228 F.3d 1217 (10th Cir. 2000)
JACK DALE WALKER,   Petitioner-Appellant,v.GARY GIBSON, Warden, Oklahoma  State Penitentiary,   Respondent-Appellee.
No. 99-5186
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
October 11, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT  FOR THE NORTHERN DISTRICT OF  OKLAHOMA (D.C. No. 97-CV-208 )[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Scott W. Braden, Assistant Federal Public Defender, (Susan M. Otto, Federal  Public Defender with him on the reply brief), Oklahoma City, Oklahoma, for  Petitioner-Appellant.
William L. Humes, Assistant Attorney General, (W.A. Drew Edmondson,  Attorney General of Oklahoma with him on the brief), Oklahoma City, Oklahoma,  for Respondent-Appellee.
Before TACHA, BRORBY, and MURPHY, Circuit Judges.
BRORBY, Circuit Judge.


1
Petitioner-appellant Jack Dale Walker was convicted of two counts of first  degree murder and sentenced to death.  The Oklahoma Court of Criminal Appeals  affirmed on direct criminal appeal.  See Walker v. State, 887 P.2d 301  (Okla.  Crim. App. 1994), cert denied, 516 U.S. 859 (1995).  That court also denied  post-conviction relief, as well as discovery and an evidentiary hearing.  SeeWalker v. State, 933aP.2d 327 (Okla. Crim. App. 1997), cert.  denied, 521aU.S.  1125 (1997).


2
Thereafter, Mr. Walker unsuccessfully sought habeas corpus relief in the  federal district court.  The district court granted a certificate of appealability  (COA) on the following claims:  (1) substantive and procedural due process  competency; (2) ineffective assistance of trial counsel; (3) failure to instruct on  the presumption of innocence; (4) improper admission of a sheriff's deputy's  testimony; (5) lack of notice of aggravating circumstances; and (6) prosecutorial  misconduct.  This court expanded the COA to include an additional issue:  failure  to give a first degree manslaughter instruction.  Exercising jurisdiction pursuant  to 28 U.S.C. §§ 1291 and 2253(c), we affirm the district court's denial of  habeas  corpus relief.

FACTS

3
On December 30, 1988, at approximately 8:00 a.m., Mr. Walker stopped at  the trailer home where Shelly Ellison, the mother of his baby son, was staying. The trailer belonged to Juanita Epperson, Shelly's grandmother.  At the time,  Shelly, the baby, Juanita, Juanita's son Donnie Epperson, Donnie's wife Linda,  and four other grandchildren of Juanita's were staying there.


4
Hansel Norton, Mr. Walker's co-worker, drove Mr. Walker to the trailer. According to Hansel, Mr. Walker was upset, had a knife, and asked Hansel to talk  to him.  Mr. Walker told Hansel he had something to do before going to work.


5
When Mr. Walker arrived at the trailer, he told Juanita he wanted to talk to  Shelly.  Juanita invited him inside.  He talked to Shelly and apparently sought to  take the baby.  Juanita explained the baby was sick and Mr. Walker could not take  him.


6
Mr. Walker then attacked Shelly.  She cried for Donnie to help her.  He  emerged from a bedroom.  A fight broke out.  Mr. Walker stabbed both Donnie  and Shelly with the large, sharpened knife he had brought with him.  He also  stabbed Shelly with an ice pick.  Sometime during the fight, Shelly made a 911  call.  Juanita tried to stop Mr. Walker by hitting him with a pipe wrench.  He hit  her, breaking her arm.  Also, he stabbed her.  Mr. Walker threatened Linda and  one of the grandchildren, Brian Epperson, with the knife and chased them out of  the trailer.


7
Thereafter, Mr. Walker tried to stab himself in the throat with a paring  knife, but the knife broke.  He then slashed his wrist.  When the police arrived,  Shelly was dead and Mr. Walker was lying unconscious on the front porch of the  trailer.  Donnie was alert and conscious, but he died thereafter.  Shelly suffered  more than thirty-two stab wounds.  Donnie sustained eleven.


8
The jury found Mr. Walker guilty of two counts of first degree murder for  the deaths of Shelly and Donnie, one count of assault and battery with a deadly  weapon with respect to Juanita, and two counts of assault with a deadly weapon  with respect to Linda and Brian.  At the second stage of trial, the jury found three  aggravators:  (1) Mr. Walker created a great risk of death to more than one  person; (2) the murders were especially heinous, atrocious, or cruel; and  (3) Mr. Walker constitutes a continuing threat to society.  Mr. Walker received  the death penalty for the murders and a total of forty years' incarceration for the  other offenses.

STANDARDS OF REVIEW

9
Because Mr. Walker filed his habeas petition after the effective date of the  Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the provisions  of AEDPA govern this appeal.  See Williams v. Taylor, 120 S. Ct. 1495,  1518  (2000).  Under AEDPA, if a claim was adjudicated on its merits in state court, a  petitioner is entitled to federal habeas relief only if he can establish that the state  court decision "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)(1), (2).  Under § 2254(d)(1), a federal court may grant a writ  of habeas  corpus only if the state court reached a conclusion opposite to that reached by the  Supreme Court on a question of law, decided the case differently than the  Supreme Court has decided a case with a materially indistinguishable set of facts,  or unreasonably applied the governing legal principle to the facts of the  petitioner's case.  See Williams, 120 S. Ct. at 1523.  "Under  § 2254(d)(1)'s  'unreasonable application' clause . . ., a federal habeas court may not issue the  writ simply because that court concludes in its independent judgment that the  relevant state-court decision applied clearly established federal law erroneously or  incorrectly.  Rather that application must also be unreasonable."  Williams,  120 S. Ct. at 1522.  "In sum, § 2254(d)(1) places a new constraint on  the power of  a federal habeas court to grant a state prisoner's application for a writ of habeas  corpus with respect to claims adjudicated on the merits in state court."  Williams,  120 S. Ct. at 1523.  AEDPA also requires federal courts to presume state court  factual findings are correct, and places the burden on the petitioner to rebut that  presumption by clear and convincing evidence.  See 28 U.S.C.  § 2254(e)(1).


10
"If[, however, a] claim was not heard on the merits by the state courts, and  the federal district court made its own determination in the first instance, we  review the district court's conclusions of law de novo and its findings of fact, if  any, for clear error."  LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).  If  the district court's factual findings are based only on a review of the state court  record, we conduct an independent review.  See Smallwood v. Gibson,  191 F.3d  1257, 1264 n.1 (10th Cir. 1999), cert. denied, 2000 WL 625676 (U.S. Oct. 2,  2000) (No. 99-9445).

ARGUMENT
I.  Competency

11
Mr. Walker raises both procedural and substantive due process competency  claims.  He first argues he was deprived of procedural due process when the trial  court applied an unconstitutional burden of proof at his competency hearing.  He  also argues he was denied substantive due process because he was actually  incompetent at the time of trial.

A.  Procedural Due Process Competency Claim

12
Mr. Walker argues the trial court unconstitutionally required him to prove  his incompetency by clear and convincing evidence in violation of Cooper v.  Oklahoma, 517 U.S. 348 (1996).  Cooper held the clear and convincing  evidence  standard was "incompatible with the dictates of due process," because it  "allow[ed] the State to put to trial a defendant who is more likely than not  incompetent."  Id. at 369.  Although the trial court did not articulate the burden of  proof at the competency hearing,1 Mr. Walker asserts the court presumably  followed Oklahoma law, which then required a defendant to prove he was  incompetent by clear and convincing evidence.


13
We agree that the trial court presumably applied this law.  Cf. Valdez  v.  Ward, 219 F.3d 1222, 1243-44 (10th Cir. 2000) (presuming Oklahoma Court of  Criminal Appeals, which did not cite standard, reviewed merits of ineffective  assistance of counsel claim under clear and convincing evidence standard later  held unconstitutional in Cooper).  Thus, Mr. Walker properly asserts a procedural  competency claim by alleging the trial court held a hearing employing an  unconstitutional burden of proof.  See Van Woudenberg ex rel. Foor v.  Gibson,  211 F.3d 560, 567 (10th Cir. 2000).


