* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### JAN 11 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAYMOND PALMER, Petitioner - Appellant, vs. H.N. SCOTT, also known as Sonny Scott; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents - Appellees. No. 98-7022 (D.C. No. 97-CV-232-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges. **

Petitioner-appellant Raymond Palmer, an inmate appe aring pro se, appeals from the district court’s dismissal of his petitionfor writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court d etermined that, because Mr. Palmer had not exhausted his available state remedi es, it could not hear his claims- 2 -

for relief. The district court dismissed the petit ion without prejudice and refused to grant a certificate of appealability. We grant a certificate of appealability and deny the writ. Background Mr. Palmer was convicted of murder and sentenced to life imprisonment in 1986. On February 14, 1985, prior to trial, his co unsel filed an application for mental observation and examination, alleging there was doubt about Mr. Palmer’s sanity. The state court issued a commitment order on March 7, directing the sheriff to transport Mr. Palmer to Eastern State Ho spital for observation and examination. A notation on the commitment order st ates that Eastern State Hospital personnel had already evaluated Mr. Palmerin the county jail on February 14. On March 20, Mr. Palmer’s counsel fil ed a motion for a determination of competency, but it is unclear from the pleadings whether the motion was granted. Mr. Palmer claims that a compe tency hearing was never held. After his conviction, Mr. Palmer was diagnos ed as mentally ill and transferred to a mental health unit at the correcti onal center. There it was discovered that he had a large tumor in the frontal lobe of his brain. After it was surgically removed, he was reclassified into the ge neral population of the correctional center. Although Mr. Palmer’s appellate counsel was advisedof the surgery, he- 3 -

failed to pursue issues related to Mr. Palmer’s competency on appeal. Mr. Palmer represents that his direct appeal was denied in all respects in 1990. He then filed a pro se application for state post-conviction reli ef, in which he raised for the first time issues related to his competency. The state d istrict court denied the application for post-conviction relief in 1991. Mr . Palmer allegedly lost some of his legal papers while being transported to the Okl ahoma State Penitentiary, and thus sought leave from the state district court to appeal out of time the denial of post-conviction relief. The court apparently denie d the application to appeal out of time, but Mr. Palmer did not appeal that denial to the Oklahoma Court of Criminal Appeals. Under the liberal pleading standard for pro se plai ntiffs, see Haines v. Kerner , 404 U.S. 519, 520 (1972), we construe his requestfor a certificate of appealability as raising the following issues: (1) whether he was tried while mentally incompetent in violation of due process an d equal protection; and (2) whether he was provided with the assistance of a ps ychiatrist, as is required under Ake v. Oklahoma , 470 U.S. 68 (1985), for an indigent defendant who demonstrates that his sanity at the time of the off ense is to be a significant factor at trial. Under 28 U.S.C. 2253(c)(2), we can only grant a certificate of appealability upon “a substantial showing of a deni al of a constitutional right.” Discussion- 4 -

