                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       May 17, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    GLEN FOLSOM ,

                Petitioner-A ppellant,

    v.                                                  No. 06-6172
                                                 (D.C. No. CIV-05-1240-W )
    ER IC FR AN K LIN ,                                 (W .D. Okla.)

                Respondent-Appellee,

          and

    STA TE OF O K LA H O MA ,

                Respondent.



                              OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.


         An Oklahoma trial court convicted Glen Folsom of committing nine

felonies, including armed robbery, kidnaping, and rape, sentencing him to 424

years of incarceration. M r. Folsom’s direct appeal and state petition for


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
post-conviction relief proved of no avail. Eventually, M r. Folsom filed a petition

for a w rit of habeas corpus, under 28 U.S.C. § 2254, in the United States District

Court for the W estern District of Oklahoma. The district court denied relief, and

M r. Folsom filed with us a request for a certificate of appealability (“COA”). W e

granted review to hear M r. Folsom’s contention that the trial court infringed his

Sixth Amendment rights by allowing him to shed his appointed counsel and

proceed pro se at trial, as well as his argument that the court failed to afford due

process when assessing his competency at sentencing. After a full vetting of

M r. Folsom’s arguments and for reasons explored below, we affirm the district

court’s judgment.

                                       *    * *

      On August 17, 2002, Glen Folsom, armed with a handgun, entered a video

rental store in Tecumseh, Oklahoma, robbed two female clerks, fired his weapon,

forced the clerks into his car, drove them into the country, and sexually assaulted

them. In response, the State of Oklahoma charged M r. Folsom with two counts of

robbery with a firearm; two counts of kidnaping; one count of rape by

instrumentation; two counts of attempted first-degree rape by force and fear; one

count of possession of a firearm during the commission of a felony; and one count

of possession of a firearm after former conviction of a felony.

      Just before his scheduled trial, M r. Folsom told his attorney Cregg D. W ebb

that he wished to proceed pro se. After the state trial court afforded M r. Folsom

                                           -2-
the chance to mull his request over the weekend, M r. Folsom reaffirmed his desire

to proceed pro se, though with M r. W ebb’s continued assistance and advice. I

Trial Tr. at 6. The trial court explained to M r. Folsom that he had a Sixth

Amendment right to represent himself, but that the court first needed to ensure

M r. Folsom made this “very serious” decision “freely,” “voluntarily,” and

“knowingly.” Id. at 6-7. Toward that end, the court supplied M r. Folsom a

written questionnaire, instructed him to complete it, and adjourned the

proceedings to give M r. Folsom time to contemplate his answers. See id. at 7.

      Upon returning from recess, the trial court asked M r. Folsom to take the

stand and proceeded to examine him under oath. See id. at 8-17. The court first

ensured that M r. Folsom had read, understood, and answered truthfully “each and

every question” on the written questionnaire, id. at 8, learning in the process,

among other things, that M r. Folsom previously represented himself in a civil

case and had earned a General Equivalency Diploma. See I Trial Tr. at 8, 13-14.

The court thoroughly discussed with M r. Folsom the disadvantages of proceeding

pro se and the advantages of representation by counsel. See id. at 9-13. The

court then ensured that M r. Folsom had received, read, and understood the

charges against him, along with the possible penalties associated with a guilty

verdict. See id. at 13.

      At no time did M r. Folsom or his counsel inform the court of any medical

history that might preclude M r. Folsom from proceeding pro se. To the contrary,

                                         -3-
the court directly asked M r. Folsom, “[h]ave you ever been under the care of a

psychiatrist, psychologist, or other mental health professional?” id. at 14, to

which M r. Folsom responded, “[y]es, sir.” Id. The court followed up, inquiring,

“[w]ould that in any way interfere with your ability to proceed here today?” Id.