14
Procedural competency claims are subject to procedural default.  See Clayton v. Gibson, 199 F.3d 1162, 1170 & n.3 (10th Cir. 1999), cert.  denied,  2000 WL 697188 (U.S. Oct. 2, 2000) (No. 99-9630).  The State argues this claim  is procedurally barred.  We disagree.2


15
Mr. Walker filed his direct appeal before the Supreme Court decided Cooper.  He therefore raised a Cooper claim for the first time in  post-conviction  proceedings.  The Oklahoma Court of Criminal Appeals held Mr. Walker had  waived the issue because he failed to raise it on direct appeal.  See Walker,  933 P.2d at 338-39.  In so holding, the court applied the 1995 amendments to  Oklahoma's post-conviction procedures.  See id. at 339 & n.55  (citing Okla. Stat.  tit. 22, § 1089(C)(1)).


16
The 1995 amendments limit a petitioner's ability to bring claims in a  post-conviction application that were not raised on direct appeal, including new  claims based on an intervening change in law.  See Clayton, 199 F.3d at  1171. Mr. Walker's direct appeal, however, was decided in 1994, before the effective  date of the 1995 amendments.  This court has held, when considering Cooper claims, that the 1995 amendments are not an adequate state ground for procedural  default, if the claims did not exist at the time of the default.  See id.; Walker v.  Oklahoma, 167 F.3d 1339, 1345 (10th Cir. ), cert. denied, 120 S. Ct. 449  (1999). Because Mr. Walker's Cooper claim would not have been barred under pre-1995  standards, the State's procedural bar is not adequate to preclude habeas review. See Valdez, 219 F.3d at 1240; Walker, 167 F.3d at 1345.


17
The State asserts this court's decision in Walker, 167 F.3d at  1344-45, is  insufficient to support a conclusion that the Oklahoma Court of Criminal Appeals  would consider Cooper to be an intervening change of law excusing procedural  default.  To support this argument, the State cites the unpublished decision of Smith v. State, No. PC 97-1656 at 6-9 (Okla. Crim. App. July 27, 1999) (citing Walker, 933 P.2d at 339).  But see Valdez v. State, 933  P.2d 931, 933 n.7 (Okla.  Crim. App. 1997) (recognizing Cooper is intervening change of law); Okla. Ct.  Crim. App. R. 3.5(C)(3) (providing unpublished opinion is not binding  precedent).  Contrary to the State's argument, Walker is binding law in this  circuit.  See Thomas v. Gibson, 218 F.3d 1213, 1226 & n.14 (10th  Cir. 2000).  We  therefore address the merits of Mr. Walker's procedural due process competency  claim, reviewing the district court's decision de novo, seeLaFevers, 182 F.3d at  711.


18
The criminal trial of one who is incompetent violates due process.  SeeMcGregor v. Gibson, 219 F.3d 1245, 1250 (10th Cir. 2000) (citing Cooper,  517 U.S. at 354) (petition for rehearing en banc was granted).  Because the trial  court presumably held Mr. Walker to an unconstitutional burden of proof, we  afford no presumption of correctness to the trial court's finding of competency. See Wallace v. Ward, 191 F.3d 1235, 1242 (10th Cir. 1999), cert. denied, 120 S.  Ct. 2222 (2000).


19
"A competency claim based upon procedural due process involves a  defendant's constitutional right, once a bona fide doubt has been raised as to  competency, to an adequate state procedure to insure that he is in fact competent  to stand trial."  Barnett v. Hargett, 174 F.3d 1128, 1133-34 (10th Cir. 1999).  A  defendant is competent to stand trial if he "has sufficient present ability to consult  with his lawyer with a reasonable degree of rational understanding [and if] he has  a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (quotation omitted).  In order to  prevail on a procedural due process competency claim, a petitioner must establish  that the trial judge ignored facts, viewed objectively, raising a bona fide doubt  regarding the petitioner's competency to stand trial.  See Walker, 167  F.3d at  1343, 1345.  "Evidence of irrational behavior, demeanor at trial, and prior medical  opinion regarding competence are relevant to a bona fide doubt inquiry." Wallace, 191 F.3d 1243.  Other relevant factors include evidence of mental  illness  and any representations of defense counsel about the defendant's incompetence. See Drope v. Missouri, 420 U.S. 162, 177 n.13, 181 (1975).


20
We review this claim in light of the evidence available to the trial court. Cf. Valdez, 219 F.3d at 1240 (requiring petitioner to  establish trial court ignored  evidence raising bona fide doubt regarding competency); Walker, 167 F.3d at  1343 (same).  Examination of this evidence does not persuade us there was a bona  fide doubt as to Mr. Walker's competence to stand trial.


21
Mr. Walker does have a history of mental illness.  He received professional  help after his grandmother died and he attempted to commit suicide.  In 1986, he  received treatment focusing on anger.  Seven weeks before the murders he was  treated primarily for depression for one week as an inpatient at Parkside Hospital. He was diagnosed with organic mood disorder secondary to polysubstance abuse. Mr. Walker's history of mental problems and substance abuse alone, however, do  not establish incompetency to stand trial.  See McGregor,  219 F.3d at 1251  (petition for rehearing en banc was granted); Miles v. Dorsey, 61 F.3d 1459, 1474  (10th Cir. 1995) (citing cases).


22
The record does not reflect that either prior to or during trial any mental  health expert had found Mr. Walker incompetent to stand trial.  Dr. Nicholson,  who had examined Mr. Walker two weeks before trial, testified at the competency  hearing that Mr. Walker was competent.  He testified that he interviewed  Mr. Walker on five occasions for approximately eight hours, and Mr. Walker  attended to questions, listened carefully, and responded appropriately.  He  admitted having no difficulty examining Mr. Walker.  Although Dr. Nicholson  had not evaluated Mr. Walker for competency, he reluctantly stated, because he  was asked, that he believed Mr. Walker was competent.  Dr. Nicholson can be  considered an expert on competency.  He had done extensive research and  published articles on competency and competency testing.  During his first stage  trial testimony, he recited the correct competency standard and admitted  conducting 200 competency examinations.  In a post-conviction affidavit, dated  August 8, 1996, more than seven years after trial, Dr. Nicholson stated he should  have refused to offer his opinion on Mr. Walker's competency because the trial  court's order had not asked him to address competency and he had not done a  competency evaluation.  He did not, however, actually indicate Mr. Walker was  not competent to stand trial.


23
At no time prior to or during trial did defense counsel raise concerns about  Mr. Walker's competency.  "Defense counsel is often in the best position to  determine whether a defendant's competency is questionable."  Bryson v. Ward,  187 F.3d 1193, 1201 (10th Cir. 1999), cert. denied, 120 S. Ct. 1566 (2000); see  also Medina v. California, 505 U.S. 437, 450 (1992).  But seeMcGregor,  219 F.3d at 1251-52 (discounting value of defense counsel's concerns about  competency where counsel alone expressed concerns about competency) (petition  for rehearing en banc was granted). On the first morning of trial, counsel  explicitly denied raising to the court that Mr. Walker was not competent to stand  trial.  Counsel objected to any questions presented to Dr. Nicholson about  competency because the defense never raised the issue of competency and instead  hired Dr. Nicholson to examine Mr. Walker for insanity and to assess whether he  created a great risk to others or whether he was a continuing threat.  At no time  did counsel request a competency evaluation or hearing.  This court has  recognized the importance of defense counsel's failure to raise a competency  issue at trial when concluding no bona fide doubt about competency exists.  SeeSmallwood, 191 F.3d at 1279; Walker, 167 F.3d at 1346.


