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

### JUL 29 2004 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RODERICK L. SMITH, Petitioner-Appellant,

v. MIKE MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee. No. 02-6055

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-98-601-R)

Jack D. Fisher of Edmond, Oklahoma, for Petitioner- Appellant. Robert L. Whittaker, Assistant Attorney General, Cr iminal Division (W.A. Drew Edmondson, Attorney General, with him on the brief) , State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR , HENRY , and O’BRIEN , Circuit Judges.

SEYMOUR , Circuit Judge.1 In referencing the voluminous record in this case, we will cite the state

trial transcript as “Tr.,” the original record in s tate court as “O.R.,” the state’s trial exhibits as “St. Ex.,” motion transcripts as “Motion Tr.” followed by their dates, the transcript of the evidentiary hearing in federal district court as “E.H.,” and the record in federal court as “Rec.”

2 On appeal, Mr. Smith has abandoned his claim regard ing suppression of exculpatory evidence. Aplt. Br. at 2. -2- Roderick Lynn Smith, an Oklahoma state prisoner, wa s sentenced to death for the 1993 murders of his wife and stepchildren. Challenging his convictions and death sentence, Mr. Smith petitioned for a writof habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. 1 The district court denied relief in an unpublished opinion, but granted a Certificate of Appealability (COA), see 28 U.S.C. § 2253(c)(1), on eight of the eighteen claim s before it. 2 We affirm in part, reverse in part, and grant a writ of habeas corpus vacating Mr. Smith’s death sentence, with the condition that the state resente nce Mr. Smith within a reasonable time.

I.

BACKGROUND FACTS AND PROCEDURE The Oklahoma Court of Criminal Appeals (OCCA) aptlydescribed the facts surrounding Mr. Smith’s crimes in its opinion affirming his convictions and sentences on direct appeal:

[Mr. Smith] was married to Jennifer Smith, who had four-3-

children from a prior relationship: ten year old Sh emeka Carter, nine year old Glen Carter, Jr., seven year old Ladarian Carter, and six year old Kanesha Carter. The children lived with [Mr. a nd Mrs. Smith]. On the morning of June 28, 1993, [Mrs. Smith’s] mother called the police and asked them to check her daughter’s h ouse. She had not seen or heard from [Mrs. Smith] since June 18, 1993. When Officer Peterson arrived at the [Smith] residence . . . , the house appeared to be secured and no one answered the door s. Because he noticed an odor of decaying flesh and a large numbe r of flies around the windows, he contacted his supervisor, Lieutenant Wayne Owen, who came to the address. Owen and Peterson enteredthe house through a window. Inside, they discovered a dead w oman in one closet and a dead child in another. They called th e homicide division of the Oklahoma City Police Department and secured the house. Once homicide detectives arrived, the rest of the h ouse was searched. The bodies of three more children were found, two i n closets and a third under a bed. The bodies were determined to b e those of Jennifer Smith and her four children. They were de termined to have been dead for at least two to three days and up to . . . two weeks or more. The afternoon of that same day, . . . [Mr. Smith] w alked into the Oklahoma County Sheriff’s Office. He was turne d over to the Oklahoma City Police and placed under arrest. Duri ng a custodial interrogation, [Mr. Smith] told Detectives Bemo andCook that he had been laid off his job as head janitor at Washin gton Irving Elementary School because the company that he worke d for had lost its contract. According to [Mr. Smith], when he to ld his wife this news a fight ensued. At one point [Mrs. Smith] grabbed a knife and he took the knife from her and stuck her with it. When the boys came to their mother’s defense, he stuck them with the knife as well. Although [Mr. Smith] admitted that he “got” the gir ls also, he could not remember any details. [Later, authorities deter mined the girls died of asphyxiation.] [Mr. Smith] told the police where he placed each of the bodies. Smith v. State , 932 P.2d 521, 526 (Okla. Crim. App. 1996). An Oklahoma County jury convicted Mr. Smith of five counts of firstdegree murder and recommended sentences of death oneach count, which the-4-

court imposed. Mr. Smith unsuccessfully filed a di rect appeal, see id. at 539, followed by an unsuccessful application for post-co nviction relief in the Oklahoma courts, see Smith v. State , 955 P.2d 734 (Okla. Crim. App. 1998). Mr. Smith then filed this habeas petition. The distric t court granted an evidentiary hearing on four grounds and heard five days of test imony, ultimately denying relief.

II.

APPLICATION OF AEDPA AND PROCEDURAL BAR Because Mr. Smith filed his habeas petition after t he effective date of the Antiterrorism and Effective Death Penalty Act of 19 96 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), the provisions of that act apply to this appeal. See Smallwood v. Gibson , 191 F.3d 1257, 1264 (10th Cir. 1999). Under these provisions, a federal court is preclude d from granting habeas relief on any claim adjudicated on the merit s by the state court, unless the state proceeding “resulted in a d ecision that was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supre me Court,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). In addition, we presume the factual findings of the st ate court are correct unless petitioner can rebut this presumptio n by clear and convincing evidence. See id. § 2254(e)(1). Id. at 1264-65.-5-

The level of deference owed the OCCA in this case i s somewhat complicated. As to factual findings underlying cla ims which the OCCA decided on the merits and for which the federal district co urt refused to grant an evidentiary hearing, the dictates of 28 U.S.C. § 22 54(e)(1) apply and we must presume them true unless rebutted by Mr. Smith by c lear and convincing evidence. As to factual findings underlying claims for which the federal district court properly granted an evidentiary hearing and f or which the OCCA made no factual findings, we review the district’s court fi ndings for clear error. See Miller v. Champion , 161 F.3d 1249, 1253 (10th Cir. 1998); see also Romano v. Gibson , 278 F.3d 1145, 1150 (10th Cir. 2002). [W]here . . . a habeas petitioner has diligently so ught to develop the factual basis underlying his habeas petition, but astate court has prevented him from doing so, . . . [he] is entitled to receive an evidentiary hearing so long as his allegations, if true and not contravened by the existing factual record, would e ntitle him to relief. Miller , 161 F.3d at 1253. The Oklahoma courts refused to grant Mr. Smith’s request for an evidentiary hearing on any of the cl aims in his application for postconviction relief. The federal district court foun d that Mr. Smith met the standard for an evidentiary hearing as to his claims of inef fective assistance of counsel. Smith v. Gibson , No. CIV-98-601-R, at 3 (W.D. Okla. 2002). We the refore review the federal district court’s findings based upon facts adduced at the evidentiary hearing for clear error. Rogers , 173 F.3d at 1282.3 Walker , like the case before us today, concerned a federa l habeas

petitioner who brought his direct appeal prior to t he 1995 amendments to Oklahoma’s procedural default statute, yet the OCCAapplied the amended statute to bar claims omitted on direct appeal. See Walker v. Att’y Gen. , 167 F.3d 1339, 1344-45 (10th Cir. 1999). Our rationale in refusin g to recognize the procedural bar in Walkerwas that a petitioner “should not be deprived of aclaim for failing to comply with a rule that only comes into being af ter the time for compliance has

(continued...) -6- We will not, however, review Mr. Smith’s claims if they were defaulted in state court on independent and adequate state proce dural grounds unless Mr. Smith has demonstrated cause and prejudice or a fun damental miscarriage of justice. See English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman v. Thompson , 501 U.S. 722, 749-50 (1991)). Independent state procedural grounds are those that rely exclusively on state law as a basis of decision. Id. Whether a state procedural default rule is adequate to preclude federal review depends upon how consistently and ev enhandedly the state applies the rule. Id. Mr. Smith first raised an ineffective assistance of counsel claim (and a multitude of related sub-claims) in his application for post-conviction relief. In denying relief, the OCCA held that Mr. Smith had pr ocedurally defaulted the claim by failing to raise it on direct appeal. Smith , 955 P.2d at 737-40. The federal district court reached the merits of this c laim, but did so “based on an overly broad application of the exception to state procedural bar recognized in Walker v. Attorney General , 167 F.3d 1339[, 1344-45 (10th Cir. 1999)].” 3 Cargle3 (...continued)

