199 F.3d 1162 (10th Cir. 1999)
ROBERT WILLIAM CLAYTON,  Petitioner-Appellant,v.GARY GIBSON, Warden of the  Oklahoma State Penitentiary; DREW  EDMONDSON, Attorney General for  the State of Oklahoma,  Respondents-Appellees.
No. 98-5154
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
December 22, 1999

1
APPEAL FROM UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. D.C. No. 96-CV-173-K[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]


2
James L. Hankins, of Hankins Law Office, Enid, Oklahoma, (Jeremy B. Lowrey,  Sheridan, Arkansas, with him on the brief) for the appellant.


3
Robert L. Whittaker, Assistant Attorney General of Oklahoma (W.A. Drew  Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma  City, Oklahoma, for the appellees.


4
Before BRORBY, BRISCOE, and MURPHY, Circuit  Judges.

ORDER ON PETITION FOR REHEARING
BRISCOE, Circuit  Judge

5
This matter is before the court on appellant's Petition for Rehearing with a  Suggestion for Rehearing En Banc.  We also have the appellee's response. Upon  consideration, the panel grants limited rehearing, withdraws the prior panel  opinion, and issues the attached revised opinion in its place.  The opinion is  revised by deleting the third and fourth sentences of the last paragraph on page  13 of the November 15, 1999 slip opinion.  The rehearing petition is otherwise  denied.


6
The Suggestion for Rehearing En Banc was circulated to all the active  judges of the court.1  No active judge having  called for a poll, the Suggestion for  Rehearing En Banc is denied.


7
Petitioner Robert William Clayton was convicted of first degree murder and  was sentenced to death.  He appeals the denial of his 28 U.S.C. §a2254 petition  for habeas corpus.  We affirm.



Notes:


1
 Judge Robert H. Henry is recused.


I.

8
Rhonda Timmons, the victim in this case, resided with her husband Bill  Timmons at the South Glen Apartments in Tulsa, Oklahoma.  On June 25, 1985,  as Bill Timmons was returning home for lunch around 12:30 p.m., he noticed  towels and a pillow near the back door to the apartment, where Rhonda Timmons  had evidently been sunbathing.  The door was unlocked and when he entered the  apartment, he noticed blood "everywhere."  He found his wife's dead body near  the crib of the Timmons' baby.  Rhonda Timmons had been stabbed twelve times  in the chest, neck, side, and arms, and she sustained numerous bruises and blunt  force injuries to her head and body.  The baby was in the crib and was not hurt.


9
Clayton was a groundskeeper at the South Glen Apartments.  Shortly before  noon on June 25, he told the head groundskeeper he was going to rest in the tool  shed during his lunch break.  However, between 12 and 12:30 p.m., Clayton  arrived at the home of Helen Syphurs, the mother of one of his roommates, Tony  Hartsfield.  Clayton's hand was injured and he was breathing heavily.  He told  Syphurs he injured his hand while resisting two male robbers.  He took a shower,  wrapped himself in a towel, and placed his clothing in a paper bag.  Clayton  notified his employer by telephone that he would not be returning to work that  day.  Clayton shared a house with Hartsfield and Don and Sharon Reinke, who  were Hartsfield's brother-in-law and sister.  Syphurs drove Clayton home and  Clayton repeated his story to Sharon Reinke.  He stated his clothing was bloody  and put the clothing in the washing machine.  A blood-stained sock was later  found on the floor near the washing machine and testing revealed the blood on the  sock was Type AB, the same as Rhonda Timmons' blood.  Clayton repeated his  story to Hartsfield and to Don Reinke when they returned home.  Police arrived  around 3:30 p.m. and escorted Clayton to the police station for questioning.  As  he left the house, Clayton asked Hartsfield not to tell the police about a folding  knife that Clayton routinely carried.  The police found the knife in the backyard  the following day.  Although the blood traces on the knife were too minute for  testing, an expert testified at trial that the knife could have been used to inflict  Rhonda Timmons' injuries.


10
Clayton was advised of his Miranda rights at police headquarters and he  twice confessed to killing Rhonda Timmons.  His first confession was ruled  inadmissible by a magistrate judge because tape recordings indicated Clayton did  not fully understand his constitutional rights.  Clayton is retarded and has an IQ  of 68, placing him in the bottom two percent of the population.  Clayton's second  confession, which occurred after he was provided counsel but outside counsel's  presence, was admitted at trial.


11
A jury convicted Clayton of first degree malice aforethought murder and  recommended the death sentence.  Clayton was sentenced to death.  His  conviction and sentence were affirmed in Clayton v. State, 840 P.2d 18 (Okla.  Crim. App. 1992), and his application for post-conviction relief was denied in Clayton v. State, 892 P.2d 646 (Okla. Crim. App. 1995).  Clayton filed his 28  U.S.C. § 2254 petition for habeas corpus, asserting numerous claims of  constitutional error.  The district court denied the petition and issued a certificate  of probable cause on all claims presented in the petition.

II.

12
Clayton's petition is not subject to the standards embodied in the  Antiterrorism and Effective Death Penalty Act, which applies only to petitions  filed after April 24, 1996.  See Lindh v. Murphy, 521 U.S. 320 (1997). Clayton's  petition was filed on March 5, 1996.  We therefore review Clayton's petition  under pre-Act law.


13
Our function in a habeas case is limited to insuring individuals are not  imprisoned in violation of the Constitution.  See Herrera v. Collins, 506 U.S.  390,  400 (1993).  We therefore presume the historical factual findings of the jury and  the state district court are correct and defer to a state's interpretation of its law. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998).  We review the  federal district court's factual findings for clear error and review all legal issues  de novo.  See id.

III.
Competency

14
Clayton contends his due process rights were violated when his competency  was retrospectively determined six years after his trial and under a burden of  proof later found unconstitutional in Cooper v. Oklahoma, 517 U.S. 348 (1996).


15
Before trial, the state court ordered that Clayton be examined to determine  if he was competent to stand trial.  Although Dr. Samuel Sherman examined  Clayton and found him competent, the court apparently did not hold a post-examination  competency hearing as required by then-existing state law.  On direct  appeal, the Oklahoma Court of Criminal Appeals remanded the case and directed  the court either to forward proof that a hearing had been held or to conduct a  retrospective hearing if feasible.  The trial court first conducted a hearing to  determine if a retrospective competency hearing was feasible.  Based upon the  availability of evidence pertaining to Clayton's pretrial competency, the court  determined a retrospective competency hearing was feasible.  On September 12,  1991, a jury found that Clayton was competent at the time of his trial on March 1,  1986.  On appeal, the Oklahoma Court of Criminal Appeals found there was  sufficient evidence of Clayton's competency to render a retrospective hearing  meaningful.  Clayton, 840 P.2d at 25.  Clayton argues the six-year time lapse, the  poor quality and lack of written records, and the sketchy memory of important  witnesses precluded a fair retrospective determination of his competency at the  time of trial.


16
Although retrospective competency hearings are disfavored, they are  permissible "whenever a court can conduct a meaningful hearing to evaluate  retrospectively the competency of the defendant."  Moran v. Godinez, 57 F.3d  690, 696 (9th Cir. 1994); see Drope v. Missouri, 420 U.S. 162, 180-83 (1975). "A  'meaningful' determination is possible where the state of the record, together with  such additional evidence as may be relevant and available, permits an accurate  assessment of the defendant's condition at the time of the original state  proceedings."  Reynolds v. Norris, 896 F.3d 796, 802 (8th Cir. 1996).  A court  should consider (1) the passage of time, (2) the availability of contemporaneous  medical evidence, including medical records and prior competency  determinations, (3) any statements by the defendant in the trial record, and (4) the  availability of individuals and trial witnesses, both experts and non-experts, who  were in a position to interact with defendant before and during trial, including the  trial judge, counsel for both the government and defendant, and jail officials.  SeeReynolds, 86 F.3d at 802-03; Moran, 57 F.3d at 696.


17
Applying these factors, we find no constitutional error in the state court's  determination that a retrospective competency hearing was feasible.  While the  time gap between Clayton's trial and the competency determination is troubling,  "[t]he passage of time is not an insurmountable obstacle if sufficient  contemporaneous information is available."  Reynolds, 86 F.3d at 803; seeBruce  v. Estelle, 536 F.2d 1051, 1057 (5th Cir. 1976) (determining nine-year gap  between trial and competency hearing did not alone vitiate opportunity for  meaningful hearing); Barefield v. New Mexico, 434 F.2d 307, 309 (10th Cir.  1970) (finding "mere lapse of time before a competency hearing" does not  invalidate findings made as a result of that hearing).


18
The trial court had before it Dr. Sherman's pretrial report finding Clayton competent to stand trial.  Although the report was admittedly brief, it nonetheless  constituted a contemporaneous medical determination.  "[M]edical reports  contemporaneous to the time [of trial] greatly increase the chance for an accurate  retrospective evaluation of a defendant's competence."  Moran, 57 F.3d at 696; see United States v. Mason, 52 F.3d 1286, 1293 (4th Cir. 1995) (finding  competency determination possible where "the defendant's treating physicians  have already conducted an inquiry into the defendant's competence and formed an  opinion as to his competence at the time of the first phase of his trial").


19
In addition, numerous witnesses who interacted with Clayton before and  during trial were available to testify at the competency hearing, including the trial  judge, clinical psychologists, the jail physician, and Clayton's trial counsel.1 Clayton does not dispute the availability of these witnesses, but counters with the  feasibility hearing testimony of Dr. Robert Nicholson, a clinical psychologist with  significant experience in competency evaluations.  Dr. Nicholson testified that the  time gap and the poor quality of the contemporaneous written records made it  impossible for him to evaluate Clayton's competency at the time of trial.  While  Dr. Nicholson's testimony has probative value, it is not sufficient to establish that  a retrospective competency hearing was not feasible, particularly given the  finding of competency prior to trial and the availability of numerous witnesses  who were familiar with Clayton at the time of trial.  We conclude Clayton was not  deprived of due process by having his competency determined retrospectively. See Walker v. Attorney General, 167 F.3d 1339, 1347 n.4 (10th Cir. 1999).


20
Clayton also contends the trial court employed an unconstitutional burden  of proof at his competency hearing by requiring him to prove his competence by  clear and convincing evidence.  In Cooper, the Supreme Court ruled that use of  the clear and convincing evidence standard in a competency hearing violated due  process.  517 U.S. at 369.  Because Cooper was decided after Clayton's direct and  post-conviction appeals, he presented this issue for the first time in his federal  habeas petition.2  The federal district court  denied relief on the ground that  Clayton had procedurally defaulted this claim by failing to raise it on direct  appeal.  Although the court acknowledged Cooper was decided after Clayton's  state court proceedings were final, it reasoned that under the 1995 amendments to  Oklahoma's post-conviction statute this fact did not excuse Clayton's failure to  challenge the evidentiary standard on direct appeal.