24
Counsel averred, in his post-conviction affidavit, prepared August 7, 1996,  over seven years after trial, that he did not spend enough time with Mr. Walker to  determine whether competency was an issue.  He indicated Mr. Walker never  volunteered any information and was sheepish, docile, unemotional, and tired. Counsel also noted Mr. Walker had no reactions at trial, not even when the death  sentence was announced.  In the affidavit, counsel wondered if Mr. Walker was  aware of what was going on, recognized he did not contribute to his defense, and  later realized medication was the reason he was unable to aid in his defense.  We  give little credence to this belated affidavit in light of counsel's failure to raise  any competency concerns during trial and his objections during the competency  hearing.


25
The trial judge, who was cognizant of a competency issue as a result of the  pretrial inquiry, did not express any concerns after having ample opportunity to  observe Mr. Walker during trial.  See McGregor, 219 F.3d at 1252  (citing cases)  (petition for rehearing en banc was granted).  Indeed, the trial judge's report  indicated Mr. Walker was able to cooperate intelligently in his own defense. Nothing in the record indicates Mr. Walker's conduct or demeanor at trial was so  bizarre and irrational that it raised a bona fide doubt regarding his competency. See id.


26
Despite Mr. Walker's history of mental illness, he has not established a  bona fide doubt regarding his competency at the time of trial.  SeeWalker,  167 F.3d at 1346-47.  At the time of trial, no expert had deemed him incompetent. Neither the trial judge nor defense counsel expressed any concerns about his  competency during trial.  Nothing in the trial record indicates Mr. Walker was in  a medication-induced stupor during trial which prevented him from understanding  the proceedings or communicating with counsel.  See Van Woudenberg,  211 F.3d  at 568 (discerning nothing in record indicating petitioner engaged in irrational or  unusual behavior during trial which would have alerted court to question  competency).  Accordingly, we conclude Mr. Walker has failed to show a bona  fide doubt regarding his ability to understand the proceedings or to assist his  counsel in preparing a defense.3 See id.


27
B.  Substantive Due Process Competency Claim


28
A petitioner may make a substantive due process competency claim by  alleging he was, in fact, tried and convicted while mentally incompetent.  SeeWalker, 167 F.3d at 1344.  Although the Oklahoma Court of Criminal Appeals  deemed Mr. Walker to have procedurally defaulted this claim, seeWalker,  933 P.2d at 340, a substantive due process mental competency claim may not be  procedurally barred, see Rogers v. Gibson, 173 F.3d 1278, 1289 (10th  Cir. 1999), cert. denied, 120 S. Ct. 944 (2000).  To prevail on a substantive due  process  competency claim, a petitioner must demonstrate by clear and convincing  evidence a real, substantial, and legitimate doubt regarding his competence to  stand trial.4  See id. at 1291 n.13.


29
In addition to the evidence discussed above, Mr. Walker submits his jail  medical records and various affidavits to support this substantive competency  claim.  The jail records showed Mr. Walker had mental health problems and was a  suicide risk.  Up to thirty-six days before trial, he had bad dreams, heard voices,  cried, huddled in the corner, and was depressed.  Thirty-six days before trial, the  last date of the jail records, it appears he was benefitting from the medications  since he was sleeping.  He, however, suffered from nervous side effects.


30
Mr. Walker was taking anti-psychotic medications at the time of trial.  His  dosages of Artane and Loxitane were at normal levels,5 but the dosage of Asendin  was low.  He maintains that the medications caused him to be "constantly tired,  uncaring, and steely eyed."  Appellant's Br. at 14.  Although "[a]ntipsychotic  drugs [do] have the capacity to severely and even permanently affect an  individual's ability to think and communicate[,]"  Bee v. Greaves, 744 F.2d 1387,  1394 (10th Cir. 1984), the jail records are not clear and convincing evidence of a  real, substantial, and legitimate doubt that Mr. Walker was incompetent at the  time of trial.


31
Several post-conviction affidavits, prepared over seven years after trial,  indicated Mr. Walker did not appear competent at trial.  Cf. Foster v.  Ward,  182 F.3d 1177, 1184 (10th Cir. 1999) (noting affidavits prepared ten years after  trial raised questions regarding their veracity, but treating factual allegations in  affidavits as true because State did not rebut affidavits), cert. denied, 120 S. Ct.  1438 (2000).  In light of the other evidence, these affidavits are of little  assistance.


32
In his own self-serving affidavit, Mr. Walker stated he felt "out of it" the  whole time he was in jail before trial, he slept all the time, his medications made  him confused, and he was not a help to his attorney.  Vol. I, tab 17, app. 4 at 2-3. According to Mr. Walker, his medications were increased during the trial and he  therefore had problems staying awake.  He further stated that officers stood on  either side of him holding him up when he walked to and from the courtroom. Overall, he did not remember much of the trial.  A minister who visited  Mr. Walker in jail before trial said Mr. Walker had trouble formulating ideas and  putting thoughts into words.  He further noted that Mr. Walker's speech was slow  and slurred and he had difficulty staying awake.  The minister stated Mr. Walker  did not react to anything at trial.  Also, Mr. Walker's mother stated in her  affidavit that he had a blank look and no reaction at trial.  Mr. Walker's  grandfather swore Mr. Walker was expressionless at trial and shuffled his feet  like he could not walk.


33
Dr. Lippman, a neuropharmacologist, who studies the effects of drugs on  the brain, evaluated Mr. Walker in May of 1996, seven years after his trial.  He  diagnosed Mr. Walker as suffering from Paradoxical Benzodiazepine Rage or  Dyscontrol, Borderline Personality Disorder, Dysthymic Disorder and Major  Depression.  Dr. Lippman noted Mr. Walker had "a predisposing neurobiological  vulnerability to drug abuse and also to his experiencing psychoticism and  dissociative explosive dyscontrol under intense emotional stress, a form of the  Borderline Syndrome, complicated by the effects of chronic drug abuse during the  years of formative neurological and personality development."  Id. app. 2 at 2.  It  was the doctor's opinion that Mr. Walker was not competent at the time of trial  due to drug treatment.  Cf. Riggins v. Nevada, 504 U.S. 127, 134 (1992)  (noting  antipsychotic drugs can have serious side effects).  He reached this opinion based  on witness descriptions of Mr. Walker and Mr. Walker's own report, not on  medical records.  Indeed, he had no medical records regarding Mr. Walker's  response to treatment.  Thus, Dr. Lippman merely speculated any symptoms of  somnolence and ataxic gait were side effects of medication.


34
Dr. Watson, a psychologist who examined Mr. Walker in June of 1996,  speculated Mr. Walker was in and out of a daze during trial due to significant  psychological medication.  He believed the use of the medications "appear[ed] to  raise issues of competency."  Vol. I, tab 17, app. 16 at 23.


35
The opinions of Dr Lippman and Dr. Watson, conducted over seven years  after trial, do not establish by clear and convincing evidence a real, substantial,  and legitimate doubt as to Mr. Walker's competency at the time of trial.  Cf.Foster, 182 F.3d at 1191 (competency evaluation, made ten years after trial,  does  not necessarily generate sufficient doubt).


36
Because Mr. Walker has not shown a bona fide doubt as to his competency  and does not provide sufficient additional new evidence of his incompetency at  the time of trial, we conclude he cannot meet the more stringent substantive due  process competency standard.  See Valdez, 219 F.3d at 1241.

C.  Ineffective Assistance of Counsel

37
Mr. Walker argues that trial counsel's failure to ask for a proper  competency hearing or to investigate and present evidence which would have  shown a bona fide doubt regarding his competency was ineffective assistance of  counsel.  According to Mr. Walker, counsel never reviewed his jail medical  records; never presented evidence he had been hospitalized two months before the  crimes and at that time was diagnosed as suffering from polysubstance abuse,  major depression, personality disorder, and organic mood disorder; and never  inquired about his odd behavior or investigated his medication.  The federal  district court rejected this argument based upon its conclusion that Mr. Walker's  procedural and substantive due process competency claims failed.