passed.” Walker , 167 F.3d at 1345; see also Mitchell v. Gibson , 262 F.3d 1036, 1047 (10th Cir. 2001). The issues at stake in Walkerwere the 1995 amendment’s strict limits on claims based on intervening change s in law and that new rule’s application to a claim based on the Supreme Court’s invalidation of Oklahoma’s clear-and-convincing evidence standard for trial co mpetency. Walker , 167 F.3d at 1345. Walkerthus governs claims based on changes in law which would have sufficed to excuse default under the statutory sche me in effect when the procedural omission occurred, but which are barred by application of the new procedural statute. -7- v. Mullin , 317 F.3d 1196, 1201 (10th Cir. 2003). In Cargle , we addressed Walker ’s proper scope and application, particularly with respect to claims of ineffective assistance of counsel: if claims omitted on direct state appeal would have been barred on state post-conviction anyway, even under Oklahoma’s pre-1995 law (for example, if they rested on authority establish ed at the time of direct appeal), it would not make sense to isolate the new 1995 standard as the operative cause of the default. Th us, we have not applied Walkerto excuse petitioner’s default in failing to raise claims in his direct appeal that were at the time o f the default clearly established. Here, the Walkerexception to procedural default is inapplicable to . . . petitioner’s claim[] . . . [o f] ineffective assistance of counsel . . . . We will consider whether [that claim] should be resolved on the merits notwithstanding state proced ural default, under the traditional federal standards for evaluat ing when state procedural default should be excused. Id. at 1201-02 (footnote omitted). Although the district court wrongly applied Walkerto excuse Mr. Smith’s procedural default, Mr. Smith’s ineffective assistance of counsel claims are properly before this court under the traditional fe deral standards for evaluating when a state procedural bar should be excused. “Be cause the effective assistance-8-

of counsel lies at the very foundation of the adver sary system of criminal justice, this court has been particularly vigilant in scruti nizing the adequacy of state rules of procedural default which have the effect of barr ing federal habeas review.” English , 146 F.3d at 1259. We have repeatedly noted the “ healthy degree of skepticism” with which we view such procedural bars

. See Anderson v. Att’y
Gen. , 342 F.3d 1140, 1143 (10th Cir. 2003); Beavers v. Saffle , 216 F.3d 918, 923 (10th Cir. 2000); Smallwood, 191 F.3d at 1268. In English , we determined that Oklahoma’s procedural rules would serve to preclude habeas review of ineffective assistance claims onlywhen “trial and appellate counsel differ” and the “claim can be resolved upon the trial record alone.” English , 146 F.3d at 1264. Extra-record facts are central to the vast majority of ineffective assistance of counsel claims, and the case before us is typica l in that regard. While the court appointed Mr. Smith new counsel on direct appeal, k ey facts underlying his claims as to trial counsel’s insufficient investigation and deficient performance lay outside the trial record. In analogous cases, we have held Oklahoma’s procedural rules inadequate to bar review. See Sallahdin v. Gibson , 275 F.3d 1211, 1235 (10th Cir. 2002) (failure to raise ineff ective assistance on direct appeal not adequate bar to federal review where tri al counsel’s reasons for failing to present mental health testimony and other eviden ce not in trial record);
Romano , 239 F.3d at 1180 (same where extent of trial coun sel’s preparation and-9-

additional evidence counsel should have discovered not in trial record). We recognized in English that new statutory rules enacted by Oklahoma in 1995 to govern capital cases permitted the OCCA to remand a direct appealfor an evidentiary hearing on ineffective assistance wh ere the claim “requires factfinding outside the direct appeal record.” English , 146 F.3d at 1263 n.6 (quoting O KLA
. S TAT
. tit. 22, § 1089(D)(4)(b)(1)). We went on to note, however, that the OCCA had narrowly construed this statute t o allow remand only if the relevant evidence was not available to the defendan t’s attorney at the time of appeal. Id. In subsequent capital cases, we have placed the b urden on the State of Oklahoma to show that this procedural mechanism has been consistently and evenhandedly applied and is thereby adequate to barour review. See Cannon v. Gibson , 259 F.3d 1253, 1272 n.20 (10th Cir. 2001) (citing Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir. 1999)). The state has m ade no such showing in this case. Consequently, Mr. Smith’s claims of ineffect ive assistance of counsel are not procedurally barred. We therefore review the d istrict court’s legal determinations regarding this claim de novo and its factual determinations for clear error. Cannon , 259 F.3d at 1260; LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999).-10- III.
GUILT STAGE As errors in the guilt stage of his trial, Mr. Smit h cites prosecutorial misconduct and ineffective assistance of counsel. We address each argument in

turn. Mr. Smith contends the prosecutors in his case “emb arked on an improper course . . . of innuendo and misrepresentation of t he record,” entitling him to relief on grounds of prosecutorial misconduct. Apl t. Br. at 88. Mr. Smith brought this claim on direct appeal, but the OCCA d id not address the various instances of alleged prosecutorial misconduct indiv idually, and it is difficult to discern from its opinion which allegations receivedmerits review and which did

not. See Smith , 932 P.2d at 532. Mr. Smith then raised another s et of misconduct allegations in his application for post-conviction relief, but the OCCA held them procedurally barred. See Smith , 955 P.2d at 737. We need not determine the level of deference owed the OCCA’s conclusions as t o these various misconduct claims or which are barred on independent and adequ ate state grounds. Where an issue “may be more easily and succinctly affirmed o n the merits,” judicial economy counsels in favor of such a disposition. Miller v. Mullin , 354 F.3d 1288, 1297 (10th Cir. 2004) (quoting Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir. 2000)).-11-

As instances of prosecutorial misconduct, Mr. Smithcites the prosecutors’ (1) attacks on defense expert witnesses, (2) appeal s to passion and prejudice, (3) improper revelation to the jury that Mr. Smith invo ked his right to counsel, (4) recitation of facts not in evidence calculated to i nflame the jury, (5) name-calling, (6) statements of personal opinion and sense of jus tice, (7) misstatement of the date of death, (8) assertion of a false motive, and (9) reference to photographs ruled inadmissible in the penalty phase of trial. When claims such as these are brought in a petition for a writ of habeas corpus, we review them only for a violation of due process. See Darden v. Wainwright , 477 U.S. 168, 181 (1986). “[N]ot every trial error or infirmity which might c all for application of supervisory powers correspondingly constitutes a fa ilure to observe that fundamental fairness essential to the very concept of justice.” Donnelly v. DeChristoforo , 416 U.S. 637, 642 (1974) (citations and quotation s omitted). For us to grant Mr. Smith relief on these claims, we mu st find that the prosecutors’ remarks “so infected the trial with unfairness as t o make the resulting conviction a denial of due process.” Id. at 643. This determination may be made only after “tak[ing] notice of all the surrounding circumstanc es, including the strength of the state’s case.” Coleman v. Brown , 802 F.2d 1227, 1237 (10th Cir. 1986). Having thoroughly reviewed the record of Mr. Smith’ s trial, we find many improper statements but none that resulted in a den ial of due process.-12-

Mr. Smith contends his claim that prosecutors impro perly revealed his invocation of the right to counsel demands more exa cting review than what is envisioned by Donnelly . In Donnelly , the Supreme Court excepted from its fundamental-fairness analysis “prosecutor’s remarks [which] so prejudiced a specific right . . . as to amount to a denial of th at right.” Donnelly , 416 U.S. at 643. Thus, if prosecutorial misconduct sufficientl y impacts a specific right, we apply the constitutional standard applicable to that right. We found such a denial in Mahorney v. Wallman , 917 F.2d 469 (10th Cir. 1990). The specific righ t at issue there was the presumption of innocence, whichwe ruled the prosecutor effectively denied when he made the following argum ent to the jury: I submit to you, under the law and the evidence, th at we are in a little different position today than we were when we firststarted this trial and it was your duty at that time, under the law of this land, as you were being selected as jurors, to actively in your minds presume that man over there not to be guilty of the offense of r ape in the first degree, but, you know, things have changed since th at time. I submit to you at this time, under the law and under the ev idence, that that presumption has been removed, that that presumptionno longer exists, that that presumption has been removed by e vidence and that he is standing before you now guilty. That presump tion is not here any more. Id. at 471. In Mahorney , defense counsel “vigorously objected” to this pat ently erroneous statement about the constitutionally prot ected presumption of innocence. Id. at 473. The trial court failed to minimize the ef fect of the statement through admonishment or special instructi ons to the jury. Id.-13-

The facts surrounding revelation of Mr. Smith’s inv ocation of the right to counsel are substantially less invasive of that rig ht than was the case in Mahorney . At Mr. Smith’s trial, the State introduced a vid eotape of Mr. Smith’s interaction with police officers shortly after he w as placed in custody. At the end of the tape, Mr. Smith displayed his attorney’s bus iness card and said, “There’s a guy who came to see me yesterday.” St. Ex. 124. W hen the officers confirmed that Kenneth Watson, the attorney, did indeed repre sent Mr. Smith, they ended the interview. Id. After the jury viewed this portion of the video, Mr. Watson moved for a mistrial. The court denied the motion, but a dmonished the jury to disregard anything it had viewed past the point where Mr. Smi th removed Mr. Watson’s card because what appeared on the screen after thatpoint did “not tend to prove or disprove any issue that we’re here for you to de termine.” Tr., vol. V, at 77-78, 80. This scenario did not so prejudice Mr. Smith’s right to counsel as to amount to a violation of that right. It is thus subject t o fundamental-fairness analysis. Applying that analysis, we hold that Mr. Smith’s tr ial was not “so infected . . . with unfairness as to make the resulting convictiona denial of due process,” Donnelly , 416 U.S. at 643, and he is therefore not entitled to relief on this claim. Mr. Smith also contends his trial counsel, Mr. Wats on, was constitutionally ineffective at the guilt phase of his trial. Speci fically, he points to the following deficiencies on Mr. Watson’s part: (1) failure to investigate, develop, and present-14-

evidence establishing Mr. Smith’s incompetence to s tand trial; (2) failure to challenge Mr. Smith’s confessions with available le gal arguments and to present evidence showing Mr. Smith’s waiver of rights was n ot knowing and intelligent and his confession was not voluntary; (3) failure t o investigate, develop, and present available evidence refuting the State’s the ory of motive; (4) failure to understand the mental health evidence at issue in M r. Smith’s trial and the incoherent and haphazard manner in which it was pre sented; and finally, (5) failure to investigate, develop, and present an ins anity defense. The State argues Mr. Watson’s performance was constitutionally suffi cient, and even if it was not, Mr. Smith cannot show he was prejudiced by Mr. Wats on’s ineffectiveness. The general principles governing an ineffective ass istance of counsel claim are set forth in Strickland v. Washington , 466 U.S. 668 (1984). Because the OCCA never reached the merits of Mr. Smith’s ineffe ctive assistance of counsel claim, we review de novo the district court’s legal determinations regardin g this issue and its factual determinations for clear erro r. Romano , 278 F.3d at 1150;
LaFevers , 182 F.3d at 711. The district court concluded th at Mr. Watson’s guilt phase performance did not fall below constitutional requirements. Smith , No. CIV-98-601-R, at 19. While Mr. Watson’s performanc e at the guilt stage gives us pause, we are not convinced Mr. Smith was prejudice d thereby. The gravity of a claim of ineffective assistance of counsel cannot be-15-

overstated. “Of all the rights that an accused per son has, the ability to be represented by counsel is by far the most pervasive , for it affects his ability to assert any other rights he may have.” Kimmelman v. Morrison , 477 U.S. 365, 377 (1986) (quoting Walter V. Schaefer, Federalism & State Criminal Procedure , 70
H ARV
. L. REV
. 1, 8 (1956)). The Supreme Court’s Strickland decision “established the legal principles that govern claim s of ineffective assistance of counsel.” Wiggins v. Smith , 123 S. Ct. 2527, 2535 (2003). In order to prevai l on this claim, Mr. Smith must demonstrate both that Mr . Watson’s performance was deficient and that Mr. Watson’s deficiencies prejud iced Mr. Smith’s defense. Strickland, 466 U.S. at 687. Our review of counsel’s effecti veness is “highly deferential.” Id. at 689. In assessing Mr. Watson’s performance, we “consider all the circumstances, making every effort to ‘eliminat e the distorting effects of hindsight,’” and view his “‘conduct from [his] pers pective at the time.’” Hooper v. Mullin , 314 F.3d 1162, 1169 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 689). By the same token, we must eschew post hoc rationalizations for Mr. Watson’s deliberations, investigations, and defense strategy, or lack thereof. See Wiggins , 123 S. Ct. at 2538. Mr. Smith calls our attention to various failings i n Mr. Watson’s performance at the first stage of Mr. Smith’s murde r trial. Many of these deficiencies are troubling. Strickland, however, requires a showing of both-16-

deficient performance and prejudice. “If it is eas ier to dispose of an ineffectiveness claim on the ground of lack of suff icient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697. We take that course with regard to counsel’s guilt stage assistance. First, Mr. Smith claims Mr. Watson was ineffective in failing to investigate and assert Mr. Smith’s incompetence after the initi al competency hearing. The mandate barring trial of the incompetent dates to t he days of Blackstone and is “fundamental to an adversary system of justice.” Drope v. Missouri , 420 U.S. 162, 171-72 (1975). The Supreme Court has insistedthat “a person whose mental condition is such that he lacks the capacity to und erstand the nature and object of the proceedings against him, to consult with counse l, and to assist in preparing his defense may not be subjected to trial.” Id . at 171. A claim of incompetency raises “issues of both subs tantive and procedural due process.” Walker , 167 F.3d at 1343. A procedural competency claim arises from “a trial court’s alleged failure to hold a competency hearing, or an adequate competency hearing.” McGregor v. Gibson , 248 F.3d 946, 952 (10th Cir. 2001). “[A] substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent .” Id. Mr. Smith asserts Mr. Watson’s shortcomings led to violation of both his procedural and substantive rights.-17-

A court’s “failure to observe procedures adequate t o protect a defendant’s right not to be tried or convicted while incompeten t to stand trial deprives him of his due process right to a fair trial.” Drope , 420 U.S. at 172. The trial court in Mr. Smith’s case held a competency hearing pre-tria l, but it held Mr. Smith to a clear-and-convincing-evidence standard of proof of his incompetence. See Smith , 932 P.2d at 527. In Cooper v. Oklahoma , 517 U.S. 348 (1996), the Supreme Court declared this standard unconstitutional. On direct appeal, the OCCA acknowledged the Supreme Court’s holding in Cooper , but held Mr. Smith had not proven his incompetence even by the constitutio nal preponderance of the evidence standard. Smith , 932 P.2d at 528. We agree.
In McGregor , we set forth the standard governing procedural co mpetency claims under the circumstances presented in this ca se: [T]o prevail on a procedural competency claim aftera trial in which a petitioner was found competent under an unconstitutional burden of proof, the petitioner must establish that a reasona ble judge should have had a bona fide doubt as to his competence at the time of trial. We view the evidence in the record objectively, fro m the standpoint of a reasonable judge presiding over petitioner’s c ase at the time of trial. A petitioner establishes a bona fide doubt if he shows that a reasonable judge should have doubted whether petiti oner had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and wh ether petitioner had “a rational as well as factual understanding of the proceedings against him.” [Dusky v. United States , 362 U.S. 402, 402 (1960).] We stress that the due process requirement is conti nuing; a defendant must be competent throughout the entire trial. See Drope , 420 U.S. at 171-72.-18-

McGregor , 248 F.3d at 954. We emphasized in McGregorthat a person making a procedural incompetence claim “need not establish facts suffic ient to show he was actually incompetent or to show he was incompetent by a prep onderance of the evidence.” Id. Rather, we look to “evidence of . . . irrational behavior, . . . demeanor at trial, and any prior medical opinion” to determine whetherfurther inquiry on the part of the trial judge was required. Id. (quoting Drope , 420 U.S. at 180). “[E]vidence of mental illness and any representations of defens e counsel about the defendant’s incompetence” would also be significant. Id. (quoting Walker v. Gibson , 228 F.3d 1217, 1227 (10th Cir. 2000)). “We examine the totality of the circumstances . . . . The question is . . . whether the trial co urt ‘fail[ed] to give proper weight to the information suggesting incompetence which came to light during trial.’” Id. at 955 (quoting Drope , 420 U.S. at 179). The evidence of Mr. Smith’s competence encountered by the trial court was mixed. Before trial, Mr. Smith’s attorney moved fo r a determination of competency, stating that Mr. Smith was “unable to c omprehend his attorney or to meaningfully assist in the defense of his case,” an d that his “mental state and communication abilities are such that they seriousl y interfere with the understanding of proceedings against him and with h is capability of aiding his attorney in preparation for this trial.” O.R., vol . I, at 24. In response to this-19-

motion, the trial judge ordered a competency evaluation. Id. at 25. Dr. Edith King, a psychologist, performed the evaluation, int erviewing Mr. Smith three times and speaking with his mother. Id. at 28-31. Although she recommended Mr. Smith receive a neurological examination, she c oncluded he was competent to stand trial. Id. at 31. At a post-examination hearing on competenc y, Mr. Watson submitted only Dr. King’s report and the court foun d Mr. Smith competent to stand trial. The court made clear, however, that h e would entertain further evidence of incompetence at any time. Motion Tr., Sept. 3, 1993, at 5. While Mr. Watson never again formally challenged Mr. Smith’s competency in court, he “t[ook] issue with” Dr. King’s finding of competenc e when he moved for access to the resources of the public defender’s office, O .R., vol. I, at 44-46. He also requested funds for further medical investigation i nto Mr. Smith’s competency, O.R., vol. II, at 218, 329; funds for a SPECT scan, an MRI, and an EEG, O.R., vol. II, at 301; and a continuance so he could seeka more adequate examination of Mr. Smith’s competence, O.R., vol. II, at 320. Mr. Watson testified at the evidentiary hearing that Mr. Smith was withdrawn in their conversations and unhelpful in o btaining information about the murders and any possible defense. E.H., vol. VIII, at 13-14. In Mr. Watson’s assessment, Mr. Smith earnestly believed a fanciful story about a DEA agent’s having killed his family. Id. at 19. Gary Ray, a former employee of the4 Dr. John Smith’s evidentiary hearing protestations that he would have

found Mr. Smith incompetent had Mr. Watson providedhim with more information relating to Mr. Smith’s mental state pr ior to trial drew skepticism from the district court and is less than persuasive in view of the evidence he had available at the time of trial. See Smith v. State , No. CIV-601-R, at 37-38, 58 (W.D. Okla. 2002). -20- Oklahoma County jail, encountered Mr. Smith talking to himself in his cell and described Mr. Smith as “a few french fries short of a Happy Meal.” Id. at 142. Joseph Ward, a mitigation investigator, testified a s to both Mr. Smith’s withdrawn and then his hypervigilant or hyperactive behavior. Id. at 244. Mr. Ward wrote a memo to Mr. Watson’s attention raising the issue of Mr. Smith’s competence to stand trial and his ability to waive constitutional rights during police interrogation. E.H., vol. III, at 30-31. Both of Mr. Smith’s medical experts, Dr. John Smith , a clinical psychiatrist, and Dr. Philip Murphy, a neuropsychol ogist, testified to Mr. Smith’s severe mental impairments, but they also found him competent to stand trial. Tr., vol. VIII, at 46, 91. 4 At the evidentiary hearing, Dr. Alan Hopewell tes tified that Mr. Smith’s mental capacity was similar to that of a twelve-year-old, but he agreed that twelve-year-olds know right from wrong and can understand criminal charges on a basic level. E.H., vol. X, at 417-18, 429. There is no record of Mr. Smith exhibiting bizarre behavior before the trial court. The court’s most extended interaction with Mr. Smith took place when he presented several pro se motions. Taking into account the evidence gathere d in-21-

federal district court, it seems quite clear that M r. Smith did not write these motions; they were composed by “jailhouse lawyer” R onald Veatch. See Rec., vol. III, at docs. 10-12, 32, 35. But Mr. Smith or ally presented the motions. While Mr. Smith’s presentation did not reveal the s kills of a trained legal mind, he put forth a coherent argument and demonstrated c omprehension of both a lawyer’s duties and the concept of a “fair trial.” Tr., vol. II, at 3-6; Tr., vol. IV, at 197-202. Based on the totality of these circums tances, we are not persuaded the trial court should have had a bona fide doubt r egarding Mr. Smith’s competence. Consequently, Mr. Smith cannot show pr ejudice resulting from any deficiencies in Mr. Watson’s performance with respe ct to his procedural incompetency claim. In order to state a valid substantive due process c ompetency claim, Mr. Smith must show “he was, in fact, tried and convict ed while mentally incompetent.” Walker , 228 F.3d at 1229. The burden of proof on a subst antive claim of incompetency is higher than that on a proc edural claim. “To prevail,” Mr. Smith “must demonstrate by clear and convincing evidence a real, substantial, and legitimate doubt regarding his competence to st and trial.” Id . Given that the evidence fails to satisfy the bona fide doubt stand ard, it necessarily “also does not satisfy the more demanding standard for a substanti ve claim.” Walker , 167 F.3d at 1347. Therefore, any deficiencies in Mr. Watson ’s performance were non-5 Mr. Smith raised procedural and substantive compete ncy claims on direct

appeal independent of his subsequent ineffective as sistance claim. The OCCA denied relief on the merits. Smith v. State , 932 P.2d 521, 528 (Okla. Crim. App. 1996). He raises these claims again in this court. Because Mr. Smith received a competency hearing during the state court trial, he was not entitled to a federal evidentiary hearing on this independent claim apartfrom his assertion that his counsel was ineffective in presenting it. But for our consideration of the competency claim as part of Mr. Smith’s ineffective assistance of counsel claim, the OCCA’s determination of the claim would have be en entitled to AEDPA deference. 28 U.S.C. § 2254(d)(1). -22- prejudicial. 5 Next, Mr. Smith challenges Mr. Watson’s performance in failing to prevent introduction of his confession. Twice Mr. Smith gave incriminating statements to police detectives. Mr. Smith claims that the waive r of rights preceding each confession was invalid, and that Mr. Watson should have been more vigilant in keeping the confession out of his state court trial

. In order to be effective, a waiver must be made “vo luntarily, knowingly, and intelligently.” Miranda v. Arizona , 384 U.S. 436, 444 (1966). The Supreme Court has held that a court’s inquiry into a waiver ’s validity “has two distinct dimensions”: First, the relinquishment of the right must have be en voluntary in the sense that it was the product of a free and deliber ate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decisio n to abandon it. Only if the totality of the circumstances surroundi ng the interrogation reveal both an uncoerced choice and the requisite l evel of comprehension may a court properly conclude that th e Miranda rights have been waived.-23-

Moran v. Burbine , 475 U.S. 412, 421 (1986) (citations and quotation s omitted). For a waiver to be knowing and intelligent, it “mus t have been made with a full awareness both of the nature of the right bein g abandoned and the consequences of the decision to abandon it.” United States v. Morris , 287 F.3d 985, 989 (10th Cir. 2002) (quoting Colorado v. Spring , 479 U.S. 564, 573 (1987)). “No doubt a defendant’s mental capacity . . . is relevant to whether or not” he or she is capable of such a waiver. Id. As evidence that he did not knowingly and intellige ntly waive his rights, Mr. Smith cites his mental retardation, mental illn ess, and the police detectives’ “intentional and calculated misrepresentation[s].” Aplt. Br. at 80. Mr. Smith’s cognitive difficulties are apparent. Each doctor w ho examined him placed his intellectual functioning in the range of mild to bo rderline mental retardation. Tr., vol. VIII, at 15; E.H., vol. X, at 448; E.H., vol. XI, at 675, 693; E.H., vol. XII, at 740. Dr. Hopewell, a clinical neuropsychologist, t estified that Mr. Smith’s comprehension is similar to that of a twelve-year-o ld’s. E.H., vol. X, at 403. Mr. Smith suffers from brain damage as a result of a ne ar-drowning as a child, and that injury affects his cognitive abilities. Id. at 374-75. After administering a “Grisso test,” which is designed to test one’s abil ity to waive Mirandarights, Dr.6 In addition, Dr. Smith diagnosed Mr. Smith with dis sociative identity

disorder (DID), more commonly known as “multiple pe rsonality disorder.” E.H., vol. IX, at 328. Dr. Hopewell concurred in this di agnosis, although tentatively. E.H., vol. X, at 425-26. The federal district court, after having heard testimony from Drs. Smith and Hopewell, as well as from the S tate’s experts, doubted this new diagnosis. See Smith , No. CIV-98-601-R, at 37-38. That court was in a much better position to evaluate the relative stren gth of expert testimony, and we defer to its conclusions. See Anderson v. City of Bessemer City , 470 U.S. 564, 575 (1985) (citations omitted); Gonzales v. Thomas , 99 F.3d 978, 985 (10th Cir. 1996). -24- Hopewell concluded Mr. Smith could make no such wai ver. E.H., vol. X, at 399. 6 Mr. Smith alleges police detectives questioned him improperly, exacerbating the problems presented by his mental i mpairments. Prior to each confession, police detectives went over each Mirandaright and Mr. Smith stated he “believed” he understood each right. St. Exs. 9 4, 124. The detectives began their interviews, however, not with discussion of the murders but with questions regarding a car accident Mr. Smith reported and the head injury he may have suffered as a result. Id. Mr. Smith describes this questioning as the sort of “trickery” that “can vitiate the validity of a waiv er.” Aplt. Br. 80. We disagree. The totality of the circumstances sup port the conclusion that Mr. Smith did in fact make a knowing and intelligen t waiver of his Miranda rights. First, while Mr. Smith’s intellectual func tioning was limited, Dr. Hopewell testified he would understand the role of police officers and the concept of a criminal charge. E.H., vol. X, at 430-31. Se cond, the “Grisso test” Dr. Hopewell administered took place years after Mr. Sm ith’s interrogation and the-25-

deterioration of his condition in jail could have a ffected the results. Additionally, while Mr. Smith’s cognitive abilities may have mirr ored those of a twelve-yearold, id. at 403, this fact alone does not render his waiverineffective. See Fare v. Michael C. , 442 U.S. 707, 725 (1979) (totality-of-the-circums tances approach determines validity of even a juvenile’s waiver). The videotapes of Mr. Smith’s confessions reveal that, while his memory was not w holly intact and his responses to answers came slowly, he stated his understanding of the Miranda rights, he comprehended the questions the officers presented, and he provided an accurate description of the crimes and crime scene. St. Exs . 94, 124. Significantly, Mr. Smith had prior experience with the criminal justic e system. In 1986, he retained counsel to defend him on an assault charge, eventua lly pled guilty, and served time in prison. The concepts encompassed by Mirandawere not foreign to him. The detectives’ queries about Mr. Smith’s car accid ent and head injury do not change the calculus. Contrary to Mr. Smith’s c haracterization, these questions did not represent an “affirmative misrepr esentation.” The officers were interested in Mr. Smith’s whereabouts and activitie s in the days immediately preceding the interview. They were also curious as to whether the accident occurred before or after Mr. Smith committed the cr imes. “The Constitution does not require that a criminal suspect know and unders tand every possible consequence of a waiver of the Fifth Amendment priv ilege.” Spring , 479 U.S. at-26-