21
Generally, it is a prerequisite to habeas relief that a petitioner exhaust his  remedies in state court.  See 28 U.S.C. § 2254(b)(1).  The exhaustion requirement  is not jurisdictional, however, and may be waived by the state or avoided by the  petitioner if an attempt to exhaust would be futile.  See Demarest v. Price, 130  F.3d 922, 933-34 (10th Cir. 1997).  Both exceptions apply here.  The state has  expressly waived the exhaustion requirement by conceding Clayton has  "exhausted his state remedies as to this factual claim."  Record, Doc. 10 at 46.  In  addition, the Oklahoma Court of Criminal Appeals ruled unequivocally that a Cooper claim is barred if not presented on direct appeal or submitted in a first  application for post-conviction relief, even if the direct appeal and post-conviction processes  were final before Cooper was decided.  See Walker v. State,  933 P.2d 327, 338-39 (Okla. Crim. App. 1997).  Further presentation of the claim  to the Oklahoma courts thus would be futile.  See Wallace v. Cody, 951 F.2d  1170, 1171 (10th Cir. 1991).


22
Having deemed Clayton's claim exhausted, we next must consider if  Clayton's claim is procedurally barred.3  A  claim that has been defaulted in state  court on an adequate and independent state procedural ground will be considered  on federal habeas review only if a petitioner can demonstrate cause and prejudice  to excuse the default or establish failure to consider the merits of the claim will  result in a fundamental miscarriage of justice.  Rogers v. Gibson, 173 F.3d 1278,  1290 (10th Cir. 1999).  To be adequate, a state's procedural rule must have been  firmly established and regularly followed when the purported default occurred. Walker, 167 F.3d at 1344.


23
Here, the 1995 amendments to Oklahoma's post-conviction statute supplied  the basis for the procedural bar finding.  The amendments sharply limit a  petitioner's ability to bring claims in a new post-conviction application that were  not raised on direct appeal or in a prior post-conviction application, including  new claims based on an intervening change in law.  Id. at 1345.  We consistently  have held, when considering Cooper claims, that the 1995 amendments do not  constitute an "adequate" state law ground for procedural default purposes if they  did not exist at the time of the default.  See Rogers, 173 F.3d at 1290; Walker,  167 F.3d at 1345.  In this case, the district court ruled Clayton's default occurred  when his direct appeal became final in 1992, three years before the effective date  of the 1995 amendments.  "A defendant cannot be expected to comply with a  procedural rule that does not exist at the time, and should not be deprived of a  claim for failing to comply with a rule that only comes into being after the time  for compliance has passed."  Walker, 167 F.3d at 1345.  In these circumstances,  Clayton's procedural competency claim is not barred by his failure to raise it on  direct review or in his post-conviction application.  We therefore consider  Clayton's claim on the merits.


24
Clayton is entitled to relief on his procedural competency claim only if "the  state trial court ignored evidence that, viewed objectively, raised a bona fide  doubt as to [Clayton's] competency to stand trial."  Id. (citing Drope, 420 U.S.  at  180-81).  A defendant will be deemed competent to stand trial if at the time of  trial he had "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."  Dusky v. United States, 362 U.S.  402 (1960).  Although not limited to these factors, a court conducting a  competency inquiry should consider defendant's demeanor at trial, any evidence  of irrational behavior by defendant, and perhaps most important, any prior  medical opinions regarding competency.  Walker, 167 F.3d at 1346.  In addition,  where, as here, defendant's competency was determined under an unconstitutional  standard, the jury's finding of competency is not entitled to a presumption of  correctness.  Id. at 1345.


25
In arguing a bona fide doubt exists as to his competency at the time of trial,  Clayton relies primarily on the competency hearing testimony of his trial counsel,  Ronald Wallace, and of Dr. Nicholson.  Wallace testified that before and during  trial, he questioned Clayton's competency, specifically wondering if Clayton was  capable of understanding the proceedings and assisting counsel.  Although  Wallace thought Clayton's comprehension was limited to understanding he was in  an adversarial proceeding, Wallace declined to characterize his concerns as  "serious."  At the feasibility hearing, Dr. Nicholson, for the most part, reiterated  his testimony that Clayton's competency at the time of trial could not be  determined accurately given the dearth of contemporaneous records.


26
In contrast to the ambivalent testimony of Wallace and Dr. Nicholson is the  unequivocal testimony of three doctors who either evaluated or observed Clayton  at the time of trial.  Dr. Goodman, who examined Clayton twice before trial,  testified that Clayton was lucid and did not have difficulty recalling events or  relating an account of the crime.  Although he conceded Clayton might have an  underlying personality disorder, he was satisfied that Clayton's sanity would not  be an issue at trial.  Dr. Barnes, the jail physician, examined Clayton physically  and responded to Clayton's claims of illness.  He testified that Clayton had no  physiological problems that would have affected his competency at trial.  Dr.  Sherman performed the pretrial examination of Clayton and found him to be  competent.  Dr. Sherman described the procedures he typically performed in a  competency evaluation and testified that in 1986 he had found after evaluation  that Clayton was competent.  He was unwilling to rule out the possibility that  Clayton had a mental disorder, but testified an individual can have a mental  disorder and be competent to stand trial.


27
Clayton points out that Dr. Sherman conceded at the hearing he had no  independent recollection of Clayton, had no records or files regarding the pretrial  examination, and could not identify the bases for his conclusion.  Although  troubling, these problems ultimately pose issues of credibility.  The evidence in  the record does not raise a bona fide doubt as to Clayton's competency at the time  of trial.

Admissibility of statement

28
Clayton asserts he is entitled to habeas relief because his involuntary  statement to police was admitted at trial.  He actually gave two statements to  authorities.  After he was taken to the police station and advised of his Miranda rights, he signed a waiver form and admitted killing Rhonda Timmons after she  made unwanted sexual overtures toward him.  Clayton refused to repeat his story  for a tape recording without a lawyer present.  Questioning ceased and a public  defender was dispatched to serve as Clayton's attorney.  The public defender  spoke with Clayton alone and, before he left, advised Clayton to remain silent and  requested that officers not reinitiate questioning in counsel's absence.  Counsel  left with the understanding that Clayton would be booked and returned to his cell.


