* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 19 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DARRELL RAY BUCHANAN, also known as Leroy Clark,

Petitioner-Appellant,

v. A. LAMARQUE; DREW EDMONDSON, sued as Drew Edmundson Attorney General of Oklahoma, Respondents-Appellees. No. 03-5151 (D.C. No. CV-99-792-K(J)) (N.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner-appellant Darrell Ray Buchanan, a state prisoner proceeding pro se, appeals the district court’s denial of his peti tion for a writ of habeas corpus under 28 U.S.C. § 2254. We exercise jurisdiction p ursuant to 28 U.S.C. § 1291. We affirm and deny all outstanding applications fora Certificate of Appealability (COA).
I. Introduction In July 1996, Buchanan was convicted in an Oklahomastate court of robbery with a firearm, assault and battery with a deadly weapon, and kidnaping, and he was sentenced to serve consecutive prison te rms of one hundred and fifty years, twenty years, and ten years. In December 19 97, the state trial court held a retrospective competency hearing and found that Buc hanan had been competent to stand trial in July 1996. Buchanan’s convictions w ere subsequently affirmed by the Oklahoma Court of Criminal Appeals (OCCA) in Au gust 1998. Buchanan did not file a petition for a writ of certiorari in the United States Supreme Court. Thus, for purposes of 28 U.S.C. § 2244(d)(1)(A), Bu chanan’s convictions became “final” in November 1998. See Locke v. Saffle , 237 F.3d 1269, 1273 (10th Cir. 2001). Buchanan did not seek post-conviction relief in the Oklahoma courts. Instead, pursuant to 28 U.S.C. § 2254, Buchanan fil ed a petition for a writ of-3-

habeas corpus in federal district court in August 1 999. In August 2003, the district court entered an order denying habeas reli ef. Pursuant to 28 U.S.C. § 2253(c), we previously granted Buchanan a COA on “both his procedural and substantive competency claims.” Order filed April 8, 2004 at 1. For the reasons set forth herein, we de ny habeas relief with respect to Buchanan’s competency claims. Buchanan has also ap plied for a COA on several other issues, and we deny all outstanding COA appli cations. We also conclude that Buchanan filed a second or su ccessive habeas petition in the district court. Specifically, on J uly 12, 2002, Buchanan filed a motion in the district court for leave to file a third amended habeas petition. See Fed. Ct. R., Doc. 43. Because Buchanan asserted ne w claims in his proposed third amended petition that do not relate back unde r Fed. R. Civ. P. 15(c)(2) to the filing of his initial habeas petition, the district court should have treated those claims as a second or successive petition and trans ferred the petition to this court for consideration under 28 U.S.C. § 2244(b)(3). Ac cordingly, we hereby grant Buchanan leave, subject to the conditions set forthherein, to file a motion in this court for an order authorizing the district court t o consider a second or successive habeas petition.-4- II. Background 1. State Court Convictions and Competency Proceedings In December 1984, Buchanan was arrested in Tulsa Co unty, Oklahoma and charged with committing the offenses of robbery with a firearm, assault and battery with a deadly weapon, and kidnaping. On January 9, 1985, the state trial court entered an order directing that Buchanan be c ommitted to a state hospital for a mental examination. See State Ct. R., Vol. I at 11. Buchanan was subsequently examined by a psychologist at the stat e hospital, and the psychologist determined that he was not competent to stand trial. See Competency Trial Exs. at 22. On January 11, 1985, the trial court therefore entered an order staying the criminal proceedings a gainst Buchanan “until such time as [he] may be declared to be presently compet ent,” State Ct. R., Vol. I at 14, and Buchanan was “committed to [the custody of the state hospital] for care and treatment of [his] mental condition,” id. In a letter to the trial court dated March 15, 1985 , Dr. Norfleet, the senior staff psychiatrist at the state hospital, informed the trial court that Buchanan had attained competency. Id. at 20. Buchanan was then returned to the custody of the trial court, and a preliminary hearing was held on April 18, 1985. On April 25, 1985, Buchanan was released from custody pursuant t o an appearance bond. Subsequently, Buchanan jumped bail, and he failed t o appear at his arraignment.-5-

Buchanan thereafter became a fugitive from justice, and nothing relevant transpired in his Oklahoma criminal case between 19 85 and 1996. In June and December 1995, Buchanan was convicted o n charges of second degree robbery and first degree murder in separate trials in a California state court, and he was sentenced to serve consecutive pr ison terms of five years and twenty-five years to life. See Competency Trial Exs. at 13-14. After he was convicted of the California charges, Buchanan was r eturned to Tulsa County, Oklahoma to be tried on the charges stemming from h is arrest in 1984. In July 1996, Buchanan was convicted of all the Okl ahoma charges in a jury trial before the Honorable B.R. Beasley. Buch anan was represented at the trial by Beverly Atteberry, a public defender emplo yed by the Tulsa County public defender’s office. Importantly, Judge Beasley did not make a judicial determination that Buchanan was competent to stand trial prior to the trial in July 1996, and Ms. Atteberry did not raise the issue of competency at any time, either before or during the trial. Instead, the issue was first raised by Buchanan in a discussion with Judge Beasley outside of the presen ce of the jury. At that time, Judge Beasley concluded (erroneously) that a post-e xamination competency hearing had been held in March 1985. See Trial Tr., Vol. III at 295-97.-6-