574. Nor does it require that police interrogation s commence immediately with the subject matter of the crime. The relevant inqu iry is whether the suspect understands the rights at stake and the consequence s of waiving them. Id. at 574- 75. Regardless of the level of preparedness and vi gilance Mr. Watson demonstrated concerning Mr. Smith’s “knowing and intelligent” confession, Mr. Smith cannot show he was prejudiced by his attorney ’s performance. Mr. Smith marshals the same evidence as proof that his waiver and subsequent confession were involuntary and therefor e Mr. Watson should have sought more actively to have the court suppress the m. The constitutional question posed by such a claim is “whether a defendant’s wil l was overborne by the circumstances surrounding the giving of a confessio n.” Dickerson v. United
States , 530 U.S. 428, 434 (2000) (quotation omitted). Th e Supreme Court has held “coercive police activity” to be “a necessary predicate to the finding that a confession is not ‘voluntary.’” Colorado v. Connelly , 479 U.S. 157, 167 (1986). We assess voluntariness of a suspect’s waiver of hi s Mirandarights by examining the totality of the circumstances. See United States v. Nguyen , 155 F.3d 1219, 1222 (10th Cir. 1998). Factors relevant to determining voluntariness of a suspect’s waiver include his “age, intelligence, and education, and the deta ils of the interrogation, such as whether the suspect was informed of his rights, the length of the detention and the-27-

interrogation, and the use or threat of physical fo rce.” Id. Although Mr. Smith was an adult at the time of interrogation, his cogn itive abilities were similar to those of a twelve-year-old, E.H., vol. X, at 403, h is intellectual functioning was quite low, Tr., vol. VIII, at 15; E.H., vol. X, at 448; E.H., vol. XI, at 675, 693-94; E.H., vol. XII, at 740, and his education was minim al, E.H., vol. XI, at 572. But in response to Mr. Smith’s hesitant responses to qu estioning, the detectives in both interrogations went over each of the Mirandarights slowly and repeatedly, and Mr. Smith eventually reported he understood the m. St. Exs. 94, 124. The police questioning was fairly gentle, and the interviews were relatively brief. Id. And despite Mr. Smith’s contentions, the questionin g did not include “affirmative misrepresentation.” Mr. Smith’s mental impairments are nonetheless rele vant to our scrutiny of his interrogation because they enhance his “suscept ibility to police coercion.” Connelly , 479 U.S. at 165. Police may not “exploit[] this weakness with coercive tactics.” Id. Our examination of the record reveals that the tac tics used by police in this case did not overbear Mr. Smith’s will. Ta king into account the care with which officers must question a person of Mr. Smith’ s abilities, we see no overreaching. Any lack of effort at suppression onMr. Watson’s part is irrelevant; the confessions were constitutionally a dmissible. Because Mr. Smith has not established a constitutional violation, he cannot show he was prejudiced7As with his incompetency claim, Mr. Smith challenge s his confession

independently of his ineffective assistance claim. The state trial court held a hearing pursuant to Jackson v. Denno , 378 U.S. 368, 378 (1964), see Tr., vol. III, at 181-215, and the OCCA rejected this claim on the merits. See Smith , 932 P.2d at 530. But for the ineffective assistance of coun sel claim, our review of the independent claim would have been narrowed by AEDPA , 28 U.S.C. § 2254(d)(1), and limited to the facts available to t he state courts. -28- by Mr. Watson’s performance in this regard. 7 Finally, Mr. Smith assails Mr. Watson’s performance in challenging the state’s theory of motive, presenting mental health evidence, and failing to raise an insanity defense. Having carefully reviewed the re cord, we see no prejudice. At the evidentiary hearing in federal district court, counsel for Mr. Smith described the evidence of Mr. Smith’s guilt as “overwhelming. ” E.H., vol. X, at 477. The state’s theory of motive—that Mr. Smith may have mu rdered his wife and stepchildren to collect on their life insurance—was but a small part of this “overwhelming” evidence, and we are convinced a suc cessful challenge thereto would have had no effect on the jury’s finding of g uilt. The quantity and quality of the evidence of Mr. Smith’s mental illness and r etardation, as well as counsel’s skill in presentation of this evidence, differed si gnificantly at trial and at the evidentiary hearing in federal district court. Nev ertheless, the district court was unconvinced by Dr. Smith’s new diagnosis of DID, see Smith , No. CIV-98-601-R, at 34, and we must defer to this credibility determ ination. See Anderson v. City of Bessemer City , 470 U.S. 564, 575 (1985) (citations omitted); Gonzales v. Thomas ,8 Mr. Smith posits the cumulative effect of errors in this case justify relief

from his conviction. “[C]umulative-error analysis aggregates only actual errors to determine their cumulative effect.” United States v. Rivera , 900 F.2d 1462, 1470 (10th Cir. 1990). Because we have found no error w ith respect to Mr. Smith’s conviction, there is “no error to cumulate, and no occasion to apply a cumulativeerror analysis.” Id. at 1472. -29- 99 F.3d 978, 985 (10th Cir. 1996). Oklahoma follow s the demanding rule of M’Naghten’s Case , 8 Eng. Rep. 718 (1843), determining insanity by p utting to the jury the ultimate question of whether a defendant w as capable of knowing right from wrong at the time of the offense. Jacobson v. State , 684 P.2d 556, 561 (Okla. Crim. App. 1984). Even on the evidence avai lable to Mr. Watson, should he have obtained and presented it, an acquittal was highly unlikely. Mr. Smith has not shown “there is a reasonable prob ability that, but for counsel’s unprofessional errors,” the jury would have acquitted Mr. Smith of the crimes for which he stood accused. Strickland, 466 U.S. at 694. Consequently, he was not prejudiced by any deficiencies in his co unsel’s performance during the guilt phase of his trial. 8
IV.
SENTENCING As errors in the sentencing stage of his trial, Mr. Smith cites (1) faulty jury instructions on mitigation and life without parole and (2) ineffective assistance of counsel. His claims as to the court’s instructions have no merit, but Mr. Smith is entitled to relief on his ineffective assistance cl aim.-30-

The court gave two mitigation instructions to the j ury at the sentencing phase of the trial. Mr. Smith contends there is a reasonable likelihood the jury applied these instructions in such a way as to prec lude consideration of his mental impairments, in violation of the Eighth and Fourtee nth Amendments. The OCCA disagreed, Smith , 932 P.2d at 534, so we cannot grant relief unless that court’s conclusion is contrary to or an unreasonable applic ation of federal law. 28 U.S.C. § 2254(d)(1). The instructions about which Mr. Smith complains r ead as follows: Instruction Number 9, Determination of Mitigating Circumstances: Mitigating circumstances are those which, in fairne ss and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what ar e mitigating circumstances is for you as jurors to resolve underthe facts and circumstances of this case. Instruction Number 10, Circumstances Which May Be Mitigating: Evidence has been offered as to the following mitig ating circumstances: 1. Defendant surrendered himself to the Oklahoma Ci ty Police Department; 2. Defendant informed the Police Detectives of the killings and their details; 3. Defendant exhibited remorse; 4. Neither of the female children suffered stab wou nds; 5. The Defendant did not attempt to flee the jurisd iction of the State. 6. The life of Roderick Smith has value to his frie nds and family. Whether these circumstances existed, and whether th ese circumstances are mitigating, must be decided by yo u. O.R., vol. III, at 478-79.-31-

Mr. Smith likens these instructions to those held u nconstitutional by the Supreme Court in Penry v. Johnson , 532 U.S. 782 (2001) (Penry II ). There, the court instructed the jury it was to arrive at a sen tence by answering three “special issues”: “whether Penry acted deliberately when he killed Pamela Carpenter, whether there was a probability that Penry would be dangerous in the future, and whether Penry acted unreasonably in response to pro vocation.” Id. at 788-89. The court then gave a supplemental instruction, dir ecting the jury: “If you determine, when giving effect to the mitigating evi dence, . . . that a life sentence . . . is an appropriate response to the personal culp ability of the defendant, a negative finding should be given to one of the spec ial issues.” Id. at 790. The Supreme Court held these instructions unconstitutio nal because there was “at the very least, a reasonable likelihood that the jury . . . applied [them so as to] prevent consideration of Penry’s mental retardationand childhood abuse.” Id. at 800 (citations, quotations, and alterations omitted ). The problem with the quoted instructions, the Court held, was that “it would have been both logically and ethically impossible for a juror to follow both set s of instructions.” Id. at 799. Because neither mental retardation nor childhood ab use “fit within the scope of the special issues, answering those issues in the m anner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction.” Id.9 We discuss trial counsel’s performance with respectto sentencing at length

below.

