                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAY 28 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ALFORD LAMONT WEST,

          Petitioner-Appellant,

               v.                                       No. 98-7151
                                                  (D.C. No. 95-CV-178-S)
 GARY L. GIBSON; THE ATTORNEY                           (E.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

          Respondents-Appellees.




                            ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.


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

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). Therefore, the case is ordered

submitted without oral argument.

      Petitioner Alford Lamont West, a state prisoner appearing pro se, seeks a



      *
        This order and judgment is not binding precedent, except under the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.
certificate of probable cause to appeal the district court’s denial of his 28 U.S.C.

§ 2254 petition for writ of habeas corpus. 1 We grant West a certificate of

probable cause, exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in

part, reverse in part, and remand for further proceedings.

      West was charged in state court with one count of assault and battery with

intent to kill after former conviction and one count of robbery by force after

former conviction. According to West, the trial court granted his motion for a

psychiatric examination and, following that examination, transferred him to a

state hospital for treatment. West alleges he was given psychiatric medication

and transferred back to the county jail for further criminal proceedings. On May

2, 1991, West entered guilty pleas to both counts and was sentenced to two

concurrent thirty-year terms of imprisonment. He did not attempt to withdraw his

guilty pleas, as required by Oklahoma law to appeal from a guilty plea.   2




      1
          We construe West’s request for a certificate of appealability as an
application for a certificate of probable cause. West filed his habeas petition
prior to the effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA) and is subject to the pre-AEDPA requirement that he obtain a
certificate of probable cause by making a substantial showing of the denial of a
federal right, see Barefoot v. Estelle , 463 U.S. 880, 893 (1983), the same showing
required for a certificate of appealability, see Lennox v. Evans , 87 F.3d 431, 434
(10th Cir. 1996), overruled on other grounds , United States v. Kunzman , 125 F.3d
1363, 1364 n.2 (10th Cir. 1997).
      2
         Under Oklahoma law, an appeal from a guilty plea must commence with
the filing of a motion to withdraw the plea within ten days of judgment. Okla. R.
Crim. App. 4.2(A). If the motion is denied, it may be appealed within ninety days
                                                                     (continued...)

                                           -2-
      West filed an application for post-conviction relief on January 5, 1994,

asserting (1) he should be allowed to withdraw his guilty pleas or, alternatively,

to file an appeal out of time; (2) his guilty pleas were not entered freely,

voluntarily, knowingly, and intelligently; (3) the trial court failed to determine

West was competent at the time he entered his guilty pleas; (4) ineffective

assistance of counsel; (5) the trial court did not determine a factual basis for the

acceptance of his guilty pleas; and (6) the trial court violated his due process

rights by sentencing him to more time on the assault and battery charge than was

authorized by statute. The trial court denied the application and West appealed to

the Oklahoma Court of Criminal Appeals. The appeal was dismissed on July 18,

1994, for failure to file a timely appeal.

      West filed his habeas petition on April 18, 1995, asserting (1) the trial

court failed to determine he was competent at the time he entered his guilty pleas;

(2) ineffective assistance of trial counsel; and (3) the trial court violated his

constitutional rights by sentencing him on the assault and battery count to more

time than authorized by statute.

      While this habeas action was pending, the Supreme Court issued its opinion


      2
        (...continued)
of judgment by writ of certiorari to the Oklahoma Court of Criminal Appeals.
Okla. Stat. tit. 22, § 1051(a) (1986). Post-conviction relief is not available to a
defendant who has failed to perfect a timely direct appeal unless he shows
“sufficient reason” why the claim was not asserted.   Id. § 1086.

                                             -3-
in Cooper v. Oklahoma , 517 U.S. 348 (1996), and declared unconstitutional

Oklahoma’s requirement that criminal defendants prove their incompetency by

clear and convincing evidence. Based on this decision, West filed a second

application for post-conviction relief in state court, which was denied. On appeal,

the Oklahoma Court of Criminal Appeals affirmed the denial, holding        Cooper was

not “an intervening change in the law and the issues therein were available to

Petitioner at the time he could have taken a direct appeal.” Record, Doc. 32, exh.

A at 2.

      West moved to amend his federal habeas petition to include his exhausted

Cooper claim. The district court granted the motion and West filed his amended

petition on February 23, 1998, asserting (1) the trial court applied an

unconstitutional standard of proof for incompetency (    Cooper claim); (2) he should

be allowed to withdraw his guilty pleas or, alternatively, to file a direct appeal out

of time; (3) his guilty pleas were not entered freely, voluntarily, knowingly, and

intelligently; and (4) the trial court violated his constitutional rights by failing to

determine the factual basis for the acceptance of his guilty pleas. The district

court dismissed the amended petition on October 5, 1998, on the grounds that all

four claims were “procedurally barred from habeas corpus review.” Record, Doc.

44 at 5. More specifically, the court concluded all of the claims had been rejected

in state court on state procedural grounds and West had not demonstrated cause


                                           -4-
and prejudice for the default or a fundamental miscarriage of justice sufficient to

allow federal habeas review.

       Because West initiated his habeas proceeding prior to enactment of the

AEDPA, we apply pre-AEDPA standards of review.         See Jackson v. Shanks , 143

F.3d 1313, 1317 (10th Cir.),   cert. denied , 119 S. Ct. 378 (1998). Under those

standards, we may grant habeas relief to a state prisoner only if state court error

deprived him of fundamental rights guaranteed by the Constitution of the United

States. Id. In reviewing the district court’s dismissal of West’s petition, our

scope of review is de novo.    See id. However, we must give deference to the state

court’s construction of state law, and we review the state court’s factual findings

only for clear error.   Id.

       It is uncontroverted that the Oklahoma Court of Criminal Appeals did not

address the merits of any claims West raised in his habeas petition. Therefore, we

must determine if those claims are now procedurally barred for purposes of

federal habeas review.

       In all cases in which a state prisoner has defaulted his federal claims
       in state court pursuant to an independent and adequate state
       procedural rule, federal habeas review of the claims is barred unless
       the prisoner can demonstrate cause for the default and actual
       prejudice as a result of the alleged violation of federal law, or
       demonstrate that failure to consider the claims will result in a
       fundamental miscarriage of justice.

Coleman v. Thompson , 501 U.S. 722, 750 (1991).


                                          -5-
       With respect to claims reasserted in his federal habeas petition which he

initially asserted in his first application for state post-conviction relief (i.e., that

he should be allowed to withdraw his guilty pleas or file a direct appeal out of

time; that his guilty pleas were not entered freely, voluntarily, knowingly, and

intelligently; and that the trial court failed to determine a factual basis for his

guilty pleas), we conclude those claims are procedurally barred. As noted, the

Oklahoma Court of Criminal Appeals rejected those claims because West’s appeal

from the trial court’s denial of his first application for post-conviction relief was

untimely filed. West has not asserted, and we have no reason to conclude, this

procedural rule is not “strictly or regularly followed.”       Hathorn v. Lovorn , 457

U.S. 255, 263 (1982). Indeed, we have held Oklahoma strictly and regularly

applies its procedural bar to issues not timely appealed.        See , e.g. , Odum v.

Boone , 62 F.3d 327, 331 (10th Cir. 1995);       Brecheen v. Reynolds , 41 F.3d 1343,

1349 n.4 (10th Cir. 1994);    Steele v. Young , 11 F.3d 1518, 1522 (10th Cir. 1993).

Moreover, we have held claims raised for the first time in state post-conviction

proceedings are procedurally defaulted if the petitioner fails to obtain timely

appellate review of the state trial court’s decision.       See Ballinger v. Kerby , 3 F.3d

1371, 1374 (10th Cir. 1993).

       We also agree that West has failed to demonstrate either cause and

prejudice or a fundamental miscarriage of justice which is sufficient to allow us


                                              -6-
to reach the merits of claims asserted in his first application for post-conviction

relief. Although West alleges his procedural default was caused by a delay

between issuance of the order of denial and his receipt of the order, the record on

appeal indicates those assertions were specifically considered and rejected by the

Oklahoma Court of Criminal Appeals. We find no basis for overturning the

court’s findings on this procedural matter. Further, although West alleged he was

factually innocent, he has not supported that allegation with evidence sufficient to

undermine our confidence in the outcome of his criminal proceedings.      See

Schlup v. Delo , 513 U.S. 298, 316 (1995).

      We reach a different conclusion with respect to West’s claim that the trial

court applied an unconstitutional standard of proof at his competency hearing (his

Cooper claim). 3 As noted, the Oklahoma Court of Criminal Appeals refused to

address this issue on the ground it could have been raised on direct appeal. The

question for us is whether this constitutes an “independent and adequate state

procedural” rule sufficient to bar federal habeas review of West’s claim.

Coleman , 501 U.S. at 750. Although there is little question the court’s decision

rests on an “independent” state procedural ground, we conclude it is not an

“adequate” one under the circumstances of this case since it was not firmly


      3
         We construe this as a procedural competency claim.      See Barnett v.
Hargett , 1999 WL 221513 at *8 (10th Cir. 1999)    . Such claims, unlike substantive
competency claims, are subject to procedural bar.     Id. at *7.

                                          -7-
established and regularly followed at the time of West’s purported default in 1991

(at the time he could have filed a direct appeal).       See Barnett v. Hargett , 1999 WL

221513 at *5 (refusing to apply Oklahoma’s procedural bar in non-capital habeas

case where petitioner’s direct appeal predated        Cooper ); Rogers v. Gibson , 1999

WL 203188 at *9 (10th Cir. 1999) (noting prior to 1995 amendments to

Oklahoma’s post-conviction procedure act, a state prisoner “would not have been

procedurally barred from raising [a]      Cooper claim, as an intervening change in the

law, for the first time in his application for post-conviction relief”);      Walker v.

Attorney General for the State of Oklahoma          , 167 F.3d 1339, 1344-45 (10th Cir.

1999). We reverse the district court’s dismissal of this claim on procedural

grounds and remand for consideration on the merits.

       If, as alleged by West, the state trial court made its competency

determination utilizing an incorrect standard of proof, its decision would “not

[be] entitled to a presumption of correctness, and [would be] analogous to no

competency hearing at all.”      Barnett , 1999 WL 221513 at *6. Further, West

would be entitled to habeas relief if he “can establish a bona fide doubt as to his

competency” at the time he entered his guilty plea.       4
                                                              Id. ; see also Walker , 167


       4
        As the Supreme Court noted in    Godin v. Moran , 509 U.S. 389, 396-99,
401 n.12 (1993), an incompetent defendant lacks the capacity to understand the
proceedings against him, and is thus unable to make important decisions
regarding his case, including the decision to waive his rights and enter a plea of
                                                                      (continued...)

                                              -8-
F.3d at 1345 (habeas relief appropriate if “state trial court ignored evidence that,

viewed objectively, raised a bona fide doubt as to the petitioner’s competency to

stand trial”); Coleman v. Saffle , 912 F.2d 1217, 1226 (10th Cir. 1990) (federal

habeas court must determine whether a reasonable judge, situated as was the trial

judge whose failure to conduct a competency hearing is being reviewed, should

have experienced doubt with respect to petitioner’s competency to stand trial).

“‘[E]vidence of [West’s] irrational behavior, his demeanor at trial, and any prior

medical opinion on competence to stand trial [will] all [be] relevant’ to the bona

fide doubt inquiry.”           Walker , 167 F.3d at 1346 (quoting   Drope v. Missouri , 420

U.S. 162, 180 (1975)).

          West’s request for a certificate of probable cause is GRANTED. His

motion to proceed in forma pauperis on appeal is DENIED as moot. The district

court granted permission to proceed in forma pauperis on appeal, and the filing

fee has been paid in full. The judgment of the district court is AFFIRMED IN

PART, REVERSED IN PART, and REMANDED for further proceedings

consistent with this order and judgment.

                                                         Entered for the Court

                                                         Mary Beck Briscoe
                                                         Circuit Judge


          4
              (...continued)
guilty.

                                                   -9-
-10-
