                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                           January 18, 2012
                                      PUBLISH             Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



GEORGE OCHOA,

            Petitioner - Appellant,
      v.                                            No. 10-6088
RANDALL G. WORKMAN, Warden,
Oklahoma State Penitentiary,

            Respondent - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. NO. 5:06-CV-01348-R)


James L. Hankins, Ogle Law Office, P.L.L.C., Oklahoma City, Oklahoma, for
Petitioner-Appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for
Respondent-Appellee.


Before MURPHY, HARTZ, and HOLMES, Circuit Judges.


MURPHY, Circuit Judge.
                               I. INTRODUCTION

      In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held

that the Eighth Amendment precludes the execution of mentally retarded

criminals. Relying on Atkins, the Oklahoma Court of Criminal Appeals

(“OCCA”) granted George Ochoa, a convicted murderer under sentence of death,

a post-conviction jury trial to determine whether he was mentally retarded. The

jury found Ochoa failed to meet his burden of proving, by a preponderance of the

evidence, he was mentally retarded. The OCCA affirmed. Ochoa v. State, 136

P.3d 661, 670 (Okla. Crim. App. 2006). This court granted Ochoa permission to

file a second 28 U.S.C. § 2254 petition raising his Atkins claims in federal district

court. Ochoa v. Sirmons, 485 F.3d 538, 546 (10th Cir. 2007). After the district

court denied Ochoa’s second § 2254 habeas petition on the merits, Ochoa filed

the instant appeal.

      Ochoa’s appeal implicates the intersection of Atkins and the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996) (“AEDPA”). Ochoa contends Oklahoma law, which focuses on whether a

defendant is mentally retarded at the time of trial, instead of whether he was

mentally retarded at the time of the commission of the crime, is “contrary to, or

. . . an unreasonable application of” Atkins. 28 U.S.C. § 2254(d)(1). We reject

this contention. Oklahoma’s determination that mental retardation is not a fluid

concept is entirely consistent with Atkins. Ochoa further asserts his trial was

                                         -2-
fundamentally unfair because (1) the jury was informed he had been convicted of

a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he

was forced to wear a shock sleeve during trial. Despite Oklahoma’s arguments to

the contrary, this court concludes these claims are Atkins claims. Thus, the

district court properly resolved them on the merits. 28 U.S.C. § 2244(b). We

further hold the district court correctly concluded none of the alleged errors

identified by Ochoa entitle him to habeas relief. Thus, exercising jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A), this court affirms the order of

the district court denying Ochoa’s § 2254 habeas petition. 1

      1
        Pending before this court is Ochoa’s request for an expanded certificate of
appealability (“COA”). To obtain the benefit of Atkins, an Oklahoma defendant
facing the death penalty must prove, by a preponderance of the evidence, he is
mentally retarded. Ochoa v. State, 136 P.3d 661, 665 (Okla. Crim. App. 2006).
In his habeas petition, Ochoa asserted this aspect of Oklahoma law is contrary to
Atkins. The district court disagreed. Ochoa seeks an expanded COA so he can
appeal the district court’s denial of habeas relief as to this issue.

      To be entitled to a COA, Ochoa must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, he must
demonstrate “reasonable jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quotations omitted). Ochoa cannot satisfy this standard. The
Supreme Court specifically left to the various states “the task of developing
appropriate ways to enforce the constitutional restriction” on the execution of
mentally retarded criminals. Atkins v. Virginia, 536 U.S. 304, 317 (2002)
(quotation omitted). In an analogous context, the Court specifically approved
placing the burden on a defendant of demonstrating, by a preponderance of the
evidence, his incompetence to stand trial. Medina v. California, 505 U.S. at 437,
450-52 (1992). Furthermore, of those jurisdictions that impose the death penalty,
none impose on the government the burden of disproving mental retardation. Hill
                                                                       (continued...)

                                         -3-
                                II. BACKGROUND

      An Oklahoma state jury found Ochoa guilty of, inter alia, two counts of

first degree murder and sentenced him to death. On direct appeal, the OCCA

affirmed. Ochoa v. State, 963 P.2d 583, 606 (Okla. Crim. App. 1998). After

exhausting his state post-conviction remedies, Ochoa filed a 28 U.S.C. § 2254

petition in federal district court. The district court denied habeas relief in an

extensive order. Ochoa appealed the district court’s denial of habeas relief to this

court (No. 02-6032).

      After briefing was complete and No. 02-6032 was set for oral argument,

this court stayed the appeal, upon Ochoa’s motion, so he could exhaust an Atkins

claim in state court. Oklahoma held a jury trial on Ochoa’s Atkins claim; the jury

concluded Ochoa did not prove he was mentally retarded. The OCCA affirmed.


      1
        (...continued)
v. Humphrey, No. 08-15444, 2011 WL 5841715, at *18 (11th Cir. Nov. 22, 2011)
(en banc). Instead, the overwhelming majority place the burden in a way
identical to Oklahoma law. Id. The district court’s conclusion that Oklahoma
law is neither contrary to, nor an unreasonable application of Atkins is simply not
debatable. See Williams v. Taylor, 529 U.S. 362, 405-413 (2000) (defining
§ 2254(d)(1)’s “contrary to” and “unreasonable application of” prongs and
holding it is a difficult task to meet either standard). This is especially true
because to prevail on this claim in Oklahoma, a defendant need only convince one
juror the defendant is mentally retarded. Lambert v. State, 71 P.3d 30, 32 (Okla.
Crim. App. 2003) (“If there is no unanimous verdict either finding or rejecting
mental retardation, the trial court will resentence [Defendant] to life
imprisonment without parole. This is in keeping with the low burden of proof; on
a question of this constitutional magnitude, if jurors cannot agree on whether it is
more likely than not that [Defendant] is retarded, [Defendant] will receive the
benefit of that doubt.”).

                                         -4-
Ochoa v. State, 136 P.3d 661, 670 (Okla. Crim. App. 2006). This court then

granted Ochoa permission to file a second § 2254 petition raising his Atkins claim

in federal district court. Ochoa v. Sirmons, 485 F.3d 538, 539 (10th Cir. 2007).

After the district court denied habeas relief, Ochoa brought the instant appeal to

this court (No. 10-6088). 2

                          III. STANDARD OF REVIEW

      Ochoa is entitled to federal habeas relief only if the OCCA’s resolution of

his claims “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or . . . was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This

court presumes a state court’s factual findings are correct unless the petitioner

rebuts that presumption by “clear and convincing evidence.” Id. § 2254(e)(1).

      We first determine whether the principle of federal law upon which Ochoa

relies was “clearly established by the Supreme Court at the time of the state court

judgment.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). Clearly

established law consists of Supreme Court holdings in cases “where the facts are

at least closely related or similar” to the facts in Ochoa’s case. House v. Hatch,


      2
       On December 1, 2011, this court affirmed the district court’s denial of
Ochoa’s § 2254 habeas petition in No. 02-6032. Ochoa v. Workman, No. 02-
6032, 2011 WL 6000510, at *17 (10th Cir. Dec. 1, 2011) (unpublished
disposition).

                                         -5-
527 F.3d 1010, 1016 (10th Cir. 2008). “The absence of clearly established

federal law is dispositive under § 2254(d)(1).” Id. at 1018. If clearly established

federal law exists, this court moves on to consider whether the OCCA decision

was contrary to or an unreasonable application of that clearly established federal

law.

       A decision is “contrary to” clearly established federal law . . . if the
       state court applies a rule that contradicts the governing law set forth
       in Supreme Court cases or if the state court confronts a set of facts
       . . . materially indistinguishable from a decision of the Supreme
       Court and nevertheless arrives at a result different from the result
       reached by the Supreme Court.

Bland, 459 F.3d at 1009 (quotations omitted). “A state court decision involves an

‘unreasonable application’ of federal law if the state court identifies the correct

governing legal principle from Supreme Court decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id. (quotation omitted).

                                    IV. ANALYSIS

A. Temporal Focus of Mental Retardation Determination

       1. Background

       At his mental retardation trial, Ochoa asked for a jury instruction focused

on whether he was retarded at the time he committed the crimes. The trial court

denied the request and instructed the jury to determine whether Ochoa was

mentally retarded at the time of the trial. On direct appeal, 3 Ochoa asserted the

       3
           “Though this appeal remains part of Mr. Ochoa’s post-conviction case, we
                                                                       (continued...)

                                           -6-
trial court’s instruction was at odds with Atkins. The OCCA rejected Ochoa’s

assertion of error, concluding:

      Ochoa argues that the Supreme Court’s holding in Atkins prohibits
      the State from executing a person who was mentally retarded at the
      time the crimes were committed, not at the time of the jury trial on
      the issue of mental retardation. Evidence presented at Ochoa’s jury
      trial on mental retardation showed that Ochoa scored higher on
      intelligence tests given in 2003 than on those given to him in 1995
      and 1996. Evidence also was presented which showed Ochoa had
      learned to read and write while incarcerated and suggested his ability
      to learn to read and write likely contributed to his more current test
      performance.

              Counsel for Ochoa requested the trial court instruct the jury
      that it must find Ochoa was mentally retarded at the time of the
      offense and the trial court denied the requested instructions. Ochoa
      argues that the focus of the Court in Atkins was upon the moral
      culpability of the offender at the time of the crime and the relevant
      constitutional inquiry is not whether the offender is retarded at the
      moment, but rather whether the offender was retarded when the crime
      occurred. He asks this Court to vacate the jury’s verdict because it
      was rendered upon instructions which required it to find Ochoa was
      presently mentally retarded.

              Although the Court in Atkins did not specifically define
      “mental retardation” for the individual States and left . . . to the
      States “the task of developing appropriate ways to enforce the
      constitutional restriction upon [their] execution of sentences,” there
      it referenced two generally accepted clinical definitions. Atkins, 536
      U.S. at 317 n.22. Both definitions require mental retardation to be
      present before the age of eighteen (18). Id. at 308 n.3 (AAMR
      definition requires mental retardation to “manifest” before age
      eighteen; American Psychiatric Association’s definition states the
      “onset must occur before” eighteen (18)).

      3
        (...continued)
will review errors alleged to have occurred in this jury trial on mental retardation
in the same manner as errors raised on direct appeal from a trial on the merits.”
Ochoa, 136 P.3d at 664.

                                         -7-
             We disagree with Ochoa’s description of mental retardation as
      a “fluid concept.” While we do not dispute that a mentally retarded
      person can learn and develop skills, that ability is limited and the
      ability to learn and to adaptively function suggests the individual was
      likely not mentally retarded in the first place but fell into that
      borderline range or classification due to environmental or other
      factors which affected present ability. The witness at Ochoa’s trial
      acknowledged this when she testified that some people functioning at
      a low level due to environment, education or impoverishment could
      move “above the level” of mental retardation classification by
      increasing his or her abilities to function. That Ochoa may have had
      an IQ score within the range of 70 to 75 at the time of the crime is
      relevant but does not prove mental retardation. “I.Q. tests alone are
      not determinative of the issue of mental retardation.” Myers, 130
      P.3d at 268.

             The requisite cognitive and behavioral impairments attendant
      to mental retardation, as defined by this Court in evaluating Eighth
      Amendment claims, substantially limits one’s ability to understand
      and process information, to communicate, to learn from experience
      or mistakes, to engage in logical reasoning, to control impulses, and
      to understand the reactions of others. We do not dispute that a
      mentally retarded person can learn. However, a person who can
      learn beyond the accepted clinical definitions of mental retardation
      does not fall within the definition of those persons who may avoid
      execution due to mental retardation. The evidence presented at
      Ochoa’s mental retardation jury trial showed he does not function at
      a significantly sub-average intellectual level that substantially limits
      his ability to understand and process information, to communicate, to
      learn from his mistakes, to engage in logical reasoning, to control
      impulses, and to understand the reaction of others. The jury was
      properly instructed it must find Ochoa “is” mentally retarded, as
      opposed to finding he “was” mentally retarded at the time of the
      crime.

Ochoa, 136 P.3d at 665-66.




                                         -8-
      2. Discussion

      Ochoa contends the OCCA’s decision to adopt a definition of mental

retardation in which the disability is static is “contrary to, or an unreasonable

application of,” Atkins. 28 U.S.C. § 2254(d)(1). According to Ochoa, the

Supreme Court’s focus in Atkins was upon the moral culpability of the offender at

the time of his commission of the crime. In support of this contention, Ochoa

cites the following language from Atkins: “Because of their disabilities in the

areas of reasoning, judgment, and control of their impulses, . . . [the mentally

retarded] do not act with the level of moral culpability that characterizes the most

serious adult criminal conduct.” 536 U.S. at 306 (emphasis added). 4 In essence,

      4
       As noted by the district court, Ochoa’s arguments in this regard ignore
those portions of Atkins with a temporal focus other than the time of the
commission of the crime. In particular, in concluding the Eighth Amendment
prohibited the execution of the mentally retarded, the Court relied heavily on the
general inability of the mentally retarded to meaningfully participate in their
defense:

             The reduced capacity of mentally retarded offenders provides a
      second justification for a categorical rule making such offenders
      ineligible for the death penalty. The risk “that the death penalty will
      be imposed in spite of factors which may call for a less severe
      penalty,” Lockett v. Ohio, 438 U.S. 586, 605 (1978), is enhanced, not
      only by the possibility of false confessions, but also by the lesser
      ability of mentally retarded defendants to make a persuasive showing
      of mitigation in the face of prosecutorial evidence of one or more
      aggravating factors. Mentally retarded defendants may be less able
      to give meaningful assistance to their counsel and are typically poor
      witnesses, and their demeanor may create an unwarranted impression
      of lack of remorse for their crimes. . . . [M]oreover, reliance on
      mental retardation as a mitigating factor can be a two-edged sword
                                                                       (continued...)

                                         -9-
Ochoa asserts Atkins requires that Oklahoma adopt a fluid definition of mental

retardation, i.e., a definition specifically contemplating the possibility an

individual may outgrow his mental retardation. 5 Because the jury at his mental

retardation trial was instructed to determine whether Ochoa was mentally retarded

at the time of the trial, rather than at the time of the murders, Ochoa asserts

Oklahoma’s resolution of his mental retardation claim was contrary to, or an

unreasonable application of, Atkins.

      Atkins concluded “a national consensus has developed against” the

execution of the mentally retarded. 536 U.S. at 316. In so concluding, however,

the Court explicitly recognized that no such consensus existed as to the exact

parameters of the term “mentally retarded”:

             To the extent there is serious disagreement about the execution
      of mentally retarded offenders, it is in determining which offenders
      are in fact retarded. . . . Not all people who claim to be mentally
      retarded will be so impaired as to fall within the range of mentally
      retarded offenders about whom there is a national consensus. As was
      our approach in Ford v. Wainwright, 477 U.S. 399 (1986), with
      regard to insanity, “we leave to the State[s] the task of developing

      4
       (...continued)
      that may enhance the likelihood that the aggravating factor of future
      dangerousness will be found by the jury. Mentally retarded
      defendants in the aggregate face a special risk of wrongful execution.

Atkins, 536 U.S. at 320-21 (citation and footnote omitted).
      5
        Ochoa advocates a fluid definition of mental retardation because his
available IQ scores closer to the time of the murders were lower than scores on
tests taken closer to the time of his mental retardation trial. See Ochoa, 136 P.3d
at 665.

                                         -10-
      appropriate ways to enforce the constitutional restriction upon [their]
      execution of sentences.” Id. at 405, 416–417.

Id. at 317. Furthermore, the Court recently reiterated that Atkins specifically

avoided establishing “substantive guides for determining when a person who

claims mental retardation will be so impaired as to fall [within Atkins’ compass],”

instead leaving that task to the states in the first instance. Bobby v. Bies, 129 S.

Ct. 2145, 2150 (2009) (alteration in original) (quotation omitted); see also Hill v.

Humphrey, No. 08-15444, 2011 WL 5841715, at *15 (11th Cir. Nov. 22, 2011)

(en banc) (“Atkins did not bestow a substantive Eighth Amendment right to a

fixed and rigid definition of ‘mentally retarded persons.’ Indeed, various states

use different definitions of intellectual functioning (some draw the line at an IQ

of 75 or below, some at 70 or below, others at 65 or below) and consider different

factors in assessing adaptive functioning.” (footnote omitted)). This court can say

with certainty that Atkins did not address “the time frame, if any, at which a

finding of mental retardation is relevant, i.e., time of offense, time of trial, or

time of execution.” Bowling v. Commonwealth, 163 S.W.3d 361, 369 (Ky. 2005).

This absolute absence of clearly established Supreme Court precedent dooms

Ochoa’s claim. House, 527 F.3d at 1018 (“The absence of clearly established

federal law is dispositive under § 2254(d)(1).”). Thus, the OCCA’s determination

that mental retardation is a static condition—and that those who at the time of the

mental retardation trial are not mentally retarded, never were mentally


                                          -11-
retarded—is neither contrary to, nor an unreasonable application of, Atkins’

prohibition on the execution of the mentally retarded. See Wright v. Van Patten,

552 U.S. 120, 125 (2008) (concluding that because no decision of the Court

“squarely addresse[d]” the issue presented and because none of the Court’s cases

gave a “clear answer to the question presented,” the federal habeas court could

not find the state court unreasonably applied clearly established law).

      Furthermore, Ochoa does not cite a single authority for the proposition that

mental retardation is a fluid concept. 6 The Supreme Court, on the other hand,

      6
       That is not to say, however, that there is no such authority. The Fourth
Edition of the Diagnostic and Statistical Manual of Mental Disorders ( “DSM-
IV”), the diagnostic tool referenced by Ochoa’s expert during her testimony,
provides as follows:

      Mental retardation is not necessarily a lifelong disorder. Individuals
      who had Mild Mental Retardation earlier in their lives manifested by
      failure in academic learning tasks may, with appropriate training and
      opportunities, develop good adaptive skills in other domains and may
      no longer have the level of impairment required for a diagnosis of
      Mental Retardation.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 44 (4th ed. 1994). The DSM-IV defines “Mild Mental Retardation” as
an “IQ level 50-55 to approximately 70.” Id. at 40. Finally, the DSM-IV makes
clear that the ability to outgrow mental retardation is tied to potential
improvement in adaptive functioning, rather than IQ changes. Id. (“Problems in
adaption are more likely to improve with remedial efforts than is the cognitive IQ,
which tends to remain a more stable attribute.”).

      Ochoa’s theory at trial is inconsistent with the diagnostic criteria set out in
DSM-IV. Ochoa’s own expert testified he was not likely mentally retarded at the
time of the trial. In an effort to overcome this undisputed fact, trial counsel asked
the expert to opine on the question whether Ochoa was likely mentally retarded at
                                                                         (continued...)

                                         -12-
citing to scholarship in the field, has noted “[m]ental retardation is a permanent,

relatively static condition.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 323 (1993).

For this reason, the Kentucky Supreme Court concluded the question of temporal

focus “is more semantical than real.” Bowling, 163 S.W.3d at 377 (citing Heller

and the scholarship cited therein for the proposition that because mental

retardation is a “permanent, relatively static condition,” it would be “exceedingly

rare” for the condition to “recede during the interim between the offense and the

execution”); see also State v. Arellano, 143 P.3d 1015, 1020 (Ariz. 2006)

(holding that because mental retardation is a static condition, “evidence of any

skills or deficiencies in adaptive behavior exhibited by a defendant, even after age

eighteen, helps determine whether a defendant has mental retardation”).

      Ochoa has failed to carry his burden of demonstrating the definition of

mental retardation adopted by the OCCA is “contrary to . . . or an unreasonable

application of” Atkins. 28 U.S.C. § 2254(d)(1).


      6
       (...continued)
the time of the crime. In particular, trial counsel focused the expert’s attention on
those IQ scores obtained in close temporal proximity to the crime, because those
few scores were considerably lower than a more recent test. Then, during closing
argument, trial counsel argued mental retardation is a fluid concept and that IQ
scores can improve over time. On this basis, trial counsel asked the jury to
conclude Ochoa was mentally retarded at the time of his commission of the crime.
As set out above, however, this theory of mental retardation is not consistent with
the DSM-IV and Ochoa has not offered any citations to any authority supporting
such a medical definition of mental retardation. That being the case, Ochoa
cannot offer a persuasive argument that his proffered definition of mental
retardation is the only definition consistent with Atkins.

                                         -13-
B. Fundamental Fairness of Ochoa’s Mental Retardation Trial

      1. Background

      On direct appeal from the jury’s determination he had not proven he was

mentally retarded, Ochoa asserted three procedural irregularities rendered his trial

unfair: (1) the jury learned of Ochoa’s prior conviction; (2) Ochoa went to trial

wearing his orange prison jumpsuit; and (3) Ochoa was forced to wear a shock

sleeve during the trial. The OCCA determined Ochoa was not entitled to relief:

      Ochoa contends the trial was fundamentally unfair because the jury
      learned of [his] prior convictions and . . . saw [him] wearing orange
      jail overalls and a “shock sleeve.” The record reflects Ochoa chose
      not to dress out; and, following counsel’s request that the trial court
      admonish him not to act inappropriately during the trial, Ochoa
      responded to the trial court’s admonishments with obvious upset.
      After the trial court advised Ochoa he would be removed from the
      court room if he were to be disruptive, Ochoa responded that he was
      “being railroaded anyway, so it didn’t matter to” him. At this point
      the trial court asked the deputy to put on “the sleeve,” noting that “it
      may ensure that he won’t behave inappropriately.” After the deputy
      left with Ochoa, the trial court stated, “I’ve observed them with that
      on. They don’t seem to be a problem.” When Ochoa returned to the
      court room, counsel said Ochoa wanted to make a record on “the
      sleeve.” The trial court asked, “he objects to it?” Upon counsel’s
      affirmative response, the trial court stated, “he was going to cause a
      problem, now he’s not.”

            The potential jurors were called and the trial court informed
      the venire the case had “to do with a criminal matter that you will not
      hear about.” The trial court explained a deputy was present because
      Ochoa was

            in custody. So he’s not free to leave . . . . So he’s
            accompanied by a deputy all the time because he’s in
            custody.


                                        -14-
              And he has been convicted of a crime that we’re
      not going to tell you about at this point in time, okay?
      . . . [A]nd there’s very limited reasons why you might
      hear it during the trial, but probably not. But he’s been
      convicted of a crime.

After a potential juror indicated his best friend graduated from the
police academy, the trial court stated, “I don’t see any law
enforcement officers, but this is a criminal case, okay. Criminal
cases are involved in this.” After a potential juror described being
robbed at gunpoint and said this was not that kind of case, the trial
court stated, “And that’s true, but it does have criminal overtones to
it.” After voir dire, before court recessed for the day, the trial court
noted the breaks were a little bit longer, because “Ochoa’s in custody
and you’re eight floors away from the coffee shop . . . .” During voir
dire, the prosecutor also stated “You understand he’s already been
convicted of a crime,” and reminded the jurors they were not going
to find out what Ochoa was convicted of and might have
“unanswered questions.”

       Ochoa contends the jury should not have received any
information relating to his custodial status and he should not have
been “forced” to proceed at trial in prisoner clothing and the shock
sleeve. Ochoa relies upon Deck v. Missouri, 544 U.S. 622 (2005),
and argues he was deprived of due process and a fundamentally fair
trial when the jury observed him in obvious restraint without being
told why he was in custody.

       The jury’s knowledge that Ochoa was in custody, that he had
previously been convicted, and that the proceeding was related to a
criminal matter was not violative of Lambert v. State, 71 P.3d 30
(Okla Crim. App. 2003). While evidence relating to his criminal
conviction and sentence of death are not relevant to the proceeding,
the jury’s knowledge that the proceeding was related to a criminal
matter and that Ochoa was in custody and had been convicted of a
crime does not create the prejudicial effect Lambert sought to avoid.
...

       It is error to compel an accused to appear before a jury in
prison clothing where a timely request has been made for civilian
clothing. However here, the record shows Ochoa’s decision to

                                  -15-
appear before the jury in jail dress was his own. He was compelled
by no one but himself. We find no Fourteenth Amendment violation
where Ochoa himself made the decision to appear in jail dress and no
request for civilian clothing appears in the record. Estelle v.
Williams, 425 U.S. 501, 512-513 (1976).

       Ochoa’s presence before the jury in the shock sleeve is a more
difficult matter. . . . The Fifth and Fourteenth Amendments prohibit
the use of physical restraints visible to a jury absent a trial court
determination, in the exercise of its discretion, that the restraints are
justified by a state interest specific to a particular trial. Deck, 544
U.S. at 629. The Supreme Court extended this legal principle beyond
guilt/innocence proceedings and reversed a death sentence reached
by a jury in a trial where a defendant was shackled with leg irons,
handcuffs, and a belly chain during the penalty stage of trial. Id. at
2014. . . .

      ....

       While the use of shackles or other restraints is clearly not
favored, the constitutional requirement against routine restraints is
not absolute. Id. A judge, in the exercise of discretion and taking
into account the special circumstances of each proceeding, including
security concerns, may call for shackling. Id. at 633. “But given
their prejudicial effect, due process does not permit the use of visible
restraints if the trial court has not taken account of the circumstances
of the particular case.” Id. at 632.

      ....

       We agree . . . it is the trial judge’s responsibility to control the
decorum of the courtroom. However, this record does not
sufficiently establish that Ochoa was in fact disruptive, violent or
aggressive or that this level of control was needed. The trial court
admitted its decision to put the shock sleeve on Ochoa was “like
insurance” and was precautionary in nature. The trial court's
statement that Ochoa told someone he was going to be disruptive was
not sufficient to warrant the action taken by the trial court and its
order requiring Ochoa to wear the shock sleeve constituted an abuse
of discretion . . . .


                                    -16-
              The State argues the record does not show the shock sleeve
      was visible to the jury or that the jury knew what the shock sleeve
      was for, so even if the trial court should not have ordered Ochoa to
      wear it, no constitutional error resulted. In Phillips, where the
      parties agreed the stun belt was not visible to the jury and the
      defendant was not physically restrained and his mental abilities were
      not hampered, this Court found the defendant was not deprived of a
      fair trial . . . .

             Here the record does not show the shock sleeve was visible to
      the jury. Even if it were visible, we doubt the jury’s ability to see
      the shock sleeve was any more prejudicial to Ochoa than was the fact
      that the jury saw Ochoa wearing his jail clothing and Ochoa himself
      made the decision to dress out in jail clothing. Ochoa does not claim
      the shock sleeve prevented him from physically or mentally assisting
      his counsel at the mental retardation hearing. While this Court finds
      the trial court erred and abused its discretion by ordering Ochoa to
      wear the shock sleeve, Ochoa has not proven this error had a
      substantial influence on the outcome of the proceeding and has not
      shown prejudice. See e.g., U.S. v. McKissick, 204 F.3d 1282, 1299
      (10th Cir.2000) (court will not presume prejudice where there was no
      evidence jurors noticed the stun belt).

Ochoa, 136 P.3d at 667-70 (citations omitted).

      2. Discussion

            a. 28 U.S.C. § 2244(b)(4)

                   i. Procedural Background

      The filing of a second or successive § 2254 habeas petition, and the

contents thereof, are tightly constrained by the provisions of the AEDPA. As

relevant to the instant case, the AEDPA provides

            A claim presented in a second or successive habeas corpus
      application under section 2254 that was not presented in a prior
      application shall be dismissed unless . . . the applicant shows that the
      claim relies on a new rule of constitutional law, made retroactive to

                                        -17-
      cases on collateral review by the Supreme Court, that was previously
      unavailable.

28 U.S.C. § 2244(b)(2)(A). A three-judge panel of this court concluded Ochoa

made a prima facie showing that his application satisfied the requirements of

§ 2244(b)(2)(A) and, thus, authorized Ochoa to file “a second or successive

habeas petition raising an Atkins challenge to his death sentence.” Ochoa, 485

F.3d at 546. 7 Upon the filing of Ochoa’s second or successive habeas petition in

district court, Oklahoma sought dismissal of Ochoa’s claims of procedural

irregularity on the ground those particular claims did not satisfy the standard set

out in § 2244(b)(2)(A). See 28 U.S.C. § 2244(b)(4) (providing that “[a] district

court shall dismiss any claim presented in a second or successive application that

the court of appeals has authorized to be filed unless” the claim satisfies the

requirements of § 2244(b)(2)). 8 In particular, Oklahoma asserted the claims must

be dismissed because these claims are based on non-Atkins Supreme Court




      7
        See also 28 U.S.C. § 2244(b)(3)(A)-(B) (providing that no second or
successive § 2254 petition can be filed in district court without authorization from
a three-judge panel of the court of appeals); id. § 2244(b)(3)(C) (providing that
this court may authorize the filing of a second or successive § 2254 petition only
if a proposed application “makes a prima facie showing that the application
satisfies the requirements” of § 2244(b)(2)).
      8
        See also LaFevers v. Gibson, 238 F.3d 1263 (10th Cir. 2001) (“Upon the
filing of [a] second §2254 petition [authorized by the circuit court], the district
court was obligated to determine whether the petition did, in fact, satisfy the
requirements of § 2244(b).”).

                                        -18-
decisions and decisions of the OCCA. The district court refused to dismiss

Ochoa’s claims of procedural irregularity on this ground, concluding as follows:

              Petitioner’s instant claim falls within a narrow category of
      cases. To review his second or successive petition as Respondent
      asserts, i.e., applying § 2244(b)(2)(A) to each individual ground for
      relief, would be unreasonable under the procedural aspects of this
      case and contrary to the intentions of the statute and the mandate of
      the Supreme Court in Atkins. Had Petitioner initially been tried after
      the decision in Atkins, he could have raised his claim of mental
      retardation prior to or during his criminal trial and each of his
      propositions attacking the constitutional validity of his sentence
      would be available for appellate and collateral review. Under the
      procedural circumstances involved here, the Court sees no
      justification that review of Petitioner’s Atkins claim should not be
      any different.

             As the Tenth Circuit identified, and the State conceded,
      Petitioner’s first habeas petition was denied in 2001. While on
      appeal from that denial, the Supreme Court decided Atkins,
      determining mentally retarded persons are ineligible for the death
      penalty and making its holding retroactively applicable to cases on
      collateral review. Petitioner returned to state court to pursue his
      Atkins claim in a post-conviction proceeding, where a trial was
      ordered by the OCCA on the issue of his mental retardation. . . .
      Pursuant to § 2244(b)(2)(A), this Court finds that Petitioner’s Atkins
      claim satisfies the statute’s requirements to proceed with a second or
      successive habeas petition, as Atkins was a new rule of constitutional
      law, previously unavailable to Petitioner, made retroactive by the
      Supreme Court to cases on collateral review. Accordingly,
      Respondent’s Motion to Dismiss is denied.

      On appeal, Oklahoma asserts the district court erred in refusing to dismiss,

pursuant to the terms of § 2244(b)(4), Ochoa’s procedural irregularity claims.

The district court’s determination that Ochoa’s claims “satisfy the requirements of




                                        -19-
§ 2244(b) is a legal conclusion which this court reviews de novo.” LaFevers v.

Gibson, 238 F.3d 1263, 1266 (10th Cir. 2001) (citation omitted).

                   ii. Analysis

      For those reasons set out below, the court concludes Ochoa’s procedural

irregularity claims are proper Atkins claims and, therefore, the district court

properly denied Oklahoma’s motion to dismiss.

      We begin by noting the question whether Ochoa’s procedural-irregularity

claims fall within the ambit of § 2244(b)(2)(A) is one of first impression. This

court has never addressed the contours of § 2244(b)(2)(A). Furthermore, it does

not appear that any other circuit has addressed this question. This dearth of

precedent is not surprising, given that “Atkins reflects one of the rare instances in

which the Supreme Court has announced a new rule of constitutional law that it

has also expressly made retroactively applicable to cases on collateral review.”

Ochoa, 485 F.3d at 540. 9 Those limited precedents that do exist, however,

indicate Ochoa’s procedural irregularity claims, although drawing their substance

from the Fourteenth Amendment’s Due Process Clause, are based on Atkins.

      The Supreme Court has made clear that its decision in Atkins “did not

provide definitive procedural or substantive guides for determining when a person

who claims mental retardation will be so impaired as to fall [within Atkins’


      9
       Indeed, since the passage of the AEDPA in 1996, it appears Atkins
represents the only such new rule.

                                         -20-
compass].” Bobby, 129 S. Ct. at 2150 (quotation omitted) (alteration in

original). 10 Instead, it left “to the States the task of developing appropriate ways

of enforcing the constitutional restriction” on the execution of the mentally

retarded. Id. (quotation omitted). For that reason, the Court has indicated federal

habeas courts should not preemptively dictate to the states matters of procedure or

substance in the Atkins realm. Id. at 2153-54 (“[Federal court] intervention . . .

derailed a state trial court proceeding designed to determine whether Bies ha[s] a

successful Atkins claim. Recourse first to Ohio’s courts is just what this Court

envisioned in remitting to the States responsibility for implementing the Atkins

decision. [Ohio recognizes] Bies is entitled to such recourse, [and] rightly seeks

a full and fair opportunity to contest his plea under the postsentencing precedents

set in Atkins and [Ohio law].” (quotation and citation omitted)); Schriro v. Smith,




      10
        As this quotation should make clear, the mere absence of procedural
guidelines in Atkins, standing alone, does not justify a conclusion that Ochoa’s
procedural irregularity claims are not Atkins claims for purposes of
§ 2244(b(2)(A). As Bobby recognizes, Atkins is also bereft of substantive
guidance as to the meaning of the term “mental retardation.” Bobby v. Bies, 129
S. Ct. 2145, 2150 (2009). If the mere absence of guidance was sufficient to
preclude review under § 2244(b)(2)(A), Ochoa’s challenge to Oklahoma’s
definition of “mental retardation” would also be outside the ambit of
§ 2244(b)(2)(A). Oklahoma does not, however, argue for such a result on appeal.
Furthermore, such a reading of § 2244(b)(2)(A) would render meaningless the
Supreme Court’s decision to make Atkins retroactive to cases on collateral review.

                                         -21-
546 U.S. 6, 7-8 (2005) (concluding Ninth Circuit erred when it preemptively

ordered Arizona to use jury trial procedures to resolve Atkins claims). 11

      The Supreme Court has also indicated, however, that state court “measures

for adjudicating claims of mental retardation . . . might, in their application, be

subject to constitutional challenge.” Schriro, 546 U.S. at 7. That is the exact

situation faced by this court. Oklahoma has adopted the full-blown jury trial,

“with all its historic and procedural protections,” 12 as the appropriate mechanism

for resolving claims of mental retardation. Lambert v. State, 71 P.3d 30, 31

(Okla. Crim. App. 2003). Ochoa has asserted certain aspects of that procedural

mechanism, as applied to him, rendered his mental retardation trial fundamentally

unfair. Schriro indicates such a challenge is properly brought in a § 2254 habeas

petition. 546 U.S. at 7; United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir.

2007) (“We are bound by Supreme Court dicta almost as firmly as by the Court’s

outright holdings, particularly when the dicta is recent and not enfeebled by later

statements.” (quotations omitted)).

      That each of the procedural irregularities identified by Ochoa implicate

protections flowing from the Fourteenth Amendment’s Due Process Clause does

      11
        See also Hill, 2011 WL 5841715, at *15 (concluding Georgia procedural
rule requiring defendants to prove mental retardation beyond a reasonable doubt
is not contrary to or an unreasonable application of Atkins and asserting a
contrary result would “ignore the clear language of Atkins . . . about who is to
decide what procedures are to be used to determine mental retardation”).
      12
           United States v. Essex, 734 F.2d 832, 844 (D.C. Cir. 1984).

                                          -22-
not change the result. “The Fourteenth Amendment’s Due Process Clause

protects persons against deprivations of life, liberty, or property; and those who

seek to invoke its procedural protection must establish that one of these interests

is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The liberty interest

at issue in this case, the right of the mentally retarded to avoid execution, flows

directly from the Eighth Amendment. Atkins, 536 U.S. at 321 (“Construing and

applying the Eighth Amendment in the light of our evolving standards of decency,

we . . . conclude that [the death penalty] is excessive and that the Constitution

places a substantive restriction on the State’s power to take the life of a mentally

retarded offender.” (quotation omitted)). Oklahoma adopted the jury trial, with

its historically attendant procedural protections, as the method to vindicate that

liberty interest. Ochoa’s interest in ensuring Oklahoma applied that procedure in

a fundamentally fair fashion flows directly from the liberty interest announced in

Atkins. Accordingly, Ochoa’s procedural irregularity claims are Atkins claims

and, furthermore, those claims are properly brought in a second or successive

habeas petition under the provisions of § 2244(b)(2)(A).

             b. Merits

                    i. Jail Attire at Trial

      Ochoa asserts he was denied his right to a fundamentally fair proceeding

when he was forced to attend his mental retardation trial in prison garb. Estelle v.

Williams, 425 U.S. 501, 504-05 (1976). The very basic problem with this claim

                                         -23-
of error, however, is the OCCA specifically found Ochoa chose to attend the trial

in prison attire. Ochoa, 136 P.3d at 667 (“[T]he record shows Ochoa’s decision

to appear before the jury in jail dress was his own. He was compelled by no one

but himself.”). The OCCA’s finding of fact is entitled to a presumption of

correctness. 28 U.S.C. § 2254(e)(1). In any event, the record fully supports the

OCCA’s finding. Before jurors were present in the courtroom, Ochoa’s counsel

indicated she wanted to make a record about Ochoa’s refusal to change out of his

jail uniform. She then stated as follows: “We’re on the record. Mr. Ochoa has

chosen not to dress out and he’s in orange. I don’t believe he’s cuffed, but I

believe he’s in his jail uniform and he chooses to do so.” The trial court then

allowed Ochoa to address the court; Ochoa complained about his counsel’s failure

to call certain witnesses, but did not address the prison-garb issue.

      Ochoa does not contest this sequence of events. Instead, he asserts the trial

court did not “flesh out” the issue of his refusal to dress out and that it is possible

his conduct was an act of defiance against trial counsel. The problem for Ochoa,

however, is that even assuming his suppositions are true, they do not bear on the

question whether the decision of the OCCA was contrary to or an unreasonable

interpretation of Estelle. 28 U.S.C. § 2254(d)(1). The Court in Estelle made

absolutely clear that the absence of an objection in the trial record to being forced

to wear prison garb “negate[s] the presence of compulsion necessary to establish a

constitutional violation.” 425 U.S. at 512-13. Thus, the OCCA’s conclusion that

                                          -24-
the Due Process Clause was not implicated by Ochoa’s decision to proceed to trial

in prison garb is entirely consistent with Estelle.

                    ii. Evidence of Prior Criminal Convictions

      Ochoa asserts he was denied a fundamentally fair mental retardation trial

when the jury learned he had been convicted of a crime. In particular, he asserts

information regarding the fact of his conviction is entirely irrelevant to the

question of his mental retardation and the admission of that information is at odds

with Oklahoma law. 13 The OCCA rejected this claim on the merits, concluding

the very limited nature of the information conveyed to the jury (i.e., the mere fact

Ochoa had been convicted of some type of crime) was consistent with Oklahoma

law and did not prejudice Ochoa. Ochoa, 136 P.3d at 667 (cataloging limited

      13
        In support of his assertion that the revelation to the jury of the fact of his
conviction is at odds with Oklahoma law, Ochoa cites to the decision of the
OCCA in Lambert describing the purpose of a mental retardation trial:

             The proceeding on remand is solely devoted to the question of
      Lambert’s mental retardation. Both parties may call witnesses and
      present evidence bearing on mental retardation. Lambert’s criminal
      conviction and death sentence are not relevant to this issue. The jury
      should not hear evidence of the crimes for which Lambert was
      convicted, unless particular facts of the case are relevant to the issue
      of mental retardation. Any such evidence should be narrowly
      confined to that issue. The jury should not hear evidence in
      aggravation or mitigation of the murders for which Lambert was
      convicted, or any victim impact evidence. The only issue is whether
      Lambert meets [Oklahoma’s] definition for mental retardation. The
      jury shall be convened to discover whether Lambert can show it is
      more likely than not that he is mentally retarded.

71 P.3d at 31 (footnote omitted).

                                         -25-
evidence before jury and concluding such evidence “does not create the

prejudicial effect Lambert sought to avoid”).

      On appeal, Ochoa reasserts that the provision to the jury of this irrelevant

and prejudicial evidence rendered his trial fundamentally unfair. In response,

Oklahoma asserts this is solely a matter of state law and, therefore, not a proper

subject for habeas relief. Oklahoma is correct in arguing “Federal habeas review

is not available to correct state law evidentiary errors; rather it is limited to

violations of constitutional rights.” Smallwood v. Gibson, 191 F.3d 1257, 1275

(10th Cir. 1999). Thus, even assuming the admission of this evidence was

inconsistent with state law, a proposition the OCCA conclusively rejected, that

fact alone would not entitled Ochoa to habeas relief.

      Nevertheless, when a state court admits evidence that is “so unduly

prejudicial that it renders the trial fundamentally unfair, the Due Process Clause

of the Fourteenth Amendment provides a mechanism for relief.” Payne v.

Tennessee, 501 U.S. 808, 825 (1991). That is true without regard to whether the

evidence was properly admitted pursuant to state law. Estelle v. McGuire, 502

U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions. In conducting

habeas review, a federal court is limited to deciding whether a conviction violated

the Constitution, laws, or treaties of the United States.”). Oklahoma is correct,

however, in asserting the limited criminal background evidence at issue in this

                                          -26-
case was not so unduly prejudicial as to render Ochoa’s mental retardation trial

fundamentally unfair. This court has examined the entire transcript of Ochoa’s

mental retardation trial and concludes there is simply nothing in the limited

information conveyed to the jury about Ochoa’s background that suggested to the

jury it should decide the case on any basis other than the facts adduced at trial

and the law as set out in the trial court’s instructions. Furthermore, given that

Ochoa insisted on attending trial in prison garb, any potential for prejudice

flowing from the provision of the background evidence as to Ochoa’s status as a

convicted criminal is de minimis. Because the evidence at issue here did not

render Ochoa’s trial fundamentally unfair, the district court properly denied

Ochoa’s request for habeas relief.

                    iii. Shock Sleeve

      Ochoa contends he was denied a fundamentally fair mental retardation

proceeding because he was forced to wear a shock sleeve during trial. In support

of this assertion, Ochoa relies on the Supreme Court’s decision in Deck v.

Missouri, which held that “the Constitution forbids the use of visible shackles

during the penalty phase, as it forbids their use during the guilt phase, unless that

use is justified by an essential state interest—such as the interest in courtroom

security—specific to the defendant on trial.” 544 U.S. 622, 624 (2005) (quotation

omitted). The OCCA resolved this issue on the merits on direct appeal,

concluding the trial court erred in requiring Ochoa to wear the shock sleeve but

                                         -27-
the error was harmless. Ochoa, 136 P.3d at 669-70. In so doing, the OCCA

specifically concluded the procedural protections animating the Supreme Court’s

decision in Deck applied to Oklahoma’s system of holding jury trials to determine

the issue of mental retardation. Id. at 669. 14 Nevertheless, the OCCA held Ochoa

was not entitled to relief because (1) there was nothing in the record indicating

the shock sleeve was visible to the jury and (2) Ochoa did “not claim the shock

sleeve prevented him from physically or mentally assisting his counsel at the

mental retardation hearing.” Id. at 670.

      The OCCA’s resolution of this claim is neither contrary to nor an

unreasonable application of Deck. As Deck makes clear, it is the potential impact


      14
           In this regard, the OCCA concluded as follows:

             Although Respondent admits [Oklahoma statutory law] is
      applicable to the use of a “shock sleeve,” it argues the statute is
      inapplicable to this case because Ochoa was forced to wear the
      sleeve at a mental retardation jury trial after he had already been
      convicted. We do not agree. The application of [Oklahoma statutory
      law] logically extends to any fact-finding trial processes. As the
      Supreme Court found in Deck, a jury’s observation of a defendant in
      visible restraints undermines its ability to weigh accurately all
      relevant considerations. It implies the defendant is dangerous and
      almost assuredly affects the jury’s perception of the defendant’s
      character. Although a defendant’s dangerousness has nothing to do
      with a finding of mental retardation, speculation on the defendant’s
      character based upon observation of visible restraints diverts the
      jury’s attention from its fact-finding mission—in this case, its
      consideration of the evidence relevant to the determination of a
      defendant’s mental retardation.

Ochoa, 136 P.3d at 669.

                                         -28-
on the jury of visible restraints that implicates the fundamental fairness of a jury

trial proceeding. 544 U.S. passim (focusing on the use of “visible” restraints);

see also United States v. McKissick, 204 F.3d 1282, 1299 (10th Cir. 2000)

(refusing to presume prejudice where defendants were forced to wear stun belts at

trial, but belts were not visible to jurors); United States v. Baker, 432 F.3d

1189,1245–46 (11th Cir. 2005) (concluding district court’s failure to justify

shackling was not an abuse of discretion where, among other things, shackles

were not visible to jurors); Mendoza v. Berghuis, 544 F.3d 650, 654 (6th Cir.

2008) (“Deck’s facts and holding . . . concerned only visible restraints at trial.

The Supreme Court was careful to repeat this limitation throughout its opinion.”).

Ochoa does not challenge the OCCA’s finding that the shock sleeve he was forced

to wear during his mental retardation trial was not visible to the jury. Given that

uncontested finding, which is in any event entitled to a presumption of

correctness, 28 U.S.C. § 2254(e)(1), the OCCA’s resolution of this claim is

clearly consistent with Deck. 15

      15
         Ochoa asserts, in a perfunctory manner, that he was prejudiced by the
forced use of the shock sleeve because “[s]hock sleeves have the effect of making
the accused less spontaneous, less expressive, and more rigid than he otherwise
would be. Jurors pick up on these things and wonder why certain things occur
. . . .” Because Ochoa did not raise this assertion before the district court, we
decline to consider the matter. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.
1999) (holding this court will generally not consider an issue raised for the first
time on appeal). In any event, this assertion of prejudice is not supported by a
single citation to authority or the record and is therefore forfeited. United States
v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider
                                                                         (continued...)

                                         -29-
C. Cumulative Error

      Ochoa asserts that even if the individual errors identified above do not

entitle him to relief, the cumulative impact of those errors rendered his mental

retardation trial fundamentally unfair. See Matthews v. Workman, 577 F.3d 1175,

1195 n.10 (10th Cir. 2009) (“In the federal habeas context, the only otherwise

harmless errors that can be aggregated are federal constitutional errors, and such

errors will suffice to permit relief under cumulative error doctrine only when the

constitutional errors committed in the state court trial so fatally infected the trial

that they violated the trial’s fundamental fairness.” (quotation omitted)). Here the

only demonstrated federal constitutional error is the decision to force Ochoa to

wear a shock sleeve at trial. For those reasons set out above, the OCCA’s

determination that this particular error was harmless is neither contrary to nor an

unreasonable application of clearly established Supreme Court precedent.

Because there are no additional constitutional errors to aggregate, Ochoa’s

cumulative error claim necessarily fails.




      15
        (...continued)
such issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation.” (quotation omitted)).


                                         -30-
                               V. CONCLUSION

      For those reasons set out above, the order of the United States District

Court for the Western District of Oklahoma denying Ochoa’s § 2254 habeas

petition is hereby AFFIRMED.




                                       -31-
10-6088 - Ochoa v. Workman

HARTZ, Circuit Judge, concurring:



      I am pleased to join Judge Murphy’s fine opinion except for

§ IV(B)(2)(a)(ii), which states that Ochoa’s procedural-irregularity claims are

properly brought in a second-or-successive habeas petition because they are

Atkins claims. In my view, they are proper habeas claims because they are timely

and are not second or successive.

      In our first opinion addressing Ochoa’s death sentence, we held that his

Atkins claim was a second-or-successive application but could proceed because it

satisfied the stringent conditions for such applications set forth in 28 U.S.C. §

2244(b)(2). Although that holding was clearly correct, some language in the

opinion is no longer good law. In particular, we said that “a request to add new

claims after the district court has adjudicated a habeas action must be preceded by

a motion to vacate under Rule 60(b) and that . . . § 2244(b) applies to the Rule

60(b) motion as if it were a stand-alone second or successive petition.” Ochoa v.

Sirmons, 485 F.3d 538, 540 (10th Cir. 2007). But an opinion by the United

States Supreme Court two months later, Panetti v. Quarterman, 551 U.S. 930

(2007), explained that some subsequent habeas claims are not “second or

successive” within the meaning of § 2244.

      In Panetti the prisoner had already pursued one round of claims under §

2254 through denial of certiorari by the Supreme Court. After his execution date
was set, however, he pursued a second application under § 2254 contending that,

under Ford v. Wainwright, 477 U.S. 399 (1986), he was incompetent to be

executed because of mental illness. The Court, recognizing that it “has declined

to interpret ‘second or successive’ as referring to all § 2254 applications filed

second or successive in time, even when the later filings address a state-court

judgment already challenged in a prior § 2254 application,” id. at 944, held that

the second-or-successive constraint on applications “does not apply to a Ford

claim brought in an application filed when the claim is first ripe,” id. at 947. As

Panetti was recently described by its author, “[I]f the petitioner had no fair

opportunity to raise the claim in the prior application, a subsequent application

raising that claim is not ‘second or successive,’ and § 2244(b)(2)’s bar does not

apply[, such as] where the claim was not yet ripe at the time of the first petition.”

Magwood v. Patterson, 130 S. Ct. 2788, 2805 (2010) (Kennedy, J., dissenting).

This view of Panetti has the endorsement of not only the three other justices who

joined Justice Kennedy’s dissent but also three justices who joined the majority

opinion in Magwood. See 130 S. Ct. at 2803 (Breyer, J., concurring). A later

example provided by Justice Kennedy in his dissent is close in point to our case.

He wrote: “[I]f the petitioner raises a claim in his second habeas petition that

could not have been raised in the earlier petition—perhaps because the error

occurred for the first time during resentencing—then the application raising the




                                         -2-
claim is not ‘second or successive’ and § 2244(b)(2)’s bar does not apply.” Id. at

2806.

        As I understand Supreme Court doctrine, Ochoa’s procedural-irregularity

challenge to the conduct of his Atkins trial is not a second-or-successive claim

because there is no way it could have been raised in his original § 2254

application. That trial did not take place until his original application was on

appeal to this court. And the procedural-irregularity claim is not time-barred

because the one-year limitations period did not begin to run until his Atkins trial,

see 28 U.S.C. § 2244(d)(1)(D) (limitations period cannot begin before “the factual

predicate of the claim or claims presented could have been discovered through the

exercise of due diligence”), and the period was tolled during the state

proceedings. This analysis is supported by the few circuit opinions that have

applied Panetti. See, e.g., Stewart v. United States, 646 F.3d 856 (11th Cir. 2011)

(challenge to federal sentence raised after state convictions set aside); Leal

Garcia v. Quarterman, 573 F.3d 214, 220–24 (5th Cir. 2009) (habeas claim based

on recent presidential declaration). It is important to recognize that Panetti does

not suggest that Ochoa’s Atkins claim is not second or successive; although the

claim is based on a Supreme Court decision that postdated his original

application, the issue could have been raised from the outset. See Leal Garcia,

573 F.3d at 221–22 (Panetti does not apply just because the claim relies on a new

decision). (I should also note that Panetti suggests that claims by state prisoners

                                         -3-
challenging the execution of their sentences should be pursued under § 2254,

rather than under 28 U.S.C. § 2241, as has been the rule in this circuit. See

Magwood, 130 S. Ct. at 2805 (Kennedy, J., dissenting) (indicating that a state

prisoner’s challenge to failure to grant parole is an original application under

§ 2254); In re Jones, 652 F.3d 603 (6th Cir. 2010) (similar).)

      Consequently, Ochoa’s procedural-irregularity claims are properly before

this court. It is unnecessary for us to engage in analyzing whether those claims

are, in the words of the majority opinion, “based on Atkins,” a concept that eludes

my grasp.




                                         -4-