10 It is true that the wording of the more specific in struction in Cooks was slightly different than that given by the trial cou rt in Mr. Smith’s case. The Cooks instruction read “Minimum Mitigating Circumstances ,” while the instruction in Mr. Smith’s case read merely “Mitigating Circumstances.” The general instructions in both cases, however, were i dentically expansive. We do not believe the omission of the word “minimum” in M r. Smith’s case precluded (continued...) -32- The trial court presented no such logical conundrumto the jury in Mr. Smith’s case. Instruction Nine broadly defined mit igation, and Mr. Smith’s mental impairments easily fit within it. The issue raised here is almost indistinguishable from that in Cooks v. Ward, 165 F.3d 1283 (10th Cir. 1998), a case in which we denied relief. The trial court in Cooks gave a general mitigation instruction identical to Instruction Nine, then an additional instruction listing particular mitigating factors presented by counsel. Id. at 1291-92. We “fail[ed] to see how the specificity [of the second instructi on] in any way undermined the general directives of [the first instruction].” Id. at 1292. We went on to note that “Mr. Cooks’ concerns with [the court’s instructions ] appear to stem not so much from the instructions themselves . . . , but from h is own attorney’s failure to present mitigating evidence on his behalf, or to of fer any alternative or supplemental instructions.” Id. Likewise, blame for the lack of mitigation evidence before the jury in Mr. Smith’s case lies w ith counsel, not the trial court. 9 These instructions, materially similar to those in Cooks , 10 did not preclude10 (...continued)

the jury’s consideration of his mental impairments. The jury’s failure to consider that evidence arose from trial counsel’s failure to present it. -33- consideration of mitigation evidence. Thus we cann ot conclude the OCCA’s determination of this claim constituted a decision contrary to federal law or an unreasonable application thereof. Mr. Smith also challenges the lack of jury instruct ions regarding the possibility of a sentence of life without parole. In the penalty phase of his trial, the first instruction the jury received stated purs uant to Oklahoma law that each person convicted of first-degree murder “shall be p unished by either life imprisonment, life imprisonment without the possibi lity of parole, or death.” O.R., vol. III, at 470. The court did not further define “life imprisonment” or “life imprisonment without the possibility of parol e.” Mr. Smith alleges this lack of instruction was unconstitutional under the Supre me Court’s decisions in Simmons v. South Carolina , 512 U.S. 154 (1994), and Shafer v. South Carolina , 532 U.S. 36 (2001). Raising this claim for the first time in state post -conviction proceedings, Mr. Smith sought to defeat the State’s asserted pro cedural bar with a claim of ineffective assistance of counsel at trial and on d irect appeal. Smith , 955 P.2d at 739. The OCCA held the claim procedurally barred a nd refused to consider its merits. Id. Mr. Smith reasserts ineffective assistance of cou nsel as a means-34-

around the state procedural bar, but we need not co nsider counsel’s ineffectiveness concerning the instruction because we may more easily dispose of the claim on the merits. See Miller , 354 F.3d at 1297.
In Simmons , the Supreme Court held that: where a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to t he jury is life imprisonment without the possibility or parole, due process entitles the defendant “to inform the jury of [his] parole i neligibility, either by jury instruction or in arguments by counsel.” Shafer , 532 U.S. at 39 (quoting Ramdass v. Angelone , 530 U.S. 156, 165 (2000) (describing Simmons ’ premise and plurality opinion)). We previously a ddressed an argument identical to Mr. Smith’s in Mayes v. Gibson , 210 F.3d 1284 (10th Cir. 2000), where we held Simmons to be inapposite. Id. at 1294. In Simmons , the jury “was given a choice between life in prison and death, which, because the jury might have thought the defendant could be rele ased on parole, ‘creat[ed] a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.’” Id. The court in Mr. Mayes’ case, like the court in Mr. Smith’s, instructed the jury to choose between life imprisonment, life imprisonment without the possibility of parole, anddeath. Id. We concluded the “three-way choice fulfills the Simmons requirement that a jury be notified if the defendant is parole ineligible,” and denied relief. Id. Mr. Smith believes the Supreme Court’s subsequent o pinion in Shafer-35-

undermines our holding in Mayes. Shafer concerned a post- Simmons South Carolina statute under which, if the jury found a s ingle statutory aggravator, only two sentencing options remained: death or life impr isonment without the possibility of parole. Shafer , 532 U.S. at 41. Mr. Shafer’s counsel sought eith er an instruction on parole ineligibility or permissio n to inform the jury of that ineligibility in closing argument, but the court de nied those requests. Id. at 42. Several hours into its deliberations, the jury sentthe judge a note asking if there were “any remote chance for someone convicted of mu rder to become elig[i]ble for parole” and “under what conditions would someon e convicted for murder be elig[i]ble.” Id. at 44. The judge merely instructed the jury that its “consideration [was] restricted to what sentence to recommend,” “l ife imprisonment means until the death of the offender,” and “[p]arole eligibili ty is not for your consideration.” Id. at 45. The Supreme Court held these circumstances contravened its holding in
Simmons

. Id. at 51. In so holding, however, the Court repeated ly emphasized the lack of a third choice in South Carolina’s sentenci ng scheme. Id. at 41, 50, 51. Given the two-way choice in Shafer , and the clear evidence of jury confusion, that case is distinguishable from our decision in Mayes . Because Mr. Smith’s case is identical to Mayes and suffers none of Shafer ’s identified short-comings, Mr. Smith is not entitled to relief from his sentence o n these grounds.-36-

Finally, and most significantly, Mr. Smith challeng es Mr. Watson’s assistance to him at sentencing. While the same co nstitutional principles that guided our examination of Mr. Watson’s guilt stage performance apply to his performance at sentencing, we are particularly vigi lant in guarding this right when the defendant faces a sentence of death. See Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997) (“In assessing counsel’s cond uct, we are mindful of the Supreme Court’s observation that ‘[o]ur duty to search for constitutional error with painstaking care is never more exacting than i t is in a capital case.’”) (quoting Burger v. Kemp , 483 U.S. 776, 785 (1987)). Our heightened attent ion parallels the heightened demands on counsel in a capital case. See ABA Standards for Criminal Justice 4-1.2(c) (3d ed. 199 3) (“Since the death penalty differs from other criminal penalties in its finali ty, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused.”). “The sentencing stage is the most critical phase of a death penalty case. Any competent counsel knows the importance of thoro ughly investigating and presenting mitigating evidence.” Romano , 239 F.3d at 1180. Mr. Smith contends Mr. Watson proved woefully incompetent in this regard. According to Mr. Smith, Mr. Watson failed to understand that Mr. Smith’s “b orderline mental retardation, mental illness, and organic brain impairment” const ituted mitigating evidence to-37-

be presented at the penalty stage of Mr. Smith’s capital trial. We are cognizant of “the overwhelming importance of the role mitigation evidence plays in the just imposition of the death penalty.” Mayes , 210 F.3d at 1288. The district court concluded Mr. Watson’s meager presentation of mitig ating evidence fell below the constitutional minimum, Smith , No. CIV-98-601-R, at 20, and we agree. While Mr. Watson was an experienced criminal lawyer , he had never represented a client facing the death penalty priorto his defense of Mr. Smith, had never been involved in death penalty litigation , had never attended any seminars or continuing legal education courses dedi cated to capital defense, and had never even handled a case in which psychiatric issues were presented. E.H., vol. VIII, at 10. While Mr. Watson brought in co-c ounsel “in the days just prior to trial,” this case was co-counsel’s first capital case as well. Id. at 93. Mr. Watson also enlisted the assistance of the state pu blic defender’s office. Id. at 119. The trial judge approved use of these service s after Mr. Watson confessed he “didn’t feel competent,” that “there was no mone y” and that the case “deserve[d] more than [he] could give it with [his] limited resources.” Id. He suggested to the court: “either take me off this ca se and give it to the public defender’s office or give me some other ideas.” Id. The reason for this suggestion is clear. At the evidentiary hearing in federal district court, Mr. Watson testified: “I mean, I had a caseload that I had to work with. I wasn’t-38-

