                                                                         FILED
                                                             United States Court of Appeals
                   UNITED STATES COURT OF APPEALS                    Tenth Circuit

                         FOR THE TENTH CIRCUIT                      July 12, 2016
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
DANNY RAY WILSON,

       Petitioner-Appellant,

v.                                                 No. 15-5091
                                          (D.C. No. 4:12-CV-00679-CVE-
JASON BRYANT, Warden,                                  PJC)
                                                   (N.D. Okla.)
       Respondent-Appellee.
                   _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                _________________________________

      After being convicted in Oklahoma state court, Mr. Danny Ray

Wilson filed a federal habeas petition under 28 U.S.C. § 2254. In this

petition, he claimed that he had not been competent to plead nolo

contendere, that his plea had not been knowingly and intelligently entered,

that his trial and appellate counsel had been ineffective, and that newly

discovered evidence showed that he was innocent. The federal district


*
     We do not believe that oral argument would be helpful. Accordingly,
we decide the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
court denied the application for habeas relief, and Mr. Wilson appeals.

      We can entertain Mr. Wilson’s appeal points only upon the grant of a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We granted a

certificate of appealability on the claims challenging the validity of the

plea and alleging ineffective assistance at trial. 1 On these claims, we affirm

the denial of habeas relief. On the remaining claims, we decline to issue a

certificate of appealability and dismiss the appeal on those claims.

I.    Mr. Wilson entered a blind plea of nolo contendere.

      Mr. Wilson faced state charges for first-degree burglary and

aggravated assault and battery. According to the State, Mr. Wilson broke

into the home of a 95-year-old woman and battered her in the face.

      Shortly before the trial was to begin, defense counsel (Mr. David

Phillips) stated that

           he had advised Mr. Wilson to either accept a prior plea offer
            for 35 years or to enter a blind plea and

           Mr. Wilson rejected this advice and wanted to go to trial.

The trial judge conferred with Mr. Wilson about the potential range of

punishment and the available alternatives, prompting Mr. Wilson to say

that he wanted to “get it settled.” R. vol. 2 at 34-35. The trial judge

cautioned that with a blind plea, Mr. Wilson would “have no way of

1
      The certificate of appealability included a claim that trial counsel had
been ineffective in advising Mr. Wilson to waive a preliminary hearing.
We withdraw the certificate of appealability on this claim because it was
omitted in Mr. Wilson’s application for a certificate.
                                       2
knowing what [the trial judge’s] decision [would] be. It [would] simply be

within the range of punishment provided by Oklahoma law.” Id. at 36. The

judge asked Mr. Wilson if he wanted “to take either one of those offers.”

Id. at 37. Mr. Wilson replied: “Yeah, I do.” Id. The trial judge emphasized

the permanency of the decision: “Once you enter that plea, you can’t take

it back. Do you understand that?” Id. Mr. Wilson nodded. The court then

recessed to allow Mr. Wilson and Mr. Phillips to finalize a written plea

agreement.

     After completing the plea forms, the trial judge summarized the plea

agreement. The agreement indicated that Mr. Wilson was not taking any

medications that would affect his ability to understand the proceedings. Id.

at 80-81. Mr. Wilson admitted that the agreement bore his signature and

that he understood the rights he was relinquishing.

     The trial judge explained the potential sentences and confirmed that

Mr. Wilson wished to enter a “blind plea of no contest.” Id. at 38-39. The

prosecutor then summarized the evidence against Mr. Wilson, who agreed

that he would not contest that evidence.

     The judge reiterated the possible range of punishment for both counts

and noted that Mr. Wilson “should have no expectation of anything other

than what . . . the range of punishment is.” Id. at 40. Mr. Wilson indicated

that was his understanding.



                                      3
      The trial judge then found that Mr. Wilson understood his rights. Id.

With this finding in place, Mr. Wilson entered a blind plea of nolo

contendere and the judge imposed consecutive terms of 30 years’

imprisonment for burglary and a life sentence for assault.

      Mr. Wilson moved to withdraw his plea of nolo contendere and the

trial court held a hearing on the motion. Mr. Wilson’s trial counsel

testified that he had told Mr. Wilson that

           the judge had discretion on what would happen and

           Mr. Wilson might fare better with a judge because a jury would
            likely react with outrage after learning that the victim was
            elderly.

Id. at 70. Mr. Phillips added that he did not know what prompted Mr.

Wilson to “want to deal.” Id. at 76. On cross-examination, Mr. Phillips

confirmed that he had assisted Mr. Wilson in filling out the plea agreement

and had advised Mr. Wilson that by entering a plea, “he could do better or

he could do worse.” Id. at 78-79.

      Conversely, Mr. Wilson testified that on the day of trial, Mr. Phillips

had stated that

           he “wasn’t prepared to proceed to trial” and

           the judge would not impose more than 35 years.