2. First Direct Appeal and Remand Buchanan subsequently filed a direct appeal in the OCCA, and he was represented on direct appeal by Barry Derryberry. Mr. Derryberry was a public defender, and, like Ms. Atteberry, he was employed by the Tulsa County public defender’s office. Thus, he and Ms. Atteberry work ed together in the same office and were colleagues. See Tr. of Competency Trial at 14-15. On direct appeal, Mr. Derryberry raised the followi ng claims: (1) the trial court did not have jurisdiction because the 1985 ju dicial determination of incompetency had not been judicially overruled; (2) it would be a violation of federal law to hold a retrospective competency hear ing; (3) the jury instructions were erroneous; (4) prosecutorial misconduct; and ( 5) double jeopardy. In September 1997, the OCCA entered an “order of re mand,” and it directed the trial court to determine whether a competency hearing had in fact been held in March 1985. If a competency hearing h ad not been held, the OCCA directed the trial court to conduct a retrospective competency hearing if it was feasible to conduct such a hearing. On remand to the trial court, Mr. Derryberry continued to represent Buchanan, and he acted as hi s trial counsel in the remand proceedings. On remand, Judge Beasley determined that a competen cy hearing had not been held in March 1985. See Subsequent State Ct. R. at 47. Judge Beasley also-7-

recused himself from the competency proceedings bec ause the prosecution had indicated that he may be called as a witness. Id. at 48. The Honorable Jesse S. Harris was therefore substituted in Judge Beasley’s place, and Judge Harris subsequently found that it would be feasible to con duct a retrospective competency hearing. See Tr. of Feasibility Hearing at 14-15. Although Buc hanan had a right under Oklahoma law to have the competen cy issue decided by a jury, Mr. Derryberry informed Judge Harris at the feasabi lity hearing that Buchanan (who was not present at the feasibility hearing) ha d waived his right to a jury trial. Id. at 15; see also Subsequent State Ct. R. at 52. As a result, a ben ch trial on the competency issue was subsequently held befor e Judge Harris on December 15, 1997. Although Buchanan was represent ed by Mr. Derryberry at the bench trial, Buchanan was not present at the tr ial. At the competency trial, Judge Harris made the foll owing ruling regarding the issue of which party would have the burden of p roof: From my review of the records and documents in this case, the last judicial determination as to the competency of Mr. Buchanan was that he was incompetent. And likened to a situatio n whereby a person is determined incompetent and there’s a post -evaluation and they were sent for evaluation and treatment . . ., and at the postevaluation competency hearing, unless and until the Court is convinced otherwise, they remain incompetent. All right. So I’ll note [Mr. Derryberry’s] request that the Defendant be presumed incompetent and will grant that request. Neverthel ess, I still rule that the defense has the burden of proof.-8-

Competency Trial Tr. at 8-9. Immediately after Jud ge Harris made this ruling, Mr. Derryberry requested that the court take notice of the record, and he rested on behalf of Buchanan. Id. at 9. The state then demurred to the sufficiency of Buchanan’s evidence. Id. Judge Harris overruled the demurrer, explaining h is decision as follows: I overruled your demurrer because I found minutes a go that the defendant is incompetent, certainly based on the [j udicial] determination . . . [in 1985]. And since there has been no determination to the contrary or any evidence that’ s been presented for the Court’s consideration up to this very secon d to cause the court to decide otherwise, the Court finds a prima facie case has been presented by the Defendant as to . . . the incompet ency issue. Id. at 10. The state then called Ms. Atteberry as the only witness in its case. During direct and cross-examination, Ms. Atteberry testifi ed that she believed that Buchanan had been competent to stand trial, althoug h she also acknowledged that her relationship with Buchanan had been strained an d he had been difficult to represent. Id. at 11-39. The state also introduced the following evidence to support its claim that Buchanan had been competent to stand trial in July 1996: (1) abstracts of the judgments showing the July andDecember 1995 California convictions, which Judge Harris treated as evidence that Buchanan had been competent to stand trial in 1995, id. at 51-52; (2) the March 15, 1985 letter from Dr. Norfleet stating that Buchanan had attained competency, see Competency-9-