38
Ineffective assistance of counsel claims are mixed questions of law and  fact.  See, e.g., Williamson v. Ward, 110 F.3d 1508, 1513 (10th Cir.  1997).  The  constitutional right to effective assistance of counsel is defined in Strickland v.  Washington, 466 U.S. 668 (1984).  See Williams, 120 S. Ct. at  1499.  To obtain  habeas relief, a petitioner must establish both that his attorney's representation  was deficient, measured against an objective standard of reasonableness, and that  there is a reasonable probability that but for counsel's deficient performance, the  result of the proceeding would have been different.  See Strickland, 466  U.S. at  687, 688, 694.  This court may address the performance and prejudice  components in any order and need not address both if a petitioner fails to make  the requisite showing for one.  See Cooks v. Ward, 165 F.3d 1283,  1292-93 (10th  Cir. 1998), cert. denied, 120 S. Ct. 94 (1999).


39
Regardless of whether counsel's performance was deficient, Mr. Walker  was not prejudiced.  As discussed above, even considering the new evidence, the  record does not show Mr. Walker was unable to consult with trial counsel "'with a  reasonable degree of rational understanding,' or that he lacked a rational and  factual comprehension of the proceedings against him."  Valdez, 219 F.3d at 1244  (quoting Walker, 167 F.3d at 1343).  There is no reasonable probability the  outcome at trial would have been different but for counsel's allegedly deficient  performance.  Mr. Walker therefore has failed to establish prejudice stemming  from counsel's alleged failure to obtain and present evidence.  SeeMcGregor,  219 F.3d at 1252 (petition for rehearing en banc was granted).

D.  Evidentiary Hearing

40
Mr. Walker generally argues the district court erred in denying an  evidentiary hearing on his competency claims.  He presented affidavits to support  these claims in post-conviction proceedings and sought an evidentiary hearing. His attempt to develop the factual basis of these claims in state court frees him  from the limitations of 28 U.S.C. § 2254(e)(2).  See Williams v.  Taylor, 120 S. Ct.  1479, 1490-91 (2000); Mayes v. Gibson, 210 F.3d 1284, 1287 n.2 (10th Cir.  2000).  Thus, Mr. Walker is entitled to an evidentiary hearing "if his allegations,  if true and not contravened by the record," entitle him to habeas relief.  Mayes,  210 F.3d at 1287.  We conclude Mr. Walker is not entitled to an evidentiary  hearing, because even if his evidence is true, it does not entitle him to habeas  relief.

II.  Ineffective Assistance of Trial Counsel

41
Mr. Walker argues four other instances of ineffective assistance of trial  counsel:  (1) failure to comply with the trial court's discovery order; (2) failure to  seek suppression of Mr. Walker's statements; (3) failure to present evidence of  Mr. Walker's heavy medication during trial; and (4) failure to investigate and  present second stage evidence.

A.  Procedural Bar

42
On post-conviction review, the Oklahoma Court of Criminal Appeals  refused to consider Mr. Walker's claims of ineffective assistance of trial counsel  because they had not been raised on direct appeal.  See Walker, 933  P.2d at 332. The State, however, does not now assert an affirmative defense of procedural bar. See Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999).  Moreover,  the claim is  not procedurally barred because Mr. Walker had the same counsel at trial and on  appeal, see English v. Cody, 146 F.3d 1257, 1264 (10th Cir.  1998), even though  his appellate counsel was not lead counsel at trial.  Accordingly, we consider this  claim on its merits, reviewing the district court's decision de novo.  SeeLaFevers,  182 F.3d at 711.6

B.  Merits

43
1.  Failure to comply with the trial court's discovery order


44
Prior to trial, counsel failed to produce a copy of Dr. Nicholson's report7 on  or before May 1, 1989, as ordered.  The trial court sanctioned Mr. Walker by  allowing the State to examine Dr. Nicholson about the contents of the report. According to Mr. Walker, this caused his first and second stage defenses to be  revealed prior to trial, giving the State a strategic advantage.  Also, he complains  the trial court, as part of the sanction, allowed examination into competency,  which was beyond the scope of the report.  The federal district court determined  Mr. Walker failed to show prejudice because he merely asserted the effects of the  examination were "incalculable."


45
Mr. Walker fails to argue deficient performance to this court.  Nonetheless,  counsel's performance was not deficient.  On direct criminal appeal, the  Oklahoma Court of Criminal Appeals, upon considering whether the trial court's  decision to allow the State to cross-examine Dr. Nicholson before trial violated  Mr. Walker's right to a fair trial, stated "[t]he trial court's order requiring  [Mr.] Walker to give to the State a copy of Dr. Nicholson's report was in fact  improper according to caselaw in effect at that time."  Walker, 887 P.2d at 309.


46
Also, failure to disclose the report was not prejudicial.  The Oklahoma  Court of Criminal Appeals noted that because the State would have been entitled  to the doctor's report during cross-examination, the trial court's error in providing  the information before trial was harmless.  See id.  Also, the court found  the  pretrial disclosure did not violate any constitutional principles.  See id. During  the short in camera hearing, which did not rise to the level of a deposition, the  State asked Dr. Nicholson what conclusions the report contained, not how he  reached those conclusions.  See id. at 310.  Additionally, the State did  not use the  in camera testimony to impeach Dr. Nicholson on cross-examination at either  stage of trial.  See id.  The record does not reflect, and Mr. Walker does  not make  a particularized showing, that the State actually secured a strategic advantage. Although Dr. Nicholson would not have been placed in a position of having to  state whether Mr. Walker was competent if counsel had disclosed the report,  Mr. Walker cannot show prejudice because, as shown, he has failed to establish  sufficient doubt concerning his competency.  We agree with the district court that  Mr. Walker has failed to prove ineffective assistance of counsel.


47
2.  Failure to seek suppression of Mr. Walker's statements


48
Mr. Walker argues counsel should have moved to suppress statements he  involuntarily made while he was hospitalized and medicated.  The federal district  court determined Mr. Walker failed to show prejudice.  As discussed in section V,  Mr. Walker's underlying claim is without merit.  Thus, his ineffectiveness claim  likewise fails.  See Foster, 182 F.3d at 1186.


49
3.  Failure to present evidence of Mr. Walker's heavy medication  during trial


50
Mr. Walker argues counsel failed to inform the jury that he was medicated due to his severe mental illness.  In a post-conviction affidavit, an investigator  stated that two jurors had noted Mr. Walker's lack of emotion or remorse and they  had not known he was medicated.  Without deciding prejudice, the federal district  court determined Mr. Walker failed to make any argument supporting his  conclusory statement that counsel's performance was deficient.


51
In a post-conviction affidavit, trial counsel admits he should have explained  to the jury that Mr. Walker was heavily medicated.  Regardless of whether this is  sufficient to show deficient performance, we conclude Mr. Walker has not shown  prejudice.  Assuming without deciding that we may consider the jurors'  statements,8 we conclude they are merely  speculative and do not compel a finding  of believability.  They were prepared by an investigator at the direction of an  attorney and taken more than seven years after trial.  Furthermore, such individual  expressions of opinions are rarely helpful in reviewing the actions of the entire  jury.  See Jacobs v. Marathon County, 73 F.3d 164, 169 (7th Cir. 1996). The  jury's verdict, not the individual expression of the jurors after trial, carries legal  weight.  See id.  Therefore, we conclude Mr. Walker has failed to show  a  reasonable probability the outcome at trial would have been different if the jury  had known of his heavy medication.


