective assistance of appellate counsel claim, it has been inadequately briefed. We will
therefore not consider it. Gross v. Burggraf, 53 F.3d 1531, 1547 (10th Cir. 1995). Also, since it is resolved by the merits of the ind ependent Ake claim, there is no-27-

need to consider it further. Inasmuch as the Oklah oma courts have not previously adjudicated the merits of the Ake claim, we review de novo. Mitchell, 262 F.3d at
1045. Having settled on the plea proceeding as the focus of our review, we liberally construe Allen’s Ake argument to be that failure to appoint a neuropsychologist in the competency trial tainted t he trial court’s finding of competence when Allen entered his plea. Because we conclude Allen was not entitled to appointment of a neuropsychologist at t he competency trial, we need not reach the manner in which or the degree to whic h the alleged Ake violation tainted the competency determination at entry of th e plea.
Ake stands for this proposition:
When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a s ignificant factor in his defense . . . the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conductan appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake, 470 U.S. at 82-83. As we noted earlier, its rule e xtends to pre-trial competency proceedings. Walker, 167 F.3d at 1348-49. Although we interpret
Ake broadly, id. at 1348, “[g]eneral allegations supporting a reques t for court appointment of a psychiatric expert, without substa ntive supporting facts, and undeveloped assertions that psychiatric assistance would be beneficial to the defendant will not suffice to require the appointme nt of a psychiatrist to aid in the preparation of a criminal defense.” Liles v. Saffle, 945 F.2d 333, 336 (10th Cir. 1991), cert. denied, 502 U.S. 1066 (1992). Even if we identify an Ake violation,-28-

we disregard the error if it is harmless. Walker, 167 F.3d at 1348. The record reveals the trial court granted Allen’s Ake request for appointment of an expert to inquire into his compet ency to stand trial. Therefore, we are not presented with a claim that the trial co urt failed altogether to make an
Ake appointment. Instead, we are presented with a cla im that additional expert appointment was required to complete the evaluation of Allen’s competence, and the additional appointment was unconstitutionally d enied. We construe Allen’s
claim to be that the failure to make the additional appointment rendered the appointment of Dr. King, standing on its own, nonco mpliant with Ake. We previously addressed this very issue in Walker . There, a defense psychiatrist testified to Walker’s insanity at the time of commission of the crime. In preparation for trial, he urged that Walker be s ubjected to neurological testing to flesh out the etiology of his mental illness. T o this end, Walker was examined by a neurologist to test for the presence of minima l brain damage. The neurologist suggested re-administration of an elect roencephalogram to rule out seizure disorder and a CT scan to evaluate for phys ical brain abnormalities. “[D]ue either to lack of time or lack of funds, Mr. Walker was denied the opportunity to conduct the additional neurological testing recommended by the experts who examined him before trial.” Walker, 167 F.3d at 1348. We concluded the failure to provide the additional neu rological testing violated Ake , although we also concluded the error was harmless. Id. at 1348-49. We distinguish the facts presented in Walkerfrom those presented here. In Allen’s case every witness who testified to his competence, including Allen’s own-29-

Ake expert, Dr. King, testified he was competent. Non e qualified his or her opinion, as did the psychiatrist in Walker , with a recommendation for further testing. Although Dr. Sherman, who first examined Allen and examined him again after Dr. Kirk found him to be competent, tes tified that he agreed with Dr. Cagle (the neurosurgeon who did not offer an opinio n on competency) that consultation with a neuropsychologist might illumin ate the degree to which Allen’s brain injury affected his memory of the eve nts surrounding the killing, he nonetheless agreed with Dr. Kirk that Allen was competent. He also agreed a person can suffer brain injury and still be compete nt. The psychiatrist, Dr. Kirk, testified Allen was competent. While he acknowledg ed that Allen suffered some organic brain damage evidenced by an electroencepha logram and a neurological evaluation, and conceded some loss of both short an d long-term memory, in his opinion further evaluation by a neuropsychologist w as not necessary to a determination of competency. While Dr. King, like Dr. Kirk, conceded some brain damage, it was her opinion that neuropsycholo gical testing, while it would enable further investigation into the nature and extent of the brain injury, was unnecessary to reach a conclusion about legal compe tence. In view of this series of expert opinions of competency, none of them qual ified by recommendation for further testing, refusal of the trial court to appo int a neuropsychologist for Allen did not implicate Ake

. We are bolstered in our conclusion by Dr. King’s te stimony about Allen’s reticence to discuss details of the killing. It is significant because it parallels Allen’s own testimony about speaking of the crime a nd offers a non-15 See n.10.
-30-

neuropsychological explanation for his reserve. Re call Dr. King’s observation, “I feel he is able but doesn’t want to reveal things a bout himself. I think he can if he will.” (R. Vol. 3, Tr. Competency Hr’g at 119.) The only witness at the competency hearing to testify that Allen was not co mpetent was one of his attorneys, Toure. In his opinion, although Allen u nderstood the charges, he was not able to assist his legal team in preparing a de fense. To a large degree, Toure based his opinion of incompetence on Allen’s inabil ity or unwillingness to
communicate with his defense team about the crime. At sentencing, Allen explained his reticence was due to his unhappiness at having to discuss the particulars of the crime. He wanted to spare his f amily and the victim’s family from re-living the event. As he put it, “I can’t s ee making a bad matter worse – bringing up the problems we were having and what mo tivated me to do what I did. It just makes things worse than ever.” (R. V ol. 3, Tr. Sentencing Hr’g at 300.) At resentencing, Allen offered an alternativ e explanation for his lack of recall. He revealed that in the days leading up to the day of the crime, and possibly even on the day of the crime itself, he wa s drinking to the point of intoxication. “I’d get drunk as many days in the w eek as I could.” (R. Vol. 3, Tr. Re-Sentencing Hr’g, Vol. II at 176.) 15 To be sure, the gunshot wound he sustained likely impaired his memory of events. No netheless, the record leads to the inescapable conclusion that at least some of wh at appeared to examiners and his own attorney to be memory loss, capable of more exact determination through a neuropsychological exam, was actually an unwillin gness to discuss the crime or16 We also note a number of Allen’s other, non-mental health care providers

testified consistently as to his ability to rationa lly communicate with them on a regular basis.
-31- a memory obscured by the effects of alcohol. In any event, there is no dispute as to the facts surrounding the killing, notwithstandi ng Allen may not recall all of them. Under these circumstances, impaired memory d oes not implicate due
process. United States v. Borum, 464 F.2d 896, 900 (10th Cir. 1972). In support of his claim of an Ake violation, Allen offers the affidavit of Dr. Gelbort from the state post-conviction proceeding, given nearly ten years after the competency hearing and nearly eleven years after Al len killed Titsworth. Dr. Gelbort is a clinical psychologist. He administere d a neuropsychological
evaluation to Allen. He attributed Allen’s inabili ty to recall events surrounding the killing to the neurotrauma he sustained when he was shot. He concluded Allen’s apparent ability to communicate masked an i nability to function at a higher intellectual level. In his opinion, Allen w as incompetent at the time of his competency hearing.
The district court considered Dr. Gelbort’s dated (1997) evaluation and concluded that it is not sufficiently persuasive to tip the balance in favor of an
Ake violation when viewed alongside the testimony of s everal experts (including a psychiatrist and two clinical psychologists) who ex amined Allen within a year of the killing. 16 While correct in its conclusion, the district cou rt was overly charitable in even considering and evaluating the G elbort material on this issue.
The results of a 1997 examination do not inform a d ebate about the propriety of a-32-

1987 decision relating to the need for a fourth men tal health expert (neuropsychologist) to explore peripheral issues; that decision is tested by reference to contemporaneous materials, not post ho c opinions. Allen failed to
make the “ ex parte threshold showing,” necessary to require appointme nt of a neuropsychologist. Ake, 470 U.S. at 82.

2) Procedural Competence Claim Having settled the Ake question, we turn to the broader question of procedural competency. It was raised initially in Allen I. There, the issue was framed as whether the trial court had sufficiently inquired into Allen’s competence to enter a plea. Allen, 821 P.2d at 373. The OCCA found that it had.
Id. The issue was not raised again in Allen II, the decision affirming Allen’s resentencing. We only mention Allen II because when the Supreme Court granted
certiorari , it did so not for the purpose of further reviewin g the resentencing, but rather, for the purpose of vacating the judgment it self and remanding the case to the OCCA “for further consideration in light of Cooper v. Oklahoma. ” Allen v. Oklahoma, 520 U.S. 1195 (1997) (citations omitted). As we have mentioned, Cooperconcerned the standard of proof to be applied in apre-trial competency
determination. Cooper, 517 U.S. at 369. In Allen III, the OCCA conducted the review ordered by the Supreme Court and found Cooperto be inapposite where a defendant did not stand trial, but instead entered a plea of guilty. Allen, 956 P.2d at 920. It then reviewed the trial court’s pre-ple a competency determination for
Allen and found it to be without error. It also co ncluded the prior competency
trial conducted with an unconstitutional burden of proof did not taint the court’s-33-

fresh determination of competency for purposes of e ntry of the plea. It reinstated its original competency decision in Allen I (together with the resentencing
decision in Allen II

). Id. at 921. The Supreme Court allowed these decisions to stand. Allen v. Oklahoma, 525 U.S. 985 (1998). In sum, because the OCCA, in
Allen I and Allen III, adjudicated on the merits Allen’s claim of incomp etency when he entered his plea, we review its decisions w ith the deference required by 28 U.S.C. § 2254(d). We first note there is no record evidence to support the argument that the judge who took Allen’s guilty plea was influenced o r otherwise tainted in his determination of competency by the earlier jury ver dict of competency (irrespective of whether an additional Ake expert was appointed). The judge at the plea proceeding was not the same judge who cond ucted the competency trial; in fact, he did not preside over any of the pre-tri al competency proceedings. The
record is silent as to whether he was familiar with them at all prior to the plea proceeding. We do know from his questioning of All en and his colloquy with trial counsel that it appears he was being informed for the first time, just prior to taking Allen’s plea, of the course of the earlier c ompetency proceedings. We also know he engaged in his own fresh inquiry as to Alle n’s competence to enter a plea. This record does not even suggest taint. The law of competency is well-settled. “[T]he crim inal trial of an incompetent defendant violates due process. This p rohibition is fundamental to an adversary system of justice.” McGregor v. Gibson, 248 F.3d 946, 951 (10th Cir. 2001) (quotations and citation omitted). The test for determining competency-34-

to stand trial is this: “[t]he trier of fact must consider ‘whether [defendant] has sufficient present ability to consult with his lawy er with a reasonable degree of rational understanding--and whether he has a ration al as well as factual understanding of the proceedings against him.’” Id. at 952 (quoting Dusky v. United States, 362 U.S. 402 (1960)). The standard of competence t o enter a guilty plea is identical. Godinez v. Moran, 509 U.S. 389, 399 (1993). Competency claims may be based on violations of bot h procedural and substantive due process. “A procedural competency claim is based upon a trial court's alleged failure to hold a competency hearin g, or an adequate competency hearing, while a substantive competency claim is fo unded on the allegation that an individual was tried and convicted while, in fac t, incompetent.” McGregor, 248 F.3d at 952. The standards of proof for proced ural and substantive competency claims differ. To make out a procedural competency claim, a defendant “must raise a bona fide doubt regarding h is competency to stand trial
. . . .” Id. This requires a demonstration that “a reasonable ju dge should have doubted” the defendant’s competency. Id. at 954. It does not require proof of actual incompetency. Id. A substantive competency claim, on the other hand, requires the higher standard of proof of incompeten cy by a preponderance of the
evidence. Cooper, 517 U.S. at 368-69; Walker, 167 F.3d at 1344. In evaluating a procedural competency claim, we loo k only at the evidence available to the trial court when the plea was ente red to determine if the judge ignored evidence that objectively would have raised doubt about the defendant’s fitness to proceed. Walker , 228 F.3d at 1227; see also McGregor , 248 F.3d at 954-35-

(“[E]vidence of . . . irrational behavior . . . dem eanor . . . and any prior medical opinion on competence to stand trial are all releva nt in determining whether further inquiry is required.” (quotation omitted)). Defense counsel is often in the best position to evaluate a client’s competence. Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999), cert. denied, 529 U.S. 1058 (2000). “[A]ssessment of a procedural competency claim requires us to form a j udgment on the aggregate not the segment. We examine the totality of the circum stances: all evidence should be considered together, no single factor stands alo ne.” McGregor, 248 F.3d at 955 (quotation and alteration omitted). “The quest ion is . . . whether the trial court failed to give proper weight to the informati on suggesting incompetence which came to light . . . .” Id. (quotation omitted). With these principles in mind, we examine the recor d. As we have already explained in discussing the Ake claim, all of the expert testimony at the competency trial, including that adduced from Allen ’s own Ake expert, was that Allen was competent to stand trial. Moreover, duri ng the plea proceeding, Allen exhibited no irrational behavior. To the contrary, he appeared cogent and rational in colloquy with the court. He assured the court h e had reviewed with counsel the charges and possible penalties, and he gave every i ndication he understood the rights the court explained to him and the fact he w ould waive those rights in pleading guilty. He added he had discussed his rig hts with counsel. As further indication of his understanding of the proceedings, Allen filed a document with the court entitled “Plea of Guilty Without Sentenci ng - Summary of Facts” in which he again certified he understood the charges, the penalties and the rights he-36-

was giving up by pleading guilty, and that he had d iscussed the charges with counsel. (R. Vol. 4, Original R. (C-88-37) at 232- 33.) Allen continued to demonstrate an equally rational demeanor at sentenc ing, which is reflective to some degree of his mental condition at the time he pled guilty. Although one of Allen’s attorneys, Toure, testified at the competency trial that his client was not competent, we discount his testimony for the same reasons given in our Ake discussion. An additional and compelling reason t o disregard his testimony is that at the plea proceeding, only thre e weeks after Toure’s testimony, Allen’s remaining attorney, Baumann, assured the co urt that Allen appreciated the nature, purposes and consequences of the proceeding and had assisted her in presenting any available defense. The trial court properly relied on Baumann’s representation as to the competency of her client. See Bryson , 187 F.3d at 1201. Based on the totality of the evidence, we conclude Allen has not demonstrated the trial court ought to have entertai ned a bona fide doubt as to his competency to enter a plea. This being so, we find no error in the state court
determinations in Allen I and Allen III, especially when we accord those determinations the deference required by § 2254(d). B. Substantive Competence
We construe Allen I and Allen III to dispose of Allen’s substantive competency claims as well as procedural ones. Ther efore, we again review with § 2254(d) deference. “[T]o succeed in stating a substantive incompetency claim, a petitioner must present evidence that creates a real, substant ial and legitimate doubt as to-37-

his competency to stand trial.” Walker, 167 F.3d at 1347 (quotations omitted). At the plea proceeding there was insufficient evide nce to justify even a hearing on incompetency. A fortiori , there was insufficient evidence to support a clai m of substantive incompetency. Id. Allen is not aided by Dr. Gelbort’s affidavit or Ba umann’s testimony. As we earlier noted, Dr. Gelbort’s observations are in sufficient to undermine the accumulated contemporaneous testimony of competency adduced at the competency trial. As to Baumann, in her 1997 affid avit (submitted in support of Allen’s state post-conviction petition), her 1999 d eclaration and her 2001 testimony (both submitted in support of federal hab eas relief), she disavows her assurance of Allen’s competence given to the trial court when the guilty plea was accepted and solemnly declares him to have been inc ompetent at the time. Her about-face on the competency issue strongly suggest s a willingness to “fall on the
sword” in order to derail a death sentence. The mo tive is transparent, if not misguided. C. Invalid Guilty Plea “In addition to determining that a defendant who se eks to plead guilty . . . is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.” Godinez, 509 U.S. at 400. The competency inquiry focuses on a defendant’s ability to underst and the proceedings; the “knowing and voluntary” inquiry focuses on whether he in fact did understand the proceedings. Id. at 401 n.12. “[A] plea of guilty cannot be volunt ary in the sense that it constitutes an intelligent admission that t he accused committed the offense17 The Court drew a fine but significant distinction b etween whether a

factual basis supports the presence of the requisit e intent and whether a defendant understands that the requisite intent is an elementof the crime. A demonstration of the former does not satisfy the requirement of t he latter. Henderson, 426 U.S. at 645-46. We have exhaustively reviewed the recor d of Allen’s case, and conclude it establishes a factual basis for the cha rge of first degree murder,
-38- unless the accused has received real notice of the true nature of the charge against him, the first and most universally recognized requ irement of due process.” Marshall v. Lonberger, 459 U.S. 422, 436 (1983) (quotation omitted). Alle n claims he was not informed of the intent element (m alice aforethought) of the crime with which he was charged and to which he ple d guilty, and as a consequence his plea was not knowing and voluntary. He previously raised this
issue in Allen I, and the state court denied relief. Therefore, we review with § 2254(d) deference.
Allen relies on Henderson v. Morgan, 426 U.S. 637 (1976), a case in which the Supreme Court vacated a conviction on the groun ds the plea of guilty was not knowing and voluntary because there was no evidence the defendant understood
the intent element of the crime with which he was c harged. The defendant had been charged with first degree murder and was infor med in open court as to this charge, including its intent element of having “wil lfully” committed the act. Id. at 642. He pled guilty to second degree murder wit hout a formal substitute charge having been filed. The intent element for second d egree murder was an “intent to
cause . . . death.” Id. at 643. In federal habeas, the district court foun d that
neither counsel nor the trial court informed the de fendant of the intent element of second degree murder before he pled to the charge. 17 Id. at 640. The narrownessincluding its intent element. This conclusion alon e, however, does not settle the

question whether Allen had notice of the intent ele ment and understood it.
-39- of the Court’s holding is evidenced by this passage in its opinion: Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by de fense counsel that the nature of the offense has been explained to the acc used. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinel y explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is uniqu e because the trial judge found as a fact that the element of intent wa s not explained to respondent.
Id. at 647. In order to establish an involuntary plea under Henderson , we require a petitioner to: “(1) show that the [intent] element was a critical element of [the charge]; (2) overcome the presumption that his att orney explained this element to him at some other time prior to his guilty plea; a nd (3) demonstrate that, prior to his guilty plea, he did not receive notice of this element from any other source.” Miller v. Champion, 161 F.3d 1249, 1255 (10th Cir. 1998); Henderson at 647. As to the second requirement, we will not indulge the presumption unless there is factual basis in the record to support it. Id. “Malice aforethought” is defined in both the murderstatute under which Allen was charged and in an Oklahoma pattern jury i nstruction. The statute provides, in pertinent part: “Malice is that delib erate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.” O KLA

. S TAT

. TIT . 21, § 701.7A.18 For purposes of its analysis, the district court as sumed, without finding,

that Allen’s counsel failed to advise him of the in tent element of the charge. (R. Vol. 1, Doc. 35 at 46.) It resolved the Millertest against Allen on the basis of the third requirement of the test. It concluded Allen had acquired notice of the intent element from sources other than his attorney. (Id. at 50-51.) We do not indulge this assumption. See n. 22.
-40- Malice aforethought means a deliberate intention to take away the life of a human being. As used in these instructio ns, malice aforethought does not mean hatred, spite or ill-wil l. The deliberate intent to take a human life must be formed before t he act and must exist at the time a homicidal act is committed. No particular length of time is required for formation of this deliberat e intent. The intent may have been formed instantly before commission of the act. OUJI-CR (2d) 4-62. Williams v. Oklahoma, 22 P.3d 702, 714 (Okla. Crim. App. 2001) (quotation s omitted). Put simply, malice aforethought denotes a deliberate killing where the intent to kill may be formed right up to the commis sion of the act. This is not a difficult concept for the ordinary person to grasp, particularly when assisted by legal counsel. It admits of no subtlety. The ques tion presented is whether Allen understood both the meaning of the term and that itwas an element of the crime to which he pled guilty. To answer this question, we look to the record.
As to Miller’s first requirement, we do not gainsay that the inten t element
of a criminal offense is a critical element of the charge. See Miller, 161 F.3d at 1255. As to Miller’s second requirement, 18 whether Allen has overcome the presumption that his trial counsel explained to him the intent element of malice aforethought, we first point out that Allen was cha rged by way of Information19 The Information reads in pertinent part:

On or about the 21st day of November, 1986, A.D., t he crime of murder in the first degree was feloniously committe d in Oklahoma County, Oklahoma, by Garry Thomas Allen who wilfull y, unlawfully and with malice aforethought, killed Lawanna Gail T itsworth by shooting her with a handgun, inflicting mortal woun ds which caused her death . . . . (R. Vol. 4, Original R. (C-88-37) at 1.)
-41- reciting the offense and its included intent elemen t. 19 Conceding our focus in evaluating the validity of the plea is on whether A llen did in fact understand the charge and not on whether he was capable of underst anding it, the fact that all of the mental health experts who testified at the comp etency hearing testified that he was capable of understanding the charge lays a nece ssary predicate for a finding he did in fact understand it. At the competency tr ial, one of Allen’s attorneys, Toure, testified that while it was his opinion thatAllen was not competent because he could not assist counsel in preparing a defense (the second prong of the competency test), he did in fact understand the charges (the first prong of the competency test). At the plea proceeding, Allen as sured the court he had reviewed the charges with Baumann, his counsel. He certified the same in writing in the “Plea of Guilty Without Sentencing - Summary of Facts” which he filed with the court and which Baumann countersigned. (Id. ) In open court, Baumann informed the court that Allen had assisted her in p resenting any defenses he might have to the charge. In our view, this statement ne cessarily includes, because it would not otherwise make sense, an assurance that s he had reviewed with Allen the intent element of the charge. We next weigh in the mix Allen’s affidavit of20 We distinguish Miller . There, as in Henderson , the defendant was

charged with first degree murder and pled guilty to second degree murder (involving a different intent element) without bene fit of a substitute charging instrument having been issued and served which woul d have alerted to the new intent element. See Henderson, 426 U.S. at 645; Miller v. Champion, 161 F.3d 1249, 1256 (10th Cir. 1998). In Miller, the record was devoid of any other evidence, direct or indirect, that Miller’s counsel or the court advised him of the intent element for second degree murder. Id. at 1254-55.

21 Allen’s reliance on Dr. Gelbort’s affidavit is misp laced for the reasons discussed in the previous section.

22 In her statements Baumann does not say she neglecte d to perform an attorney's fundamental duty of explaining the eleme nts of a charged crime to a client. Instead, her statements blur acts and conc lusions. Moreover, they conflate Allen's ability to understand the meaning of ‘malic e aforethought’ (intent element of first degree murder) with the intent element of manslaughter (a potential lesserincluded offense). In the 1999 declaration she pre pared for federal habeas relief, Baumann is silent as to the operative fact question – whether she explained
-42- factual basis submitted to the court at the plea he aring. Penned in his own handwriting, it is both simple and inartful: “I sh ot & killed Gail Titsworth. I had no justifiable cause.” (Id. at 234.) Although it is curt, the statement admits to a deliberate and unexcused act of homicide, fitting well within the definitio n of malice aforethought. It evidences Allen understood the intent element through discussion with his attorneys. In fact, Baumann te stified she helped him prepare
it. The record provides sufficient factual basis to eng age the presumption that
Allen’s counsel informed him of the intent element for the offense with which he was charged. 20 The only evidence Allen submits in his effort to overcome the presumption are Baumann’s conclusions, 21 memorialized a decade or more after the fact, that Allen did not understand the require d intent. 22 We have already“malice aforethought” to Allen. (Appellant Br., Att ach. J, ¶11.) However, quite

unequivocally, she makes a different fact statement– she never explained manslaughter as a lesser-included offense. She the n states her conclusion – Allen was “incapable of understanding ‘malice aforethough t’ both because he did not remember the crime and because he was not able to c onceptualize the intent element.” (Id. ) Her conclusions may trigger a need for further i nquiry, but only if adequately supported by facts. We do not find such factual support. In spite of the 1999 declaration, in her 2001 feder al habeas testimony Baumann could not remember whether she discussed lesser-inc luded offenses with Allen. (R. Vol. 2 at 22.) The shifting sands of recent me mory are an unstable foundation and her imprecise recollection of whether or not sh e and Allen discussed lesser included offenses (and, hence, the issue of intent) is of dubious utility. Particularly so since it stands in stark contrast t o her bold statement to the judge when the plea was entered that Allen had assisted h er in presenting any defenses he might have to the charge of first degree murder. (R. Vol. 3, Tr. Change-ofPlea at 4.) A defense would include argument for co nviction of only a lesser crime. In this case the distinction between the ch arged crime and a lesser one would necessarily turn on intent. The district court avoided deciding whether Baumann had discussed the intent element of first degree murder with Allen and made no findings in that regard. It resolved the voluntariness of the plea on the basis of Miller’s third requirement. See n.18. While we agree with the district court on th e third requirement we are less charitable with regard to the second. The rec ord does not demonstrate a credible factual predicate for Baumann's conclusion s, so Allen fails to meet Miller's second requirement.
-43- characterized these statements and need not elaborate further, except to say they are at significant variance with other evidence con temporary to the plea, including
Baumann’s own assurances to the trial court. None of her statements overcomes the presumption Allen was appropriately advised. To be sure the trial court might have engaged in a more exhaustive plea colloquy with Allen to assure he understood both th e meaning of malice aforethought and that it was an important element o f the charge against him.23 The trial court assured itself at the plea proceedi ng that Allen understood