Normally, before a petition may be granted, a petit ioner must demonstrate exhaustion of state court remedies unless “there is an absence of available State corrective process,” 28 U.S.C. § 2254(b)(1)(B)(i), or “circumstances exist that render such process ineffective to protect the righ ts of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). Mr. Palmer, by failing to app eal the denial of the application to appeal out of time, did not exhaust available st ate remedies. See 28 U.S.C. § 2254(c). However, his claims appear to be proced urally barred because they were not raised in his direct appeal. See Okla. Stat. Ann. tit. 22, § 1086; Sellers v. State , 889 P.2d 895, 897 (Okla. Crim. App. 1995). We ne ed not decide the exhaustion issue because we conclude that Mr. Palme r’s claims otherwise fail. See 28 U.S.C. § 2254(b)(2). In general, federal habeas review of procedurally b arred issues is precluded “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, o r demonstrate that failure to consider the claims will result in a fundamental mi scarriage of justice.” Coleman v. Thompson , 501 U.S. 722, 750 (1991). Although this rule app lies to Mr. Palmer’s Ake claim, it does not apply to substantive mental competency claims. See Nguyen v. Reynolds , 131 F.3d 1340, 1346 (10th Cir. 1997), cert. denie d , 119 S. Ct. 128 (1998); Sena v. New Mexico State Prison , 109 F.3d 652, 654 (10th Cir. 1997). Therefore, we proceed to consider the merit s of the competency claim.- 5 - A. Competence to stand trial requires that a defendanthave “sufficient present ability to consult with his lawyer with a reasonabl e degree of rational understanding ... [and] a rational as well as factu al understanding of the proceedings against him.” Cooper v. Oklahoma , 517 U.S. 348, 354 (1996) (quoting Dusky v. United States , 362 U.S. 402, 402 (1960) (per curiam)). Trying an incompetent defendant violates substantive due p rocess. See id. ; Sena , 109 F.3d at 654. However, “a State may presume that th e defendant is competent and require him to shoulder the burden of proving his i ncompetence by a preponderance of the evidence.” Cooper , 517 U.S. at 355. A habeas petitioner can receive a nunc pro tunc evidentiary hearing in order to show that he was incompetent at the time of trial only upon raising a threshold doubt about his competency by clear and convincing evidence. See Nguyen , 131 F.3d at 1346. After reviewing the briefs, we find no merit to Mr. Palmer’s competency claim. He has not put forward any facts or allegat ions which indicate that, at the time of trial, he was unable to meaningfully consul t with his lawyer and understand the proceedings against him. Mr. Palmerfails to present evidence of any irrational or unusual behavior that he may have displayed during the pretrial proceedings or trial. He does raise the fact of th e removal of his tumor afterhis conviction, which may indeed have affected his behavior; however, in evaluating- 6 -

his claim, we must place ourselves in the position of the trial judge prior to and during the trial. Because Mr. Palmer has thus not raised a threshold doubt about his competency by clear and convincing evidence, we conclude that he is not entitled to an evidentiary hearing in the district court. B. In Ake v. Oklahoma , 470 U.S. 68, 83 (1985), the Supreme Court held th at when a defendant demonstrates to the trial judge th at his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examin ation and assist in evaluation, preparation, and presentation of the defense. However, the defendant must offer “more than undeve loped assertions that the requested assistance would be beneficial.” Caldwel l v. Mississippi , 472 U.S. 320, 323 n.1 (1985). Likewise, we have described the sh owing a defendant must make: “General allegations supporting a request fo r court appointment of a psychiatric expert, without substantive supporting facts, and undeveloped assertions that psychiatric assistance would be ben eficial to the defendant will not suffice to require the appointment of a psychiatris t to aid in the preparation of a criminal defense.” Liles v. Saffle , 945 F.2d 333, 336 (10th Cir. 1991). Mr. Palmer’s failure to raise this claim on direct review precludes federal habeas relief, absent a showing of cause and prejud ice or a fundamental miscarriage of justice. He asserts the “cause” forfailure to raise the issue was- 7 -

ineffective assistance of appellate counsel. Howev er, although this is adequate cause for his failure to raise the issue on appeal, he is unable to show prejudice. Again, Mr Palmer relies on the fact that a tumor wa s removed from his brain after his conviction. He has failed, however, to presentany substantive evidence going beyond general allegations as to his sanity that wa s available at the time of trial. An unsupported allegation does not suffice to requi re the appointment of a psychiatrist. Therefore, Mr. Palmer was not entitl ed to the assistance of a psychiatrist at the time of his trial. We do not a ddress the fundamental miscarriage of justice standard because Mr. Palmer does not make a claim of factual innocence. See Moore v. Reynolds , 153 F.3d 1086, 1097 (10th Cir. 1998). Accordingly, we GRANT Mr. Palmer a certificate of appealability on both the competency and Ake claims, and DENY the petition for the writ of habe as corpus. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge