F I L E D

United States Court of Appeals

Tenth Circuit

JUL 27 2000

PUBLISH
UNITED STATES COURT OF APPEALS

PATRICK FISHER
Clerk

TENTH CIRCUIT

GERARDO VALDEZ,
Petitioner-Appellant,
v.
RON WARD, Warden, Oklahoma State
Penitentiary; ATTORNEY GENERAL OF
THE STATE OF OKLAHOMA,

No. 99-6147

Respondents-Appellees,
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-97-347-L)
Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma
City, Oklahoma, for Petitioner-Appellant
Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with him on the brief), State of Oklahoma,
Oklahoma City, Oklahoma, for Respondents-Appellees.
Before SEYMOUR, Chief Judge, PORFILIO and EBEL, Circuit Judges.
SEYMOUR, Chief Judge.

Petitioner Geraldo Valdez was convicted of first degree murder and

sentenced to death. After he unsuccessfully filed a direct appeal and a petition
for state post-conviction relief with the Oklahoma Court of Criminal Appeals
(OCCA), he sought a writ of habeas corpus in federal district court under 28
U.S.C. 2254. The district court denied the writ. Mr. Valdez appeals, and we
affirm.
BACKGROUND
Mr. Valdez is a Mexican immigrant who has lived in Oklahoma for some
time. One night in April of 1989, Mr. Valdez met the victim, Juan Barron, at a
bar in rural Oklahoma. Mr. Barron was a homosexual who apparently showed a
sexual interest in Mr. Valdez. Mr. Valdez, a married heterosexual, rejected Mr.
Barrons advances. The testimony at trial revealed that throughout the course of
the evening Mr. Valdez consumed approximately fourteen beers.
When the bar closed, Mr. Barron, Mr. Valdez, and his friend, Martin
Orduna, went to Mr. Valdezs house. Mr. Valdez began preaching to Mr. Barron
out of the Bible, attempting to convince Mr. Barron of the sinfulness of his
homosexuality. When Mr. Barron rejected this proselytizing, Mr. Valdez brought
out his gun. He began slapping Mr. Barron, telling him he was going to kill him
and that according to the Bible homosexuals do not deserve to live. Ordering Mr.
Barron to remove his clothes, Mr. Valdez gave him the option of death or
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castration, and continued to hit and slap him. When Mr. Barron started to fight
back, Mr. Valdez shot him twice in the forehead and then hit him in the head with
the gun. While Mr. Barron lay on the couch, Mr. Valdez retrieved a knife and cut
his throat, finally killing him. Mr. Valdez threatened to kill Mr. Orduna if he told
anyone about the murder, and demanded Mr. Ordunas assistance in disposing of
the body. The two men carried Mr. Barron, the couch, and the surrounding rug to
the backyard, where they set them on fire.
Three months later, the police began investigating Mr. Barrons
disappearance. On July 25, officers executed a search warrant for Mr. Valdezs
home. Upon entering the house, Deputy Terry Cunningham administered Miranda
warnings to Mr. Valdez in English. Mr. Valdez conversed in English with the
officers, who believed he understood his rights. Because the officers had already
questioned Mr. Orduna, they knew to look for Mr. Barrons remains in the
backyard barbecue pit. There they found what appeared to be a bone fragment.
Mr. Valdez agreed to accompany the officers to the local police station.
Officer Dan Benson administered another Miranda warning to Mr. Valdez upon
their arrival. Throughout the interrogation, Mr. Valdez spoke in English, without
the aid of an interpreter, and denied any involvement in Mr. Barrons death. The
officers escorted Mr. Valdez back to his home late that evening. While driving
back, Deputy Cunningham told Mr. Valdez that he would feel better if he told
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them the truth. Officer Dan Benson asked Mr. Valdez if he would show them
what he had done with the body. When they arrived at Mr. Valdezs home, he
showed them where he had burned Mr. Barrons body. Deputy Cunningham read
Mr. Valdez his Miranda warnings a third time and asked him if he understood his
rights. Mr. Valdez said he did. When Deputy Cunningham asked Mr. Valdez to
sign the waiver of rights form, which was written in English, Mr. Valdez asked to
read it first. Mr. Valdez then signed the waiver and confessed to killing Mr.
Barron. This confession was taped and played for the jury.
Mr. Valdez was arraigned the morning of July 26 and counsel was
appointed for him. Later that day while Mr. Valdez was still in custody, Special
Agent A. J. Irwin of the U.S. Immigration and Naturalization Service interviewed
Mr. Valdez without his counsel present. Agent Irwin had previously interviewed
Mr. Orduna and Alfonso Borjas, a friend of Mr. Valdez who was present at the
bar on the evening of the murder, in an effort to aid the state police in their
investigation. As with these other interviews, Agent Irwins interview with Mr.
Valdez was conducted entirely in Spanish. At the outset, Agent Irwin identified
himself and emphasized he was only there to establish Mr. Valdezs alienage and
immigration status. He then administered the Miranda warnings to Mr. Valdez in
Spanish.
After describing his immigration status to Agent Irwin, Mr. Valdez stated
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that he wanted to converse with a Spanish speaking law enforcement official

concerning the matter for which he was incarcerated. Rec., Supp. Ex. 2, Report
by Agent A.J. Irwin at 10. Agent Irwin told Mr. Valdez he did not have to offer
information about the homicide and said he was satisfied with Mr. Valdezs
immigration status. Mr. Valdez still insisted on telling his story and proceeded to
explain what happened on the night he killed Mr. Barron.
At trial, Mr. Valdez admitted the crime and the events leading up to it, but
he asserted an insanity defense based on what his appellate counsel describes as
his religious delusions. Mr. Valdez testified that he believes homosexuality is a
sin according to the Bible and he wanted to help Mr. Barron understand the error
of his ways. He testified he became angry and killed Mr. Barron after he refused
to listen to the Bibles message. He also testified he might kill another person if
placed in the same situation. Agent Irwin testified that Mr. Valdez told him on
July 26 he was not insane and he did not intend to use an insanity plea or
defense. Rec., vol. IV at 73. Agent Irwin also testified that Mr. Valdez showed
no remorse for killing Mr. Barron.
After hearing the evidence, the jury convicted Mr. Valdez of first degree
murder. Following the sentencing phase of the trial, the jury found three
aggravating circumstances: Mr. Valdez posed a continuing threat to society; the
crime was especially heinous, atrocious or cruel; and Mr. Valdez created a great
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risk of death to more than one person during the commission of the crime. The
jury sentenced him to death. The OCCA upheld Mr. Valdezs conviction and
sentence on direct appeal and denied post-conviction relief. See Valdez, 900 P.2d
363 (Okla. Crim. App. 1995); Valdez v. State, 933 P.2d 931 (Okla. Crim. App.
1997). Mr. Valdez thereafter filed for a writ of habeas corpus in federal district
court. The district court denied the writ and Mr. Valdez appeals that denial.
On appeal, Mr. Valdez makes six claims of constitutional error: (1) his

statements made on July 25 and 26 were obtained in violation of his Fifth

Amendment rights; (2) the July 26 interrogation violated his Sixth Amendment
right to counsel; (3) the State failed to prove he was sane beyond a reasonable
doubt; (4) he was incompetent to stand trial; (5) the trial courts failure to instruct
the jury on second degree murder violated his due process rights; and (6) his trial
counsel provided ineffective assistance. The district court granted Mr. Valdez a
certificate of appealability on all of these issues. See 28 U.S.C. 2253(c).
STANDARDS OF REVIEW
Mr. Valdez filed the present habeas petition on July 3, 1997. The
provisions of section 2254 as they were amended by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(1996), therefore apply to our review. Under AEDPA, section 2254(d) provides
that a writ of habeas corpus may not be issued with respect to any claim
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adjudicated on the merits in state court unless that adjudication:

(1) . . . was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) . . . was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
2254(d)(1)-(2). Section 2254(e)(1) further requires a habeas court to presume
that factual determinations made by the state court are correct, and places the
burden on the petitioner to rebut that presumption by clear and convincing
evidence. See 2254(e)(1).
The Supreme Court recently construed the review standard set forth in
subsection (d)(1). See Williams v. Taylor, 120 S. Ct. 1495 (2000). When
applying subsection (d)(1), the Court stated the threshold question is whether the
petitioner seeks to apply a rule of law that was clearly established by the
Supreme Court at the time the conviction became final. 1 See id. at 1511 (Stevens,
J., writing for the Court). If so, we must proceed to a bifurcated inquiry. See id.
at 1519 (OConnor, J., writing for the Court) (subsection (d)(1) defines two
categories of cases in which a state prisoner may obtain federal habeas relief with
respect to a claim adjudicated on the merits in state court). We first determine

This clause refers to the holdings, as opposed to the dicta, of th[e

Supreme] Courts decisions as of the time of the relevant state-court decision.
See Williams v. Taylor, 120 S. Ct. 1495, 1499 (2000) (OConnor, J., writing for
the Court).
1

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whether the state courts decision was contrary to clearly established Federal law.
The contrary to clause of subsection (d)(1) is fulfilled where the state court
applied a rule that was diametrically different [from], opposite in character or
nature, or mutually opposed to a maxim of law as stated by the Supreme Court.
Id. The contrary to clause is also satisfied where the state court is confronted
with a set of facts which are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [its]
precedent. Id. at 1519-20.
We next ask whether the state courts determination involved an
unreasonable application of clearly established Federal law. See id. at 1520. The
unreasonable application clause of subsection (d)(1) applies in two scenarios:
first, where the state court identifies the correct governing legal rule from [the
Supreme] Courts cases but unreasonably applies it to the facts of the particular
state prisoners case, id.; second, where the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new context where
it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply, id.
In either scenario the reviewing habeas court must determine whether the
state courts application of Supreme Court precedent to the case at bar was
reasonable. See id. at 1521-22. The Court refrained from defining the term
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reasonable as it is used in AEDPA, other than to note that while it is difficult

to define, it is a common term in the legal world and, accordingly, federal
judges are familiar with its meaning. Id. at 1522. The Court did instruct that the
reasonableness determination is an objective inquiry, not a subjective one. See id.
at 1521-22. Thus, the fact that one court or even a few courts have applied the
precedent in the same manner to close facts does not make the state court decision
reasonable.
Mr. Valdez cites Miller v. Champion , 161 F.3d 1249 (10th Cir. 1998), for
the proposition that because he did not have an evidentiary hearing in either state
or federal district court on his constitutional claims, the underlying

factual

findings should be reviewed de novo rather than presumed correct. See id. at
1254. Cf. Smith v. Estelle , 711 F.2d 677, 680-81 (5th Cir. 1983) (state habeas
courts failure to hold evidentiary hearing on petitioners allegation meant that
there were no state findings of fact to which the presumption of correctness could
apply).
Mr. Valdezs reliance on Miller is misplaced. The petitioner there had
requested and been denied an evidentiary hearing in both state and federal court.
In a separate order, the district court here denied Mr. Valdezs request for an
evidentiary hearing because he had failed to request one in state court. Rec., vol.
I, doc. 43 at 2. As the district court pointed out, under AEDPA a habeas
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petitioner is not entitled to an evidentiary hearing in federal court if he has failed

to develop the factual basis of [the] claim in State court proceedings. Id.
Because Mr. Valdez failed to request a hearing from the state court and does not
argue that any of the exceptions listed in section 2254(e)(2) apply, 2 Miller does
not apply here and the district court correctly denied Mr. Valdezs request for an
evidentiary hearing. Cf. Smallwood v. Gibson, 191 F.3d 1257, 1266 (10th Cir.
1999) (petitioner not entitled to Miller exception where factual basis for his claim
could have been, but was not, developed in state court).
We now turn to our review of Mr. Valdezs claims in light of Williams, 120
S. Ct. 1495. In doing so, we review the district courts factual findings under a
clearly erroneous standard and its legal conclusions de novo. See Rogers v.
Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944
(2000).

Section 2254(e)(2) provides:

(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; . . . .
2

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DISCUSSION
I
Mr. Valdez first claims that his July 25 taped confession and his July 26
statements to Agent Irwin were obtained in violation of his Fifth Amendment
rights. He argues that due to his poor command of the English language he did
not knowingly and intelligently waive his constitutional rights on July 25 as
required by Miranda v. Arizona , 384 U.S. 436 (1966). He also contends he
invoked his Fifth Amendment right to counsel on July 25, making his statements
to Agent Irwin the following day inadmissible under

Edwards v. Arizona , 451

U.S. 477 (1981) (holding inadmissible defendants uncounseled statements made

during custodial interrogation when defendant had previously invoked Fifth
Amendment right to have counsel present). We address each argument in turn.
A. Miranda Waiver
Mr. Valdezs claim that he did not knowingly and intelligently waive his
Miranda rights is based upon his assertion that he did not understand those rights
as read to him in English. Although the ultimate question of whether Mr.
Valdezs waiver was knowing and intelligent is subject to review under the
standards set forth in section 2254(d),

see Pickens v. Gibson , 206 F.3d 988, 995

(10th Cir. 2000), any subsidiary factual findings made by the state court are
entitled to a presumption of correctness under section 2254(e),
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see id. at 994. See

also Trice , 196 F.3d at 1169 (although ultimate question of whether petitioners
confession was voluntary reviewed under section 2254(d), subsidiary factual
findings entitled to section 2254(e)s presumption of correctness).
Whether Mr. Valdez understood his

Miranda rights is a question of fact,

see Mincey v. Head , 206 F.3d 1106, 1131 (11th Cir. 2000);
8 F.3d 1132, 1141 (7th Cir. 1993) (en banc);

Cuppett v. Duckworth ,

Derrick v. Peterson , 924 F.3d 813,

823-24 (9th Cir. 1990), which underlies the legal question of whether his waiver
was knowing and intelligent,

see Perri v. Department of Corrections

, 817 F.2d

448, 451 (7th Cir. 1987). We therefore must presume the OCCAs factual finding
that Mr. Valdez fully comprehended what was being said to and asked of him,
Valdez , 900 P.2d at 371, is correct unless Mr. Valdez convinces us otherwise by
clear and convincing evidence.

See 2254(e)(1).

Mr. Valdez did not offer any additional evidence and merely argues from
the trial record that he did not fully comprehend English and thus did not
knowingly and intelligently waive his

Miranda rights. After a close reading of

the entire record, we agree with the state court that it establishes Mr. Valdezs
understanding of English.

In particular, Mr. Valdezs responses to questions

during his July 25 interrogations,

see Rec., Supp. Ex. 2, and during his lengthy

trial testimony, see Rec., vol. V at 10-103, convince us that while he had some
limitations in his ability to speak English and therefore occasionally referred to an
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interpreter to express himself at trial, he fully comprehended what was being

asked of him and explained to him.

See, e.g. , United States v. Todisco , 667 F.2d

255, 260 (2d Cir. 1981) (defendants in-court behavior supported trial courts
finding that defendant understood

Miranda rights read to him in non-native

language).
In sum, we agree with the OCCAs exhaustive review of the record,

see

Valdez , 900 P.2d at 371-72, and its conclusion based thereon that Valdezs
assurances over the course of the evening that he understood his

Miranda rights,

coupled with his objectively verifiable ability to understand and answer the
questions posed to him during the final interrogation, provide sufficient proof that
he knowingly and intelligently waived his
July 25th, 1989.

Miranda rights prior to confessing on

Id. at 372. Because Mr. Valdez has not provided any further

evidence, clear and convincing or otherwise, to rebut this finding, we reject his
assertion that he did not understand English. Consequently, we agree with the
OCCA that he knowingly and intelligently waived his rights on July 25.
B. Invocation of Fifth Amendment Right to Counsel
Mr. Valdezs next Fifth Amendment claim is based upon his assertion that
he requested counsel during the interrogation at his home on July 25. In

Edwards

v. Arizona , 451 U.S. 477 (1981), the Court held that after an accused clearly
invokes his right to have counsel present during a custodial interrogation, officers
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must cease all questioning and may not reinitiate questioning on any matter until
counsel is provided.

See id. at 484-85 (the Edwards rule). Relying on

Edwards , Mr. Valdez contends his July 26 interrogation by Agent Irwin without
counsel present violated his Fifth Amendment rights because it occurred after he
invoked his right to counsel the previous day. Therefore, he argues, Agent
Irwins testimony was inadmissible at trial.
On the evening of July 25, after Deputy Cunningham convinced Mr. Valdez
to show him where he disposed of Mr. Barrons body, he presented Mr. Valdez
with a Miranda waiver form which Mr. Valdez signed. The officers then taped
Mr. Valdezs subsequent confession. Investigator Benson concluded the
interrogation by asking Mr. Valdez whether his confession was voluntarily made
and whether he willingly signed the Miranda waiver form. Mr. Valdez replied:
Yes, I understand it a little bit and I sign it because I understand it something
about a lawyer and he want to ask me questions and thats what Im looking for a
lawyer. Rec., Supp. Ex. 1 at 5. Investigator Benson replied, But you are
willingly talking to us? We didnt beat you or anything like that to get you to talk
did we? Id. After a barrage of questions along this line, and without a response
from Mr. Valdez, Investigator Benson asked once more, you talked to us because
you wanted to didnt you? Id. Mr. Valdez responded, Yea. The officers then
ended the taped statement. Mr. Valdez argues that his first response was an
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unequivocal invocation of his Fifth Amendment right to have counsel present

during the custodial interrogation.
In Davis v. United States , 512 U.S. 452 (1994), the Court described the
Edwards rule as requiring courts to determine whether the accused
invoked his right to counsel.

actually

Id. at 458. The Court stated that reviewing courts

must make this objective inquiry with the understanding that a statement either is
such an assertion of the right to counsel or it is not.

Id. at 459. The Court held

that if a suspect makes a reference to an attorney that is ambiguous or equivocal

in that a reasonable officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel, the Edwards rule
requiring a cessation of questioning does not apply. Id. at 459.
Mr. Valdez unsuccessfully raised this challenge in his direct appeal. See
Valdez, 900 P.2d at 374. Reviewing the issue, the OCCA described the
circumstances as they existed on July 25, prior to Mr. Valdezs purported
invocation. Applying Davis to those circumstances, the court determined that Mr.
Valdezs statement was [a]t most . . . an ambiguous request for counsel. Id.
The OCCA therefore held that Mr. Valdezs subsequent uncounseled interrogation
on July 26 did not violate his Fifth Amendment rights.
Whether a statement constitutes an unequivocal request for counsel under
Davis is a question of law, see United States v. Oba , 978 F.2d 1123, 1129 (9th
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Cir. 1992), which we review under AEDPA 2254(d) if the state has addressed
the issue on the merits,

see LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir.

1999), cert. denied , 120 S. Ct. 1290 (2000).

Mr. Valdez asserts the OCCAs

determination is both contrary to, and an unreasonable application of, Davis. See
2254(d)(1). The OCCA correctly cited Davis and applied its holding when
reviewing this claim, and Mr. Valdez does not argue otherwise. For this reason,
its determination is not contrary to Davis. See Williams, 120 S. Ct. at 1519-20.
Hence, for Mr. Valdez to obtain habeas relief on this claim, he must convince us
the OCCAs determination unreasonably applies [Davis] to the facts of [his]
case. Id. at 1520. We agree with the district court that it did not.
The OCCAs conclusion that Mr. Valdezs reference to an attorney was
insufficient to invoke his Fifth Amendment right to counsel under

Davis was not

unreasonable. At the outset, we agree with the OCCA that a plain reading of Mr.
Valdezs statement is ambiguous, particularly because it was made

after he had

given a taped confession and showed police where he had burned the body,
undermining his need for the aid of counsel during the interrogation. See, e.g.,
United States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995) (where accused
confessed, agreed to give a recorded statement, was read Miranda rights and
asked if she was willing to answer questions, accuseds subsequent comment that
she needed a lawyer was insufficient under Davis to invoke her Fifth Amendment
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right to counsel); Lord v. Duckworth, 29 F.3d 1216, 1221 (7th Cir. 1994)
(accuseds statement I cant afford a lawyer but is there anyway I can get one?,
was ambiguous because accused had twice been informed of Miranda rights and
had already confessed in lengthy, tape-recorded statement).
In Davis, the Supreme Court recognize[d] that requiring a clear assertion
of the right to counsel might disadvantage some suspects whobecause of . . . [a]
lack of linguistic skills . . . will not clearly articulate their right to counsel
although they actually want to have a lawyer present. Davis, 512 U.S. at 460.
Despite this, the Supreme Court rejected any further prophylactic protections for
an accuseds Fifth Amendment right to counsel, holding instead that the primary
protection is the accuseds comprehension of the Miranda warnings themselves.
Id. As discussed above, Mr. Valdez had been read his rights three times prior to
making this statement, and the record supports the OCCAs determination that he
understood those rights and that he knowingly and intelligently waived his right
to counsel. In light of this, and the fact that Mr. Valdezs statement came after he
confessed, the OCCAs determination that Mr. Valdezs statement was an
ambiguous request for counsel is not an objectively unreasonable application of
Davis.
II
Mr. Valdez next claims that his Sixth Amendment right to counsel was
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violated by Agent Irwins July 26 interrogation of him without the presence of his
appointed counsel representing him on the murder charge. He argues the
statements he made about the murder during that interrogation were therefore
inadmissible under Michigan v. Jackson, 475 U.S. 625 (1986) (applying Edwards
rule to Sixth Amendment and holding a defendants waiver of Sixth Amendment
right to counsel invalid when made during post-arraignment, police-initiated
interrogations).
Mr. Valdez unsuccessfully raised this argument in his direct appeal. The
OCCA first recognized that under McNeil v. Wisconsin, 501 U.S. 171, 175 (1991),
the Sixth Amendment right is offense-specific. Agent Irwin was therefore free to
question Mr. Valdez on his immigration status without implicating Mr. Valdezs
Sixth Amendment rights because that interrogation did not relate to the murder
charge. See Valdez, 900 P.2d at 374. The OCCA held that Agent Irwin limited
his interrogation to Mr. Valdezs immigration status, and that Mr. Valdez waived
his Sixth Amendment right by initiat[ing] the exchange about the murder
charges and then making spontaneous and unsolicited remarks about the
killing. Id. at 375.
Mr. Valdez contends he is entitled to relief under section 2254(d)(1)
because the OCCAs determination was contrary to, or an unreasonable
application of, Michigan v. Jackson, 475 U.S. 625. Mr. Valdez also maintains the
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OCCAs holding was based on an unreasonable determination of the facts under