Id. at 97-98. Mr. Wilson indicated that he had expected a sentence between

20 and 35 years and experienced shock when given a life sentence. Id. at

98-99. He added that his trial counsel had completed the plea forms and
                                      4
pressured Mr. Wilson to sign. Id. at 101-02. When the hearing came to an

end, the trial judge denied Mr. Wilson’s motion to withdraw the nolo

contendere plea. The Oklahoma Court of Criminal Appeals (OCCA)

affirmed in a summary opinion.

II.   In district court, Mr. Wilson bore a heavy burden to justify
      habeas relief.

      In reviewing the denial of habeas relief, we engage in de novo

review. Frost v. Pryor, 749 F.3d 1212, 1223-24 (10th Cir. 2014). Thus, we

apply the standard that applied in district court. Sperry v. McKune, 445

F.3d 1268, 1271 (10th Cir. 2006).

      In district court, habeas relief is restricted under the Antiterrorism

and Effective Death Penalty Act (AEDPA). Hooks v. Workman, 689 F.3d

1148, 1163 (10th Cir. 2012). Under this law, “[a]n applicant is not entitled

to relief unless he can demonstrate that the state court’s resolution of his

claims was ‘contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States’ or ‘was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.’” Id.

(quoting 28 U.S.C. § 2254(d)(1)-(2)). Through this standard, the AEDPA

“erects a formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated [on the merits] in state court.” Burt v. Titlow,

— U.S. —, 134 S. Ct. 10, 16 (2013).


                                       5
III.   The district court did not err in denying relief on the claims
       challenging Mr. Wilson’s competency to enter a plea.

       Mr. Wilson claims that he and his attorney should have been

questioned on the issue of competency. For this claim, Mr. Wilson points

out that he disclosed a past mental illness on his plea form. In his view,

this disclosure should have triggered greater inquiry to ensure competency.

We reject this argument.

       The nolo contendere plea was valid only if Mr. Wilson was

competent. Gonzales v. Tafoya, 515 F.3d 1097, 1118 (10th Cir. 2008). And

he was competent only if he had the ability to consult with his attorney and

to understand the proceedings. Id.

       The existence of a mental disorder does not necessarily mean that the

defendant lacks competency to enter a plea of nolo contendere. See Miles

v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995). The defendant ultimately

bears the burden to prove by a preponderance of the evidence that he

lacked competency. See id.

       The OCCA rejected Mr. Wilson’s competency argument:

       The record here shows that the trial court’s inquiries were
       sufficient to determine Wilson was competent to enter his no
       contest pleas. The trial court did not personally inquire of
       Wilson regarding his competency. However, Wilson’s plea
       form indicated he was not taking any medications or substances
       which affected his ability to understand the proceedings, and
       had not been prescribed any medication he was not taking;
       understood the nature and consequences of the proceeding;
       understood his rights; understood he waived his rights by
       pleading; and had discussed the charges and plea with counsel.

                                      6
      The plea form reflects that Wilson had been treated at Parkside
      hospital for “Paranoid — schizo/Bipolar, Thorazine”, but the
      record shows this treatment was twenty to thirty years before
      Wilson’s plea was entered. Wilson’s plea counsel, Phillips,
      avers in the plea form that he believed [Wilson] understood the
      nature, purpose and consequences of the proceeding, and was
      able to assist counsel in formulating any defense. At the
      hearing on Wilson’s motion to withdraw his plea, the trial court
      noted that at no time during the proceedings was there any
      suggestion that Wilson was not competent, and the court’s
      observations were that Wilson was focused, engaged, and able
      to understand the nature of the proceedings. We find that this
      procedure was sufficient, and we further find that the record
      does not support any conclusion that Wilson was not competent
      to enter his plea.

R. vol. 1 at 395. In conducting this analysis, the OCCA reasonably applied

Supreme Court precedent.

      To prove otherwise, Mr. Wilson bore a heavy burden in district court,

for the representations made by himself, his attorney, and the prosecutor

combined to create a “formidable barrier” to habeas relief. Blackledge v.

Allison, 431 U.S. 63, 73-74 (1977). To overcome that barrier, Mr. Wilson

had to go beyond conclusory allegations or arguments belied by the record.

Id. at 74.

      Mr. Wilson does not question the truthfulness of his oral statements

in court. Rather, he contends that the trial court should have inquired

further after learning of a past mental illness. The OCCA addressed this

contention and concluded that the colloquy had been sufficient.

      This conclusion was reasonable under Supreme Court precedent and

the record of the plea proceeding. In the colloquy, Mr. Wilson answered in

                                      7
a way that showed focus and understanding. In these circumstances, the

federal district court did not err by rejecting the habeas claim.

IV.   The district court did not err in denying relief on the claim of
      ineffective assistance at trial.

      Mr. Wilson also argues that his trial counsel rendered ineffective

assistance by failing to (1) adequately advise how to plead and decide

between accepting the State’s offer or entering a blind plea and (2) request

a finding on competency.

      To prevail on the ineffective-assistance claim in district court, Mr.

