                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 1, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


 MICHAEL EDWARD HOOPER,

              Petitioner-Appellant,

 v.                                                    No. 11-6143
                                                (D.C. No. 5:07-cv-00515-M)
 RANDALL G. WORKMAN, Warden,                           (W.D. Okla.)
 Oklahoma State Penitentiary,

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, O’BRIEN, and HOLMES, Circuit Judges.


      Michael Edward Hooper seeks a certificate of appealability (COA) to

challenge the district court’s decision denying his 28 U.S.C. § 2254 habeas

petition. Because Hooper has not shown that the district court’s decision is

debatable, or that there are issues present that deserve further treatment, we deny

the request for a COA.

                                  B ACKGROUND

      In 1993, Hooper shot his ex-girlfriend and her son and daughter each twice

in the head. He then buried them atop one another, doused them with gasoline,

and covered their grave with debris. Hooper was tried and convicted on three

counts of first-degree murder.
      At sentencing, Hooper was sentenced to death on the basis of multiple

aggravating circumstances. In federal habeas proceedings, the district court

granted him relief from his death sentences, finding that defense counsel provided

ineffective assistance in presenting mitigating evidence. This court affirmed. See

Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002).

      On remand, Hooper sought to waive his rights to be sentenced by a jury and

to present mitigating evidence. He was examined by a court-appointed expert,

Dr. R. Shawn Roberson, and found to be competent. Defense counsel informed

the court that Hooper had also been examined by a defense expert, Dr. Jeannie

Russell, who had found no evidence that Hooper was incompetent. Indeed,

Dr. Russell opined that he “appeared capable of appreciating the serious nature of

the offenses and possible outcomes at sentencing,” and “had the capacity to

rationally assist his attorney in his defense if he chose to do so.” Report of

Dr. Russell at 3. She did note, though, that Hooper had “described a long history

of depression.” Id. at 4. The sentencing court found Hooper competent.

      Throughout subsequent hearings, defense counsel reiterated that although

Hooper was depressed, he was competent and had forbidden his defense team

from proceeding with a mitigation case. Each time, the sentencing judge

questioned Hooper and found him competent. Finally, the judge entered death

sentences on all three counts, finding that (1) all counts shared the aggravating

circumstances of risk-of-death-to-more-than-one-person and a-continuing-threat-

                                         -2-
to-society; and (2) that the counts involving both murdered children shared the

additional aggravator of murder-to-avoid-arrest-or-prosecution.

      Hooper was formally sentenced to death in October 2004. After the death

warrants were read, Hooper provided the court with a declaration, stating that he

had directed defense counsel to forgo any appeals or post-conviction challenges.

The court examined Hooper and found him competent to waive his rights.

      In 2005, Hooper began taking anti-depressant medication, and changed his

mind about being executed. Dr. Russell examined him again, and concluded for

the first time that Hooper’s depression in 2004 “prevent[ed] him from making a

rational choice among his options.” Id. at 5 (italics omitted). She stated that her

new opinion arose from the fact that “[i]n 2004, Hooper based his decision [to

accept execution] on his mood and thinking without medication.” Id. at 6.

      Hooper appealed his sentences to the Oklahoma Court of Criminal Appeals

(OCCA), arguing that Oklahoma’s prescribed questions for determining

competency were insufficient, and that the competency inquiry employed at

sentencing failed to account for his depression. The OCCA affirmed, and the

federal district court, during habeas proceedings, concluded that the OCCA’s

determinations were reasonable.

      This court initially denied a COA at a case management conference

conducted by one judge. Hooper now seeks a panel’s consideration of his COA

request.

                                         -3-
                                   D ISCUSSION

                               Standards of Review

      An appeal may not be taken from the denial of federal habeas relief unless

the petitioner first obtains a COA. 28 U.S.C. § 2253(c)(1)(A). We may issue a

COA only upon “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). This standard is met if “reasonable jurists could debate

whether (or, for that matter, agree that) the [habeas] petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted).

      Where the state appellate court addressed the merits of a petitioner’s

claims, as the OCCA did here, the Anti-Terrorism and Effective Death Penalty

Act’s (AEDPA’s) “deferential treatment of state court decisions must be

incorporated into our consideration of [the] request for [a] COA.” Dockins v.

Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, we may grant a

habeas petition on a claim that was adjudicated on the merits in state court only if

the state court’s decision “was contrary to, or involved an unreasonable

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

Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding,” id. § 2254(d)(2).

                                        -4-
                                   Competency

      In Rees v. Peyton, 384 U.S. 312, 314 (1966) (per curiam), the Supreme

Court held that a prisoner’s competency to waive his execution challenges must

be judged by “whether he has [the] capacity to appreciate his position and make a

rational choice with respect to continuing or abandoning further litigation or on

the other hand whether he is suffering from a mental disease, disorder, or defect

which may substantially affect his capacity in the premises.” Hooper argues that

the OCCA violated Rees by not properly assessing the impact his depression had

on his ability to rationally decide whether to accept the death penalty.

      The OCCA noted that in 2004

      neither [defense] counsel nor the defense expert [Dr. Russell]
      believed that [Hooper’s] condition affected [his] ability to make a
      valid waiver. [Dr. Roberson] specifically found that Hooper, while
      depressed, did not present with symptoms of a mental illness, and
      offered a rational basis for his decisions. Further, although
      [Dr. Roberson’s] evaluation answers the standard competency
      questions, the evaluation itself explores Hooper’s competency
      specifically as it relates to the death penalty and capital punishment
      issues.

Hooper v. State, 142 P.3d 463, 470 (Okla. Crim. App. 2006). Further, the OCCA

discounted Dr. Russell’s new opinion in 2005 that Hooper’s decision was

irrational because he was not medicated. It explained that Dr. Russell’s new

opinion “tells the Court what Hooper might do now, faced with the same options

he had at the time of his sentencing hearing,” but “it does not show that Hooper

was unable to make a valid waiver at that time.” Id.

                                         -5-
      The federal district court found the OCCA’s competency determinations

reasonable. We conclude that the district court’s decision is not debatable.

      A defendant’s mental disorder does not necessarily render him incompetent.

See U.S. v. Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000); Lonchar v. Zant,

978 F.2d 637, 642 (11th Cir. 1992); Smith ex rel. Mo. Pub. Defender v.

Armontrout, 812 F.2d 1050, 1057 (8th Cir. 1987). In 2004, both Dr. Roberson

and Dr. Russell were aware of Hooper’s depression, but nevertheless found him

competent. Even Hooper’s counsel believed that Hooper was competent despite

his depression. “Trial counsel’s opinion should receive significant weight since

counsel, perhaps more than any other party or the court, is in a position to

evaluate a defendant’s ability to understand the proceedings.” United States v.

Turner, 644 F.3d 713, 723 (8th Cir. 2011) (quotations and brackets omitted);

see, e.g., Smallwood v. Gibson, 191 F.3d 1257, 1279 (10th Cir. 1999) (giving

weight to defense counsel’s view of his client’s competency). Moreover, the

sentencing court repeatedly addressed the issue of competency with counsel and

Hooper, and found him competent each time.

      Finally, Dr. Russell changed her competency opinion solely because

Hooper changed his mind while taking anti-depressant medication. But the fact

that Hooper made a different decision when medicated does not by itself cast

doubt on the initial competency determination—especially given that both experts

were aware of his unmedicated depression. Nevertheless, Hooper proposes that it

                                         -6-
is per se “irrational” to accept the death penalty, and therefore, he was

incompetent in an unmedicated state. Mot. for Panel Consideration of COA at

14-15. We reject that proposition.

                                     C ONCLUSION

      We conclude that the federal district court’s resolution of Hooper’s habeas

petition is not debatable, and that there are no issues that merit further treatment.

Accordingly, we DENY the application for a COA, and we DISMISS this appeal.


                                               Entered for the Court,




                                               ELISABETH A. SHUMAKER
                                               Clerk of Court




                                         -7-