section 2254(d)(2), claiming Agent Irwin intentionally created a situation in
which Mr. Valdez would make incriminating statements in violation of his Sixth
Amendment right to counsel.
The district court rejected both of these arguments. It first noted that Mr.
Valdez had not proffered clear and convincing evidence that the OCCAs factual
determinations regarding the July 26 interrogation were erroneous and thus those
facts were presumed correct, see 28 U.S.C. 2254(e)(1). Relying on McNeil, 501
U.S. 171, the district court held that Agent Irwins interrogation was not a
violation of Mr. Valdezs Sixth Amendment right to counsel because the subject
matter of the interrogation was limited to Mr. Valdezs immigration status, a topic
on which Mr. Valdez had not been charged. Citing our recent decision in Cooks
v. Ward, 165 F.3d 1283 (10th Cir. 1998), cert. denied, 120 S. Ct. 94 (1999), the
court further held the OCCAs determination that Mr. Valdez waived his Sixth
Amendment right to counsel by initiating the discussion with Agent Irwin
regarding the murder was not contrary to, or an unreasonable application of,
Supreme Court precedent. We agree.
A. Waiver by Initiating Discussion of Charges
Because Mr. Valdez had been arraigned on the murder charge and had been
appointed counsel, it is beyond dispute that his Sixth Amendment right to counsel
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for the murder had attached at the time of Agent Irwins July 26 interrogation.
According to the OCCAs recitation of the facts, Agent Irwin confined his
questions to Mr. Valdezs immigration status and did not interrogate Mr. Valdez
regarding the murder. It was Mr. Valdez himself who initiated the discussion
regarding the murder, despite Agent Irwins reminders that he was there regarding
Mr. Valdezs immigration status and that Mr. Valdez did not have to discuss the
murder charges. See Valdez, 900 P.2d at 375. Mr. Valdez did not challenge these
facts at trial and does not challenge them here, thus they are presumed correct.
See 28 U.S.C. 2254(e)(1).
The OCCAs determination that Mr. Valdez voluntarily waived his Sixth
Amendment rights by initiating discussion about the charged crime is a question
of law, see Cooks , 165 F.3d at 1288, which we review pursuant to AEDPA
2254(d). See Holman v. Kemna , 212 F.3d 413 (8th Cir. 2000) (applying 2254(d)
to review state court determination of whether defendant initiated conversation
with police ). In Jackson, the Supreme Court held the Sixth Amendment right to
counsel could not be waived during post-arraignment, police-initiated
interrogations. See Jackson, 475 U.S. at 635-36. In McNeil v. Wisconsin, 501
U.S. 171, the Court clarified this holding by stating that the Sixth Amendment
right is offense-specific, meaning Jacksons holding invalidates only those
waivers made during police-initiated interrogations covering the subject matter of
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the charged offense. See id. at 175. In practice, this means that once the right
attaches (usually at the defendants arraignment), the police may not initiate an
uncounseled interrogation of the defendant on a subject dealing with the offense
for which he is charged, see id. at 176, but may initiate an uncounseled
interrogation on uncharged offenses.
Mr. Valdez asserts that because Agent Irwins interrogation was postarraignment and police-initiated, the OCCA should have held his Sixth
Amendment waiver invalid under Jackson. This argument ignores the fact that
Mr. Valdez retained the ability to waive his Sixth Amendment right to counsel by
voluntarily reinitiating a discussion with police regarding the crime for which he
was charged without counsel present. See, e.g., Michigan v. Harvey, 494 U.S.
344, 352 (1990) ([N]othing in the Sixth Amendment prevents a suspect charged
with a crime and represented by counsel from voluntarily choosing, on his own, to
speak with police in the absence of an attorney.); Patterson v. Illinois, 487 U.S.
285, 290-91 (1988) (defendants Sixth Amendment waiver was valid where
confession was self-initiated and voluntary); Clayton v. Gibson, 199 F.3d 1162,
1172-73 (10th Cir. 1999) (post-arraignment Sixth Amendment waiver made while
defendant was being booked on a different charge was valid because defendant
voluntarily reinitiated communication with officers regarding the charged crime),
petition for cert. filed, No. 99-9630 (May 20, 2000); Cooks, 165 F.3d at 1288
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(defendants Sixth Amendment waiver was valid where defendant summoned

detective to his cell and insisted on confessing to charged crime without attorney
present).
The parties do not cite, nor are we aware of any, Supreme Court precedent
dealing with the exact situation we have here where a Sixth Amendment waiver
was made during a police-initiated interrogation regarding uncharged crimes. In
the procedural posture of this case, Williams requires us to deny habeas relief
unless Mr. Valdez can show the OCCAs decision rests upon an objectively
unreasonable application of Supreme Court precedent to these new facts. See
Williams, 120 S. Ct. at 1520.
As the OCCA recognized, the essence of the Courts holding in Jackson
was that the Sixth Amendment right to counsel at a post-arraignment
interrogation requires at least as much protection [afforded by the Edwards rule]
as the Fifth Amendment right to counsel at any custodial interrogation. Valdez,
900 P.2d at 374 n.44 (quoting Jackson, 475 U.S. at 632). The Court therefore
held that the Edwards rule applied to Sixth Amendment waivers as well. See
Jackson, 475 U.S. at 632. Importantly, the Court in Jackson expressed the
Edwards rule as allowing an exception for interrogations which were initiated by
the defendant himself. See id. at 626 (Edwards rule protects an accused whose
constitutional right to counsel has attached, shielding him from further
-22-

interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communication, exchanges or
conversations with the police) (emphasis added). This last exception to the
Edwards rule must be read in conjunction with McNeils holding that the police
do not violate the Sixth Amendment by initiating an interrogation of a defendant
about uncharged crimes. Under the AEDPA standard we are required to apply, we
cannot say the OCCAs determination that Mr. Valdez waived his Sixth
Amendment right to counsel when he made spontaneous and unsolicited remarks
about the killing during the police-initiated interrogation rested upon an
objectively unreasonable application of Edwards, Jackson, and McNeil to the new
facts presented here. Mr. Valdez is thus not entitled to habeas relief on this point.
See Williams, 120 S. Ct. at 1520.
B. Agent Irwins Interrogation as a Pretext
Mr. Valdez also contends the OCCAs holding was based on an
unreasonable determination of the facts, entitling him to habeas relief under
section 2254(d)(2). Pointing out that Agent Irwin interrogated other Spanishspeaking witnesses regarding the murder and was doing so to aid the state police
in their investigation, Mr. Valdez asserts that Agent Irwin was merely using Mr.
Valdezs immigration status as a pretext to elicit admissions from him about the
charged crime. The OCCA rejected this view of the facts, holding that [w]hile
-23-

Irwin arguably presented Valdez with a comfortable environment in which to talk

about the crime, he did not question Valdez about that crime and he did not
badger Valdez into talking. Valdez, 900 P.2d at 375. Our review of the facts
presented at trial in light of the relevant caselaw persuades us the OCCAs
determination of these facts was not unreasonable.
Where government officials must have known that a defendant will make
incriminating statements about a charged crime, their interrogation on uncharged
crimes without counsel present clearly violates the Sixth Amendment. See Maine
v. Moulton, 474 U.S. 159, 176-77 & n.12 (1985) (governments arrangement to
record post-arraignment conversations between defendant and co-defendant
violated defendants Sixth Amendment right to counsel because the government
must have known that its agent was likely to obtain incriminating statements
from the accused); United States v. Henry, 447 U.S. 264, 270-71 (1980) (Sixth
Amendment violated where informant cell-mate of defendant was paid only if he
produced useful information because police must have known that informant
would take affirmative steps to obtain incriminating evidence regarding the
charged crime notwithstanding instructions to the contrary); see also United
States v. Terzado-Madruga, 897 F.2d 1099, 1109-10 (11th Cir. 1990) (where
government agents must have known the informant would obtain incriminating
statements from defendant regarding charged crimes, statements taped during
-24-

those conversations were inadmissible). Mr. Valdez maintains this was the
situation here. He analogizes Agent Irwin to the jail-house informant in Henry
who was surreptitiously employed to receive incriminating information regarding
a charged crime, arguing that the government must have known Agent Irwin
would obtain incriminating statements from Mr. Valdez during the interview. In
Henry, however, the Court specifically relied upon the fact that the defendant did
not know he was speaking to a government agent or that his statements could be
used against him. See Henry, 447 U.S. at 273. Mr. Valdezs analogy is therefore
inapposite because he knew he was speaking to a government official and his
statements could be used against him.
Agent Irwin testified that he did not ask Mr. Valdez any questions
regarding the murder during his interrogation. Moreover, he specifically told Mr.
Valdez he did not have to offer information about the homicide when Mr. Valdez
raised the subject. The fact that Agent Irwin may have hoped Mr. Valdez would
volunteer information, by luck or happenstance, does not result in a Sixth
Amendment violation. Moulton, 474 U.S. at 176. In light of this evidence, it was
not an unreasonable determination of the facts for the OCCA to conclude no Sixth
Amendment violation occurred.
III
Mr. Valdez next asserts there was insufficient evidence to prove he was
-25-

sane beyond a reasonable doubt. Under a sufficiency of the evidence challenge, a

reviewing court must evaluate the evidence to determine whether any rational
trier of fact could have found the defendant sane beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because Mr. Valdez established a
reasonable doubt of his sanity, under Oklahoma law, the burden shifted to the
State to prove beyond a reasonable doubt that [Mr. Valdez] could distinguish
between right and wrong at the time of the offense. Ullery v. State, 988 P.2d
332, 348 (Okla. Crim. App. 1999).
The jury was presented with conflicting medical testimony regarding Mr.
Valdezs sanity. Dr. Mynatt, who had evaluated Mr. Valdezs sanity for the state,
testified that based upon a one hour examination he concluded Mr. Valdez was
legally sane, that is, he comprehended the difference between right and wrong at
the time of the murder. Dr. Mynatt testified that Mr. Valdez told him he did not
lose control on the night of the murder but only wanted to show Mr. Barron the
error of his ways. Dr. Romero, a Mexican psychiatrist assisting Dr. Mynatt,
described Mr. Valdez as calm and lucid during the interview, and testified that
Mr. Valdez admitted he might kill again if faced with the same circumstances.
Mr. Valdez then called his examining psychologist, Dr. Murphy, who had
interviewed Mr. Valdez for five hours and administered four tests. Dr. Murphy
opined that at the time of the killing Mr. Valdez was acting under the delusion
-26-

that God was commanding him to convert Mr. Barron and was thus unable to
appreciate right from wrong. During the States rebuttal, 3 Dr. Mynatt testified the
tests administered by Dr. Murphy could not have assessed Mr. Valdezs mental
condition as it existed at the time of the crime. Dr. Romero testified he agreed
with Dr. Mynatt that Mr. Valdez appreciated the difference between right from
wrong on the night of the murder.
Mr. Valdez undermined Dr. Murphys theory by testifying that God did not
command him to kill Mr. Barron, or to kill homosexuals generally. He also
testified that certain passages of the Bible teach that homosexuals do not deserve
to live. He said he did not really know why he killed Mr. Barron but did so when
Mr. Barron refused to listen to his sermon denouncing homosexuality. Finally,
Mr. Valdez testified he might kill another person who, like Mr. Barron, refused to
listen to his teachings.
The jury also heard testimony from several witnesses who were with Mr.
Valdez in the bar on the night of the murder. None testified that Mr. Valdez
seemed mentally unstable. With the exception of Mr. Orduna, who actually
witnessed the killing, all of these witnesses testified that Mr. Valdez did not
appear to be angry at Mr. Barron.

Both Dr. Mynatt and Dr. Romero heard Mr. Valdezs trial testimony before
they testified on rebuttal.
3

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On direct appeal, Mr. Valdez contended Dr. Murphys opinion that he was
not legally sane at the time of the murder was more credible than Drs. Romeros
and Mynatts conclusions because the latter were based upon cursory sanity
evaluations. See Valdez, 900 P.2d at 375. In reviewing this argument, the OCCA
remarked that Mr. Valdezs sanity was a question of fact for the sole
determination of the jury, and that it would not inquire into the credibility of
the witnesses nor weigh conflicting testimony. Id. at 376. The OCCA concluded
the evidence was sufficient to uphold the jurys finding that Mr. Valdez was sane
beyond a reasonable doubt based on the testimony from witnesses who were with
Valdez at the time of the crime, from the doctors who later evaluated Valdezs
mental condition, and from Valdez himself. Id. at 377.
A claim based on sufficiency of the evidence is a mixed question of fact
and law which we reviewed de novo under the pre-AEDPA habeas caselaw. See
Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995). Habeas relief was granted
only if, considering all of the evidence in the light most favorable to the
government, a rational trier of fact could not have found the defendant was sane
beyond a reasonable doubt at the time of the crime. See id. (citing Jackson v.
Virginia, 443 U.S. at 319). Under AEDPA, however, where a habeas petitioners
sufficiency of the evidence challenge has already been decided in state court, we
employ a more limited review under either section 2254(d)(1) or (d)(2). Under
-28-

Tenth Circuit caselaw, it is unclear whether subsection (d)(1) or (d)(2) applies to

the review of mixed questions of law and fact presented when reviewing for
sufficiency of evidence questions. See Hogan v. Gibson, 197 F.3d 1297, 1306
(10th Cir. 1999) (describing conflict in our cases), petition for cert. filed, No.
99-1976 (June 8, 2000). Because Mr. Valdez raises this argument under both
subsections (d)(1) and (d)(2), we need not decide which is the more appropriate
analysis.
Mr. Valdez first asserts under section 2254(d)(1) that the OCCA applied
state evidentiary law, contrary to the Federal constitutional standard for
sufficiency of evidence set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See
Williams, 120 S. Ct. at 1519. This assertion is without merit. Jackson instructs
the reviewing court to determine whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at
319. The OCCA cited a state law case rather than Jackson, but it correctly
articulated and applied the Jackson standard for a sufficiency of evidence review.
It recognized the State bears the burden of proving beyond a reasonable doubt
that the defendant does not fall within the states legal definition of insanity.
Valdez, 900 P.2d at 375. After determining that the jury had been correctly
instructed on this matter, the OCCA thoroughly reviewed the testimony and
-29-

concluded the evidence was sufficient to support the jurys conclusion that Mr.
Valdez was sane beyond a reasonable doubt, see id. at 376-77 (citing Kiser v.
State, 782 P.2d 405, 407 (Okla. Crim. App. 1989)). Despite Mr. Valdezs
contention that this was an incorrect application of state evidence law, this
standard is the same whether cited from the Jackson opinion or from state
caselaw. The OCCAs application of this standard was thus in accordance with
federal constitutional requirements.
Mr. Valdez also contends the OCCAs determination that the evidence was
sufficient was an objectively unreasonable determination of the facts, entitling
him to habeas relief under section 2254(d)(2). He first maintains the OCCA
should have disregarded the expert witness testimony of Drs. Romero and Mynatt
because it was less credible than the testimony of Dr. Murphy, due to his
extensive testing. As the OCCA recognized, whether Dr. Murphys testimony at
trial was more credible was an issue solely within the province of the jury. 4 See
United States v. Castaneda-Reyes, 703 F.2d 522, 524 (11th Cir. 1983) (whether
testimony of one expert witness is more believable than testimony of another

In presenting this argument, Mr. Valdez merely recasts the evidence

presented at trial in a light most favorable to himself. Because the jury was
correctly instructed on the issue and determined Mr. Valdez sane beyond a
reasonable doubt, a reviewing court must view the evidence in a light most
favorable to the prosecution. See Jackson, 443 U.S. at 319; United States v.
Hanzlicek, 187 F.3d 1228, 1232-33 (10th Cir. 1999).
4

-30-

expert witness is issue for trier of fact); United States v. Walker, 524 F.2d 1125,
1128 (10th Cir. 1975) (same). Despite the relative strengths of the expert
testimony, only the fact-finder may determine whether the defendant was legally
sane. See, e.g., United States v. Madrid, 673 F.2d 1114, 1123 (10th Cir. 1982)
(evidence of sanity was sufficient to sustain conviction although four of five
experts concluded defendant was not legally sane); Walker, 524 F.2d at 1128-29
(same where defense expert who extensively examined defendant testified
defendant was not legally sane but state expert who conducted limited
examination and did not hear trial testimony testified defendant was); see also
United States v. Shepard, 538 F.2d 107, 110 (6th Cir. 1976); United States v.
Bohle, 475 F.2d 872, 874 (2d Cir. 1973).
Moreover, the OCCA did not rely solely on the expert testimony in holding
the evidence was sufficient; it also considered the testimony from witnesses who
were with Valdez at the time of the crime and the testimony of Mr. Valdez
himself. 5 Valdez, 900 P.2d at 377. Because of the OCCAs deference to the jury
Although Mr. Valdez does not attempt to refute his own testimony, he does
argue that testifying he would kill again if presented with a similar situation was
itself proof he was legally insane, and that the OCCA was unreasonable in failing
to construe the testimony in this light. See Aplt. Reply Br. at 13 (If a man on
trial for his life fully understood the wrongfulness of killing another, and
appreciated the nature and consequences of such conduct, would he tell the
States examiner that he would do the same thing again? The very insanity of that
proposition seems lost on the state court.). While a defense attorney may
(continued...)
5

-31-

on the sufficiency of the evidence issue, see Valdez, 900 P.2d at 376, we cannot
characterize its determination as unreasonable. See, e.g., Billotti v. Legursky, 975
F.2d 113, 118-19 (4th Cir. 1992) (evidence held sufficient to support finding of
sanity where jury heard from lay witnesses regarding defendants conduct at time
of crime even though all experts testified defendant was not legally sane at time
of crime); cf. United States v. Samuels, 801 F.2d 1052, 1056 (8th Cir. 1986)
(evidence held insufficient to prove sanity where defendant had extensive history
of psychiatric problems, governments only evidence on sanity issue was expert
testimony based on limited examination of defendant, and no lay persons could
testify as to defendants mental state at the time of the offense).
Mr. Valdez also argues the testimony at trial shows he was suffering from
paranoid delusions resulting in an avenging angel complex, during which he
enforced what he believed to be biblical requirements without any corresponding
feeling of wrong-doing. The only new evidence he offers in support of his
position is a deposition taken of Dr. Mynatt in December 1997, seven and a half
years after the trial. In this deposition, Dr. Mynatt stated he did not remember
(...continued)
understandably believe his client insane for testifying honestly about his
emotions where such testimony devastates his defense strategy, the inferences to
be made from Mr. Valdezs testimony are purely matters for the jury. See United
States v. Bilson, 648 F.2d 1238, 1239 (9th Cir. 1981) (selection from among the
competing factual inferences arising from the proffered evidence of sanity was for
jury and appellate court is not free to disturb that conclusion).
5

-32-

Mr. Valdez or testifying at his trial, even after seeing a picture of Mr. Valdez.
See Rec., Dep. of Dr. Mynatt at 7, 34. Dr. Mynatt did testify that a person
suffering from an avenging angel complex normally does not appreciate the
difference between right and wrong, and would therefore not be legally sane. Id.
at 26. He also testified that an individual suffering from this disorder might seem
normal in some areas, and that the disorder could be exacerbated by alcohol. Id.
at 23, 25. Significantly, however, Dr. Mynatt did not testify he had changed his
opinion and now believed Mr. Valdez was suffering from this complex at the time
of the murder, nor did he testify that Mr. Valdez was not legally sane at the time
he committed the crime. None of this testimony contradicts or calls into question
his testimony at trial. Moreover, Dr. Mynatt testified that whatever the basis was
for his opinion given at trial, it was much clearer at that time than seven and a
half years later when being deposed. Id. at 36. For these reasons, this evidence
does not undermine the jurys evaluation of Dr. Mynatts trial testimony or the
OCCAs review.
IV
Mr. Valdez appeals the district courts denial of his procedural and
substantive competency claims. A defendant is competent to stand trial if he
has sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding [and if] he has a rational as well as a factual
-33-

understanding of the proceedings against him. Walker v. Oklahoma, 167 F.3d

1339, 1343 (10th Cir. 1999) (quoting Dusky v. United States, 362 U.S. 402, 402
(1960)), cert. denied, 120 S. Ct. 449 (1999). In Walker, we held that a petitioner
states a procedural competency claim by alleging the trial court failed to hold a
competency hearing after the defendants mental competency was put in issue,
and that to prevail a petitioner must establish that the state trial judge ignored
facts raising a bona fide doubt regarding the petitioners competency to stand
trial. Id. at 1343. To state a substantive competency claim, on the other hand, a
petitioner must allege he was, in fact, tried and convicted while mentally
incompetent, and must demonstrate his or her incompetency by a preponderance
of the evidence. Id. Mr. Valdez asserts the trial court erred in failing to
suspend the proceedings during trial and re-evaluate his competency in violation
of his procedural due process rights, and that he was tried while incompetent in
violation of his substantive due process rights. The former claim may be
defaulted, but is subject to a less demanding standard of review; the latter cannot
be defaulted, but is subject to a higher standard of review. See id. at 1343-44.
Prior to Mr. Valdezs trial, his counsel requested a competency examination
and a post-examination competency hearing, both of which were granted. During
the hearing, the trial court required Mr. Valdez to prove his incompetency by
clear and convincing evidence, a standard subsequently struck down by the
-34-

Supreme Court in Cooper v. Oklahoma, 517 U.S. 348, 369 (1996). Because Mr.
Valdezs direct appeal was decided before Cooper, he raised the standard-ofproof issue in a state post-conviction proceeding. See Valdez, 933 P.2d 931.
Applying the 1995 amendments of Oklahomas post-conviction statute, 6 which
greatly circumscribed the state courts power to apply intervening changes in the
law to capital post-conviction applicants, the OCCA held his claim procedurally
barred due to his failure to raise it on direct appeal.
The district court agreed that the states procedural bar applied to Mr.
Valdezs procedural competency claim and refused to consider it. See Dist. Ct.
Op. at 31 (citing Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997)). The
district court rejected Mr. Valdezs substantive competency claim on the merits.
Both the OCCA and the district court erroneously held Mr. Valdezs
procedural competency claim barred for his failure to raise it during his direct
appeal. We have held that Oklahomas 1995 statutory amendments cannot stand
as a procedural bar to Cooper claims not raised on direct appeal when the direct
appeal pre-dated the effective date of the amendments. See Clayton v. Gibson,
199 F.3d 1162, 1171 (10th Cir. 1999), petition for cert. filed, No. 99-9630 (May
20, 2000); Rogers, 173 F.3d at 1290; Walker, 167 F.3d at 1345. Since Mr.
Valdezs direct appeal was decided March 15, 1995, prior to the November 1,
6

See O KLA . S TAT . tit. 22, 1089(D)(9) (Supp. 1999).

-35-

1995 effective date of Oklahomas post-conviction statutory amendments, the

procedural bar cannot be applied to Mr. Valdezs case. We therefore review the
merits of his procedural competency claim.
A defendant is competent to stand trial if he is able to consult with his
lawyer with a reasonable degree of rational understanding, and if he has both a
rational and factual understanding of the proceedings against him. Walker,
167 F.3d at 1343 (quoting Dusky, 362 U.S. 402). To obtain habeas relief on his
procedural competency claim, Mr. Valdez must show that the trial court ignored
evidence which, viewed objectively, raised a bona fide doubt regarding his
competency to stand trial. See Rogers, 173 F.3d at 1290; Walker, 167 F.3d at
1345. When reviewing the record for evidence bearing on competency, a court
must look at the defendants behavior and demeanor at trial, together with any
prior medical opinions on his competency. 7 See Barnett v. Hargett, 174 F.3d
1128, 1134 (10th Cir. 1999) (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)).
As previously noted, Mr. Valdez raised the issue of his competency prior to
trial and requested a psychiatric examination. Dr. John Quinn was appointed by

The district court here specifically held that only the expert testimony was
probative on the issue of Mr. Valdezs competence. See Dist. Ct. Op. at 35. We
agree with Mr. Valdez that this holding was erroneous as it foreclosed the district
courts review of Mr. Valdezs own testimony. Upon our de novo review of this
testimony, however, we are persuaded it does not raise doubts regarding Mr.
Valdezs competency at the time of trial.
7

-36-

the court to examine Mr. Valdez. After interviewing Mr. Valdez, Dr. Quinn
concluded he was competent to stand trial. At the post-examination competency
hearing, Dr. Quinn testified that he spent one and a half hours evaluating Mr.
Valdez. He opined that Mr. Valdez was able to participate and assist in his
defense and that he understood the nature and potentially severe consequences of
the charge against him. 8
None of the experts at trial testified Mr. Valdez was incompetent to stand
trial. Indeed, Dr. Mynatt, who had examined Mr. Valdez the previous week,
testified Mr. Valdez was competent. Despite Mr. Valdezs assertions that his
avenging angel complex caused him to be incompetent, none of Dr. Quinns
testimony at the competency hearing or any of the experts testimony at trial
revealed that Mr. Valdezs religious beliefs interfered with his perceptions of
reality. In addition, there is no evidence in the record that Mr. Valdez acted
irrationally or was disruptive during any of the proceedings against him. See,
e.g., Bryson, 187 F.3d at 1204.
Notwithstanding the difficulty of making evaluations of the kind required

Mr. Valdez criticizes Dr. Quinns testimony as only finding Mr. Valdez
had an orientation to time and place and a recollection of events. This ignores his
further testimony that Mr. Valdez regretted his acts, his thought processes were
coherent and consistent, and he was goal oriented towards his religious beliefs,
see Tr. of Competency Hearing at 7-11, all tending to show a rational
understanding of reality.
8

-37-

in these circumstances, Drope, 420 U.S. at 179, our review of Mr. Valdezs own
testimony convinces us he was competent at the time of trial. His behavior on
the stand was neither irrational nor unusual. His testimony was responsive to the
questions asked, logical, and coherent. Foster v. Ward, 182 F.3d 1177, 1191
(10th Cir. 1999), cert. denied, 120 S. Ct. 1438 (2000). Mr. Valdez characterizes
specific parts of his testimony as bizarre and irrational, and strenuously argues
that his incompetence is demonstrated on the record by the fact that he candidly
admitted things that helped the State convict him and that demonstrated his
supposed future dangerousness. 9 However damaging his testimony was, nothing
in it reveals or suggests Mr. Valdez was incompetent to stand trial. Quite the
opposite, his testimony shows a consistency in thought process and an admitted
religious bias toward homosexuals. Such beliefs do not equate with
incompetence, and we disagree with Mr. Valdez that his irrational convictions
precluded him from accurately perceiving reality, cf. Lafferty v. Cook, 949 F.2d
1546, 1554-56 (10th Cir. 1991) (discussing paranoid delusions and their effect on
a defendants rational understanding of the proceedings). After reviewing the

In this regard, Mr. Valdez points to his testimony that he quoted to Mr.
Barron out of the Bible; that he wanted to castrate Mr. Barron; that he wanted to
change Mr. Barron and killed him because he would not listen to his
proselytizing; that he might commit this crime again if presented with the same
circumstances; and that he rolled Mr. Barron up in the carpet like a taco. See
Pet. Br. at 61-62.
9

-38-

record, we conclude the evidence before the trial court did not raise a bona fide
doubt about Mr. Valdezs competency at the time of trial.
With respect to Mr. Valdezs substantive comptency claim, the only new
evidence Mr. Valdez presented on his mental capacity was the deposition of Dr.
Mynatt taken seven and one-half years after trial. This additional evidence has no
probative value with respect to Mr. Valdezs competency to stand trial. See supra
at 32-33. Because Mr. Valdez does not meet the lower standard of review for his
procedural due process claim and does not provide additional evidence of his
incompetency at the time of trial, see Nguyen v. Reynolds, 131 F.3d 1340, 134547 (10th Cir. 1997) (considering post-conviction evidence in the context of a
substantive competency claim), he also cannot satisfy the more demanding
standard for a substantive claim. Walker, 167 F.3d at 1347. See also Rogers,
173 F.3d at 1291 n.13. We therefore deny his request for relief on his substantive
competency claim as well.
V
Mr. Valdezs next claim for relief is founded on his assertion that the trial
courts failure to give a jury instruction on second degree murder violated his due
process rights as set forth by the Supreme Court in Beck v. Alabama, 447 U.S.
625 (1980). The Court held in Beck that in a capital murder trial, failure to give
an instruction on a lesser-included non-capital offense which is supported by the
-39-

evidence violates the defendants due process rights by placing the jury in an allor-nothing position to acquit or find the defendant guilty of a capital crime. See
id. at 633-35. This holding was limited in Schad v. Arizona, 501 U.S. 624, 646
(1991), where the Court held that due process does not require the jury to be
instructed on every non-capital lesser-included offense supported by the evidence,
just that the jury may not be placed in an all-or-nothing position when the
evidence supports a third option. See, e.g., Paxton v. Ward, 199 F.3d 1197, 1205
(10th Cir. 1999) (Beck requirement satisfied when jury is given option of at least
one lesser-included offense which was supported by evidence).
The jury at Mr. Valdezs trial was instructed on the lesser-included noncapital offense of first degree manslaughter. Mr. Valdez argues the evidence
presented at his trial was insufficient to support this instruction and the jury was,
in effect, in the same all-or-nothing position of central concern in Beck.
Answering this argument on direct appeal, the OCCA determined that the
evidence reasonably supported an instruction on the non-capital offense of first
degree heat of passion manslaughter. . . . Accordingly, the jury in this case was
not faced with the all-or-nothing, capital murder or innocence choice condemned
in Beck v. Alabama. Valdez, 900 P.2d at 379.
Mr. Valdez asserts that the OCCAs holding was an unreasonable
application of Beck, entitling him to habeas relief under section 2254(d)(1). See
-40-

Williams, 120 S. Ct. at 1520. The district court disagreed, concluding that the
manslaughter instruction took Mr. Valdezs case outside of the constitutional
concerns at issue in Beck. In so holding, the district court mischaracterized Mr.
Valdezs argument as asserting only an error of state law not implicating
constitutional concerns. Mr. Valdezs argument is not simply that his due process
rights were violated because the court failed to give a second-degree murder
instruction; rather, he argues that because the evidence did not support the only
lesser-included offense instruction given, the jury was in fact left without a third
option in violation of Beck. These circumstances, if present, would amount to a
constitutional deprivation, not merely an error of state law. As the Court stated in
Schad, it was not suggest[ing] that Beck would be satisfied by instructing the
jury on just any lesser included offense, even one without any support in the
evidence. Schad, 501 U.S. at 648. Thus, we must determine whether there was
evidence in the record to support the first degree manslaughter instruction, the
only lesser-included non-capital offense instruction given. See, e.g., Montoya v.
Collins, 955 F.2d 279, 285 (5th Cir. 1992) (non-capital lesser-included offense
instruction must have support in the record for it to be a realistic alternative
verdict for the jury).
Because the OCCA determined this issue on the merits, our review of its
decision is prescribed by AEDPA. If we find the OCCAs determination to be an
-41-

unreasonable application of Becks requirements, Mr. Valdez would be entitled to

habeas relief. See Williams, 120 S. Ct. at 1520. This argument requires a
sufficiency of the evidence review to determine whether the OCCA reasonably
concluded there was evidence in the record to support the instruction. We need
not decide whether the OCCAs determination was factual or legal, see Hogan,
197 F.3d at 1306 (standard of review under AEDPA depends on whether the state
courts examination of sufficiency of the evidence for a lesser included offense
instruction was a factual or legal conclusion), because we conclude Mr. Valdezs
argument is without merit in either event.
The crux of Mr. Valdezs argument is that first degree manslaughter is
homicide perpetrated without the intent to effect death, and that this instruction
had no support in the record because he admitted he intentionally killed Mr.
Barron. This argument is baseless because under Oklahoma law heat of passion
manslaughter does not require a lack of intent to kill. 10 See Le v. State, 947 P.2d
Instruction No. 11 stated:
No person may be convicted of MANSLAUGHTER IN THE FIRST
DEGREE unless the State has proved beyond a reasonable doubt each
element of the crime.
First:
the death of a human;
Second:
the death was not excusable or justifiable;
Third:
inflicted by means of a dangerous weapon;
Fourth:
caused by the defendant;
Fifth:
when performing the conduct which caused the
death, defendant were [sic] in the heat of passion.
(continued...)

10

-42-

535, 546 (Okla. Crim. App. 1997) (rejecting the states argument that a first
degree heat of passion manslaughter instruction is improper where there is
evidence of intent) (cited in Hooks v. Ward, 184 F.3d 1206, 1232 (10th Cir.
1999)). See also Hogan, 197 F.3d at 1305 n.5 (under Oklahoma law, evidence of
intent does not render improper the instruction on manslaughter). Mr. Valdezs
admission of intent did not foreclose the jurys consideration of first degree
manslaughter, and the OCCAs determination was therefore reasonable.
VI
Mr. Valdez finally asserts he was denied effective assistance of trial
counsel. In order to warrant habeas relief, a petitioner must establish that his
attorneys representation was deficient, and that he was prejudiced by that
deficient performance. See Strickland v. Washington, 466 U.S. 668 (1984). To
establish deficient performance, Mr. Valdez must show that his attorneys
(...continued)
Instruction No. 12 stated:
Heat of passion exists when four requirements are proven. These
requirements are:
First:
adequate provocation;
Second:
a passion or an emotion such as fear, terror, anger,
rage, or resentment existed in defendant;
Third:
the homicide occurred while the passion still
existed, and before there was a reasonable
opportunity for the passion to cool;
Fourth:
there was a casual [sic] connection between the
provocation, the passion, and the homicide.
10

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representation fell below an objective standard of reasonableness. Id. at 688.

To establish prejudice, Mr. Valdez must show that there is a reasonable
probability that, but for counsels unprofessional errors, the result of the
proceeding would have been different. Id. at 694. An ineffective assistance
claim may be resolved on either performance or prejudice grounds alone.
Fowler v. Ward, 200 F.3d 1302, 1310 (10th Cir. 2000).
Mr. Valdez alleges as constitutionally harmful his trial counsels failure to:
(1) sufficiently challenge his competency; (2) move to suppress his confessions or
to request a hearing on their voluntariness; and (3) request jury instructions on
second degree murder and voluntary intoxication. Mr. Valdez unsuccessfully
raised all of these arguments in his direct appeal. See Valdez, 900 P.2d at 387-88.
A. Failure to Appropriately Challenge Competency
Mr. Valdez claims the evidence at trial raised serious questions about his
competency. He contends his trial counsels failure to vigorously cross-examine
the states witness at his competency hearing, or to interrupt trial to request
another competency determination after Mr. Valdez testified, constituted deficient
performance which prejudiced his case. The OCCA concluded that this alleged
deficient performance could not have prejudiced Mr. Valdez. See id. Although
not directly citing to its pre-Cooper competency standard, the OCCA must have
reviewed this ineffective assistance claim in light of Oklahomas underlying
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competency standard requiring clear and convincing evidence of incompetency, a

standard later held unconstitutional. See Cooper, 517 U.S. at 369. Mr. Valdez
was therefore not given a full, fair, and adequate hearing on this issue in the
state court. Miller, 161 F.3d at 1253 ( 2254(e)(2)s presumption of correctness
does not apply in this situation). For this reason, we review de novo the OCCAs
determination that Mr. Valdez was not prejudiced by his trial counsels failure to
better present an incompetency defense. See id.
Based on the totality of the evidence, we agree with the OCCA that Mr.
Valdez was not prejudiced by his trial counsels failure to better present his
alleged incompetence. The evidence presented at the competency hearing and at
trial overwhelmingly showed that Mr. Valdez had a rational understanding of
reality. See discussion supra Part IV. At trial, all of the witnesses who knew Mr.
Valdez testified he was mentally stable, none of the experts testified that he
showed signs of detachment from reality, and none of the officers who
interrogated him found him unusual or irrational. Finally, Mr. Valdez
testified on his own behalf, answering the questions put to him in a responsive,
coherent manner. See e.g., Bryson, 187 F.3d at 1203-04. In short, nothing in our
review of the record indicates that Mr. Valdez was unable to consult with his
lawyer with a reasonable degree of rational understanding, or that he lacked a
rational and factual comprehension of the proceedings against him. Walker, 167
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F.3d at 1343. We agree with the OCCAs conclusion that there is no reasonable
probability the outcome of Mr. Valdezs trial would have been different but for
trial counsels allegedly deficient performance.
B. Failure to Challenge Mr. Valdezs Confessions
Mr. Valdez also claims his trial counsels failure to challenge his
confessions in light of his limited ability to converse in English was both
deficient and prejudicial. The OCCA disagreed, concluding Mr. Valdezs trial
would not have been different had this challenge been raised because there was no
evidence of involuntariness. See Valdez, 900 P.2d at 388. Mr. Valdezs argument
that this was an unreasonable application of Strickland entitling him to habeas
relief, see Williams, 120 S. Ct. at 1520, is unconvincing. There was a significant
amount of evidence that Mr. Valdez understood English sufficiently to converse
with officers and understand the three Miranda warnings he received in that
language, see discussion supra Part I.A. More importantly, however, Mr.
Valdezs claim of prejudice is centered around his July 26 confession to Agent
Irwin. Even if Mr. Valdezs July 25 confession had been suppressed, there is no
reasonable probability that his July 26 confession the alleged devastating
testimony would be suppressed because Agent Irwin gave Miranda warnings
and conducted the entire interrogation in Spanish, and that interrogation was not a
violation of Mr. Valdezs Fifth or Sixth Amendment rights to counsel. See
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discussion supra Parts I and II. This confession would most certainly have
survived a motion to suppress, making Mr. Valdezs claim of prejudice
unpersuasive.
C. Failure to Request Jury Instructions
Mr. Valdez argues that his counsel was constitutionally ineffective for
failing to request that the jury be instructed on the defense of voluntary
intoxication and the lesser included offense of second degree murder, alleging
there was sufficient evidence to support both. Both of these claims were raised
and rejected on direct appeal. See Valdez, 900 P.2d at 378, 388. As we
previously noted, it is not clear under our precedent whether we are to review
state determinations of this sort under section 2254(d)(1) or (d)(2). 11 Again, we
need not decide which is the correct approach because we conclude the OCCA
was not unreasonable in either its application of the law or its determination of
the facts.
Mr. Valdez asserts that the evidence he was on one of the worst drunks of
his life supported a voluntary intoxication instruction. His own testimony
undermines this argument. To be entitled to an instruction on the defense of
voluntary intoxication, Mr. Valdez had to present evidence sufficient to raise a
But see, Hogan, 197 F.3d 1306 n.5 (noting panel unanimously agreed the
correct approach is to treat the determination as a question of law reviewable
under section 2254(d)(1)).
11

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reasonable doubt concerning his ability to form the requisite criminal intent. See,
e.g., Fontenot v. State, 881 P.2d 69, 83 (Okla. Crim. App. 1994). However, Mr.
Valdez testified that he knew he was going to kill Mr. Barron beforehand, and in
fact told Mr. Barron so. Moreover, he was able to remember and describe the
evenings events in explicit detail, and his recollections were corroborated by all
of the witnesses who were present on the night of the murder. See Crawford v.
State, 840 P.2d 627, 638 (Okla. Crim. App. 1992) (defendants detailed
description of the crime and the surrounding circumstances demonstrate[d] that
he was in control of his mental faculties and not in the advanced state of
intoxication he attempt[ed] to assert). The OCCA was therefore not
unreasonable in determining that Mr. Valdez was not so intoxicated as to be
unable to form intent on the night of the murder. Because the requirements for
voluntary intoxication instruction were not met, the OCCA did not unreasonably
apply Strickland in determining that Mr. Valdezs counsel was not ineffective for
failing to request such an instruction.
Mr. Valdez also argues the evidence supported a second degree murder
instruction because the murder occurred during a drunken fight. Under Oklahoma
law, second degree murder requires a lack of intent. See, e.g., Palmer v. State,
871 P.2d 429, 432 (Okla. Crim. App. 1994). Once again, his argument is
undermined by his own admission that he intended to kill Mr. Barron before the
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two started fighting. Consequently, the OCCA was not unreasonable in

determining that the evidence did not support a second degree murder instruction.
Nor was the OCCA unreasonable in applying Strickland to determine that Mr.
Valdezs trial counsel was not ineffective for failing to request the instruction.
For these reasons, Mr. Valdez has not shown he is entitled to relief under
section 2254 for his claim of ineffective assistance of trial counsel.
CONCLUSION
Mr. Valdez is not entitled to habeas relief based on the OCCAs
determination that: (1) his July 25 and 26 statements were not obtained in
violation of his Fifth Amendment rights; (2) his July 26 interrogation did not
violate his Sixth Amendment right to counsel; (3) the State proved he was sane
beyond a reasonable doubt; (4) he was competent to stand trial; (5) the trial
courts failure to instruct the jury on second degree murder did not violate his due
process rights; and (6) his trial counsels ineffectiveness, if any, was not
prejudicial to his case.
We AFFIRM the district courts denial of Mr. Valdezs request for a writ
of habeas corpus.

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