Trial Exs. at 15; and (3) other records from the st ate hospital pertaining to the mental evaluations that were performed on Buchanan in 1985, id. at 16-17, 19-20, 22. As is apparent from the transcript of the comp etency trial, Judge Harris had also reviewed portions of the transcripts of the Ju ly 1996 trial and the subsequent sentencing hearing. See Competency Trial Tr. at 50-51, 53-54. At the end of the competency trial, Judge Harris fo und that Buchanan had been competent to stand trial in July 1996. Id. at 50-54; Subsequent State Ct. R. at 52. Mr. Derryberry then filed a second direct appeal in the OCCA. 3. Second Direct Appeal In the second direct appeal, Mr. Derryberry asserte d only one claim, and that was that Judge Harris had erred at the compete ncy trial by placing the burden of proving incompetence on Buchanan. In August 199 8, the OCCA entered a summary opinion rejecting the claims raised by Mr. Derryberry in both Buchanan’s first and second direct appeals, and Buc hanan’s convictions and sentences were affirmed in all respects. Buchanan did not seek post-conviction relief in the Oklahoma courts.
4. Initial Habeas Petitions Buchanan filed his first § 2254 petition in August 1999, within a year of when his Oklahoma convictions became final. Buchan an also subsequently filed an amended petition and a second amended petition. Buchanan asserted identical-10-

substantive claims in his first three petitions, an d we will refer collectively to the first three petitions as Buchanan’s “initial petiti ons.” In his initial petitions, Buchanan asserted the fol lowing claims: (1) the state trial court did not have jurisdiction because the 1 985 judicial determination of incompetency had not been judicially overruled; (2) the trial court erred by placing the burden of proving incompetence on Buchanan; (3) the jury instructions were erroneous; (4) prosecutorial misc onduct; and (5) double jeopardy. See Fed. Ct. R., Doc. 13 at 8-14. In a reply brief th at he filed in July 2002, Buchanan also claimed that there had been an inadequate record before the state trial court to conduct a meaningful retrospective competency hearing. Id. , Doc. 44 at 7, 12. In his reply brief, Buchanan als o asserted a substantive due process challenge, claiming that he was actually in competent at the time of his trial in July 1996. Id. at 5-6.
5. Motion for Leave to File Third Amended Habeas P etition On July 12, 2002 -- almost three years after he hadfiled his first habeas petition and well after the one-year limitations pe riod in 28 U.S.C. § 2244(d)(1)(A) had expired, Buchanan moved for leave to file a third amended habeas petition. Id. , Doc. 43. Buchanan also submitted a proposed thir d amended petition as an attachment to his motion for leave. In the proposed third amended petition, Buchanan claimed for the first time that: (1) his exclusion from the-11-

competency trial violated his constitutional rights to due process and a fair trial; (2) Mr. Derryberry had provided ineffective assistance as his remand trial counsel by failing to make arrangements for him to be prese nt at the competency trial; (3) Mr. Derryberry had provided ineffective assistance as his remand trial counsel due to a conflict of interest; and (4) Mr. Derryberry had provided ineffective assistance as his remand appellate counsel because he failed to assert the right to be present and the conflict of interest claims in the second direct appeal to the
OCCA. Id. , Doc. 43 (proposed third amended petition at 14-22 ). With regard to the conflict of interest claim, Buch anan claims that Mr. Derryberry had a conflict of interest because his c olleague at the Tulsa County public defender’s office, Ms. Atteberry, testified as a witness for the State of Oklahoma at the competency trial. As fleshed out i n his opening brief, Buchanan also alleges that Mr. Derryberry’s allegiance to th e Tulsa County public defender’s office gave him a motive for not wanting to establish that Ms. Atteberry had performed deficiently in connecti on with the trial in July 1996.
See Aplt. Opening Br. at 10-14, 16-17. According to B uchanan, Mr. Derryberry therefore failed to properly investigate the competency issue. Id. Buchanan has further alleged that he did not discover this “pote ntial for conflict” until July 23, 2001, less than a year before he filed his motion f or leave to file the proposed-12-

third amended petition. See Declaration of Darrell R. Buchanan at 1, ¶ 3 (attached to proposed third amended petition). On April 9, 2003, the district court entered an ord er denying Buchanan’s motion for leave to file the proposed third amended petition. See Fed. Ct. R., Doc. 46. The court concluded, based on a failure t o exhaust state remedies/mixed petition analysis, id. at 2-4, that “the interests of justice would not b e served by allowing Petitioner to amend his petition . . . alm ost three . . . years after the original petition was filed . . . to add . . . unexhausted claim[s],” id. at 4. 6. Order Denying Habeas Relief On August 12, 2003, the district court entered a fi nal order denying habeas relief on all of the claims that Buchanan had asserted in his initial petitions and reply brief. Id. , Doc. 49 at 7-18. First, the court concluded thatthe state trial court had been able to conduct a meaningful retrosp ective competency hearing and had not erred in allocating the burden of proof. Id. at 9-11. Second, after finding that “the evidence of [Buchanan’s] guilt wa s overwhelming,” the court concluded that Buchanan was not entitled to habeas relief on his prosecutorial misconduct claim. Id. at 13. Lastly, the court concluded that Buchanan’ s substantive due process claim failed on the merits because the state trial court’s competency determination is presumed to be correct under § 2254(e)(1), and1 In its final order denying habeas relief, the distr ict court also determined