getting any money . . . out of this case. . . . I was over my head at that point. . . . [It was] something that I had never dealt with befo re.” Id. at 41. After more than a year on the case—one which generated ten volumes of trial testimony alone—Mr. Smith’s mother had paid Mr. Watson “somew here in the neighborhood of $1,500 to $2,000.” Id. at 12. This lack of resources and expertise plus the press of Mr. Watson’s other caseload worked to Mr. Smith’s detriment. Astoundi ngly, Mr. Watson admitted at the evidentiary hearing that he was unaware Mr. Smi th’s “mental state or mental illness could be introduced as mitigation in the se cond stage” of trial. Id. at 48. The record of the sentencing proceeding fully suppo rts this assertion. At sentencing, Mr. Watson called Mr. Smith’s family an d friends to testify that they loved Mr. Smith and that he was a kind and consider ate person. See Tr., vol. X, at 33-64. But this testimony encompasses a mere th irty pages out of hundreds in the trial transcript. Mr. Watson made no attempt t o explain how this kind and considerate person could commit such a horrendous c rime, although mental health evidence providing such an explanation was at his f ingertips. In mitigation, Mr. Watson offered six consideration s: (1) “Defendant surrendered himself to the Oklahoma City Police Dep artment,” (2) “Defendant informed the Police Detectives of the killings and their details,” (3) “Defendant exhibited remorse,” (4) “Neither of the female chil dren suffered stab wounds,” (5)-39-

“The Defendant did not attempt to flee the jurisdic tion of the State,” and (6) “The life of Roderick Smith has value to his friends and family.” O.R., vol. III, at 479. But he then minimized the value of these circumstan ces:

We set out these six mitigating circumstances for y our consideration. We drew on what little we had to draw on , what little has come, what favorable items have come out of thi s case that favor Roderick. And we picked six. We picked his familyand his friends who can come to you and say, spare his life . . . . Do for him as he would not do for Jennifer . . . . That’s all we’re asking. And it seems awful small to ask when you’ve got five victims , but that’s the only thing we’ve got left. . . . What we’re saying is that you have to look at these mitigating factors, however slight they may be

. . . . Most of you said that the death penalty was not apr opos across the board, there are certain cases. And this is pr obably one of those cases. Tr., vol. X, at 92-93 (emphasis added). The State makes much of the fact that the court inc orporated all guilt stage evidence into the penalty phase of Mr. Smith’s tria l and that Mr. Watson referenced Mr. Smith’s mental illness in the secondstage. The State’s own characterization of the first stage mental health e vidence calls into question its worth in the second stage of trial. At the evident iary hearing, the State asked Mr.
Watson: And you didn’t understand, necessarily, all the thi ngs [the doctors] said. I read them and I’m not sure I understand th em. But they seemed to be saying there’s mental issues here, mental problems, and throw a lot of words to the jury? . . . And so the y accomplished the purpose. They looked and smelled and tasted like t hey were experts because they had all the words, and if you asked th em a question,-40-

they could give you a long answer with lots of long words and the bottom line was they say he’s not competent? E.H., vol. VIII, at 107-08. Mr. Watson agreed with this assertion. Mr. Watson’s penalty phase references to mental hea lth evidence were at best belittling of the evidence and at worst damnin g of Mr. Smith. “I tried to point out with the testimony of the psychiatrist an d the psychologist a real defense to this case,” Mr. Watson told the jury. “Well, yo u took that credibility away.” Tr., vol. X., at 93. At times, counsel’s reference s to Mr. Smith’s mental condition read like an argument for the State:

I submit to you, whether you believe Dr. Murphy, Dr . King who didn’t testify or whoever, there is no questionthat this man has acted bad in the past and there’s no doubt in my mi nd if he’s out in society he’s going to continue to act bad. But if he’s confined behind the bars for the rest of his life they mighthave doctors there, and I don’t know whether they do or don’t, but ther e’s a chance, who will be able to get him to come out. . . . I’ll also submit to you that, be it right or be it wrong, this person has some type of an abnormality. It’s not n ormal for human beings, male human beings, to go out and want to st ab on female human beings. That’s not normal behavior. I also submit to you it’s not normal behavior to stab people, kill five peopl e and then wanting to go to sleep. That’s not normal behavior. . . . [N]o logical person, no person acting in their right mind . . . would commit this type of act without some driving force. Tr., vol. X, at 85-86, 88, 91. What that “driving force” might have been, however, Mr. Smith’s counsel never sought to define . It was left to the prosecution to fill in the blank: Mr. Smith was a “ cold-blooded, vicious killer[].” See, e.g. , id. at 96, 97, 101, 103, 105, 106, 107.-41-

The mitigation evidence available for presentation was significant. Mr. Smith is completely illiterate. E.H., vol. X, at 3 88. Even the State’s experts and prison doctors determined Mr. Smith’s IQ to be in the mentally retarded or borderline mentally retarded range. E.H., vol. XI, at 675, 694; E.H., vol. XII, at 740. “His understanding and his emotional developm ent and his ability to relate all seem to be fairly similar to what we would perc eive to be a 12-year-old child.” E.H., vol. X, at 403. When he was quite young, Mr. Smith nearly drowned and the resulting lack of oxygen caused brain damage, o r hypoxia. E.H., vol. XI, at 565-66; E.H., vol. X, at 374. At the evidentiary h earing, Dr. Hopewell explained the consequences of this injury:

Brain damage generally affects three different comp onents. One is the component we call intellectual thinking or cognitive. Another component of our development is our motor b ehavior, motor control. . . . And the third area is . . . emotion al control and emotional regulation. The other two areas also aff ect that. The brain injury, in general, will cause damage to the centers of the brain and an injury like an hypoxic injury i s known to cause damage to the particular and specific centers of th e brain that are involved in emotional regulation. These are genera lly called the limbic areas of the brain and that’s what helps to regulate and modulate our emotions. Injury of those areas can cause all sorts of proble ms. Primarily, . . . when a person is stressed or put i n a stressful situation, their control over their emotions may br eak down even further. In addition to that would be intellectual and cogni tive problems of brain injury. . . . For example, intel lectually they don’t understand what’s going on because of the intellectual component of the brain injury, then their emotional regulation i s also disrupted, and so their behavior becomes erratic or out of control or aggressive, and-42-

any number of emotional problems can result that ar e usually not consistent with whatever is going on in the environ ment around them, and that represents the direct cause of the b rain injury, as well as an inability to cope or interact with stress or what’s going on in the environment in a way that most of us would see to be reasonable or prudent or understandable. E.H., vol. X, at 375-76. Eva Cates, Mr. Smith’s mother, corroborated Dr. Hop ewell’s conclusion that the near-drowning incident caused Mr. Smith’s mental impairments. She testified at the evidentiary hearing that when he r eturned from the hospital, he was “slower, . . . he didn’t act like he understood whatever I said to him.” E.H., vol. XI, at 566. These changes led to taunting fro m other children, the taunting grew into tormenting, and eventually Mrs. Cates dis covered her son was being beaten by his classmates. Id. at 571. As a result, Mrs. Cates kept Mr. Smith ou t of school for an entire year. Id. He eventually finished high school in a special education program. Id. at 572. He never received a driver’s license, Tr. , vol. V, at 99, and he lived with his mother until he moved in with his wife and her four children, E.H., vol. XI, at 572. Mrs. Cates unders tood that Mr. Smith had mental impairments, but was unable to afford any treatment

. Id. at 567. In addition to testimony about Mr. Smith’s mental condition, Mrs. Cates’ evidentiary hearing testimony, unlike that at the penalty phase of his trial, described the unstable home in which Mr. Smith was raised and abuse at the hands of an aunt charged with his care. Id. at 559-65.-43-