52
4.  Failure to investigate and present second-stage evidence


53
Mr. Walker argues counsel failed to present additional evidence of his  traumatic upbringing, mental disease, family history of drug abuse and  alcoholism, and drug abuse exacerbating his mental illness.  He also suggests  counsel should have learned of and presented evidence regarding his Paradoxical  Benzodiazepine Rage or Dyscontrol.  The federal district court determined that  the omitted evidence was insufficient to affect the outcome of trial.  Also, the  court determined counsel's performance was not deficient because at the second  stage counsel presented witnesses, cross-examined all of the State's witnesses,  and had a reasonable strategy.


54
Counsel has a duty to make a reasonable investigation for mitigating  evidence or to make a reasonable decision that particular investigation is  unnecessary.  See Strickland, 466 U.S. at 691.  The reasonableness of counsel's  investigation depends on the circumstances of the case.  See id. at 688. Nevertheless, in a capital case, an attorney's duty to investigate all possible lines  of defense is strictly observed.  See, e.g., Boyd v. Ward, 179 F.3d 904,  915 (10th  Cir. 1999), cert. denied, 120 S. Ct. 1188 (2000).


55
Without deciding whether Mr. Walker could show deficient performance,  we conclude he fails to satisfy Strickland's prejudice requirement.  Trial counsel  did in fact prepare and present much mitigating evidence, as Mr. Walker  recognizes.  All first stage evidence was incorporated into the second stage. During the first stage, defense counsel presented evidence, through Mr. Walker's  friends and family, of (1) his depression at the time of the crimes; (2) the fact that  he began living with his grandparents at the age of thirteen; (3) his threats to  commit suicide when a former girlfriend broke up with him and his actual suicide  attempt by stabbing his wrist with an ice pick; (4) his threat to commit suicide the  day before the crimes without mentioning harming anyone but himself; (5) his  violence to a former girlfriend; and (6) his lack of comprehension when he lost  his temper and control.  In addition, Dr. Nicholson testified that Mr. Walker was  depressed and had lost control at the time of the crimes.  He diagnosed  Mr. Walker as suffering from Borderline Personality Disorder, which is  characterized by intense interpersonal relationships, unstable moods, self  damaging acts, abuse of drugs, reckless behavior, and manipulative suicidal  gestures or threats.  Dr. Nicholson also believed Mr. Walker suffered from  dysthymia, a chronically depressed mood disorder, and drug abuse.


56
At the second stage, defense counsel presented evidence that  (1) Mr. Walker had been abused as a child; (2) his natural father was in prison for  two murders; (3) Mr. Walker had mood swings; (4) he had been sexually abused  by an older stranger; (5) after he acted violently toward a former girlfriend, he  would cry, apologize, and try to hurt himself; (6) after his grandmother died, he  became a loner and tried to commit suicide; (7) his grandfather sought  professional help for him; (8) he was only violent if he was really depressed;  (9) the day before the murder, Shelly came to his home with the baby to visit;  (10) he received treatment focusing on anger after an argument with his brother;  (11) he was voluntarily hospitalized for one week approximately two months  before the crimes for depression and was diagnosed with depression and  polysubstance abuse; (12) he had two prior suicide attempts; (13) his substance  abuse and suicide attempts were consistent with Borderline Personality Disorder;  (14) at the time of the murders he was fluctuating between depression and rage;  (15) he suffered from a mental disease causing him to be unable to control his  actions; (16) he would not be a continuing threat if he was incarcerated; and  (17) his violence level would decrease.


57
Much of the evidence Mr. Walker complains counsel did not present was  actually presented.  Cumulative evidence would not have caused the jury to reach  a different result.  See Moore v. Reynolds, 153 F.3d 1086, 1099 (10th  Cir. 1998); see also Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997)  (even if  evidence had been presented, it would have been insufficient to offset, explain, or  justify murders).  Additionally, this court has held, in a number of cases, that  "evidence of a troubled childhood involving physical, emotional, sexual and/or  substance abuse does not outweigh evidence supporting the conviction and  evidence supporting multiple aggravating circumstances."  Foster, 182 F.3d at  1189 (citing cases).  This case is not an exception.  See id.  Considering  the  strength of the government's case and the number of aggravating circumstances  found, along with the additional and largely cumulative mitigating evidence that  might have been presented and the mitigating evidence actually presented, see Mayes, 210 F.3d at 1290, there is not a reasonable probability that, absent the  alleged inadequate investigation, the jury would have concluded the balance of  aggravating and mitigating circumstances did not warrant death, see Strickland,  466 U.S. at 695.  We conclude the district court correctly denied habeas relief on  this claim.

III.  Presumption of Innocence

58
Mr. Walker argues the trial court violated his constitutional rights by  failing to instruct the jury that he was presumed innocent.  The trial court instead  instructed the jury that Mr. Walker was "presumed to be not guilty."  See O.R.  vol. II at 206.9  Mr. Walker argues this error  was structural and therefore not  subject to a harmless error analysis and, even if it were subject to a harmless error  analysis, the federal district court applied an improper harmless error standard.

A.  Procedural Bar

59
Mr. Walker first raised this claim in state post-conviction proceedings.  The  Oklahoma Court of Criminal Appeals recognized that "[i]n Flores v. State,  [896 P.2d 558, 562 (Okla. Crim. App. 1995)], handed down five years after  [Mr.] Walker filed his direct appeal brief-in-chief, this Court reversed a  conviction on the basis of this flawed instruction, holding that it  unconstitutionally diluted the presumption that guilt is to be proven beyond a  reasonable doubt."  Walker, 933 P.2d at 337 (footnote omitted).  Nonetheless,  because Mr. Walker did not raise this claim on direct appeal, the court determined  it was waived since he could not demonstrate that the claim could not have been  raised on direct appeal.  See id. at 337-38.  Because the State does not  argue in  this appeal that this claim is procedurally barred, we may consider it on its merits. See Hooks, 184 F.3d at 1216.  We review the district court's  determination of the  claim de novo.  See LaFevers, 182 F.3d at 711.

B.  Merits

60
The federal district court determined it is unclear whether the instruction is  unconstitutional.  That court, however, decided giving the instruction was not  structural error requiring automatic reversal of the conviction.  It held the  substantial evidence against Mr. Walker was the determining factor in the jury's  guilty decision, not the semantic difference between "presumed innocent" and  "presumed to be not guilty."  Thus, the court concluded any error was harmless, as  it did not have substantial or injurious effect on the jury's verdict.  See Brecht  v.  Abrahamson, 507 U.S. 619, 637 (1993).


61
Like the district court, we do not decide whether the given instruction is  unconstitutional.10 Instead, we first consider whether any error was structural,  and we conclude it is not.


62
While most constitutional errors are amenable to harmless error analysis, see Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), the deprivation of  the right  to trial by jury, "with consequences that are necessarily unquantifiable and  indeterminate, unquestionably qualifies as 'structural error,'" id. at 281-82.  The  Supreme Court has found structural error, subject to automatic reversal, only in a  very small number of cases.  See Neder v. United States, 527 U.S. 1, 8  (1999)  (citing Johnson v. United States, 520 U.S. 461, 468 (1997), which cited Gideon v.  Wainwright, 372 U.S. 335 (1963) (complete denial of counsel); Tumey v.  Ohio,  273 U.S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254 (1986)  (racial discrimination in grand jury selection); McKaskle v. Wiggins, 465 U.S. 168  (1984) (denial of right to self-representation at trial); Waller v. Georgia, 467 U.S.  39 (1984) (denial of public trial); Sullivan, 508 U.S. 275 (defective reasonable  doubt instruction)).  The Supreme Court, however, has never addressed structural  error regarding the presumption of innocence.  "[I]f[, however,] the defendant had  counsel and was tried by an impartial adjudicator, there is a strong presumption  that any . . . errors that may have occurred are subject to harmless error analysis." Rose v. Clark, 478 U.S. 570, 579 (1986).


