                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 11 1999
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 RAYMOND PALMER,

           Petitioner - Appellant,
 vs.                                                     No. 98-7022
                                                   (D.C. No. 97-CV-232-S)
 H.N. SCOTT, also known as Sonny                         (E.D. Okla.)
 Scott; ATTORNEY GENERAL OF
 THE STATE OF OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


       Petitioner-appellant Raymond Palmer, an inmate appearing pro se, appeals

from the district court’s dismissal of his petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254. The district court determined that, because Mr.

Palmer had not exhausted his available state remedies, it could not hear his claims


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         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.
for relief. The district court dismissed the petition without prejudice and refused

to grant a certificate of appealability. We grant a certificate of appealability and

deny the writ.

                                     Background

      Mr. Palmer was convicted of murder and sentenced to life imprisonment in

1986. On February 14, 1985, prior to trial, his counsel filed an application for

mental observation and examination, alleging there was doubt about Mr. Palmer’s

sanity. The state court issued a commitment order on March 7, directing the

sheriff to transport Mr. Palmer to Eastern State Hospital for observation and

examination. A notation on the commitment order states that Eastern State

Hospital personnel had already evaluated Mr. Palmer in the county jail on

February 14. On March 20, Mr. Palmer’s counsel filed a motion for a

determination of competency, but it is unclear from the pleadings whether the

motion was granted. Mr. Palmer claims that a competency hearing was never

held. After his conviction, Mr. Palmer was diagnosed as mentally ill and

transferred to a mental health unit at the correctional center. There it was

discovered that he had a large tumor in the frontal lobe of his brain. After it was

surgically removed, he was reclassified into the general population of the

correctional center.

      Although Mr. Palmer’s appellate counsel was advised of the surgery, he


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failed to pursue issues related to Mr. Palmer’s competency on appeal. Mr. Palmer

represents that his direct appeal was denied in all respects in 1990. He then filed

a pro se application for state post-conviction relief, in which he raised for the first

time issues related to his competency. The state district court denied the

application for post-conviction relief in 1991. Mr. Palmer allegedly lost some of

his legal papers while being transported to the Oklahoma State Penitentiary, and

thus sought leave from the state district court to appeal out of time the denial of

post-conviction relief. The court apparently denied the application to appeal out

of time, but Mr. Palmer did not appeal that denial to the Oklahoma Court of

Criminal Appeals.

      Under the liberal pleading standard for pro se plaintiffs, see Haines v.

Kerner, 404 U.S. 519, 520 (1972), we construe his request for a certificate of

appealability as raising the following issues: (1) whether he was tried while

mentally incompetent in violation of due process and equal protection; and (2)

whether he was provided with the assistance of a psychiatrist, as is required under

Ake v. Oklahoma, 470 U.S. 68 (1985), for an indigent defendant who

demonstrates that his sanity at the time of the offense is to be a significant factor

at trial. Under 28 U.S.C. 2253(c)(2), we can only grant a certificate of

appealability upon “a substantial showing of a denial of a constitutional right.”

                                      Discussion


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      Normally, before a petition may be granted, a petitioner must demonstrate

exhaustion of state court remedies unless “there is an absence of available State

corrective process,” 28 U.S.C. § 2254(b)(1)(B)(i), or “circumstances exist that

render such process ineffective to protect the rights of the applicant.” 28 U.S.C.

§ 2254(b)(1)(B)(ii). Mr. Palmer, by failing to appeal the denial of the application

to appeal out of time, did not exhaust available state remedies. See 28 U.S.C.

§ 2254(c). However, his claims appear to be procedurally barred because they

were not raised in his direct appeal. See Okla. Stat. Ann. tit. 22, § 1086; Sellers

v. State, 889 P.2d 895, 897 (Okla. Crim. App. 1995). We need not decide the

exhaustion issue because we conclude that Mr. Palmer’s claims otherwise fail.

See 28 U.S.C. § 2254(b)(2).

      In general, federal habeas review of procedurally barred issues is precluded

“unless the prisoner can demonstrate cause for the default and actual prejudice as

a result of the alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of justice.” Coleman

v. Thompson, 501 U.S. 722, 750 (1991). Although this rule applies to Mr.

Palmer’s Ake claim, it does not apply to substantive mental competency claims.

See Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997), cert. denied, 119

S. Ct. 128 (1998); Sena v. New Mexico State Prison, 109 F.3d 652, 654 (10th Cir.

1997). Therefore, we proceed to consider the merits of the competency claim.


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                                         A.

      Competence to stand trial requires that a defendant have “sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding ... [and] a rational as well as factual understanding of the

proceedings against him.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996)

(quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). Trying

an incompetent defendant violates substantive due process. See id.; Sena, 109

F.3d at 654. However, “a State may presume that the defendant is competent and

require him to shoulder the burden of proving his incompetence by a

preponderance of the evidence.” Cooper, 517 U.S. at 355. A habeas petitioner

can receive a nunc pro tunc evidentiary hearing in order to show that he was

incompetent at the time of trial only upon raising a threshold doubt about his

competency by clear and convincing evidence. See Nguyen, 131 F.3d at 1346.

      After reviewing the briefs, we find no merit to Mr. Palmer’s competency

claim. He has not put forward any facts or allegations which indicate that, at the

time of trial, he was unable to meaningfully consult with his lawyer and

understand the proceedings against him. Mr. Palmer fails to present evidence of

any irrational or unusual behavior that he may have displayed during the pretrial

proceedings or trial. He does raise the fact of the removal of his tumor after his

conviction, which may indeed have affected his behavior; however, in evaluating


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his claim, we must place ourselves in the position of the trial judge prior to and

during the trial. Because Mr. Palmer has thus not raised a threshold doubt about

his competency by clear and convincing evidence, we conclude that he is not

entitled to an evidentiary hearing in the district court.

                                           B.

      In Ake v. Oklahoma, 470 U.S. 68, 83 (1985), the Supreme Court held that

      when a defendant demonstrates to the trial judge that his sanity at the
      time of the offense is to be a significant factor at trial, the State
      must, at a minimum, assure the defendant access to a competent
      psychiatrist who will conduct an appropriate examination and assist
      in evaluation, preparation, and presentation of the defense.

However, the defendant must offer “more than undeveloped assertions that the

requested assistance would be beneficial.” Caldwell v. Mississippi, 472 U.S. 320,

323 n.1 (1985). Likewise, we have described the showing a defendant must

make: “General allegations supporting a request for court appointment of a

psychiatric expert, without substantive supporting facts, and undeveloped

assertions that psychiatric assistance would be beneficial to the defendant will not

suffice to require the appointment of a psychiatrist to aid in the preparation of a

criminal defense.” Liles v. Saffle, 945 F.2d 333, 336 (10th Cir. 1991).

      Mr. Palmer’s failure to raise this claim on direct review precludes federal

habeas relief, absent a showing of cause and prejudice or a fundamental

miscarriage of justice. He asserts the “cause” for failure to raise the issue was


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ineffective assistance of appellate counsel. However, although this is adequate

cause for his failure to raise the issue on appeal, he is unable to show prejudice.

Again, Mr Palmer relies on the fact that a tumor was removed from his brain after

his conviction. He has failed, however, to present any substantive evidence going

beyond general allegations as to his sanity that was available at the time of trial.

An unsupported allegation does not suffice to require the appointment of a

psychiatrist. Therefore, Mr. Palmer was not entitled to the assistance of a

psychiatrist at the time of his trial. We do not address the fundamental

miscarriage of justice standard because Mr. Palmer does not make a claim of

factual innocence. See Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998).

      Accordingly, we GRANT Mr. Palmer a certificate of appealability on both

the competency and Ake claims, and DENY the petition for the writ of habeas

corpus.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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