FILED

United States Court of Appeals

Tenth Circuit

October 19, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

LEON L. CRAWLEY,

Petitioner - Appellant,

v.

WALTER DINWIDDIE,

Respondent - Appellee.

No. 05-5087

ORDER

Before O’BRIEN, EBEL and TYMKOVICH, Circuit Judges.

The panel has decided, sua sponte, to withdraw the opinion issued on July 22,

2008, and replace it with the attached, revised opinion. While Crawley’s petition for

panel rehearing was pending, the Supreme Court decided Knowles v. Mirzayance, -- U.S.

--, 129 S. Ct. 1411 (2009), which the revised opinion follows. Crawley’s petition for

panel rehearing is denied. Crawley’s petition for rehearing en banc was transmitted to all

of the judges of the court who are in regular active service as required by Rule 35 of the

Federal Rules of Appellate Procedure. No poll was requested; Crawley’s petition for

rehearing en banc is denied.
2

The attached opinion is hereby substituted for the one issued on July 22, 2008.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk
FILED

United States Court of Appeals

Tenth Circuit

July 22, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEON L. CRAWLEY,

Petitioner - Appellant,

v.

WALTER DINWIDDIE,

Respondent - Appellee.

No. 05-5087

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 04-CV39-EA)

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal

Public Defender, with him on the briefs) Denver, Colorado, for Petitioner - Appellant.

Donald D. Self, Assistant Attorney General (W.A. Drew Edmondson, Attorney General

of Oklahoma, with him on the briefs) Oklahoma City, Oklahoma, for Respondent -

Appellee.

Before O’BRIEN, EBEL and TYMKOVICH, Circuit Judges.

O’BRIEN, Circuit Judge.

The Oklahoma Court of Criminal Appeals (OCCA) rejected Leon L. Crawley’s

claim of ineffective assistance of counsel, concluding his attorney did not perform
-2-

deficiently at Crawley’s competency hearing by abiding Crawley’s wishes and arguing he

was competent to stand trial despite contrary medical opinion. The district court denied

Crawley’s habeas petition. Because the OCCA’s resolution of Crawley’s claim is not

“contrary to or . . . an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), we

affirm.

I. Background

Crawley was charged in Oklahoma state court with possession of a stolen vehicle

after former conviction of two or more felonies and driving with a suspended license. 

Though he faced more than twenty years in prison, Crawley rejected the State’s offer of

six years incarceration in exchange for a guilty plea and insisted on going to trial. 

Dissatisfied with his first court-appointed counsel, Crawley filed a pro se motion for

different counsel. Before the court could consider the motion, appointed counsel left the

public defender’s office and Crawley’s case was reassigned to Assistant Public Defender

Greg Graves. 

Graves requested Crawley undergo a competency determination, fearing his

“obsession with matters not relevant to his defense” was interfering with his ability to

communicate with counsel. (R. Doc. 5, Ex. A at 5 (quotations omitted)). The court

appointed Dr. William Cooper to examine Crawley. Dr. Cooper concluded Crawley was

able to appreciate the nature of the charges against him but was incompetent to stand trial

because he was unable to consult with his attorney and rationally assist in the preparation
1

 Outside the presence of the jury, Graves informed the court he had advised Crawley to

accept Dr. Cooper’s opinion, but decided to abide Crawley’s desire to be found

competent and so advocated for that result. 

2 The court instructed the jury on three occasions that the arguments of counsel were not

evidence and should not be considered as such. See R. Doc. 6 at 33 (“It is the

responsibility of the attorneys to present evidence, to examine and cross-examine

witnesses and to argue the evidence. No statement or argument of the attorneys is

evidence.”); id. at 34 (“As I’ve told you before[,] the statements, remarks and arguments

of the attorneys are intended to help you to understand the evidence and apply the law,

but they are not evidence. If any statement, remark or argument of an attorney has no

basis in the evidence, then you should disregard it.”); id. at 36 (“[B]oth counsel will be

entitled to give you closing arguments. Again, this is not evidence to be used by you. It

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of his defense. Crawley was not satisfied with Dr. Cooper’s conclusions; he believed he

was competent and welcomed a trial. The issue of Crawley’s competence was put to a

jury, where – in an odd reversal of roles – the government argued Crawley was

incompetent and Graves, suppressing his misgivings, argued the opposite.1

At the competency hearing, the government called Dr. Cooper, who testified

Crawley was incompetent. Without making a formal diagnosis, Dr. Cooper stated

Crawley was “somewhat guarded and suspicious,” was unable to organize his thoughts in

“a coherent, cohesive manner,” heard voices, believed “God had been speaking to him,”

and exhibited “paranoid thinking.” (R. Doc. 6 at 44-45.) The State also called Crawley,

who testified to his understanding of the criminal proceedings and explained to the jury

that he was, in fact, competent to stand trial and wanted to do so. Both Cooper and

Crawley were subject to cross examination. Graves called no witnesses on Crawley’s

behalf, but did argue, contrary to the State’s position and in spite of Dr. Cooper’s opinion,

that the evidence supported a finding of competency.2

 So the evidence came down to Dr.
is merely their opportunity to discuss with you how they perceive the evidence that was

presented.”). “[A] jury is presumed to follow its instructions.” Weeks v. Angelone, 528

U.S. 225, 234 (2000). 

3

 Dr. Cooper told the jury Crawley could appreciate the serious nature and consequences

of the charges, but he was not able to consult with his lawyer and rationally assist in his

defense. He said Crawley 1) was guarded and suspicious (an indicator of a mental

disorder); 2) lacked an ability to organize his thoughts; 3) heard voices (a clear sign of

mental illness); 4) suffered from paranoid thinking (his lawyer and the prosecutor were

allied to convict him, the attorneys covered up illegal actions and the judge was party to

their acts, and the state had been persecuting him since 1982); and 5) was incapable of

making decisions in his best interest (he had an irrational belief the jury would acquit

regardless of the evidence).

-4-

Cooper’s opinion, which he explained to the jury,3 and Crawley’s testimony, insisting he

was competent. Crawley demonstrated a knowledge of the pending charges and the

possible punishments. He was able to explain motion practice and his dissatisfaction with

his prior attorney, who missed deadlines. He told the jury how charges in a prior case

were dismissed because the State was not ready when the case was called. He

demonstrated a knowledge of pleas and plea bargains. He knew a guilty plea waived

appellate review most of the time. As is its prerogative, the jury agreed with Crawley,

finding him competent. He was later convicted by a different jury of possession of a

stolen vehicle and sentenced to twenty-five years incarceration.

In an apparent case of buyer’s remorse, Crawley appealed to the OCCA, arguing

his conviction should be reversed because, among other things, he was forced to testify

against his will at the competency hearing; the evidence was insufficient to support the

jury’s finding of competency; and his counsel was ineffective at the competency hearing. 

In an unpublished summary opinion, the OCCA rejected his claims.
4 The issue in Nelson was “whether Appellant’s counsel was ineffective for not pursuing

the insanity defense despite the fact that he was instructed by his competent client to

waive the defense, which appeared to be the only valid defense to the crimes charged.” 

21 P.3d at 60. The court held counsel was not ineffective because he “was ethically

| bound to accept his competent client’s decision regarding the plea to be entered.” Id. 

5 The OCCA could have offered a more detailed explanation, fully discussing federal law,

but it was not required to do so. Indeed, the state court does not even have to be aware of

relevant Supreme Court cases “so long as neither the reasoning nor the result of the statecourt decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); accord: Aycox v.

Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999) (“[W]e owe deference to the state court’s

result, even if its reasoning is not expressly stated.”).

-5-

The OCCA determined it was proper for Crawley to be called to testify at the

competency hearing because his counsel requested the hearing and, under Oklahoma law,

a defendant may be called to testify against his will if he initiated the competency

proceeding. The OCCA likewise rejected Crawley’s sufficiency of the evidence

argument, concluding that, despite Dr. Cooper’s opinion, “the jury was within its

province in giving greater weight to [Crawley’s] testimony that he was competent.” (R.

Doc. 5, Ex. C at 3.) Relying on Nelson v. State, 21 P.3d 55, 60 (Okla. Crim. App. 2001),4

and Strickland v. Washington, 466 U.S. 668 (1984), the OCCA held Crawley “failed to

show that trial counsel’s conduct was deficient in following his ethical obligation to abide

by his client’s wishes [to be found competent and proceed to trial].”5

 (R. Doc. 5, Ex. C at

2.)

Crawley filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254,

which the district court denied in a thorough and cogent opinion. We granted Crawley’s

application for a Certificate of Appealability (COA) and appointed counsel to represent
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him on appeal. Crawley challenges only the OCCA’s rejection of his ineffective

assistance of counsel claim, arguing his lawyer was ineffective by accommodating

Crawley’s preference to be found competent despite counsel’s personal misgivings and

the contrary opinions of Dr. Cooper and the prosecutor.

II. Discussion

“In an appeal of the dismissal of a federal habeas corpus petition, we review a

district court’s findings of fact for clear error and its conclusions of law de novo.” 

Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006) (quotations omitted), cert. denied,

127 S.Ct. 1819 (2007). The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254(d)(1), establishes the requirements for granting a writ of

habeas corpus to a state prisoner. It provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in the State court proceedings

unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States . . . .

28 U.S.C. § 2254(d)(1) (emphasis added). 

Crawley argues: “The state court’s decision that counsel had to defer to Leon

Crawley on the issue of his own competence -- no matter the medical proof or counsel’s

own conclusion -- is an objectively unreasonable application of Supreme Court

precedent.” (Appellant’s Supp. Opening Br. at 18.) He contends “[this] conclusion . . .
6

 Crawley also relies on Hull v. Freeman, 932 F.2d 159 (3d Cir. 1991), but Hull is not a

Supreme Court case so even if it were on point, it would not provide a basis for granting

his petition. In any event, Hull is distinguishable. Hull was found incompetent to stand

trial and was committed to a state psychiatric institution. Four years later a second

competency hearing was held and the State’s expert testified Hull was then competent. 

Hull’s attorney did not cross-examine the State’s expert despite the fact two other

physicians believed Hull to be incompetent. On petition for habeas corpus, the Third

Circuit determined the first prong of Strickland was met, remarking it “cannot condone

the failure of Hull’s lawyer to bring the[ ] competing diagnoses to the attention of the

factfinder at the competency hearing.” Id. at 168. The court rejected counsel’s argument

that he relied on Hull’s desire to be found competent, stating “[a] presumptively

incompetent defendant . . . cannot be entrusted with the responsibility of dictating

counsel’s tactics at a competency hearing.” Id. at 169. Crawley, unlike Hull, was

presumed competent at the time of his hearing. See Okla. Stat. tit. 22, § 1175.4(B) (a

criminal defendant is presumed competent). In addition, Crawley’s competency hearing

was adversarial, whereas Hull’s was not.

-7-

follows inescapably from the Supreme Court’s decision four decades ago in Pate v.

Robinson, 383 U.S. 375 (1966).”6

 (Id. at 20.)

In Pate, the Court held the trial court “deprived Robinson of his constitutional

right to a fair trial” by failing to hold a competency hearing. 383 U.S. at 385. It noted

“that counsel throughout the proceedings insisted that Robinson’s present sanity

[competence to stand trial] was very much in issue” and decided a competency hearing

was necessary based on “the uncontradicted testimony of Robinson’s history of

pronounced irrational behavior.” Id. at 384, 385-86. The Court rejected the State’s

argument that Robinson waived a competency determination by failing to demand a

hearing, saying “it is contradictory to argue that a defendant may be incompetent, and yet

knowingly or intelligently ‘waive’ his right to have the court determine his capacity to

stand trial.” Id. at 384. The Court observed: “While Robinson’s demeanor at trial might
7 The Supreme Court has held “[t]he Constitution does not permit trial of an individual

who lacks ‘mental competency.’” Indiana v. Edwards, -- U.S. -- , 128 S.Ct. 2379, 2383

(2008). But such a broad principle does not sufficiently inform this debate. A much

more specific rule would be necessary to upset the OCCA’s decision. See Wright v. Van

Patten, 552 U.S. 120, --, 128 S.Ct. 743, 747 (2008) (reversing grant of habeas relief

“[b]ecause our cases give no clear answer to the question presented, let alone one in [the

defendant’s] favor”); Carey v. Musladin, 549 U.S. 70, 76 (2006) (reversing grant of

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be relevant to the ultimate decision as to his sanity [competence to stand trial], it cannot

be relied upon to dispense with a hearing on that very issue.” Id. at 386.

The only conclusion “inescapably” flowing from Pate is that, at most, a

competency hearing is required where the evidence before the court strongly suggests the

defendant’s competence is questionable. This case is quite the opposite. Here, a

competency hearing was held and a jury found Crawley to be competent. 

We follow the analytical method demonstrated in Knowles v. Mirzayance, -- U.S. -

-, 129 S.Ct. 1411 (2009), a recent Supreme Court decision reversing the Ninth Circuit. 

The Court held the Ninth Circuit erred in concluding the state court’s decision to deny

Mirzayance’s ineffective assistance of counsel claim violated clearly established federal

law because “this Court has held on numerous occasions that it is not an unreasonable

application of clearly established Federal law for a state court to decline to apply a

specific legal rule that has not been squarely established by this Court.” Id. at 1419

(quotations omitted). To avoid the same fate, we decline Crawley’s invitation to construe

Pate as clearly establishing Crawley’s counsel was deficient in abiding Crawley’s wish to

have his competence to stand trial determined by a jury. Pate did not establish, let alone

clearly establish, such a rule and we are aware of no Supreme Court case so doing.7
habeas relief where the question presented “is an open question in our jurisprudence”);

Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (reversing grant of habeas relief where

right at issue was not clearly established in Supreme Court precedent).

-9-

In that regard, Carey v. Musladin, 549 U.S. 70 (2006), is instructive. At times

during Musladin’s murder trial some of the victim’s family sat in the front row of the

spectators’ gallery wearing buttons displaying a picture of the victim. See id. at 72. 

Musladin objected, but the trial judge refused to intervene. Id. at 72-73. In federal

habeas proceedings the Ninth Circuit decided the family’s conduct deprived Musladin of

a fair trial based upon Estelle v. Williams, 425 U.S. 501 (1976) (the state may not force a

defendant to stand trial before a jury wearing identifiable prison clothing), and Holbrook

v. Flynn, 475 U.S. 560, 570 (1986) (concluding four uniformed state troopers seated in

the spectator’s area immediately behind the defendant was not so inherently prejudicial as

to deprive the defendant of a fair trial, but announcing that “the question must be . . .

whether ‘an unacceptable risk is presented of impermissible factors coming into play.’”). 

The Ninth Circuit concluded Williams and Flynn “clearly established the test for inherent

prejudice applicable to spectators’ courtroom conduct” and the California courts’ failure

to apply that standard was contrary to and an unreasonable application of clearly

established Federal law. Id. at 74. 

The Supreme Court reversed, saying the prejudice resulting from spectator conduct

(as opposed to the state-sponsored conduct evident in Williams and Flynn) was an open

question. It concluded: 

Given the lack of holdings from this Court regarding the potentially
8 The Court recognized a limited exception to Strickland in United States v. Cronic, 466

U.S. 648 (1984). In Cronic, the Court held “if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth

Amendment rights that makes the adversary process itself presumptively unreliable.” 466

U.S. at 659. “Cronic, not Strickland, applies . . . when counsel is either totally absent, or

prevented from assisting the accused during a critical stage of the proceeding” or when

“counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” 

Wright, 128 S.Ct. at 746, 746 n.1 (quotations omitted). In regard to the latter, “the

attorney’s failure must be complete.” Id. at 746 n.1 (quotations omitted). This case is

properly examined under Strickland, not Cronic, because defense counsel was present

and active at the competency hearing, advocating Crawley’s position. And, more

importantly, the competency issue was subjected to meaningful adversarial testing. The

prosecutor did not merely go through the motions; he actively advocated the state’s

position that Crawley was not competent to stand trial. He told the jury the State

considered Crawley incompetent and in need of treatment so he could assist his attorneys

in defending the case. He presented Dr. Cooper’s testimony and argued in favor of

Cooper’s diagnosis. And he exposed Crawley’s flawed thought processes through his

direct and re-direct examination.

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prejudicial effect of spectators’ courtroom conduct of the kind involved

here, it cannot be said that the state court unreasonably applied clearly

established Federal law. No holding of this Court required the California

Court of Appeal to apply the test of Williams and Flynn to the spectators’

conduct here. Therefore, the state court’s decision was not contrary to or an

unreasonable application of clearly established federal law.

Id. at 77 (quotations and citation omitted).

With no Supreme Court precedent establishing the rule Crawley urges upon us, we

retreat to the general Strickland standard. See Knowles, 129 S.Ct. at 1419 (“[T]his Court

has repeatedly applied [the Strickland] standard to evaluate ineffective-assistance-ofcounsel claims where there is no other Supreme Court precedent directly on point.”). To

prevail on an ineffective assistance of counsel claim under Strickland, a petitioner must

show: (1) “counsel’s performance was deficient” and (2) “the deficient performance

prejudiced the defense.”8

 466 U.S. at 687. The Supreme Court has “declined to articulate
-11-

specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that

‘[t]he proper measure of attorney performance remains simply reasonableness under

prevailing professional norms.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting

Strickland, 466 U.S. at 688). “And, because the Strickland standard is a general standard,

a state court has even more latitude to reasonably determine that a defendant has not

satisfied that standard.” Knowles, 129 S.Ct. at 1420 (citing Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).

Moreover, when evaluating an ineffective assistance of counsel claim under §

2254(d)(1), our review is “doubly deferential.” Id. We defer to the state court’s

determination that counsel’s performance was not deficient and, further, defer to the

attorney’s decision in how best to represent a client. See id.; see also Yarborough v.

Gentry, 540 U.S. 1, 5-6 (2003) (per curiam). In Knowles, the Court explained:

The question is not whether a federal court believes the state court’s determination

under the Strickland standard was incorrect but whether that determination was

unreasonable – a substantially higher threshold. And because the Strickland

standard is a general standard, a state court has even more latitude to reasonably

determine that a defendant has not satisfied that standard.

129 S.Ct. at 1420 (quotations and citation omitted); see also Yarborough, 541 U.S. at 664

(“The more general the rule, the more leeway courts have in reaching outcomes in caseby-case determinations.”). 

Against that backdrop we look to counsel’s conduct. Graves, suspecting problems,

initiated the process whereby Crawley’s competency was litigated in a manner consistent

with the standard set out in Drope v. Missouri, 420 U.S. 162 (1975). Thus, Graves’
9 The OCCA’s holding is, of course, fact-dependent, making our deference to it more

compelling. This is not a case where a defendant was utterly and obviously incompetent. 

Crawley was able, with some assistance from his attorney but in spite of the State’s

evidence and argument to the contrary, to convince the jury he was competent – no small

feat. Crawley demonstrated a sophisticated understanding of the criminal process (gained

from first-hand experience). He filed a number of pro se motions; he sought to have his

first counsel relieved because that counsel failed to timely file motions; he filed motions

for discovery, to quash and to dismiss. As the State says, “While ultimately lacking in

merit, the motions were coherent, understandable and cited legal authority. Clearly,

[Crawley] understood the proceedings against him and was able to assist his counsel to

the extent he wanted to.” (Appellee’s Br. at 13 (citation omitted).)

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actions cannot be characterized as uninformed. But he was on the horns of a dilemma. 

He could abide Crawley’s fervent and clearly-stated wishes, even though they were ill

considered (not an unfamiliar place for defense counsel to find himself) or he could

override Crawley’s preferences and advocate for what he considered to be his client’s

“best interest.” Crawley now argues, with the benefit of hindsight and the prospect of

twenty-five years in prison, that Graves should have taken the latter course. But Crawley

had already sought to discharge his first lawyer and had Graves ignored Crawley’s

instructions, it might well have cemented Crawley’s seemingly paranoid suspicions,

prompting more pro se motions and acrimonious proceedings and fatally poisoning the

attorney-client relationship. It was, indeed, an unenviable position. Graves made a

judgment call, which the OCCA determined not to be professionally deficient. We might

disagree, but we cannot say the OCCA unreasonably applied Strickland when it

concluded Graves’ fully informed decision to comply with Crawley’s instructions did not

constitute ineffective assistance of counsel.9

 

AFFIRMED.