63
"The presumption of innocence, although not articulated in the  Constitution, is a basic component of a fair trial under our system of criminal  justice."  Estelle v. Williams, 425 U.S. 501, 503 (1976); see also Cool v. United  States, 409 U.S. 100, 104 (1972) (per curiam) ("constitutionally rooted  presumption of innocence").  The presumption serves as a reminder to the jury  that the State has the burden of proving every element of the offense beyond a  reasonable doubt.  See Delo v. Lashley, 507 U.S. 272, 278 (1993) (per  curiam).  A  presumption of innocence instruction is not constitutionally required in every  case, however.  See Kentucky v. Whorton, 441 U.S. 786, 789  (1979) (per curiam). Rather, "[a]n instruction is constitutionally required only when, in light of the  totality of the circumstances, there is a genuine danger that the jury will convict  based on something other than the State's lawful evidence, proved beyond a  reasonable doubt."  Lashley, 507 U.S. at 278 (quotations omitted).


64
While use of the particular phrase 'presumption of innocence' or any  other form of words may not be constitutionally mandated, the Due  Process Clause of the Fourteenth Amendment must be held to  safeguard against dilution of the principle that guilt is to be  established by probative evidence beyond a reasonable doubt.


65
Taylor v. Kentucky, 436 U.S. 478, 485-86 (1978) (quotation omitted); see  also Tillman v. Cook, 215 F.3d 1116, 1123 (10th Cir. 2000) (determining trial judge  has discretion to tailor jury instructions, as long as instructions correctly state law  and fairly and adequately cover issues presented).


66
Based on these principles, it is clear any error here does not defy analysis  by harmless error standards.  See Sullivan, 508 U.S. at 281.  The error,  if any, did  not affect the trial framework or the entire trial process, depriving Mr. Walker of  basic protections for determining guilt or innocence, and rendering the trial  fundamentally unfair.  See Neder, 527 U.S. at 8-9.  Instead, any error  may be  assessed in the context of the other evidence presented.  See Sullivan,  508 U.S. at  281.  The error, if any, did not affect the composition of the record.  See Rose,  478 U.S. at 579 n.7.  Mr. Walker had a full opportunity to put on evidence and  make argument.  See id. at 579.  He was tried by an impartial jury,  supervised by  an impartial judge and had counsel.  Apart from the challenged instruction, the  jury was instructed to find Mr. Walker guilty beyond a reasonable doubt of either  first or second degree murder.  See generally United States v. Doyle,  130 F.3d  523, 535 (2d Cir. 1997) (reasonable doubt standard is means by which  presumption of innocence is implemented, citing In re Winship, 397 U.S. 358, 363  (1970)).  Thus, the State was required to prove each element of the offenses  beyond a reasonable doubt and no burdens shifted to Mr. Walker.11


67
Because the error, if any, was trial and not structural error, we next  consider whether the error was harmless.  See Arizona v. Fulminante,  499 U.S.  279, 307-08 (1991) (recognizing harmless error analysis applies when there is  trial error); see also California v. Roy, 519 U.S. 2, 5 (1996) (per  curiam). Mr. Walker argues the Chapman "beyond a reasonable doubt" harmless error  standard applies.  This court has held, however, that the "'substantial and  injurious effect or influence'" standard, set forth in Brecht, 507 U.S. at 623,  637  (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)), which the federal  district court applied, is the proper standard.  See Crespin v. New  Mexico,  144 F.3d 641, 649 (10th Cir. 1998).


68
Harmless error analysis looks at the basis upon which the jury rested its  verdict.  See Sullivan, 508 U.S. at 279.  In light of the totality of the  circumstances, including the given instructions and the overwhelming evidence of guilt,12 we have no doubt that Mr. Walker  had a constitutionally fair trial.  He was  not judged on anything but the overwhelming evidence presented at trial.  SeeTaylor, 436 U.S. at 486.  Because the trial record establishes guilt beyond a  reasonable doubt, the interest in fair and correct judgments has been satisfied. See Rose, 478 U.S. at 579.  The Constitution entitled Mr. Walker to a  fair trial,  which he received, not a perfect trial.  See Delaware v. Van Arsdall, 475  U.S.  673, 681 (1986).


69
C.  Ineffective Assistance of Appellate Counsel


70
Mr. Walker argues that he was denied effective assistance of appellate  counsel due to counsel's failure to raise this claim on direct appeal.  On  post-conviction review, the Oklahoma Court of Criminal Appeals concluded  Mr. Walker failed to establish that counsel's performance was deficient.  SeeWalker, 933 P.2d at 335-36.  The Oklahoma appellate court's determination that  counsel's performance was not deficient was not unreasonable.  See 28 U.S.C.  § 2254(d).


71
An appellate attorney's performance may be deficient and may prejudice  the defendant only if counsel fails to argue a "dead-bang winner," which is  defined as "an issue which was obvious from the trial record, . . . and one which  would have resulted in a reversal on appeal."  United States v. Cook, 45 F.3d 388,  395 (10th Cir. 1995).  A petitioner has the burden of proving appellate counsel  omitted a "dead-bang winner."  See Parker v. Champion, 148 F.3d 1219,  1221  (10th Cir. 1998).


72
Mr. Walker cannot meet that burden.  Because, as discussed above, the  instructional error, if indeed there was error, was harmless, and therefore not a  "dead bang winner," counsel's performance was neither deficient nor prejudicial.

IV.  Lesser Included Offense

73
Mr. Walker argues his due process rights were violated when the trial court  refused to instruct on the lesser included offense of first degree manslaughter.  He  asserts the evidence shows he committed the homicides in a heat of passion.


74
On direct appeal, the Oklahoma Court of Criminal Appeals determined as  follows:


75
The evidence did not in fact support a first degree  manslaughter instruction. . . .  Walker went to the trailer with a  concealed, sharpened knife.  He became angry with Shelly and began  either hitting or stabbing her.  When her uncle, Donnie, came running  to her rescue, Walker stabbed him in the stomach.  Walker then  stabbed each of them numerous times, ultimately telling Donnie that  he should have minded his own business.  At one point, he went to  the kitchen cabinets, found an ice pick, and returned to stab Shelly  with it.  He took Shelly's pulse to make certain she was dead.  In his  statement to the police, he admitted that he intended to kill anyone  who tried to prevent him from taking the baby.  This evidence did  not show that Walker killed the two victims in a heat of passion and  without a design to effect their deaths.  The trial judge properly  denied Walker's requested instruction on this basis.


76
Walker, 887 P.2d at 313 (footnotes omitted).  Based on a careful review of the  record, we conclude this determination was not unreasonable.13  See 28 U.S.C.  § 2254(d).


77
Due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction.  See Hopper v. Evans,  456 U.S.  605, 611 (1982).  Oklahoma defines first degree manslaughter as homicide  "perpetrated without a design to effect death, and in a heat of passion, but in a  cruel and unusual manner, or by means of a dangerous weapon; unless it is  committed under such circumstances as constitute excusable or justifiable  homicide."  Okla. Stat. tit. 21, § 711(2).  The requisite elements of heat of passion  first degree manslaughter are (1) adequate provocation; (2) passion or emotion  such as anger, rage, fear, or terror; (3) homicide occurring during a state of  passion and before there is a reasonable opportunity for the passion to cool; and  (4) the existence of a causal connection between the provocation, passion, and  homicide.  See Charm v. State, 924 P.2d 754, 760 (Okla. Crim. App. 1996).


78
Oklahoma equates "a design to effect death" with "an intent to kill."  See Hogan v. Gibson, 197 F.3d 1297, 1308 (10th Cir. 1999) (citing Smith v.  State,  932 P.2d 521, 532-33 (Okla. Crim. App. 1996)), petition for cert. filed,  68 U.S.L.W. 3774 (U.S. June 8, 2000) (No. 99-1976).


79
[E]ven if a person kills in the heat of passion, the killing may not be  classified as first-degree manslaughter if the person intended death to  result from the act.  A defendant is thus entitled to a manslaughter  instruction only if the evidence at trial would allow a jury to  rationally conclude the defendant's rage rendered him . . . incapable  of forming a design to effect death.