29
In the course of filling out a booking information slip, Clayton was  identified as "Randy" rather than "Robert."  To resolve confusion, a police officer  asked Clayton his "true name."  Clayton provided his name, his date of birth, and  his social security number.  Clayton then indicated he "had something he wanted  to get off his chest."  Trial tr. at 896.  The officer reminded Clayton of his  counsel's advice, but Clayton repeated his desire to make a statement and he  repeated his earlier story.


30
Clayton sought to suppress both confessions before trial.  The trial court  ruled the first statement was inadmissible because Clayton did not understand his  rights and therefore could not voluntarily waive them.  The court ruled the second  statement was admissible because Clayton voluntarily reinitiated communication.


31
On appeal, Clayton contends his counsel was ineffective for failing to  challenge the voluntariness of his confession based on his mental capacity.  We  do not consider the merits of this argument.  It is apparent from the record that  Clayton's counsel did challenge the voluntariness of his confession by filing a  motion to suppress, which the court denied.


32
Clayton also contends his confession was not voluntary because the officers  improperly resumed questioning after he had invoked his right to counsel.  This  contention is without merit.  Interrogation of an accused must cease once the  accused invokes the right to counsel.  Miranda v. Arizona, 384 U.S. 436, 474  (1966).  Nonetheless, an accused may be interrogated further if, after invoking the  right to counsel, he voluntarily initiates further communication with the police  and waives his right to counsel.  Edwards v. Arizona, 451 U.S. 477, 484-85  (1981).  There is nothing in the record to indicate the questions to clarify  Clayton's first name were designed, or reasonably likely, to elicit an  incriminating admission from Clayton.  Questioning related to booking or other  administrative pretrial matters does not constitute "interrogation" for purposes of Miranda.  See Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990). "Routine  booking questions do not constitute interrogation because they do not normally  elicit incriminating responses."  United States v. Parra, 2 F.3d 1058, 1068 (10th  Cir. 1993).  It was Clayton who reinitiated communication.  See United States v.  Glover, 104 F.3d 1570, 1581 (10th Cir. 1997).


33
The act of reinitiating communication does not, by itself, suffice to  constitute a waiver of Clayton's right to counsel.  Instead, we must separately  determine if the statement was the "product of a free and deliberate choice rather  than intimidation, coercion, or deception, and . . . was made in full awareness of  the nature of the right being waived and the consequences of waiving."  Cooks v.  Ward, 165 F.3d 1283, 1288 (10th Cir. 1998).  In making this determination, we  consider the totality of the circumstances and bear in mind "the necessary fact  that the accused, not the police, reopened the dialogue."  Oregon v. Bradshaw,  462 U.S. 1039, 1046 (1983).


34
Clayton's waiver clearly was effective.  There is no evidence that his  change of heart was precipitated by any police impropriety or that it was  prompted by any promises or inducements.  He had been advised twice of his Miranda rights and after his first statement had invoked the specific right he  waived in making his second statement.  Detective Parke testified at Clayton's  preliminary hearing that Clayton was reminded of his counsel's advice, but that  Clayton nonetheless insisted upon making a statement in counsel's absence.  This  evidence is more than sufficient to establish Clayton voluntarily, knowingly, and  intelligently waived his right to counsel.  See Cooks, 165 F.3d at 1288-89.

Prosecutorial misconduct

35
Clayton contends prosecutorial misconduct deprived him of a fair trial. Specifically, he alleges the prosecutor (1) informed the jury the district attorney's  function was to "seek the truth"; (2) improperly characterized the burden of proof;  (3) purposefully aroused the passions and prejudices of the jury; (4) shaded the  truth during questioning and closing argument; and (5) commented on Clayton's  invocation of his rights to counsel and to remain silent.


36
Prosecutorial misconduct warrants federal habeas relief only if, in light of  the proceedings as a whole, the conduct complained of "so infected the trial with  unfairness as to make the resulting conviction a denial of due process."  Donnelly  v. DeChristoforo, 416 U.S. 637, 643 (1974).  "[I]t is not enough that the  prosecutors' remarks were undesirable or even universally condemned."  Darden  v. Wainwright, 477 U.S. 168, 181 (1986).


37
Two of the alleged instances of prosecutorial misconduct occurred during  voir dire.  First, the prosecutor asked a venire person to describe the function of  the district attorney's office.  When the juror responded, "Prove someone guilty,"  the prosecutor stated the "function of the District Attorney is to seek the truth." Trial tr. at 414-15.  While this comment was improper to the extent the district  attorney intended to suggest the government's allegations necessarily were true,  the statement itself was a theoretically accurate description of a prosecutor's  function and not the type of egregious statement that was even remotely likely to  infect the subsequent trial with unfairness.  Second, the prosecutor asked a  prospective juror if the juror performed his job as a safety director  "reasonably  well," and further, if the juror had heard the prosecutor talking about the burden  of proof and understood "it is just one of reasonable doubt."  Id. at 53-54. Clayton argues this colloquy informed the jury it could convict if it was  "reasonably well" satisfied of defendant's guilt.  Even assuming the prosecutor's  statement did not accurately describe the government's burden, it had no  constitutional effect on the trial.  The court reminded the jury several times in  instructions that the government bore the burden of proving each element of the  offense beyond a reasonable doubt.


38
Clayton also contends that, in order to inflame the passions of the jury, the  prosecutor elicited testimony that Rhonda Timmons died while looking into the  crib at her baby.  Notwithstanding Clayton's contentions, a review of the record  reveals this was but one of several reasonable interpretations of the evidence. Clayton also complains the prosecutor elicited graphic testimony of the victim's  "sucking chest wound" and testimony that "sham" resuscitation efforts were  attempted because the victim's husband was outside the apartment.  The  testimony accurately depicted the victim's wounds and was relevant to establish  the cause and manner of death.  As for emergency resuscitation efforts, the  witness testified only that paramedics "at least owed it to [the victim's husband]  to try, since we had no idea how long she had been down."  See id. at 630. While  perhaps unnecessary, these accurate statements did not render Clayton's trial  fundamentally unfair.  See Duvall v. Reynolds, 139 F.3d 768, 795 (10th Cir.  1998).


39
Clayton next contends the prosecutor misled the jury during closing  argument by improperly arguing that police found Clayton's knife where Clayton  said it would be instead of where Hartsfield told police it would be.  Clayton did tell the police he thought his knife was at the house.  Police found it in the yard  behind the house.  Clayton also complains the prosecutor questioned a detective  in a manner that suggested bloody footprints were found at Clayton's house.  The  footprints actually were found in the apartment.  Although the questioning of the  detective does shift without any apparent reason from one subject to another, a  reasonable juror listening to the entire testimony would have understood the  detective was referring to the apartment when he described the footprints.  In any  event, any resulting confusion was slight and did not render the proceeding  unfair.


40
Finally, Clayton contends the prosecutor inappropriately commented on  Clayton's invocation of his right to remain silent and his right to counsel. Clayton did not present this argument in state court either on direct appeal or in  his application for post-conviction relief.  It is not disputed that Oklahoma would  bar consideration of this precise claim on an independent and adequate state law  procedural ground if Clayton presented it in a second post-conviction application. As such, Clayton's claim is procedurally barred in the absence of a showing of  cause and prejudice, an excuse Clayton does not allege.4  See Coleman v.  Thompson, 501 U.S. 722, 735 n.1 (1991); Steele v. Young, 11 F.3d 1518, 1524  (10th Cir. 1993).

Brady Claim

41
Clayton next argues the prosecutor failed to disclose exculpatory evidence,  in violation of Brady v. Maryland, 373 U.S. 83 (1963).  Clayton is procedurally  barred from pursuing this claim for federal habeas review.  He did not present this  argument in state court, either on direct appeal or in his application for post-conviction relief.  It  is not disputed that Oklahoma would bar consideration of  this precise claim on an independent and adequate state law procedural ground if  Clayton presented it in a second post-conviction application.  Again, Clayton does  not assert cause and prejudice in an effort to overcome this procedural bar.

Ake claim

42
Clayton argues the State deprived him of due process by denying his  request for expert psychiatric assistance at the penalty phase of his trial.5  Before  trial, Clayton's counsel filed a motion for appointment of a private psychiatrist. Counsel stated that, based on conversations with various family members, he  questioned defendant's sanity at the time of the alleged crime.  After arguments,  the court found the defendant failed to demonstrate that his sanity at the time of  the offense was a significant factor at trial, as required by Ake v. Oklahoma, 470  U.S. 68 (1985).


43
In Ake, the Supreme Court held that "when a defendant has made a  preliminary showing that his sanity at the time of the offense is likely to be a  significant factor at trial, the Constitution requires that a State provide access to a  psychiatrist's assistance on this issue if the defendant cannot otherwise afford  one."  Id. at 74.  To demonstrate a denial of due process under Ake at the  penalty  phase, a petitioner must establish both that the state presented evidence in the  sentencing phase that petitioner posed a continuing threat to society and that  petitioner's mental condition was likely to be a significant mitigating factor. Rogers, 173 F.3d at 1285.


44
Clayton presented this issue for the first time in his post-conviction  application.  The Oklahoma Court of Criminal Appeals ruled he had waived the  issue by failing to raise it on direct appeal.  Because this ruling was based on an  independent and adequate state law ground, we may not consider the claim on  federal habeas review unless Clayton can "demonstrate cause for the default and  actual prejudice as a result of the alleged violation of federal law."  See Ross v.  Ward, 165 F.3d 793, 798 (10th Cir. 1999).  In ultimately concluding Clayton  could not establish prejudice, the federal district court ruled that Clayton sought  to excuse his default by alleging ineffective assistance of appellate counsel. Although this contention, if proven, would constitute sufficient "cause" to excuse  Clayton's default, our review of the habeas petition filed in district court does not  reveal such allegation.  Nor may Clayton's appellate brief fairly be read as  asserting such claim.  Clayton does assert, in conjunction with his Ake claim, that  trial counsel was constitutionally deficient in failing to present additional  mitigating evidence during the penalty phase of the trial.  However, Clayton does  not assert his appellate counsel was ineffective for failing to raise the Ake issue  on direct appeal.  As such, Clayton's Ake claim is procedurally barred.


45
Even assuming Clayton has established "cause" sufficient to excuse his  procedural default, the record is barren of evidence of any prejudice.  First, in  addition to finding Clayton posed a continuing threat to society, the jury found  the murder was "especially heinous, atrocious, or cruel."  Because most, if not all,  of the evidence relating to the continuing threat aggravator properly would have  been admitted and considered by the jury in considering the "especially heinous,  atrocious, or cruel" aggravator, the Ake error, if any, would be harmless.  SeeRogers, 173 F.3d at 1286; Johnson v. Gibson, 169 F.3d 1239, 1246 (10th Cir.  1999).  Second, Clayton did present testimony concerning his mental condition  during the penalty phase.  Dr. Diane Williamson, a psychologist who examined  Clayton before trial, testified that his IQ was 68.  She stated his performance on a  "word recognition, spelling and arithmetic skills" test placed him at a third or  fourth grade level, and other tests indicated that his "reality skills" were poor. She further testified that he was "very limited in his abilities to maintain  interpersonal relationships," was emotionally immature, was very dependent on  others, and had difficulty controlling his impulses and tendencies.  Trial tr. at  1051.  In short, the tests revealed themes of violence, helplessness, and an  inability both to solve problems and to engage in "literal, concrete modes of  thinking."  Id. at 1053.


46
Clayton acknowledges this testimony but argues at least one juror would  have voted for life rather than death had a mental health expert been made  available to the defense.  He does not explain what testimony another mental  health expert could have offered and how that testimony would have differed  from the testimony that was presented.  Dr. Williamson's testimony constituted  powerful mitigating evidence based on Clayton's mental condition.  Given the  strength of this evidence, and the jury's decision to impose the death sentence,  Clayton cannot establish that the additional testimony of a mental health expert  appointed pursuant to Ake would have persuaded at least one juror to vote for life  instead of death.


47
"Especially heinous, atrocious or cruel" aggravating circumstance


48
Clayton next asserts his death sentence must be vacated because the  "especially heinous, atrocious or cruel" aggravating circumstance found by the  jury was supported only by "bogus" expert testimony that was erroneously  admitted at trial.  Clayton challenges the testimony of Kenneth Ede, a forensic  chemist who at the time of trial worked part-time for the police department.  At  trial, he was qualified as an expert in serology.  Ede testified that the blood on the  sock found near the washing machine was Type AB, a type different than  Clayton's but the same as that of the victim.  He further testified that pubic hairs  recovered from the same sock were consistent with pubic hairs taken from  Clayton.  Finally, he testified that, based on the nature of the blood splatters at  the scene, the victim was assaulted two or three times in two or three different  locations in the apartment.  The prosecution used his blood splatter testimony  primarily as support for its second stage argument that the murder was "especially  heinous, atrocious, or cruel."


49
In his application for post-conviction relief, Clayton challenged Ede's  qualifications to testify as a blood splatter expert.  Clayton filed affidavits from  law enforcement officials and agencies indicating Ede had overstated his "blood  splatter" qualifications and disavowing Ede as a "blood splatter" expert.  The  Oklahoma Court of Criminal Appeals agreed and ruled Ede's testimony should  not have been admitted.  The court nonetheless found the error harmless because  the testimony of the state medical examiner and the physical evidence of a "blood  trail" through the apartment supported the jury's finding.  The federal district  court agreed.  On appeal, Clayton argues there is no evidence outside of Ede's  testimony from which a rational jury could find the presence of the "especially  heinous, atrocious, or cruel" aggravator beyond a reasonable doubt.


50
The "especially heinous, atrocious or cruel" aggravating circumstance is  properly found if the death was preceded by torture or serious physical abuse, "as  evidenced by conscious physical suffering."  Duvall, 139 F.3d at 793.  Here, the  state medical examiner testified that the victim suffered blows to her head and  numerous stab wounds to her chest and neck; that neither the stab wounds nor the  blunt force injuries, all of which occurred before death, were sufficient to cause  death instantaneously; and that wounds inflicted to the victim's neck before death  were caused by a ligature of some sort, most likely her bikini top.


51
Notwithstanding the nature of these injuries, there is a question as to  whether the victim endured "conscious physical suffering."  The state medical  examiner testified the stab wounds, while not likely to cause immediate  unconsciousness, would cause unconsciousness within a very short time. However, the blunt force injuries to the head would almost certainly "produce  unconsciousness immediately."  Trial tr. at 886.  The examiner was unable to  ascertain which blows occurred first, the stab wounds or the head injuries.


52
Clayton argues no rational jury could find from this testimony that the  victim was conscious after the first blow was struck.  However, he ignores crucial  evidence in the record that is contrary to his position.  As depicted by  photographs of the scene and by numerous witnesses, there was a trail of blood  from the door of the apartment to the bedroom where the victim's body was  found.  This trail of blood strongly suggests the victim was struck at the door to  the apartment and that she retreated to the bedroom while she was conscious and  under continual attack.  Expert testimony is not required for a jury to conclude  from this evidence that the victim was alive and conscious when many of her  wounds were inflicted.  There was sufficient evidence from which a rational jury  could find beyond a reasonable doubt that the victim's death was preceded by  serious physical abuse as evidenced by conscious physical suffering.  Application  of the "especially heinous, atrocious or cruel" aggravating circumstance therefore  was constitutional.  See Cooks, 165 F.3d at 1290.

Ineffective assistance of counsel

53
Clayton contends he was deprived of effective assistance of counsel at both  phases of his trial.  To demonstrate constitutionally ineffective assistance of  counsel, Clayton must establish both that his counsel's representation was  objectively deficient and that absent such deficiency there is a reasonable  probability the result at trial would have been different.  See Strickland v.  Washington, 466 U.S. 668, 688, 694 (1984).  Our scrutiny of counsel's  performance is highly deferential and we indulge a strong presumption that  counsel's conduct fell within the wide range of reasonable professional  assistance.  Id. at 689.  Counsel's conduct is analyzed not through the distorting  lens of hindsight, but from counsel's perspective at the time of the alleged error. Id.


54
Guilt phase -- It appears the gravamen of Clayton's claim is that his trial  counsel was ineffective for not utilizing an alternative perpetrator defense  strategy in which Hartsfield or Bill Timmons is portrayed as the killer.  Clayton  bolsters this broad allegation with complaints of other, more direct instances of  ineffective assistance.  He notes his counsel reserved and ultimately waived  opening statement, failed to conduct relevant cross-examination, failed to present  a case-in-chief, and made too short a closing argument.


55
Wallace specifically determined after preparing for trial "there was not any  way to present a defense that denied Mr. Clayton's involvement in Rhonda  Timmons' death, and that we simply had very little evidence to fight back with  about the issue of guilt."  Appendix at 3.  Consequently, the primary defense  chosen (the state's failure to satisfy its burden of proof) was not asserted strongly  during the guilt phase "in order to maintain credibility with the jury in the  mitigation phase."  Id.  In light of the substantial, if not overwhelming, evidence  of Clayton's guilt, we cannot characterize this strategy as unreasonable.  SeeHatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995) ("For counsel's advice  to rise to the level of constitutional ineffectiveness, the decision . . . must have  been completely unreasonable, not merely wrong, so that it bears no relationship  to a possible defense strategy.").


56
Further, there is not a shred of credible evidence, either direct or  circumstantial, linking Hartsfield or Bill Timmons to the murder.  In fact, Clayton  mentions Bill Timmons almost as an afterthought.  As for Hartsfield, Clayton  attempts to reconstruct by irrational inferences, innuendos, and half-truths a story  line linking Hartsfield to the scene of the crime, the possible murder weapon, and  the bloody sock found by the washing machine.  Trial counsel was under no duty  to investigate this unreasonable alternative perpetrator theory.


57
Of the more direct claims of ineffectiveness, Clayton's complaint that  counsel failed to make an opening statement is the only potentially viable  assertion.  Indeed, there is no reasonable explanation in counsel's affidavit for his  decision first to reserve opening statement and then to waive it entirely. However, we consistently have held failure to make an opening statement does  not alone constitute ineffective assistance of counsel.  See Stouffer v. Reynolds,  168 F.3d 1155, 1163 (10th Cir. 1999).


58
Even if Clayton could establish his trial counsel provided ineffective first  phase assistance, the evidence of Clayton's guilt is overwhelming and precludes a  finding of prejudice.  In addition to Clayton's confession, the physical and  circumstantial evidence directly linked Clayton, and only Clayton, to the crime  scene and the murder.


59
Sentencing phase --Clayton also contends his counsel rendered ineffective  assistance during the sentencing phase by failing to adequately investigate and  present potentially mitigating evidence.  In support of this contention, Clayton  submits the affidavits of eight family members and friends who state they would  have testified on behalf of Clayton during the penalty phase.  Of these eight, none were contacted by trial counsel and at least one was in the courtroom during trial. The potential witnesses would in Clayton's words have "testified that Robert  Clayton had good qualities as a person, that his life had value, [and] that he had  touched and affected the lives of other people in a positive way."  Aplt's Br. at  94.


60
Trial counsel has a duty to investigate the existence of potentially  mitigating evidence, even if after investigation counsel makes a tactical decision  not to present some or all of any mitigating evidence discovered.  Stouffer, 168  F.3d at 1167.  "[A]n attorney must have chosen not to present mitigating evidence  after having investigated the defendant's background, and that choice must have  been reasonable under the circumstances."  Brecheen v. Reynolds, 41 F.3d 1343,  1369 (10th Cir. 1994).


61
Even if trial counsel rendered deficient assistance by not contacting family  members during the course of conducting a second stage investigation, Clayton  still must show prejudice from this deficient performance.  Prejudice is  established at the sentencing phase if there is a reasonable probability that, absent  counsel's errors, "the sentencer--including an appellate court, to the extent it  independently reweighs the evidence--would have concluded that the balance of  aggravating and mitigating circumstances did not warrant death."  Davis v.  Executive Dir. of Dep't of Corrections, 100 F.3d 750, 760 (10th Cir. 1996).  In  assessing whether counsel's deficient performance was prejudicial, we must bear  in mind the mitigating evidence introduced during the penalty phase, the  aggravating circumstances actually found by the jury, and the strength of the  State's case.  See Boyd v. Ward, 179 F.3d 904, 915 (10th Cir. 1999).


62
In light of the nature of the crime and the strength of the state's case, there  is not a reasonable probability that the testimony of Clayton's family and friends  would have altered the outcome of the sentencing phase.  This is not a case where  no mitigating evidence was presented on behalf of Clayton.  Dr. Williamson  testified at length in the sentencing phase regarding Clayton's low IQ and mental  health.  In addition, the jury found the presence of both the "continuing threat to  society" and the "especially heinous, atrocious or cruel" aggravating  circumstances.  As regards the "especially heinous, atrocious or cruel" aggravator,  the testimony that family and friends considered Clayton to be a good person and  that his life had value would not have explained or justified the manner in which  Clayton committed the crime.  By his own admission, Clayton  inflicted blunt  force injuries to the victim's head and body, stabbing her twelve times and  choking her with her bikini top, all while she fled from the door of the apartment  to the bedroom of her baby, where she collapsed and died.  The nature of the  victim's death reveals Clayton subjected her not to a single violent episode but a  sustained assault that left a trail of blood through the apartment.  During the guilt  phase, the state introduced even more evidence of Clayton's violent tendencies  and checkered past.  It was established he had brutally assaulted and raped a  woman at knife point in Alabama in 1984 and, along with Hartsfield and  Hartsfield's sister, had assaulted a man in Houston shortly before the victim in  the present case was murdered.


63
In short, while we are troubled that in preparing for the second phase of  trial Clayton's counsel did not contact Clayton's immediate family, we are firmly  convinced Clayton suffered no prejudice from counsel's performance.  The state's  case was formidable and the evidence amply supported the imposition of both  aggravating circumstances.  The general and cumulative mitigating testimony of  Clayton's family and friends would not have made a difference.  Cf. Cooks, 165  F.3d at 1296.

Newly discovered evidence

64
Clayton lists in his appellate brief several revelations discovered by his  habeas counsel in interviews with trial witnesses ten years after his conviction.  It  is unclear whether Clayton is presenting this allegedly "newly discovered  evidence" as an independent constitutional claim of actual innocence warranting  habeas relief as a mechanism by which to bypass a procedural bar, or as evidence  supporting his claim of ineffective assistance of counsel.  Neither argument  previously was presented in state court.


65
Clayton characterizes the following as newly discovered evidence: (1)  Hartsfield confided to his sister that he may have killed a man in Texas; (2)  Hartsfield's brother-in-law now denied being with Hartsfield on the morning of  the murder; and (3) Hartsfield's sister contradicted her trial testimony by stating  the blood on Clayton's clothing was dry when she saw it, that she witnessed  Clayton hide the knife, that Hartsfield asked her to "cover" for him, and that she  believed her husband was at work on the morning of the murder and not with  Hartsfield.  Clayton offers an affidavit from an attorney attesting to what  Hartsfield's brother-in-law said in an interview but does not offer an affidavit  from the brother-in-law.  The transcript of a recorded conversation indicated that  Hartsfield's sister could not fully recall if her husband was at work on the  morning of the murder and she did not understand Hartsfield's request to "cover  him" to be a request to lie on his behalf.  She also stated unambiguously that  Clayton's clothing was bloody.  Bearing in mind the actual state of the record, we  turn to Clayton's newly discovered evidence claim.


66
In Herrera, the Supreme Court intimated strongly that newly discovered  evidence of actual innocence is not sufficient to warrant habeas relief absent an  independent constitutional violation in the underlying state criminal proceeding. 506 U.S. at 400.  The Court nonetheless declined to completely foreclose the  possibility that a "truly persuasive demonstration of 'actual innocence' made after  trial [would] . . . warrant federal habeas relief," instead cautioning that "the  threshold showing for such an assumed right would necessarily be extraordinarily  high."  Id. at 417.  Typically, however, newly discovered evidence of actual  innocence may serve only to satisfy the fundamental miscarriage of justice  exception that excuses a petitioner's procedural default and permits a court to  address an otherwise barred constitutional claim.  Id. at 404.


67
Clayton's newly discovered evidence claim does not satisfy the  extraordinarily high threshold set forth in Herrera and he asserts no separate  underlying constitutional violation.  The evidence which he asserts as newly  discovered evidence barely aids his case and is merely impeaching evidence that  would not cause a rational person to doubt Clayton's guilt.  See Stafford v.  Saffle,  34 F.3d 1557, 1561 (10th Cir. 1994).  Nor is Clayton's newly discovered evidence  sufficient to invoke the fundamental miscarriage of justice exception, which  excuses a petitioner's procedural default.  Clayton has not made a colorable  showing of factual innocence, see Herrera, 506 U.S. at 404, and has not  identified  an independent constitutional claim, other than ineffective assistance of counsel,  that we could review even if we found the miscarriage of justice exception  applicable.  As for his vague and passing reference to ineffective assistance of  counsel, Clayton fails to identify how his counsel was ineffective in failing to  discover this evidence or how any deficient performance prejudiced him.  It is a  virtual certainty that disclosure of this newly discovered evidence would not have  altered the outcome of Clayton's trial.

Cumulative error

68
Clayton contends the cumulative effect of otherwise harmless errors  deprived him of a fair trial.  This contention does not merit review given the lack  of any discernible constitutional error.


69
AFFIRMED.



Notes:


1
  Except for the trial judge and one of the  clinical psychologists, all of  these individuals testified at the retrospective competency hearing.


2
  Respondent has not asserted, and we do  not consider, whether Cooper is  retroactively applicable to cases where the direct appeal was final before Cooper was decided.  See Goeke v. Branch, 514 U.S. 115, 117 (1995) (holding court  need  not entertain a Teague v. Lane, 489 U.S. 288 (1988), defense if state has not  raised it); Schiro v. Farley, 510 U.S. 222, 229 (1994) (indicating state can waive  the Teague defense by not raising it).


3
  A procedural default analysis is necessary  because Clayton's challenge is  a procedural competency claim, which is subject to waiver, rather than a  substantive competency claim, which is not subject to waiver.  See Rogers v.  Gibson, 173 F.3d 1278, 1289 (10th Cir. 1999).


4
  Clayton misunderstands our rules  regarding exhaustion and procedural  bar.  He reasons (1) he did not present his claim on direct appeal or in his  application for post-conviction relief; (2) Oklahoma's consistently applied  procedural rules would preclude him from presenting the claim in a successive  application for post-conviction relief because it previously could have been  raised; and (3) because further filings in state court would be futile, the "futility"  exception to exhaustion applies and mandates his new claim be heard on federal  habeas review.  Assuming the futility exception applies, it does not foreclose  application of the procedural bar, provided (1) Clayton had the opportunity to  present the issue in state court, but either chose not to or overlooked the issue  entirely, and (2) the state court would bar presentation of the issue on a state  procedural ground if presented in a new post-conviction application.  SeeO'Sullivan v. Boerckel, 119 S. Ct. 1728, 1734 (1999).  Because these conditions  are met, the procedural bar applies.
In any event, Clayton's contention is without merit.  Testimony that  Clayton was advised of his rights is admissible to "lay a proper foundation for the  admission of any statements" later made by Clayton.  United States v. De La Luz  Gallegos, 738 F.2d 378, 381 (10th Cir. 1984).  "This is so because it is the jury  which must ultimately make the determination as to whether or not any  subsequent statements made by a defendant were voluntary and what weight to  give to such statements in their deliberations."  Id. at 381-82.


5
  Several times in his appellate brief,  Clayton also refers to the denial of  expert psychiatric assistance during the guilt phase of trial.  To the extent these  general references are intended to constitute a separate appellate issue, they are  inadequate to show Clayton's sanity was likely to be an issue during the guilt  phase.  See Liles v. Saffle, 945 F.2d 333, 335-36 (10th Cir. 1991).