that Buchanan was not entitled to relief with regar d to his jury instruction and double jeopardy claims. See Fed. Ct. R., Doc. 49 at 11-12, 14-15. Although Buchanan filed an application for a COA with regardto his jury instruction and double jeopardy claims, he has waived those claims by failing to raise them in his opening brief. See Tran v. Trs. of the State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Cir. 2004). In addition, while Buchanan alle ged that the state trial court lacked jurisdiction in the statement of issues in his opening brief, see Aplt. Opening Br. at 3, he does not refer to the jurisdic tional claim in the body of his brief, and he has provided no authority or argument s to support the claim. Thus, the jurisdictional claim has also been waived. See Tran , 355 F.3d at 1266. -13- Buchanan had failed to meet his burden of rebutting the presumption of correctness by clear and convincing evidence. Id. at 16-18. Buchanan is now appealing the district court’s ruli ngs regarding his procedural and substantive due process claims and h is prosecutorial misconduct claim. 1 Buchanan is also appealing the district court’s o rder denying his motion for leave to file the proposed third amended petiti on. As noted above, we previously granted Buchanan a COA with regard to bo th his procedural and substantive due process claims, and Buchanan’s appl ications for a COA with regard to his prosecutorial misconduct and amendment claims are presently before this court. III. Analysis
1. Procedural Due Process Claims In the summary opinion that it issued in Buchanan’s second direct appeal, the OCCA concluded that the retrospective competenc y trial “did not violate-14-

Buchanan’s due process rights.” Summary Op. at 2. Because “the trial court acted under the presumption that Buchanan was incompetent at the time of [the retrospective] hearing,” id. at 2-3, the OCCA also rejected Buchanan’s claim th at the trial court “erred in placing the burden on himto prove his [incompetence],” id. at 2. Buchanan filed his habeas petition after the effect ive date of the Antiterrorism and Effective Death Penalty Act (AEDP A), and his claims are thus governed by its provisions. See Mitchell v. Gibson , 262 F.3d 1036, 1045 (10th Cir. 2001). For purposes of AEDPA, we conclude that the OCCA adjudicated the merits of Buchanan’s procedural due process claims. See Aycox v. Lytle , 196 F.3d 1174, 1177-78 (10th Cir. 1999) (holding that “we ow e deference to the state
court’s result , even if its reasoning is not expressly stated,” and that state court summary opinions are therefore owed the same defere nce under § 2254(d) as those that fully discuss the merits). Consequently , the district court was prohibited from granting habeas relief on the claim s unless the state court decision “was contrary to, o r involved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court,” 28 U.S.C. § 2254( d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding,” id. § 2254(d)(2). Mitchell , 262 F.3d at 1045. Applying these standards, we agree with the distric t court that Buchanan “is not entitled to habeas corp us relief on his claims related-15-

to procedures used to determine his competence by the state courts.” Fed. Ct. R.,
Doc. 49 at 11. Under federal law, “[t]he law of competency is well -settled. The criminal trial of an incompetent defendant violates due proc ess. This prohibition is fundamental to an adversary system of justice.” Allen v. Mullin, 368 F.3d 1220, 1238 (10th Cir. 2004) (quotation omitted), petition for cert. filed (U.S. Nov. 18, 2004) (No. 04-7413). In determining whether a criminal defendant is comp etent to stand trial, the trial court must consider whether defend ant has sufficient present ability to consult with his lawyer with a r easonable degree of rational understanding – and whether he has a ratio nal as well as factual understanding of the proceedings against hi m. Gilbert v. Mullin , 302 F.3d 1166, 1178 (10th Cir. 2002) (quotation o mitted). It is also well established that “[c]ompetency clai ms may be based on violations of both procedural and substantive due process.” Allen , 368 F.3d at
1239. A procedural competency claim is based upon a trial court’s alleged failure to hold a competency hearing, or an adequat e competency hearing, while a substantive competency claim is fo unded on the allegation that an individual was tried and convict ed while, in fact, incompetent. The standards of proof for procedural and substantive competency claims differ. To make out a procedural competency claim, a defendant must raise a bona fide doubt reg arding his competency to stand trial[.] This requires a demon stration that a reasonable judge should have doubted the defendant’ s competency. It does not require proof of actual incompetency. A substantive competency claim, on the other hand, requires the h igher standard of proof of incompetency by a preponderance of the evi dence.-16-

Id. (quotations and citations omitted). To determine whether there was a “bona fide doubt” regarding a criminal defendant’s competency, “we look to evidence of . . . irrational behavior, . . . demeanor at trial, and any prior medical opinion to determine whether further inquiry on the part of the trial judge was required.” Smith v. Mullin , 379 F.3d 919, 930 (10th Cir. 2004) (quotation omitted). “Ev idence of mental illness and any representations of defense counsel about the de fendant’s incompetence also may be considered.” Gilbert , 302 F.3d at 1179 (quotation omitted). This court has also recognized that, “[a]lthough re trospective competency hearings are disfavored, they are permissible whene ver a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant.” Clayton v. Gibson , 199 F.3d 1162, 1169 (10th Cir. 1999) (quotation o mitted). A meaningful determination is possible where the st ate of the record, together with such additional evidence as may be re levant and available, permits an accurate assessment of the de fendant’s condition at the time of the original state proceed ings. A court should consider (1) the passage of time, (2) the av ailability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of in dividuals and trial witnesses, both experts and non-experts, who were i n a position to interact with defendant before and during trial, in cluding the trial judge, counsel for both the government and defendant, and jail officials. Id. (quotation and citations omitted).-17-