80
Id. (citing Allen v. State, 821 P.2d 371, 374 (Okla. Crim. App. 1991)).


81
Mr. Walker's statement of his own intent is somewhat ambiguous.  In his  statement to the police, Mr. Walker first indicated he was going to take the baby  or murder Shelly or whoever got in his way and he had thought about it for  months.  He, for the most part, was able to remember the criminal events.  As the  Oklahoma Court of Criminal Appeals recognized in the fact section of its direct  appeal opinion, Mr. Walker later contradicted himself by indicating he did not  want to kill Shelly and instead wanted to kill himself because he knew someone  needed to take care of the baby.  Also, he indicated that he intended to stab  himself if things "didn't work out" between himself and Shelly.  Vol. 1, tab 17,  app. 5 at 12.  He did not remember killing or doing anything to Donnie, but did  realize he had stabbed Donnie after he had done so.14


82
Dr. Nicholson testified that Mr. Walker's behavior was more consistent  with a lack of intent to commit murder and a loss of control.  Dr. Nicholson  characterized Mr. Walker's actions as a manipulative suicide attempt followed by  a loss of control.  Nonetheless, Dr. Nicholson also believed Mr. Walker knew the  nature of his actions at the time of the murder, such that he knew what he was  doing and knew it was wrong.


83
Any ambiguity in Mr. Walker's statement did not permit reasonable  inferences of both first degree murder and first degree manslaughter in light of  the other evidence set forth in the Oklahoma Court of Criminal Appeals' opinion  and Dr. Nicholson's belief that Mr. Walker knew what he was doing.  Although  Mr. Walker may have acted in a rage, the evidence shows he intended to kill both  Shelly and Donnie.  See Walker, 167 F.3d at 1349-50.


84
Thus, Mr. Walker has failed to show "the evidence presented at trial would  permit a rational jury to find him guilty of first-degree manslaughter and acquit  him of first-degree murder."  Hogan, 197 F.3d at 1307 (citing Hopper,  456 U.S. at  610).15  In light of the highly deferential  standard with which we review the  Oklahoma Court of Criminal Appeals' decision that there was not sufficient  evidence in the record to support an instruction on first degree manslaughter, we  conclude that decision was not unreasonable.  See 28 U.S.C. § 2254(d).


85
Contrary to the Oklahoma Court of Criminal Appeals' determination, see Walker, 887 P.2d at 313 & n.54, Mr. Walker argues he did not elect a second  degree murder defense over manslaughter.  Regardless of whether he made such  an election, the trial court reasonably refused to give a first degree manslaughter  instruction.


86
V.  Admission of Statements Overheard by Deputy Fritz


87
Mr. Walker argues his constitutional rights were violated by the testimony  of Deputy Fritz.  Mr. Walker made certain statements to a medical doctor, which  were overheard by Deputy Fritz, who guarded Mr. Walker while he was being  hospitalized for his self-inflicted wounds.  Deputy Fritz testified he heard  Mr. Walker tell the doctor that he knew he had killed Shelly and he was glad he  had done so; he was sorry he had killed Donnie, but it was none of Donnie's  business; two months before the murders he had planned to kill his parents with a  gun because his parents had beaten him as a child; and he was taking steroids and  no one could push him around.  Mr. Walker argues his statements were protected  by the physician-patient relationship.  See Okla. Stat. tit. 12,  § 2503(4)(B).  Also,  he argues there was no evidence he knowingly and intelligently waived his right  to counsel and against self-incrimination and no waiver may be implied due to his  "drug induced disorientation and psychotic condition."  Appellant's Br. at 62.


88
On direct appeal, the Oklahoma Court of Criminal Appeals determined  Mr. Walker failed to show his communications to the doctor were privileged and  were not intended to be disclosed to third persons, because he spoke loudly  enough for Deputy Fritz to hear and Mr. Walker was cognizant of what was  happening.  See Walker, 887 P.2d at 321.  The federal district court held  that  Mr. Walker failed to prove that any error denied him due process.


89
"[S]tate court rulings on the admissibility of evidence may not be  questioned in federal habeas proceedings unless they render the trial so  fundamentally unfair as to constitute a denial of federal constitutional rights." Duvall v. Reynolds, 139 F.3d 768, 787 (10th Cir. 1998) (quotation omitted); see  also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).  Having carefully  reviewed  the record, we conclude admission of the evidence did not deprive Mr. Walker of  a fair trial.


90
In a post-conviction affidavit, prepared over seven years after trial,  Mr. Walker stated he did not remember talking to the doctor and did not intend  for the deputy to hear the conversation.  This belated, self-serving affidavit is  insufficient to show a denial of due process.  Even if admission of Deputy Fritz'  testimony was erroneous, it was harmless in light of the other overwhelming  evidence in the case.  The Oklahoma Court of Criminal Appeals' determination  was not unreasonable.  See 28 U.S.C. § 2254(d).


91
Mr. Walker's argument that he did not knowingly and intelligently waive  his right to counsel and against self-incrimination is conclusory and unsupported. "We do not consider unsupported and undeveloped issues."  Moore v. Gibson,  195 F.3d 1152, 1180 n.17 (10th Cir. 1999), cert. denied, 120 S. Ct. 2206  (2000).


92
VI.  Notice of Evidence to Support Aggravators


93
Mr. Walker argues the State's failure to provide sufficient and timely  notice of the evidence to support the aggravators deprived him of due process. Mr. Walker received notice more than one and one half months before trial that  the State intended to seek the death penalty.  The State filed an amended Bill of  Particulars four days later.  Over three weeks before trial the State filed another  amended Bill of Particulars.  Mr. Walker contends the notice was not timely  because the amended notices changed the nature of the proceedings, denying him  a chance to rebut the evidence used to support the death penalty.  Additionally, he  argues the State presented evidence not specified in the amended notice.


94
The Oklahoma Court of Criminal Appeals determined the notice was  sufficient.  See Walker, 887 P.2d at 316-17.  The federal district court  determined  the notice was both timely and sufficient.


95
The Due Process Clause mandates that a defendant receive  adequate notice that he could receive the death penalty.  SeeLankford v. Idaho, 500 U.S. 110, 127 . . . (1991).  Similarly, a  defendant must have a meaningful opportunity to deny or explain the  State's evidence used to procure a death sentence.  See Gardner v.  Florida, 430 U.S. 349, 362 . . . (1977).


96
Duvall, 139 F.3d at 797.


97
The record does not support Mr. Walker's argument that he was denied due  process.  The State gave him notice within a reasonable amount of time prior to  trial that it would seek the death penalty upon conviction of the capital offenses. Cf. Carpenter v. State, 929 P.2d 988, 995 (Okla. Crim. App. 1996)  (finding no  evidence that one months' notice was insufficient where counsel did not request  continuance); Mayes v. State, 887 P.2d 1288, 1299-1301 (Okla. Crim. App. 1994)  (sufficiently timely notice provided four days before trial, where defendant was  apprized long before that prosecution intended to seek death penalty).  Thus,  "'[t]he problem of trial by ambush did not arise in this case.'"  Duvall, 139 F.3d  at 797-98 (quoting Long v. State, 883 P.2d 167, 172 (Okla. Crim. App. 1994)). Nor does the record show any prejudice due to the timing of the notice.  SeeMayes, 210 F.3d at 1292.


98
Mr. Walker further complains the State presented aggravating evidence not  specified in the amended Bill of Particulars:  (1) the State introduced slides rather  than photographs; (2) the medical examiner testified Shelly had been injured  before making the 911 call; and (3) the prosecutor impeached mitigation  witnesses with allegations Mr. Walker had no notice would be used.  The  Oklahoma Court of Criminal Appeals noted that Okla. Stat. tit. 21, § 701.10 "does  not require the State to give a detailed description of anticipated second stage  evidence."  Walker, 887 P.2d at 316.  Rather, the State need only provide a  summary of the second stage evidence and a list of possible witnesses.  Seeid. at  316-17.