that the penalty he faced in the event of a plea of guilty was life in prison or death. (R. Vol. 3, Tr. Change-of-Plea at 4-5.)
-44- However, we are satisfied from the record as a whol e that Allen obtained a sufficient understanding of the required intent fro m his counsel.
Even if we were to conclude that Allen satisfied th e second requirement of
the Millertest, he fails to satisfy the third, being a demon stration he was not put
on notice of the intent element from sources other than his counsel. First, the record of his two arraignments shows he was provide d a copy of the Information each time. Unlike many of the complex and convolut ed federal indictments, the Information in Allen's case clearly and succinctly sets forth the elements of the crime charged. See infra n.19. And under Oklahoma law the language is neith er subtle or arcane. See infra , pp. 40-41. Moreover, as we earlier noted, he acknowledged reviewing the charge with counsel. Th e language of the Information, focused by the sobering knowledge thathe faced the death penalty, 23 would alert even an unsophisticated man that he was charged 1) with killing another, 2) the killing was intentional – not the r esult of mistake, accident, or other innocent reason, and 3) the killing was not, somehow, excused. In spite of perhaps unfamiliar language the concept is not elus ive. Second, Allen attended the preliminary hearing and heard the State present its case, which included the testimony of two witne sses who said Allen first shot Titsworth twice in the chest, examined her body forwounds, and then, after she stood up and tried to escape by entering the daycar e center, he pushed her down and shot her again twice in the back, at close rang e. See Worthen v. Meachum,-45-

842 F.2d 1179, 1183 (10th Cir. 1988) (presence of d efendant at preliminary hearing an ingredient to consider when evaluating aclaim of lack of knowledge of elements of crime). The testimony evidences a cool , deliberate and merciless intent to kill, certainly sufficient for one to inf er malice aforethought. And one such as Allen, with the Information in hand, could consider and compare the evidence presented at the preliminary hearing with the charging language and reason accordingly, drawing reasonable inferences a bout the deliberate nature of
the offense. While we acknowledge the reasoning process we attri bute to Allen is not singularly compelling and would be insufficient, st anding alone, to support a conclusion he understood the intent element, we are comforted in our conclusion that Allen fails to meet the third requirement of t he Millertest by the assurances he gave to the trial court at the plea hearing thathe was acting knowingly and voluntarily and that his factual basis statement wa s correct. As an appellate court, we do not enjoy the trial court’s advantage of havi ng personally observed and evaluated the synergistic effect of Allen’s behavio r, demeanor and statements when he entered his plea. This being so, we place special reliance on the trial court’s measure of Allen’s understanding of the nat ure and consequence of his plea. The trial court’s evaluation is necessarily based not only on the bare colloquy of the record that we see but also on its intuitive sense, undergirding the colloquy, that Allen understood the elements of the crime to which he was pleading. And this is true whether Allen’s underst anding emanated from discussion with counsel, sources independent of cou nsel or both.-46-

Taken together, the indicia of the record demonstrate Allen acquired knowledge of the intent element of the crime from s ources other than his counsel and that he entered his plea with the benefit of th is knowledge. Failing two of the
three Millerrequirements, the claim that Allen did not knowing ly and voluntarily enter his plea goes wanting. Our role is not to undo what in hindsight may seem to Allen to have been an unwise choice to plead guilty to murder. Our ro le, instead, is to assure that the proceedings leading to his conviction and sentence were free of constitutional error. We conclude they were, and the determinati on of the state court in Allen I that Allen’s plea was knowingly and voluntarily ent ered comfortably survives review under § 2254(d).
D. Ineffective Assistance of Trial Counsel Allen claims trial counsel was ineffective because she misrepresented his competency to the trial court and permitted him to enter a blind plea of guilty to first degree murder instead of litigating his case in front of a jury when he had persuasive defenses (manslaughter as a lesser-inclu ded offense, involuntary intoxication, temporary insanity) that would have avoided a conviction in the liability stage of the trial and, failing that, wou ld have avoided the punishment of death in the penalty stage. Allen first raised thi s claim in state post-conviction proceedings. The OCCA procedurally barred the clai m on the ground it was apparent from the trial court record and could have been, and was not, raised on direct appeal. Allen v. Oklahoma , No. PC 97-311 (Okla. Crim. App. July 20, 2998) (Allen IV

) (citing to O KLA

. S TAT

. ANN . tit. 22, § 1089, a provision of-47-

Oklahoma’s Post-Conviction Procedure Act, O KLA

. S TAT

. ANN . tit. 22, §§ 1080- 1089). In federal habeas review, the district court, citing to Walker, 167 F.3d at 1345, elected not to recognize the procedural bar b ecause it was based on a 1995 amendment to § 1089 that post-dated Allen’s direct appeal. It reviewed the claim on its merits. On appeal, the state objects to the district court’s disregard of the state procedural bar, maintaining that even prior t o the 1995 amendment claims of ineffective assistance which could have been, and w ere not, raised on direct appeal were regularly barred. We agree with the di strict court, both for the reason it gave and because of our previously expressed ske pticism as to the adequacy of Oklahoma’s procedural bar of ineffective assistance of counsel claims not brought on direct appeal. See English v. Cody, 146 F.3d 1257 (10th Cir. 1998). We
review de novo. Mitchell, 262 F.3d at 1045.
In order to make out a claim of ineffective assista nce of counsel, Allen must show counsel’s performance was deficient and i t prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient assistance of counsel is representation that “[falls] below an objective standard of
reasonableness.” Id. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘co unsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. Recall Baumann assured the trial court that Allen was competent to enter a plea; a decade later, she declared to the contrary. We avoid a discussion of whether Baumann ’s performance was deficient, assume for the sake of analysis that it was, and turn straight to an evaluation of prejudice. Id. at 697.-48-

Prejudice to the defense “requires showing that cou nsel's errors were so serious as to deprive the defendant of a fair trial , a trial whose result is reliable.”
Id. at 687. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the resultof the proceeding would have been different. A reasonable probability is a prob ability sufficient to undermine
confidence in the outcome.” Id. at 694. By way of preface, we identify an apparent illogic in Allen’s position. On the one hand, he argues Baumann’s deficient perform ance caused him to plead guilty while he was incompetent. On the other hand , he argues her deficient performance deprived him of a jury trial where cert ain defenses would have exonerated him or, at the very least, would have en abled him to avoid the death penalty. We are perplexed because if Allen was inc ompetent to enter a plea he
would have been remanded for treatment. See O KLA

. S TAT . ANN

. TIT . 22, § 1175.6. He would not have been permitted to procee d to trial. Perhaps Allen is suggesting that if and when he recovered competency after treatment he would have elected a jury trial. Whatever may be the cam ouflaged logic of his argument, we take up his claims. We evaluate whether, absent Baumann’s failure to ad vise the trial court of her client’s incompetency, the court would have non etheless found him competent to enter a plea. While the observations of defense counsel are valuable, “the
concerns of counsel alone are insufficient to estab lish doubt of a defendant's competency.” Bryson, 187 F.3d at 1202. In this case, the record as a w hole contains compelling evidence of Allen’s competence. Every expert witness who-49-

testified at the competency trial, including Allen’ s own Ake expert, testified he was competent. Furthermore, the court conducted it s own evaluation of Allen’s competency through colloquy with him and observatio n of his behavior. Id. at 1201 (“A trial court may rely on its own observatio ns of the defendant's comportment.”). At sentencing, Allen articulately explained his wish to plead guilty. Based on this record, we conclude Allen ha s not demonstrated the trial court would have prevented him from entering a pleaon the basis of incompetency if only his counsel had been truthful with the court in her
estimation of his mental state. Thus, even assuming trial counsel misrepresented Allen's competence to the trial judge and was ineff ective in so doing, no prejudice
resulted and Allen fails in his claim of ineffectiv e assistance of counsel.
IV. Conclusion Accordingly, we AFFIRM the order of the district court.