Having carefully reviewed the state and federal cou rt records in this case, we conclude that the district court correctly determined that Buchanan is not entitled to habeas relief under § 2254(d) with regard to his procedural due process claims. To begin with, while it is well establishe d that a “prior [state] adjudication of incompetence . . . gives rise to a rebuttable presumption of continued incompetence,” Sena v. New Mexico State Prison , 109 F.3d 652, 655 (10th Cir. 1997), we agree with the district court that, “by recognizing a presumption of incompetence, as requested by [Buchanan], the trial court in effect required the State to overcome the presumption and demonstrate that [Buchanan] had achieved competence at the time of his trial.” Fed. Ct. R., Doc. 49 at 10-11. Moreover, even if the state trial court utilized anunconstitutional burden of proof, we conclude that Buchanan has failed to rais e a bona fide doubt regarding his competency at the time of his trial in July 199 6. This is not a clear-cut issue, however, as the state court record reveals that Buc hanan acted erratically at times, both before and during his trial, and that he had avery contentious relationship with Ms. Atteberry. There is also a complete lack of contemporaneous medical evidence in the state court record regarding Buchan an’s mental state in 1996 and 1997. This omission is troubling since the prior m edical records from 1985 indicate that Buchanan suffered from significant mental problems. See Competency Trial Exs. at 16-17, 19-20.-18-

On the other hand, the lack of contemporaneous medi cal evidence is off-set, to some extent, by the abstracts of the ju dgments showing the July and December 1995 California convictions. In addition, because we have recognized that “defense counsel is often in the best positionto determine whether a defendant’s competency is questionable,” McGregor v. Gibson , 248 F.3d 946, 960 (10th Cir. 2001) (en banc) (quotation omitted), we find it particularly significant that Ms. Atteberry took the side of the state on the competency issue, see Walker v. Gibson , 228 F.3d 1217, 1228 (10th Cir. 2000) (rejecting h abeas petitioner’s procedural competency claim, in part, because defen se counsel “explicitly denied raising to the [trial] court that [petitioner] was not competent to stand trial” and “[a]t no time did counsel request a competency evaluation or hearing”), abrogated on other grounds by Neil v. Gibson , 278 F.3d 1044, 1057 n. 5 (10th Cir. 2001); Clayton , 199 F.3d at 1171 (finding no bona fide doubt as t o habeas petitioner’s competency at the time of trial where defense couns el declined to express “serious” concerns about his client); Walker v. Att’y Gen. , 167 F.3d 1339, 1346-47 (10th Cir. 1999) (rejecting habeas petition er’s procedural competency claim, in part, because trial counsel never raised the issue of petitioner’s competency at trial). In sum, based on the record before this court, we cannot conclude that “the state trial court ignored eviden ce that, viewed objectively,2 In its order denying habeas relief, the district co urt correctly pointed out

that Buchanan had failed to exhaust the substantive due process claim in the Oklahoma courts. See Fed. Ct. R., Doc. 49 at 6, 15. Buchanan’s failure to exhaust the remedies available under Oklahoma law d id not prevent the district court from addressing the merits of the substantive due process claim, however, because the district court exercised its prerogativ e under 28 U.S.C. § 2254(b)(2) to deny the claim on the merits. Id. -19- raised a bona fide doubt as to [Buchanan’s] competency.” Clayton , 199 F.3d at 1171 (quotation omitted). Finally, Buchanan is not entitled to habeas relief under § 2254(d) with regard to his claim that the state court record was inadequate for purposes of conducting a retrospective competency hearing. Although the trial court could certainly have developed a more complete record reg arding the competency issue, especially in terms of obtaining contemporaneous me dical evidence, we believe the existing state court record allowed the trial c ourt to “conduct a meaningful hearing to evaluate retrospectively the competency of [Buchanan],” id. at 1169, and that is all the Constitution requires.
2. Substantive Due Process Claim Buchanan did not assert a substantive due process c laim in the state-court proceedings. 2As a result, the AEDPA deference standards in § 2 254(d) do not apply to our review of that claim. Instead, “we re view the district court’s legal conclusions de novo and factual findings for clear error.” Allen , 368 F.3d at 1234. However, under § 2254(e)(1), “[a] state court factual finding is presumed-20-