Wilson had to show that the legal representation was deficient and

prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

      On direct appeal, the OCCA rejected Mr. Wilson’s claims:

      The record shows that plea counsel advised Wilson a trial court
      might sentence him to less time on a blind plea than he would
      get in a jury trial, that the court might give him more or less
      time than the State’s offer, and that if Wilson wanted to be sure
      of his sentence he should take the State’s offer. The record
      does not support Wilson’s suggestions either that there was
      confusion regarding the State’s offer, or that plea counsel had
      failed to properly consult with Wilson and investigate his case,
      or that the facts of the case and Wilson’s previous
      hospitalization should have caused counsel to question his
      competency. Wilson fails to show that, but for counsel’s
      advice, he would not have entered a blind plea. We will not
      find counsel ineffective.

      We find in Proposition III that plea counsel was not ineffective
      for failing to ensure that the trial court found he was competent
      to enter his no contest plea. We found in Proposition I that the
      trial court’s procedure sufficiently determined Wilson was
      competent. We further found in Proposition I that nothing in
      the record supports any suggestion Wilson was not competent

                                      8
      to enter his plea. Given these findings, Wilson cannot show he
      was prejudiced by counsel’s failure to insist on a personal
      colloquy with the trial court, or to raise the issue of Wilson’s
      competency.

R. vol. 1 at 396-97 (footnotes & citations omitted).

      This disposition was reasonable under Supreme Court precedent and

the trial court’s record. Mr. Wilson acknowledged that his attorney had

explained that acceptance of the State’s offer would provide greater

certainty than a blind plea because no one could know for sure what

sentence the judge would impose. R. vol. 2 at 75, 78.

      According to Mr. Wilson, his attorney strongly urged a guilty plea.

But the attorney could reasonably fear a harsh reaction from the jury when

it learned that the victim was 95 years old. As a result, the OCCA

reasonably concluded that Mr. Wilson had failed to prove a deficiency in

his attorney’s advice.

      Mr. Wilson also argues that because he had previously suffered from

mental illness, his attorney should have moved for an “examination or

determination of his mentally ill client’s competency to waive trial rights.”

Appellant’s Opening Br. at 8 (brackets omitted). According to Mr. Wilson,

there is no indication that the attorney investigated or inquired further into

the past mental illness. In Mr. Wilson’s view, the attorney should have

obtained further psychological evaluations.




                                      9
      The claim assumes that there was a reason to suspect mental illness

when Mr. Wilson pleaded. But there was none; the mental illness disclosed

on the plea form was over 20 years old. In these circumstances, the OCCA

reasonably rejected the ineffective-assistance claim.

V.    We decline to issue a certificate of appealability on Mr.
      Wilson’s remaining two claims.

      Mr. Wilson asserts two additional habeas claims: (1) newly

discovered evidence and (2) ineffective assistance of appellate counsel. We

can consider the appeal on these claims only if Mr. Wilson justifies a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). To do so, Mr.

Wilson must show that his appeal points are reasonably debatable. See

Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). The district court

concluded that Mr. Wilson had not satisfied this light burden on the claims

involving newly discovered evidence and ineffective assistance of

appellate counsel. We agree.

      According to Mr. Wilson, newly discovered evidence shows that he is

innocent. For example, Mr. Wilson points to a TRACIS report and police

photographs that prove incriminating evidence had been fabricated.

      This claim is procedurally barred because the OCCA resolved this

issue on an independent and adequate procedural ground: failure to raise

the issue in a prior application for post-conviction relief. R. vol. 1 at 183-

84 & n.9; see Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002).


                                      10
      Mr. Wilson additionally claims that his appellate counsel was

ineffective for failing to assert appeal points regarding

           trial counsel’s ineffectiveness for failure to challenge
            competency and

           the “newly discovered evidence.”

      In the post-conviction appeal, the OCCA noted that Mr. Wilson had

conceded that his appellate counsel’s competency argument was “‘well

researched and articulated in her brief in chief.’” R. vol. 1 at 182. In

addition, Mr. Wilson has not alleged that he told his appellate counsel

about the “newly discovered evidence.” Rather, Mr. Wilson argued that (1)

the newly discovered evidence “was obvious from the[] exhibits in the

record,” R. vol. 1 at 28; and (2) his appellate counsel “had the entire

record to find this fundamental error.” Appellant’s Opening Br. at 24.

Because these allegations are conclusory, any reasonable jurist would

uphold the OCCA’s decision to reject this claim. As a result, we (1)

decline to issue a certificate of appealability on the claim of ineffective

assistance of appellate counsel and (2) dismiss that part of the appeal.

VI.   Disposition

      We decline to issue a certificate of appealability on the claims

involving newly discovered evidence and ineffective assistance of

appellate counsel. Thus, we dismiss those parts of the appeal. We affirm on




                                      11
the claims involving competency and ineffective assistance of trial

counsel.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




                                    12