Clearly, evidence of Mr. Smith’s mental retardation , brain damage, and troubled background constituted mitigating evidence . The Supreme Court has, time and again, cited “the standards for capital de fense work articulated by the American Bar Association (ABA) . . . as ‘guides to determining what is reasonable’” performance. Wiggins , 123 S. Ct. at 2536-37 (quoting Strickland, 466 U.S. at 688; Williams v. Taylor , 529 U.S. 362, 396 (2000)). Those standards repeatedly reference mental health evidence, descri bing it as “of vital importance to the jury’s decision at the punishment phase.” See ABA Guidelines for the Appointment and Performance of Defense Counsel in D eath Penalty Cases 1.1, 4.1, 10.4, 10.7, 10.11. It was patently unreasonab le for Mr. Watson to omit this evidence from his case for mitigation. Mr. Smith h as thus cleared Strickland ’s first hurdle. The district court concluded Mr. Smith failed to de monstrate prejudice from Mr. Watson’s ineffective assistance at the penalty stage. We disagree. In considering Strickland ’s prejudice prong, “we evaluate the totality of th e evidence—both that adduced at trial, and the eviden ce adduced in habeas proceedings.” Wiggins , 123 S.Ct. at 2543 (italics, quotations, and citat ions omitted). In order to grant relief, we must discer n a reasonable probability that the jury would have concluded the “balance of aggravating and mitigating circumstances did not warrant death.” Mayes , 210 F.3d at 1290. A “reasonable-44-

probability” is less than a preponderance of the ev idence, but “sufficient to undermine confidence in the outcome.” Fisher , 282 F.3d at 1307 (quoting Strickland, 466 U.S. at 694). We first note that the mitigating evidence omitted in Mr. Smith’s trial is exactly the sort of evidence that garners the most sympathy from jurors. Death penalty litigation expert Dr. Craig Haney testified at the evidentiary hearing that “[j]uries respond to and find mitigating [this type of evidence,] and [they] are more likely to vote for life rather than death sent ences in cases where there is . . . clear and clearly presented evidence that the defen dant has suffered from some form of mental illness . . . .” E.H., vol. X, at 4 79-80. The available empirical evidence as to juror attitudes supports Dr. Haney’s conclusions. See Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What D o Jurors Think? , 98
C OLUM
. L. REV . 1538, 1559 (1998) (finding evidence of mental ret ardation and mental illness to be the most persuasive mitigationevidence and to have practically no aggravating effect); Samuel P. Gross , Update: American Public Opinion on the Death Penalty—It’s Getting Personal , 83 C ORNELL L. REV . 1448, 1468-69 (1998) (finding mental retardation to be “m uch more” mitigating than other potential factors). See also Glenn v. Tate , 71 F.3d 1204, 1211 (6th Cir. 1996) (citing empirical evidence of juror sympathy to claims of “organic brain problems”); Brewer v. Aiken , 935 F.2d 850, 862 (7th Cir. 1991) (Easterbrook, J .,11 In each case the district court cited in support ofthis alleged “doubleedged” nature of mental health evidence Mr. Smith s ought to present, any aggravating “edge” to such evidence had not previou sly been placed before the jury. See Davis v. Executive Dir. of Dep’t of Corr. , 100 F.3d 750, 760, 761 (10th Cir. 1996) (defense attorney failed to present any evidence of defendant’s alcoholism, but such evidence would have revealed t o an otherwise unaware jury defendant’s increased violence towards women when d rinking); Smith v. Massey , 235 F.3d 1259, 1282 (10th Cir. 2000) (evidence of d efendant’s mental impairments, which were exacerbated by drugs and al cohol, was not before the jury and would have included otherwise unadmitted e vidence of their causing violent outbursts); McCracken v. Gibson , 268 F.3d 970, 979-80 (10th Cir. 2001) (evidence of defendant’s family history of schizoph renia and his own psychological problems had not been presented to th e jury; such evidence could have undermined “residual doubt” defense and also i ntroduced otherwise unadmitted negative testimony about defendant’s beh avior when consuming alcohol); Cannon v. Gibson , 259 F.3d 1253, 1277-78 (10th Cir. 2001) (no evidence of defendant’s mental illness was before t he jury and petitioner’s proffered evidence would have shown jury his instab ility and impulsiveness). Here, whatever aggravating “edge” there was to Mr. Smith’s mental impairments (continued...) -45- concurring) (same). The district court dismissed much of the mitigationevidence Mr. Smith presented because it “tends to portray [Mr. Smith] as an unstable individual with very little control over either his impulses or his ‘alter’ personalities” and would have “negated much of the mitigation evidence actua lly presented to the jury of [Mr. Smith’s] good work history and friend’s and re latives perception of [Mr. Smith] as a kind hearted person.” See Smith , No. CIV-98-601-R, at 23-24. These statements reveal a fundamental misunderstanding of the purpose for which such mitigation evidence would have been presented. The jury already had evidence of Mr. Smith’s impulsiveness and lack of emotional control. 11 What the jury wholly11 (...continued)

was squarely before the jury in the guilt phase of the trial. It is the mitigating “edge” Mr. Watson failed to present. The district court also cited Humphreys v. Gibson , 261 F.3d 1016 (10th Cir. 2001), but that case is wholly inapposite as in that case extensive mitigating evidence reached the sentencer and further evidence the petitioner cited to the habeas court w as merely cumulative. Id. at 1020-21. -46- lacked was an explanation of how Mr. Smith’s organic brain damage caused the se outbursts of violence and caused this “kind hearted ” person to commit such a shocking crime. We have previously emphasized that mitigation evide nce “affords an opportunity to humanize and explain .” Romano , 239 F.3d at 1180 (quoting Mayes , 210 F.3d at 1288) (emphasis added). In granting relief from a death sentence under circumstances quite similar to those before us, the Supreme Court noted that evidence of borderline mental retardatio n and childhood privation and abuse is “consistent with the view that [the petiti oner’s] behavior was a compulsive reaction rather than the product of cold -blooded premeditation.” Williams , 529 U.S. at 398; see also Simmons v. Luebbers , 299 F.3d 929, 936 (8th Cir. 2002) (granting relief from a death sentence a nd noting: “The jury was already aware of Simmons’s anger towards women. [A psychiatrist’s] report would have introduced the possibility that Simmons’ s inability to control his violent behavior was caused by childhood trauma andabuse. This information could have been used in his favor at the penalty st age. Instead, the jury was-47-

allowed to conclude that Simmons’s violent behaviorwas simply the result of his wicked and aggressive nature.”) The jury in Mr. Smith’s case never received an expl anation for his behavior. As described by the State, at the guilt phase Mr. Watson threw medical testimony at the jury and hoped something would sti ck. E.H., vol. VIII, at 107- 08. In the penalty phase, he negated whatever valu e this mental health evidence had, essentially telling the jury not to consider i t. He then presented the sort of “halfhearted mitigation case” derided by the Suprem e Court in Wiggins

. See Wiggins , 123 S. Ct. at 2538. The State’s case in favor of the death penalty was strong. The jury found four aggravating circumstances as to Mrs. Smith’s d eath and five as to the deaths of each child. O.R., vol. III, at 542-51. But the aggravating evidence in Williams , where the Supreme Court reversed a death sentence for ineffective assistance of counsel, was also strong. As Justice Rehnquist pointed out in dissent over the Court’s finding of prejudice:

The murder of Mr. Stone was just one act in a crime spree that lasted most of Williams’s life. Indeed, the jury h eard evidence that, in the months following the murder of Mr. Stone, Wi lliams savagely beat an elderly woman, stole two cars, set fire to a home, stabbed a man during a robbery, set fire to a city jail, and confessed to having strong urges to choke other inmates and to break a fellow prisoner’s jaw. Williams , 529 U.S. at 418 (quotations omitted). As we note d above, the12 The state made quick work of Mr. Watson’s plea thatthe jury find

mitigation in a lack of stab wounds on Shemeka and Kanesha Carter: He wants you to give him credit because he squeezedthem to death instead of stabbed them. Does the fact that he squ eezed the life out of them, . . . that he took them and squeezed theirlittle bodies until they no longer could breathe, and we don’t know howlong that took and how they suffered while he was doing that, does that reduce the degree of moral culpability or blame? Tr., vol. X, at 73.

13 The jurors at Mr. Smith’s trial had to reach a unan imous recommendation of death. O KLA
. S TAT
. tit. 21, § 701.11. -48- mitigation case presented by Mr. Watson was pitiful ly incomplete, and in some respects, bordered on the absurd. 12 We conclude, much as the Supreme Court did in Wiggins , that “had the jury been able to place” Mr. Smith’ s background, brain damage, and mental retardation—this compelling explanation for his behavior—“on the mitigating side of the scale, ther e is a reasonable probability that at least one juror would have struck a differe nt balance.” 13 Wiggins , 123 S. Ct. at 2543; see also Williams , 529 U.S. at 398 (“[T]he graphic description of Williams’ childhood, filled with abuse and privatio n, or the reality that he was ‘borderline mentally retarded,’ might well have inf luenced the jury’s appraisal of his moral culpability.”). In sum, Mr. Smith presented evidence sufficient to undermine our confidence in his death sentence. Mr. Smith’s coun sel failed to afford him a constitutionally adequate representative in the sen tencing phase of his trial, and he therefore is entitled to relief under Strickland, 466 U.S. at 694.-49- V. CONCLUSION While the bulk of Mr. Smith’s claims are without me rit, he is entitled to relief as a result of his trial counsel’s ineffecti ve assistance at sentencing. We, therefore, AFFIRM the district court’s denial of the writ as to Mr. Smith’s conviction, but REVERSE the judgment of the district court denying the wri t as to sentencing. We grant the writ with respect to t he death sentence with the condition that the state resentence Mr. Smith withi n a reasonable time.