correct. The applicant for a writ of habeas corpus has the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. “A petitioner may make a substantive due process co mpetency claim by alleging he was, in fact, tried and convicted while mentally incompetent.” Walker , 228 F.3d at 1229. As noted above, the standard f or establishing a substantive due process violation is more demandingthan the “bona fide doubt” standard that governs procedural competency claims, see Walker , 167 F.3d at 1347, and “to succeed in stating a substantive inco mpetency claim, a petitioner must present evidence that creates a real, substant ial and legitimate doubt as to his competency to stand trial,” id. (quotation omitted). For the reasons set forth above, we have concluded that the evidence in this case does not satisfy the bona fide doubt standard for a procedural competency cla im. As a result, we also conclude that Buchanan “cannot meet the more string ent substantive due process competency standard.” Walker , 228 F.3d at 1230. We have also recognized that “[c]ompetency to standtrial is a factual question.” Bryson v. Ward , 187 F.3d 1193, 1201 (10th Cir. 1999). Accordingl y, because we have concluded that the state trial court did not utilize an unconstitutional burden of proof, “we afford the st ate court’s finding of competency a presumption of correctness unless [Buc hanan] rebuts the presumption by clear and convincing evidence.” Wallace v. Ward , 191 F.3d-21-

1235, 1243 (10th Cir. 1999). Based on the record b efore this court, we agree with the district court that Buchanan has failed to make the necessary showing to rebut the presumption of correctness. See Fed. Ct. R., Doc. 49 at 16-18. 3. Outstanding COA Applications As noted above, Buchanan’s application for a COA wi th regard to his prosecutorial misconduct claim is currently before this court. A COA can issue “only if the applicant has made a substantial showi ng of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Prosecutorial misconduct does not warrant federal habeas relief unless the conduct complained of is so egregious as to render the entire proceedings against the defendant fundamentally unfair.” Smallwood v. Gibson , 191 F.3d 1257, 1275 (10th Cir. 1999). In making this determination, “w e consider the totality of the circumstances, evaluating the prosecutor’s conduct in the context of the whole trial.” Id. at 1276. (quotation omitted). Specifically, “we look first at the strength of the evidence against the defendant and decide whether the prosecutor’s [conduct] plausibly could have tipped the scales in favor of the prosecution.” Id. (quotation omitted). As summarized by the district court, Buchanan claim s that he was denied a fair trial due to the following prosecutorial misconduct: Petitioner claims that during closing argument, the prosecutor made comments . . . leading the jury to speculate that [ petitioner] may have-22-

shot, or even killed one or both victims [of the ro bbery], had it not been for the failure of the gun to fire. In additi on, Petitioner complains that the prosecutor’s comments during clo sing argument led the jury to give “short [shrift]” to the issue of guilt. Lastly, Petitioner complains that the prosecutor referred m ore than once to the evidence as “uncontroverted,” thereby commentin g improperly on his right to remain silent and to not testify at tr ial. Fed. Ct. R., Doc. 49 at 12 (citations omitted). Having carefully reviewed the transcript of the tri al proceedings, we agree with the district court that, “even assuming that the specific instances of alleged misconduct identified [by Buchanan] were improper, the prosecutor’s misconduct was not of sufficient magnitude to influence the ju ry’s decision. In this case, the evidence of [Buchanan’s] guilt was overwhelming.” Id. at 13. Buchanan is therefore not entitled to a COA on his prosecutoria l misconduct claim.
4. Second or Successive Petition Issues As set forth above, on July 12, 2002 -- almost thre e years after he had filed his first habeas petition and well after the one-ye ar limitations period in 28 U.S.C. § 2244(d)(1)(A) had expired -- Buchanan moved for l eave to file a third amended habeas petition. See Fed. Ct. R., Doc. 43. Buchanan also submitted a pr oposed third amended petition as an attachment to his moti on for leave, and, for the first time, Buchanan asserted his right to be present cla im, his conflict of interest claim, and the related ineffective assistance of co unsel claims. The district court-23-

denied the motion for leave based on a failure to e xhaust state remedies/mixed petition analysis. Id. , Doc. 46 at 2-4. Because Buchanan’s new claims were filed after the one-year limitations period in § 2244(d)(1)(A) had expired, we conclude that the district court should have determined, as a threshold matter, whether the claims related back under Fed. R. Civ. P. 15(c)(2) to the filing of Buchanan’ s first habeas petition in 1999. As we have previously recognized, the threshold rel ation back analysis is critical because, if a district court determines that new habeas claims do not relate back and are therefore time-barred, the court must then treat the new claims as a second or successive habeas petition and transfer the petition to this court for consideration under § 2244(b)(3). Cf. United States v. Espinoza-Saenz , 235 F.3d 501, 503-05 (10th Cir. 2000) (involving motion file d by federal prisoner to supplement habeas claims brought under 28 U.S.C. § 2255); see also Woodward v. Williams , 263 F.3d 1135, 1142 (10th Cir. 2001) (holding that reasoning of Espinoza-Saenz applies to amended habeas petitions filed by state prisoners under § 2254). Subject to certain restrictions, a habeas petitione r may amend a habeas petition under Rule 15. The claims asserted in an amended habeas petition do not automatically relate back to the date when the init ial petition was filed, however. Instead, Rule 15(c)(2) provides that “[a]n amendment of a pleading relates back-24-

to the date of the original pleading when . . . the claim . . . asserted in the amended pleading arose out of the conduct, transact ion, or occurrence set forth . . . in the original pleading.” Rule 15(c)(2) has been the subject of much debate in the context of habeas proceedings brought pursuant to § 2254, but this circuit has taken a firm stance and held that an untimely amendment to a [§ 2254 petition] which, by way of additional facts, clarifies or amplifies a claim ortheory in the original [petition] may, in the District Court’s di scretion, relate back to the date of the original [petition] if and only if the original [petition] was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case

. Woodward , 263 F.3d at 1142 (10th Cir. 2001) (quoting Espinoza-Saenz , 235 F.3d at 505). While Buchanan’s right to be present and conflict o f interest claims are related factually to his other competency claims, they are based on entirely separate theories of relief, and we therefore concl ude that they are “new” claims for purposes of Rule 15(c)(2). Id. As a result, “the relation back provision of Rule 15(c) cannot be applied to save [Buchanan’s ri ght to be present and conflict of interest claims], and the district court did notabuse its discretion in denying . . . permission to amend.” Espinoza-Saenz , 235 F.3d at 505. The district court did not follow the right procedure in this case, however, as the court should have treated Buchanan’s right t o be present and conflict of interest claims as a second or successive habeas pe tition and transferred the-25-

petition to this court for consideration under § 2244(b)(3). Id. at 503; see also Coleman v. United States , 106 F.3d 339, 341 (10th Cir. 1997) (holding that “when a second or successive petition for habeas corpus r elief under § 2254 . . . is filed in the district court without the required authoriz ation by this court [under § 2244(b)(3)(A)], the district court should transfe r the petition . . . to this court . . . pursuant to [28 U.S.C.] § 1631”). Indeed, as we have recognized in the analogous context of § 2254 cases involving motions under Fed. R. Civ. P. 60(b), a district court does not have jurisdiction to addr ess the merits of a second or successive petition until this court has granted th e required prior authorization under § 2244(b)(3)(A). See Lopez v. Douglas , 141 F.3d 974, 975-76 (10th Cir. 1998) (per curiam). Accordingly, “we will construe [Buchanan’s] notice of appeal and appellate brief as an implied application under 28 U.S.C. § 2 244(b)(3)(A) for leave to file a second habeas petition in the district court,” id. at 976, and we must determine whether Buchanan has made “a prima facie showing th at satisfies AEDPA’s criteria for the filing of a second habeas petition,” id. For purposes of this case, Buchanan must therefore make a prima facie showing that: (1) “the factual predicate[s] for [his right to be present and confl ict of interest claims] could not have been discovered previously through the exercis e of due diligence;” and (2) “the facts underlying the claim[s], if proven and viewed in light of the3 Buchanan’s awareness of the competency trial is con firmed by the fact that

an attachment to the first habeas petition specific ally states that the state trial court had held a competency trial on December 15, 1997. See Fed. Ct. R., Doc. 1 (attachment setting forth Buchanan’s fifth claim fo r habeas relief). -26- evidence as a whole, would be sufficient to establi sh by clear and convincing evidence that, but for constitutional error, no rea sonable factfinder would have found [him competent to stand trial].” 28 U.S.C. § 2244(b)(2)(B)(i) and (ii). Before we will authorize Buchanan to proceed in the district court with regard to his right to be present and conflict of i nterest claims, he must also make a prima facie showing that the claims are not barre d by the one-year limitations period in § 2244(d)(1). Although this requirement is not expressly set forth in § 2244(b)(3), we see no reason to authorize the fil ing of a second or successive petition in the absence of such a prima facie showi ng. For purposes of this case, Buchanan must therefore show that he filed his moti on for leave to file his third amended habeas petition within one year of “the dat e on which the factual predicate[s] of [the right to be present and confli ct of interest claims] . . . could have been discovered through the exercise of due di ligence.” 28 U.S.C. § 2244(d)(1)(D). Based on the record before this court, it is undisp uted that Buchanan knew that a retrospective competency trial had been cond ucted in his absence by at least August 1999 when he filed his first habeas petition. 3 Thus, Buchanan was aware-27-

of the factual predicate of the right to be presentclaim in August 1999. As a result, the claim is barred by the one-year limitat ions period since: (1) Buchanan did not file his motion for leave to file his thirdamended petition until almost three years later; and (2) we see no basis for equitable tolling, see Woodward , 263 F.3d at 1142-43 (“AEDPA’s statute of limitations is subject to equitable tolling only when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.”) (quotation omitted). With regard to Buchanan’s conflict of interest clai m, we reach a different result. As noted above, Buchanan has alleged that he did not discover the “potential for conflict” until July 23, 2001, less than a year before he filed his motion for leave to file the third amended petition. See Fed. Ct. R., Doc. 43 (attached declaration at 1, ¶ 3). Buchanan has als o alleged that Mr. Derryberry “lured [him] into believing . . . that no such conflict [existed].” Id. (proposed third amended petition at 20). Moreover, while we believe that Buchanan knew from a very early date that both Ms. Atteberry and Mr. Derryberry were public defenders, we cannot determine, based on the recordcurrently before this court, when Buchanan actually discovered that they worked in the same public defender’s office.-28-

That said, we note that Mr. Derryberry forwarded a copy of the entire “court file which was provided to [his] office for [Buchanan’s] direct appeal” to Buchanan in November 1998. Fed. Ct. R., Doc. 14, E x. A. Although the documents forwarded to Buchanan did not include tri al transcripts, the information contained in the court file should have been sufficient to provide the factual predicate of Buchanan’s conflict of interes t claim if he had exercised due diligence to pursue the claim as required by § 2244 (d)(1)(D). Based on the attachments to his first habeas petition, it is als o undisputed that Buchanan knew by at least August 1999 that Ms. Atteberry had test ified at the retrospective competency hearing as a witness for the state. See Fed. Ct. R., Doc. 1 (attached “Brief of Appellant After Remand” at 2-3). Finally , while it appears that Buchanan has been unable to obtain transcripts of the trial court proceedings despite repeated requests to the state courts and the district court, we do not believe the lack of transcripts provides a basis fo r equitable tolling with regard to Buchanan’s conflict of interest claim. Nonetheless, the record before this court is not su fficiently developed for us to definitively rule on the discovery and equitable tolling issues. In addition, while we are skeptical that Buchanan can satisfy th e demanding requirements of § 2244(b)(2)(B)(ii) concerning the merits of his co nflict of interest claim, Buchanan has at least raised a colorable claim thatMr. Derryberry had an “actual”-29-

conflict of interest due to his working relationship with Ms. Atteberry. See Workman v. Mullin , 342 F.3d 1100, 1107 (10th Cir. 2003) (addressing requirements for conflict of interest claims brought under § 2254 in cases where the defendant raised no objection at trial), cert. denied , 124 S.Ct. 2397 (2004). Subject to the conditions set forth below, we there fore conclude that Buchanan should have the opportunity to file a formal motionin this court for an order authorizing the district court to consider the conf lict of interest claim in a second or successive petition.
CONCLUSION For the reasons set forth herein, we AFFIRM the den ial of habeas relief with regard to Buchanan’s procedural and substantiv e competency claims. We also DENY all outstanding applications for a COA. We GRANT Buchanan leave to file a motion in this co urt for an order authorizing the district court to consider a secondor successive habeas petition. If Buchanan fails to file such a motion within thirty days of the entry of this order and judgment, “an order will be entered denying authorization to file the underlying petition . . . in the district court.” Coleman , 106 F.3d at 341. However, if Buchanan chooses to file an authorizati on motion, the motion shall be limited to Buchanan’s claim that he received ineffe ctive assistance of trial and appellate counsel following the remand from the OCC A for a retrospective4 Although Buchanan claimed in his declaration that h e discovered the

potential for a conflict of interest in July 23, 20 01, we note that Buchanan alleges in his opening brief that he did not discover the p otential for a conflict of interest until August 23, 2001. See Aplt. Opening Br. at 27. Buchanan will need to address this discrepancy if he decides to file an authorization motion in this court. -30- competency hearing because his public defender had a conflict of interest. Further, the motion shall set forth the specific re asons why Buchanan believes that he has made a prima facie showing that satisfi es the criteria under § 2244(b)(2)(B)(i) and (ii) for the filing of a sec ond or successive petition. The motion shall also set forth the specific reasons why Buchanan believes that his conflict of interest claim is not barred by the one -year limitations period in § 2244(d)(1). Specifically, Buchanan shall set forth all of the relevant facts that support his allegation that he did not discover the conflict of interest claim until July 23, 2001. See Declaration of Darrell R. Buchanan at 1, ¶ 3 (atta ched to proposed third amended petition). 4Buchanan shall further explain why he could not have discovered the claim earlier through the e xercise of due diligence. Because the claim is barred by the one-year limitat ions period in § 2244(d)(1), we DENY Buchanan authorization to fil e a second or successive petition to assert his right to be present claim an d any related ineffective assistance of trial and appellate counsel claims. Finally, we DENY Buchanan’s motion/application to e xpand the issues to be certified for this appeal and stay briefing. We GRANT Buchanan’s request to-31-

add additional pages to his opening brief. We also GRANT Buchanan’s request that this court take judicial notice of the “Order Appointing Psychiatrist” that was entered in Buchanan’s criminal case in California i n June 1994. We DENY Buchanan’s request that this court take judicial no tice of the discharge summary that was prepared by Dr. R.N. Garcia in March 1985 as moot because the discharge summary is already a part of the record before this court. See Competency Trial Exs. at 16-17.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge