                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 30 2003
                           FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

 CHARLES H. BENNEFIELD,

               Petitioner - Appellant,
                                                         No. 02-7030
 v.                                                 D.C. No. 99-CV-608-S
                                                      (E.D. Oklahoma)
 H. N. SCOTT, Warden,

               Respondent - Appellee.


                            ORDER AND JUDGMENT


Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and        HARTZ ,
Circuit Judge.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.
      Petitioner Charles H. Bennefield, an Oklahoma inmate appearing pro se,

seeks a certificate of appealability (COA) that would allow him to appeal from the

district court’s order denying relief on his habeas petition filed pursuant to

28 U.S.C. § 2254.   See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may

be taken from the denial of a § 2254 habeas petition unless the petitioner first

obtains a COA). Because Mr. Bennefield has not demonstrated “a substantial

showing of the denial of a constitutional right,” this court denies his request and

dismisses the appeal.   Id. § 2253(c)(2).

      In December 1993 Mr. Bennefield was charged with attempted rape, assault

with a deadly weapon, and two counts of larceny of an automobile.      At two

separate hearings held in 1994, he was found competent to stand trial. In July

1995 Mr. Bennefield was convicted of the rape and assault charges and of two

counts of unauthorized use of a motor vehicle, a lesser included offense of the

larceny charges.

      After his conviction the United States Supreme Court decided      Cooper v.

Oklahoma, 517 U.S. 348 (1996), which held that Oklahoma’s law presuming that

a criminal defendant is competent to stand trial unless he proves his incompetence

by clear and convincing evidence violates due process. Subsequently, the

Oklahoma Court of Criminal Appeals (OCCA) ordered the trial court in

Mr. Bennefield’s case to (1) determine whether a retrospective post-examination


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competency hearing was feasible, and if so, (2) hold a hearing using a standard

requiring only that Mr. Bennefield prove his incompetence by a preponderance of

the evidence. The trial court found such a hearing feasible and held a third

competency hearing in March 1997, using the correct standard. At the end of that

hearing, a jury found Mr. Bennefield competent at the time of his trial in 1995.

      In his federal habeas petition, Mr. Bennefield raised the following six

grounds for relief, all of which were presented and rejected in the state courts:

      I. [Petitioner’s] right to due process of law was violated when the
      trial court determined that he had failed to prove his incompetence by
      clear and convincing evidence.

      II. [Petitioner’s] convictions for both first-degree attempted rape and
      assault and battery with a deadly weapon violates [sic] the
      prohibitions against double jeopardy and double punishment and
      requires [sic] that one of the convictions be reversed; In the
      alternative, [petitioner] should have been charged with the crime of
      assault with intent to rape as it is the more specific crime.

      III. The prosecution failed to prove beyond a reasonable doubt that
      [petitioner] knew the nature and quality of his actions at the time of
      the commission of the offenses and that [petitioner] knew what he
      was doing was wrong in accordance with the [ M’Naghten ] Rule.

      IV. The trial court improperly instructed the jury on the sentence for
      rape instead of attempted rape.

      V. [Petitioner] was denied his right to a fair trial by the trial court’s
      erroneous preliminary instruction to the jury that it had to find
      [petitioner] guilty or innocent of the charges, rather than directing
      the jury to return a verdict of not guilty if the state failed to prove
      it’s [sic] case beyond a reasonable doubt.



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       VI. The sentences imposed upon [petitioner] are excessive and
       should be modified.

R., Vol. 1, Findings and Rec. at 1-2.

       The district court denied Mr. Bennefield’s habeas petition, rejecting his

constitutional arguments for all six claims on the merits. In his brief in support of

his request for a COA, Mr. Bennefield raises the same grounds, with one

exception. His argument concerning excessive sentences has been dropped and

replaced with a statement alerting this court to the fact that although he was

convicted of two counts of unauthorized use of a motor vehicle, the judgment and

sentence on conviction contains a scrivener’s error stating that he was convicted

of the more serious offense of larceny of an automobile. Mr. Bennefield requests

this court to correct the error and modify his judgment and sentence. Correction

is unnecessary, however, as this claim of error was raised on direct appeal and the

OCCA granted relief by directing the district court to enter an order nunc pro tunc

modifying the judgment and sentence to reflect the true conviction.     See

Bennefield v. State,   No. F 95-966, slip op. at 5 (Okla. Crim. App. Apr. 2, 1998).

       As noted above, to obtain a COA, Mr. Bennefield must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where,

as here, the district court denies a habeas petition on the merits, “the petitioner

must demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.”     Slack v. McDaniel , 529 U.S.

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473, 484 (2000). Under 28 U.S.C. § 2254, a federal court may not grant

applications for writs of habeas corpus on claims adjudicated on the merits in the

state courts unless the state’s adjudication

       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or

       (2) resulted in a decision that 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)(1), (2).

       Addressing Mr. Bennefield’s first claim, the OCCA noted that, because he

was held to the incorrect evidentiary standard in his first two competency

hearings, Mr. Bennefield underwent a third hearing under the proper standard,

where he was found competent to stand trial by credible and competent evidence.

The district court concluded that the OCCA’s determination that a retrospective

competency hearing was feasible was consistent with federal law. Under

Oklahoma law, “failure to conduct a competency hearing concurrently with trial

is not per se violative of due process.”      Boltz v. State , 806 P.2d 1117, 1121

(Okla. Crim. App. 1991). “[I]f a defendant’s competency at the time of trial can

be meaningfully determined at a subsequent time on the basis of credible and

competent evidence, then error committed by a district court in failing to hold

a hearing at the proper time can be cured.”         Id. “Furthermore, delays occasioned


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by a remand and continuances do not necessarily preclude a meaningful

retrospective determination.”     Clayton v. State , 840 P.2d 18, 25 (Okla. Crim. App.

1992). This court has similarly held that “[a]lthough retrospective competency

hearings are disfavored, they are permissible whenever a court can conduct

a meaningful hearing to evaluate retrospectively the defendant’s competency.”

Bryan v. Gibson , 276 F.3d 1163, 1168 (10th Cir. 2001) (internal quotation marks

omitted). “A meaningful retrospective competency 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.”      Id. (internal quotation

marks omitted). As in Oklahoma, federal courts do not consider the passage of

time in isolation.   Id. at 1168-69. After reviewing the record in this case, we

conclude that the district court’s assessment of this claim was neither debatable

nor wrong, as adjudication of the claim in the state court proceedings did not

result in a decision either contrary to federal law or based on an unreasonable

application of the facts in light of the available evidence.    See 28 U.S.C.

§ 2254(d).

       Likewise, we find no error in the district court’s assessment of

Mr. Bennefield’s double jeopardy, sufficiency of the evidence, and improper

charge claims, as well as several claims concerning jury instructions. The district


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court reviewed and rejected each of these claims correctly under controlling

federal law. Insofar as he claims ineffective assistance of counsel for his

attorney’s failure to request or object to particular jury instructions, we conclude

that Mr. Bennefield has not made the requisite showing to establish that his

counsel’s conduct “so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.”

Strickland v. Washington,   466 U.S. 668, 686 (1984). Upon careful review of his

arguments and the relevant record, we conclude that Mr. Bennefield has not

demonstrated that his habeas petition is deserving of further proceedings,

debatable among jurists of reason, or subject to a different resolution on appeal.

See Slack , 529 U.S. at 484. Accordingly, for substantially the same reasons set

forth by the magistrate judge in his Findings and Recommendation filed on

July 26, 2001, and adopted by the district court on January 28, 2002,

Mr. Bennefield’s request for a COA is DENIED and his appeal is DISMISSED.


                                                     Entered for the Court


                                                     Harris L Hartz
                                                     Circuit Judge




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