M r. Folsom answered flatly, “[n]o, sir.” I Trial Tr. at 14. Pursuing the subject

further, the court then asked a series of questions to ensure that M r. Folsom knew

his location, had not taken mind-altering drugs or medications during the course

of the proceedings, and then again asked in four different ways – both in the

affirmative and negative – whether M r. Folsom was certain he wanted to proceed

pro se. See id. at 14-15. Only after all this did the court rule M r. Folsom

“knowingly, intelligently, and voluntarily” waived his right to counsel and

granted M r. Folsom's request to proceed pro se. Id. at 15-16. The court also

directed that M r. W ebb would continue to serve as M r. Folsom’s legal advisor,

and that M r. Folsom could turn over the representation of his case to M r. W ebb at

any time. See id. at 16-17.

      During trial, M r. Folsom made opening and closing statements to the jury,

examined the prosecution’s witnesses, responded to the evidence at the close of

the prosecution’s case, took the stand on his own behalf, and called an additional

witness. Despite his efforts, the jury found M r. Folsom guilty on nine counts. 1



1
      Counts 6 and 7 of the indictment charged M r. Folsom with two counts of
                                                                   (continued...)

                                         -4-
      Prior to his sentencing, M r. Folsom sent a letter to the Oklahoma trial court

requesting appointed counsel on the basis that he suffered from a medical

condition that he believed might interfere with his continued ability to proceed

pro se. At the sentencing hearing, the court promptly re-appointed counsel for

M r. Folsom and then asked for details about the medical condition. M r. Folsom

disclosed to the court for the first time that he had been diagnosed with paranoid

schizophrenia in 1987 and bipolar disorder in 2002, and he indicated that he

doubted his mental competency to proceed with sentencing. The trial court

scheduled a threshold competency hearing at which M r. Folsom testified that,

since his trial, he had twice attempted suicide, been unable to recall previous

court proceedings, and was no longer able to understand the legal process or

assist his counsel on sentencing issues. 2 By contrast, three jail guards testified

that, despite some of M r. Folsom’s erratic behavior, 3 they believed that


1
 (...continued)
attempted first-degree rape. The jury found M r. Folsom guilty of the attempted
first-degree rape charged in Count 6, but not guilty of the attempted first-degree
rape charged in Count 7. The jury instead found M r. Folsom guilty of the
lesser-included crime of sexual battery.
2
      On cross-examination, M r. Folsom admitted his understanding that the jury
had recommended his long period of incarceration, and he understood at least
some of the charges against him. He also corrected an Oklahoma prosecutor on
the mistaken assertion that Oklahoma charged M r. Folsom for his firing a weapon
during the course of the alleged assault.
3
      The guards testified that M r. Folsom had been angry, frustrated, confused,
and depressed; fought with other inmates; punched out a w indow at the city jail;
                                                                     (continued...)

                                          -5-
M r. Folsom’s mental health and understanding of the legal process had not

deteriorated since the jury found him guilty.

      At the close of the competency hearing, the Oklahoma trial court found –

especially after observing firsthand M r. Folsom’s pro se performance and

acknowledging that he had previously represented himself in court – that “[t]here

is absolutely no doubt in my mind [M r. Folsom] is competent within the meaning

of the law,” and that M r. Folsom’s competency claim was “an effort to delay the

efforts of justice.” VI Trial Tr. at 775. The Oklahoma trial court sentenced

M r. Folsom to, inter alia, 424 years of incarceration.

      M r. Folsom appealed to the Oklahoma Court of Criminal Appeals

(“OCCA”), alleging the O klahoma trial court erred by, among other things,

allowing him to proceed at trial pro se without adequately inquiring into his legal

ability to do so (“w aiver-of-counsel claim”), and failing to hold a full-blown

competency examination before sentencing (“competency hearing claim”).

The OCCA affirmed, holding as to M r. Folsom’s waiver-of-counsel claim that

“the record as a whole demonstrates [that M r. Folsom] was competent to proceed

pro se at trial”; that the “trial court made appropriate inquiries to make that

determination”; and that “[t]he record as a whole suggests and supports a valid

waiver of the right to counsel, by a competent defendant.” OCCA Summary Op.,



3
 (...continued)
and threatened suicide.

                                          -6-
R. doc. 17, ex. 3, at 3. As to M r. Folsom’s competency hearing claim, the OCCA

held that the Oklahoma trial court did not abuse its discretion in ruling that

M r. Folsom failed to “raise sufficient doubt as to his competency to warrant an

examination” before sentencing. Id. at 2-3. M r. Folsom’s subsequent efforts to

obtain post-conviction relief in Oklahoma state courts proved unfruitful.

      After exhausting his state court remedies, M r. Folsom filed a petition for a

writ of habeas corpus in the United States District Court for the W estern District

of Oklahoma. In this petition, M r. Folsom again pursued his waiver-of-counsel

claim and competency hearing claims. As to the former, the district court held as

“a reasonable application of federal law” the OCCA’s determination that the

entire record, including the Oklahoma trial court’s examination of and warning to

M r. Folsom, sufficed to establish a knowing, intelligent, and voluntary waiver of

counsel. As to the latter, the district court, citing 28 U.S.C. § 2254(e)(1), ruled

that competency is a factual issue for the state courts and federal courts must treat

as presumptively correct the Oklahoma court’s findings. Because the Oklahoma

trial court held a threshold competency hearing and found M r. Folsom competent,

and because M r. Folsom failed to rebut the presumption of his competence with

clear and convincing evidence, the district court found itself powerless to grant

M r. Folsom’s requested habeas relief.




                                          -7-
      M r. Folsom thereafter sought from us a COA, essentially lodging the same

arguments, and we granted his request for review in part. 4

                                       *    * *

      “In habeas cases, we review the federal district court’s legal conclusions

de novo, applying the same review of the state court decision as the district

court.” Jackson v. Ray, 390 F.3d 1254, 1259 (10th Cir. 2004) (citations omitted).

Under the relevant AEDPA standard, where factual and legal issues have already

been adjudicated in state court, a federal court may only grant a writ of habeas

corpus if that adjudication (1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court; or (2) resulted in a decision that was based on




4
      A panel of this court previously granted M r. Folsom’s COA on the
follow ing issues:

      1) W hether the state trial court violated his procedural due process
      rights by failing to conduct an adequate hearing on the issue of his
      competency to stand trial;

      2) W hether the state trial court violated his substantive due process
      rights by finding him competent to stand trial; and

      3) W hether Folsom was denied his Sixth Amendment right to be
      represented by counsel at trial because he did not knowingly and
      intelligently waive his right to counsel.

Order Granting in Part and Denying in Part an Application for a Certificate of
Appealability, at 3.


                                           -8-
an unreasonable determination of the facts in light of evidence presented in the

state court proceeding. 28 U.S.C. §§ 2254(d)(1) and (2). For substantially the

same reasons as the district court, we agree that the Oklahoma courts’ resolution

of M r. Folsom’s claims did not represent an unreasonable application of federal

law or an unreasonable determination of the facts in light of the evidence.

      W e start by acknowledging the bedrock constitutional principle that

M r. Folsom enjoys a right to waive his right to counsel “knowing[ly],

intelligent[ly], and voluntar[ily].” See Maynard v. Boone, 468 F.3d 665, 676

(10th Cir. 2006). Trial courts have “the serious and weighty responsibility . . . of

determining whether there is an intelligent and competent waiver by the accused.”

See id. (citing Johnson v. Zerbst, 304 U.S. 458, 465 (1938)). To fulfill that

responsibility, “a judge must investigate as long and as thoroughly as the

circumstances of the case before him demand. . . . The fact that an accused may

tell him that he is informed of his right to counsel and desires to waive this right

does not automatically end the judge’s responsibility.” Id. at 677 (citing Von

M oltke v. Gillies, 332 U.S. 708, 723-24 (1948)).

      In this case, M r. Folsom informed the trial court that he had previously

been under the care of mental health professionals. In response, the court asked,

“[w]ould that in any way interfere with your ability to proceed here today?”; to

which M r. Folsom answered, “[n]o, sir.” Though the court proceeded to ask

M r. Folsom follow up questions, had the court delved more deeply (or had

                                          -9-
M r. Folsom and his counsel been more forthcoming) it might have learned that

M r. Folsom had been previously diagnosed with serious mental health conditions.

Like Von M oltke, this case thus serves to illustrate how a court may be left

“entirely unaware of the facts essential to an informed decision that an accused

has executed a valid waiver of his right to counsel.” Von M oltke, 332 U.S. at 724.

For this reason, we encourage trial courts to do more than recite a set of questions

by rote; we emphasize Von M oltke’s teaching that they must engage the accused

in a real effort to uncover the relevant facts, just as we emphasize that existing

counsel and the witness have an obligation to be fully forthcoming with relevant

facts uniquely in their hold.

      Nevertheless, as acknowledged by the district court, the O CCA’s

determination that he w as afforded that right is difficult to assail under A EDPA’s

strict standards. M r. Folsom indicated that he had represented himself in a civil

case and had obtained a General Equivalency Diploma. In none of their written

or oral answers did M r. Folsom or his counsel give the court any reason to doubt

M r. Folsom’s competency at trial. And M r. Folsom’s conduct during trial, where

he presented his case fairly well, plainly bolstered the trial court’s conviction that

he was competent to waive his right to counsel. W e are pointed to no precedent

or fact, and have discerned none ourselves, suggesting the O klahoma courts’

disposition of M r. Folsom’s waiver of counsel claim under these circumstances

fell afoul of AEDPA’s twin “unreasonableness” standards. See generally

                                         -10-
M aynard, 468 F.3d at 671 (10th Cir. 2006) (internal quotations and citation

omitted) (“[O]nly the most serious misapplications of Supreme Court precedent

will be a basis for relief under § 2254. . . . It is not enough that the decision is

clearly wrong or that the reviewing court would have reached a contrary decision.

. . . [T]he state court decision must be at such tension with governing U.S.

Supreme Court precedents, or so inadequately supported by the record, or so

arbitrary as to be unreasonable.”).

      As to M r. Folsom’s competency hearing claim, and as the district court

correctly observed, Congress has instructed us that competency is a factual issue

for the state courts and that the Oklahoma courts’ findings are presumptively

correct. See id. at 673-74. M r. Folsom fails to supply us, as he must, with clear

and convincing evidence that the O klahoma courts’ factual findings were

erroneous. See id. W hile w e do not doubt the presence of evidence that could

have led a reasonable fact finder to question M r. Folsom’s mental faculties (e.g.,

M r. Folsom’s testified that he twice attempted suicide; guards testified of their

perception of M r. Folsom’s volatile emotions and violent behavior, such as

fighting with other inmates, punching out a window at the city jail, and

threatening suicide), neither can we shy at the presence of evidence tending in the

opposite direction (e.g., M r. Folsom’s admission of his understanding of some

charges and jury’s sentencing recommendation; M r. Folsom’s on-the-stand

correction of the state prosecutor about the charges against him; the guards’

                                          -11-
testimony of their observations of M r. Folsom). All of this is to say that, by

virtue of the conflicting and credible evidence on both sides of the ledger,

M r. Folsom has failed to carry his heavy burden of demonstrating by clear and

convincing evidence that the trial court erred in its factual findings about his

competency. See id. (“[W]e conclude a rational [factfinder] could have

concluded that [the evidence] weighed in favor of finding competence. The

determination in the first instance is for [factfinders,] and we are not free to

substitute our view of the evidence.”)

      The judgment of the district court is affirmed. M r. Folsom’s motion to

proceed in forma pauperis is granted.

                                                      Entered for the Court



                                                      Neil M . Gorsuch
                                                      Circuit Judge




                                          -12-
