                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                       PUBLISH
                                                                         APR 16 1999

                      UNITED STATES COURT OF APPEALS                  PATRICK FISHER
                                                                              Clerk
                                    TENTH CIRCUIT



 LUTHER K. BARNETT, JR.,

           Petitioner - Appellee,
                                                        No. 98-6244

 vs.

 STEVE HARGETT,

           Respondent - Appellant.


              APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE WESTERN DISTRICT OF OKLAHOMA
                          (D. Ct. No. CV-97-1072-A)


Before ANDERSON, KELLY, and LUCERO, Circuit Judges. *


Luther K. Barnett, Jr, pro se.

W.A. Drew Edmondson, Attorney General, and Nathan L. Dills, Assistant
Attorney General, Oklahoma City, Oklahoma for Respondent-Appellant.


KELLY, Circuit Judge.


       *
        After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Respondent appeals from the district court’s grant of a conditional writ of

habeas corpus, 28 U.S.C. § 2254. The district court determined that Petitioner

had raised a procedural and substantive competency claim in his federal petition,

that appellate counsel was ineffective for not pursuing such claims when

Petitioner’s direct appeal had been remanded to the state district court, and that

the record before the state district court was insufficient to support its finding that

a competency hearing had occurred and a finding of competency had been

entered. Without a sufficient record to determine whether a competency hearing

had been held and what standard had been applied, the district court granted a

conditional writ, allowing the State ninety days to conduct a feasibility

determination hearing and, if a retrospective competency determination were

feasible, another ninety days to conduct such a hearing or set the case for a new

trial. The failure to make the requisite determination would result in the

Petitioner’s release from custody.

      On appeal, Respondent contends that the district court erred in (1) granting

relief on an issue not raised by the Petitioner in his federal petition, and (2)

failing to afford the state district court’s determinations about a competency

hearing a presumption of correctness, see 28 U.S.C. § 2254(e)(1). Our

jurisdiction arises under 28 U.S.C. § 1291. The district court did not hold an


                                          -2-
evidentiary hearing, so our review of its factual findings and legal conclusions is

de novo. See Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998). We

affirm.



                                     Background

      We discuss the facts briefly as they relate to the State’s appeal. In a two-

stage jury trial, Petitioner was convicted of assault and battery with intent to kill

after former conviction of two or more felonies and sentenced upon the jury’s

recommendation to one hundred years imprisonment. See Aplt. App. at 98. The

jury trial and sentencing were not continuous; apparently, Petitioner achieved

competency for his trial in March 1989, was determined to be incompetent

thereafter, see id. at 93-96, and was not sentenced until August 1989 when he

regained competency. An appeal was taken and the judgment and sentence were

affirmed. See id. at 99.

      The treatment records from the state hospital indicate a discharge diagnosis

prior to trial of organic delusional syndrome and seizure disorder. See id. at 96.

The competency restoration effort for the trial confirmed the presence of bone

defects relating to a head injury. Id. The psychiatric evaluation shortly after

trial indicates that Petitioner was over-sedated, delusional and not oriented–he

could not walk without assistance and was incapable of self care. See id. at 93-


                                          -3-
95.

      The federal petition contains a claim that Petitioner’s appellate counsel was

ineffective for failing to file a petition for rehearing in his direct appeal, and that

this ineffective assistance rendered the appellate proceeding unreliable. See id. at

8. Petitioner’s theory mirrors that unsuccessfully asserted in state post-conviction

proceedings. Petitioner maintains that he had proper grounds for a rehearing

petition based upon the lack of a record order memorializing his competency

hearing, and that a new trial is necessary because a post-examination competency

hearing is not feasible. See id. at 28-32, 67-83. He also contended that he was

denied the right to counsel because his appellate indigent defender had resigned

during the pendency of his appeal and no counsel was available to represent him

during the appellate process and file a petition for rehearing. See id. at 29 (citing

Evitts v. Lucey, 469 U.S. 387 (1985)) & 67. Both the state district court and the

Oklahoma Court of Criminal Appeals rejected the ineffective assistance claim on

the merits. See id. at 35-42.

      This is not a case where counsel failed to pursue a competency

determination. See Williamson v. Ward, 110 F.3d 1508, 1519 (10th Cir. 1997).

Whether a competency hearing had been held before trial was squarely at issue in

Petitioner’s direct appeal. See Aplt. App. at 108-09. There, appellate counsel

argued that Petitioner should receive a new trial because, although the record


                                          -4-
reflected that an application for a post-examination competency hearing was filed

and a hearing was set, nothing in the record indicated that it was actually held.

See id. The Oklahoma Court of Criminal Appeals noted that (1) the record

indicated that Petitioner was determined to be incompetent, but capable of

achieving competency, and (2) the State had filed an application for a hearing

based upon a letter from a forensic psychologist advising the state district court

that Petitioner had achieved competency. See id. at 89. It further noted that trial

court granted the request for a hearing and set the hearing. See id. Finding the

record insufficient to determine whether the hearing actually was held, however,

the Oklahoma Court of Criminal Appeals made a limited remand of the case to the

state district court to enter findings and conclusions, including whether Petitioner

“was afforded an opportunity to present evidence concerning his competency and

argue as to inferences therefrom.” Id. at 90.

      By that time, it appears that the lawyer handling Petitioner’s appeal, a

deputy appellate indigent defender, was no longer with the Oklahoma Indigent

Defense System. Petitioner contends that he learned of this based upon a March

19, 1997 letter to another inmate informing him that the deputy appellate indigent

defender had resigned. See Aplt. App. 206, 213. Nothing in the record before us

indicates that Petitioner was represented during the remand proceedings; indeed,

it appears that Petitioner did not know of the findings and conclusions entered by


                                         -5-
the trial court on remand until three years later. See id. at 247.

       In those remand proceedings, the state district court found that in fact a

competency hearing had been held on the date set and that the trial judge had

determined that Petitioner was competent and ordered the trial resumed. See id.

at 237. The state district court further found that Petitioner “was present with

counsel and was afforded an opportunity to present evidence concerning his

competency and argue as to inferences therefrom.” Id. The original trial judge

had no personal recollection of the event and only an unsigned minute order was

located in another file in the district attorney’s office. The state district court

relied upon several sources for its findings. A report from a forensic psychologist

determining Petitioner was competent was submitted two weeks prior to the

scheduled hearing, see id. at 235, although that report is not part of the appendix

on appeal. An affidavit of the prosecutor indicated that the hearing was held and

that defense counsel in consultation with Petitioner stipulated to the findings by

the forensic psychologist. See id. at 239-41. An affidavit of the defense attorney

indicated that Petitioner was eventually found competent by the treating hospital,

although the attorney could not recall whether a hearing had been held. See id. at

242.



                                      Discussion


                                          -6-
                       A. Liberal Construction of the Petition

      The district court did not abuse its discretion in attempting to ascertain the

nature of Petitioner’s claim. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

When a defendant contends that appellate counsel was ineffective for failing to

raise an issue on appeal or here, on rehearing, an examination of the merits of the

omitted issue is usually necessary See United States v. Cook, 45 F.3d 388, 392-

93 (10th Cir. 1995).

      Moreover, the mandated liberal construction afforded to pro se pleadings

“means that if the court can reasonably read the pleadings to state a valid claim

on which the [petitioner] could prevail, it should do so despite the [petitioner’s]

failure to cite proper legal authority, his confusion of various legal theories, his

poor syntax and sentence construction, or his unfamiliarity with pleading

requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (footnote

omitted). At the same time, a district court should not “assume the role of

advocate for the pro se litigant,” id., and may “not rewrite a petition to include

claims that were never presented,” Parker v. Champion, 148 F.3d 1219, 1222

(10th Cir. 1998), cert. denied, 119 S. Ct. 1053 (1999). The district court in this

case looked carefully at the facts and the pleadings in an effort to ascertain what

occurred in prior state proceedings and the true nature of Petitioner’s claims.

Although the language and syntax of the petition, together with an emphasis on


                                          -7-
ineffective assistance of appellate counsel for failing to file a rehearing petition

suggest an unwinnable claim, Petitioner cited proper legal authority and explained

why a rehearing petition was so necessary–he was without counsel during the

remand and Oklahoma’s standard for determining competency had been declared

unconstitutional. The task of sorting though pro se pleadings is difficult at best;

provided a respondent is afforded a full and fair opportunity to address a

construction not immediately apparent, we will not interfere with the district

court’s effort to do substantial justice.



                   B. Petitioner’s Procedural Competency Claim

      Competency claims are based either upon substantive due process or

procedural due process, although sometimes there is overlap. A competency claim

based upon substantive due process involves a defendant’s constitutional right not

to be tried while incompetent. See Sena v. New Mexico State Prison, 109 F.3d

652, 654 (10th Cir. 1997). Competence to stand trial requires that a defendant

“has sufficient present ability to consult with his lawyer with a reasonable degree

of rational understanding–and whether he has a rational as well as factual

understanding of the proceedings against him.” Dusky v. United States, 362 U.S.

402, 402 (1960) (internal quotations omitted); see United States v. Williams, 113

F.3d 1155, 1159 (10th Cir. 1997). A substantive competency claim is not subject


                                            -8-
to procedural bar. See Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir.

1997), cert. denied, 119 S. Ct. 128 (1998). A petitioner is entitled to a nunc pro

tunc evidentiary hearing to establish that he was incompetent at the time of trial

only upon raising a threshold doubt about his competency by clear and convincing

evidence. See id.

      A competency claim based upon procedural due process involves a

defendant’s constitutional right, once a bona fide doubt has been raised as to

competency, to an adequate state procedure to insure that he is in fact competent

to stand trial. See Walker v. Attorney General for the State of Okla., 167 F.3d

1339, 1345 (10th Cir. 1999). A defendant’s irrational behavior, demeanor at trial,

and prior medical opinion may create that bona fide doubt. See Drope v.

Missouri, 420 U.S. 162, 180 (1975); Castro v. Ward, 138 F.3d 810, 818 (10th

Cir.), cert. denied, 119 S. Ct. 422 (1998). Unlike a substantive competency claim,

one based upon procedural due process is subject to procedural bar. See Nguyen,

131 F.3d at 1346 n.2.

      Petitioner consistently has claimed that counsel was ineffective for not

pursuing essentially a procedural competency claim on rehearing, specifically,

that the evidence was insufficient for the state district court to have found a

competency hearing. The district court construed the claim to encompass whether

any competency hearing was conducted in accordance with the proper legal


                                         -9-
standard given Cooper v. Oklahoma, 517 U.S. 348 (1996). In Cooper, the

Supreme Court held that Oklahoma’s requirement that a criminal defendant prove

competency by clear and convincing evidence violated due process guarantees.

See id. at 369. Although the district court viewed such a Cooper claim as

substantive and not subject to procedural bar, we have treated such a claim as

procedural. See Rogers v. Gibson, No. 98-6301, 1999 WL 203188, *8 (April 12,

1999); Walker, 167 F.3d at 1345. Thus, the competency claims in this case,

whether a competency hearing was held and whether the correct standard was

used (Cooper claim) are procedural.



                         C. Exhaustion and Procedural Bar

      Normally, before habeas relief may be granted a Petitioner is required to

exhaust his remedies in state courts. See 28 U.S.C. § 2254(b)(1). Additionally,

such relief is unavailable for federal claims defaulted in state court on an

adequate and independent state ground, absent a showing of cause for the default

and prejudice resulting therefrom, or a showing that the failure to grant habeas

relief would result in a fundamental miscarriage of justice. See Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

      Respondent conceded that Petitioner had exhausted his ineffective

assistance claim as presented, and argued on the merits that the failure to file a


                                         - 10 -
petition for rehearing was solely a matter of state law for which habeas would not

lie. See Aplt. App. at 116, 124-26, 285. As construed by the district court,

however, Respondent argued that any Cooper claim in the federal petition was

both unexhausted and procedurally barred because it had not been raised on state

direct appeal. See id. at 286, 297. The district court apparently agreed and

further remarked that references to Cooper contained in Petitioner’s state post-

conviction pleadings were insufficient to adequately raise the issue before the

state courts; however, it determined that exhaustion of this claim would be futile

because the Oklahoma Court of Criminal Appeals would find the claim

procedurally barred for failure to raise it on direct appeal. See Coleman, 501 U.S.

at 735 n.1. The district court observed that the Oklahoma courts had fully

resolved Petitioner’s competency.

      In determining whether a state procedural bar rule is an adequate and

independent ground to bar federal review of a constitutional claim, a federal

habeas court must apply the state’s rule in effect at the time of the purported

procedural default. See Rogers, 1999 WL 203188, *9; Walker, 167 F.3d at 1344-

45. No argument that an incorrect standard was used to determine competency

was made at the time of Petitioner’s direct appeal (1992-93) which occurred prior

to Cooper.

      In support of its conclusion that the state courts would find the claim


                                        - 11 -
procedurally barred, the district court cited Walker v. State, 933 P.2d 327, 338-39

(Okla. Crim. App. 1997), a capital case finding Cooper claims barred if not raised

on direct appeal under the 1995 amendments to Oklahoma’s capital post-

conviction procedures, Okla. Stat. Ann. tit. 22, § 1089(C)(1) & (D)(9)(a) & (b)

(West 1999 Cum. Supp.). See also Rogers v. State, 934 P.2d 1093, 1096 (Okla.

Crim. App. 1997) (capital case stating that “We have declined to apply Cooper on

post-conviction review.”) (footnote omitted). In this non-capital case, it is not at

all clear that Oklahoma would find the Cooper claim barred for failure to raise it

on direct appeal under the applicable statutory provision, Okla. Stat. Ann. tit. 22,

§ 1086 (West 1986). See Valdez v. State, 933 P.2d 931, 933 n.7 (Okla. Crim.

App. 1997) (under § 1086, Cooper as an intervening change in the law could be

applied to collateral proceedings); Rojem v. State, 829 P.2d 683, 684 (Okla. Crim.

App. 1992) (non-capital case). Regardless, even in capital cases, we have

declined to apply Oklahoma’s statutory procedural bar to Cooper claims not raised

on direct appeal where the direct appeal predated the Supreme Court’s 1996

Cooper decision. See Rogers, 1999 WL 203188, *9; Walker, 167 F.3d at 1345.

The district court’s decision to consider the Cooper claim on the merits was not

without support.



                           D. Presumption of Correctness


                                        - 12 -
      To prevail on an ineffective assistance of counsel claim, a Petitioner must

demonstrate both deficient performance and prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). A showing of deficient performance

requires that counsel made such serious errors that he was not functioning as the

“counsel” guaranteed by the Sixth Amendment; prejudice requires that these

errors deprive the Petitioner of a fair trial with a reliable result. See id. In the

context of omitting an issue on appeal, this means failing to raise an issue obvious

from the trial record and one that probably would have resulted in reversal. See

Cook, 45 F.3d at 395. Where an appeal is not taken, a petitioner need only

establish deficient performance. See Romero v. Tansy, 46 F.3d 1024, 1030-31

(10th Cir. 1995).

      Central to Petitioner’s ineffectiveness claim is whether a post-examination

competency hearing was held. Respondent forcefully argues that the State court

findings that such a hearing occurred, despite any contemporaneous record, are

“presumed to be correct,” with the burden on Petitioner “of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). There are two reasons why this argument must be rejected.

      First, given the Cooper claim now in the case, we recently held that a state-

court competency determination arrived at with an incorrect standard of proof is

not entitled to a presumption of correctness, and is analogous to no competency


                                          - 13 -
hearing at all. See Walker, 167 F.3d at 1345. Accordingly, where a petitioner

has raised this claim and it is not procedurally barred, relief is appropriate if he

can establish a bona fide doubt as to his competency at trial. See id.; Rogers,

1999 WL 203188, *10.

      The State admits that the standard for competency at the time was

determined to be unconstitutional, but argues that the parties’ stipulation as to the

forensic psychologist’s findings was tantamount to a stipulation concerning

competency. See Aplt. Br. at 15. However, these findings alone are not

dispositive; such a view would displace the role of the trial judge. See Pate v.

Robinson, 383 U.S. 375, 386 (1966); United States ex rel. Lewis v. Lane, 822

F.2d 703, 704-05 (7th Cir. 1987). “Only after concluding that a state court used

the proper standard does a habeas court turn to the issue of the presumption of

correctness.” Lafferty v. Cook, 949 F.2d 1546, 1551 n.4 (10th Cir. 1991). Given

Petitioner’s history of severe mental problems, the need for him to regain

competency on at least two occasions, and the expressed belief of counsel at

sentencing that Petitioner was not competent, see Aplt. App. at 108, the Petitioner

has established a bona fide doubt as to his competency.

      Second, the presumption of correctness, even for the purely historical fact

as to whether a hearing occurred, see Thompson v. Keohane, 516 U.S. 99, 109-10

(1995), does not apply when “some reason to doubt the adequacy or the accuracy


                                         - 14 -
of the fact-finding proceeding” exists, Medina v. Barnes, 71 F.3d 363, 369 (10th

Cir. 1995). We cannot conclude that Petitioner received a “full, fair, and

adequate hearing,” Nguyen, 131 F.3d at 1359, when he has put forward clear and

convincing evidence, unrebutted by Respondent, that he was effectively

unrepresented during a critical stage in his appeal, specifically when the

Oklahoma Court of Criminal Appeals remanded his direct appeal to the trial court

to determine whether a competency determination had been made.

      Although Petitioner focused his petition on the claim that counsel was

ineffective for failing to seek rehearing after the state appellate court affirmed his

conviction and sentence on the strength of the remand determination, he has

always maintained that he had no appellate counsel commencing with the remand.

This lack of counsel is attributable to the state. See Cuyler v. Sullivan, 446 U.S.

335, 343 (1980). We have repeatedly emphasized the important professional and

institutional obligation inherent in assuring that only those who are competent be

tried. See United States v. Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998),

cert. denied, 119 S. Ct. 828 (1999); Sena, 109 F.3d at 655. In this instance, a

procedural competency issue was raised, but not pursued by counsel during or

after the remand, a time when critical facts about a proceeding that may or may

not have occurred were being developed. For the remand proceedings to be fair,

Petitioner needed counsel to evaluate and test (through cross-examination) the


                                         - 15 -
facts contained in the prosecutor’s affidavit; representation in name only by a

deputy appellate indigent defender who had left that system is not sufficient. See

Evitts, 469 U.S. at 396; see also Gideon v. Wainwright, 372 U.S. 335, 344-45

(1963). Moreover, counsel could have evaluated the possibility of pursuing a

substantive competency claim, i.e., that Petitioner was tried, convicted and

sentenced while he was mentally incompetent, that he was unable to assist his

counsel or understand the proceedings. See Godinez v. Moran, 509 U.S. 389, 402

(1993); Williams, 113 F.3d at 1159.

      AFFIRMED.




                                        - 16 -
No. 98-6244, Barnett v. Hargett

ANDERSON, Circuit Judge, concurring:



      I concur in the disposition of this case. As I understand it, the basic

holding of the majority opinion deals with the right to counsel, intertwined with a

procedural competency claim, in a very unusual situation which we will probably

not see again.