99
This court is bound by the Oklahoma Court of Criminal Appeals'  interpretation of state law.  See Estelle, 502 U.S. at 67-68.  Under that  interpretation, Mr. Walker received sufficient notice.  The Oklahoma Court of  Criminal Appeals reasonably determined (1) the slides were sufficiently described  as autopsy photographs; (2) the notice need not describe the medical examiner's  exact testimony; and (3) the notice requirement did not extend to proper  cross-examination questions.  See Walker, 887 P.2d at 317.  Also, the  court noted  that all matters Mr. Walker complained of had been introduced at the guilt stage  of trial.  See id.  Because Mr. Walker had sufficient notice of the nature  of the  State's second stage evidence, we conclude the Oklahoma Court of Criminal  Appeals' determination that the pretrial notice requirement was met was  reasonable.  See 28 U.S.C. § 2254(d).

VII.  Prosecutorial Misconduct

100
Mr. Walker argues that several instances of prosecutorial misconduct  violated his right to a fair and impartial trial.  The Oklahoma Court of Criminal  Appeals denied relief, addressing in detail those comments which were objected  to at trial and addressing for plain error those comments which were not objected  to at trial, finding them not so prejudicial as to affect the right to a fair trial.  SeeWalker, 887 P.2d at 315, 321.  Because the state court disposed of all aspects of  the prosecutorial misconduct claim on its merits, we apply AEDPA standards to  all aspects of this claim.  In doing so, we uphold the Oklahoma appellate court's  result with respect to the unobjected to comments if our independent review  persuades us the decision was not contrary to or an unreasonable application of  clearly established federal law, or based upon an unreasonable determination of  the facts in light of the evidence presented.  See Aycox v. Lytle, 196  F.3d 1174,  1177-78 (10th Cir. 1999).  Thus, we give deference to the state court's result,  even when its reasoning was not expressly stated.  See id. at 1177.


101
Generally, a prosecutor's improper remark will require reversal of a state  conviction only if the remark sufficiently infected the trial, making it  fundamentally unfair and, therefore, a denial of due process.  See Donnelly v.  DeChristoforo, 416 U.S. 637, 643, 645 (1974).  Inquiry into fundamental fairness  requires examination of the entire proceedings.  See id. at 643.  It also  requires a  review of the strength of the evidence against the petitioner.  See Fero v.  Kerby,  39 F.3d 1462, 1474 (10th Cir. 1994).  Ultimately, this court considers the jury's  ability to judge the evidence fairly in light of the prosecutor's conduct.  Seeid. "[I]t is not enough that the prosecutor's remarks were undesirable or even  universally condemned."  Darden v. Wainwright, 477 U.S. 168, 181 (1986)  (quotation omitted).  Counsel's failure to object to many of the comments, while  not dispositive, is relevant to a fundamental fairness assessment.  See Trice v.  Ward, 196 F.3d 1151, 1167 (10th Cir. 1999), cert. denied, 2000 WL 656673  (U.S. Oct. 2, 2000) (No. 99-9518).


102
If, however, the alleged prosecutorial misconduct denied the petitioner a  specific constitutional right, a habeas claim may be established without requiring  proof the entire trial was rendered fundamentally unfair.  See Paxton v.  Ward,  199 F.3d 1197, 1217 (10th Cir. 1999).

A.  Jury Selection

103
Citing only state law, Mr. Walker argues the prosecutor improperly stated  three times during voir dire his personal opinion that Mr. Walker deserved the  death penalty.  As the Oklahoma Court of Criminal Appeals determined, these  unobjected to comments did not render the trial fundamentally unfair.  The  prosecutor admitted he was not a neutral participant and he had the burden of  proof.  Also, he informed the prospective jurors they must reach a verdict based  on the law and the evidence.

B.  First Stage

104
Again citing only state law, Mr. Walker argues the prosecutor improperly  questioned defense witnesses about his alleged propensity for violence.  The  Oklahoma Court of Criminal Appeals held that defense counsel's direct  examination of the defense witnesses, other than Dr. Nicholson, opened the  inquiry to violent tendencies enabling the State to cover this subject on  cross-examination.  See Walker, 887 P.2d at 314.  The court also  held the State  was permitted to cross-examine Dr. Nicholson regarding specific instances of  Mr. Walker's previous violent acts because the questions contradicted  Dr. Nicholson's testimony that Mr. Walker was incapable of forming specific  intent to kill and helped the jury to understand what information the doctor used  to diagnose Mr. Walker.  See id. at 315.  Viewing the prosecutor's  questions in  the context of the proceedings, the questioning was not improper.  See United  States v. Young, 470 U.S. 1, 11-12, 18 (1985).


105
Mr. Walker contends the prosecutor appealed solely to the jurors' passion  when he asked Mr. Walker's grandfather if Mr. Walker would need the large  knife used for the crimes to do masonry work.  The Oklahoma Court of Criminal  Appeals reasonably concluded the State properly asked this question to show  malice aforethought.  See Walker, 887 P.2d at 315.  The court  determined that  although defense counsel called this witness to support the theory that Mr. Walker  did not intend to kill his victims, because he was on his way to work, the evidence  showed he left home in possession of the murder weapon rather than a tool useful  for his employment.  See id.


106
Citing only state authority, Mr. Walker argues it was prejudicial for the  prosecutor to ask a defense witness whether she could say Mr. Walker had not  stabbed Donnie eleven times and Shelly thirty-two times.  The Oklahoma Court of  Criminal Appeals reasonably found this was proper impeachment for testimony  elicited by defense counsel that Mr. Walker had not threatened any one the night  before the murders.  See id.


107
Again citing only state law, Mr. Walker argues the prosecutor tried to  prejudice the jury during closing argument by suggesting the jury should do its  business.  It was not fundamental error to suggest that the jury was in the business  of deciding whether to convict.


108
Mr. Walker argues the prosecutor improperly commented on his right to  remain silent.  A prosecutor's comment on a criminal defendant's failure to testify  implicates a specific constitutional right.  See Griffin v. California, 380  U.S. 609,  613-15 (1965).  Here, however, the prosecutor properly commented on  Mr. Walker's failure to present evidence or call witnesses.  SeeTrice, 196 F.3d at  1167.  He did not improperly call attention to Mr. Walker's failure to testify.  SeeNguyen, 131 F.3d at 1358.

C.  Second Stage

109
Mr. Walker argues the prosecutor asserted personal opinion by commenting  that prison society is not excluded from the continuing threat to society  aggravator and stating Mr. Walker deserved the death penalty.  The former is an  accurate statement of Oklahoma law.  See, e.g., Salazar v. State, 973  P.2d 315,  326 (Okla. Crim. App. 1998), cert. denied, 120 S. Ct. 226 (1999); Hain v.  State,  919 P.2d 1130, 1148 (Okla. Crim. App. 1996).  With respect to the latter, the  prosecutor admitted he was not neutral and was an advocate for the State.  Also,  as the Oklahoma Court of Criminal Appeals reasonably determined, the latter was  based solely on the evidence presented.  See Walker, 887 P.2d at 321; cf. Bowser  v. Boggs, 20 F.3d 1060, 1065 (10th Cir. 1994) (although prosecutor's expression  of his personal opinion in closing argument was arguably improper, it did not  render trial fundamentally unfair, because prosecutor did not rely on evidence  outside record or misstate or misrepresent facts).


110
Mr. Walker argues the prosecutor erred by telling the jurors to check the  aggravators once they found them before balancing them against the mitigators  and deciding to impose the death penalty.  He maintains the jurors may have  believed the death penalty was automatic after checking the aggravators.  This is  unlikely in light of the instructions to weigh the mitigating and aggravating  evidence.  We assume the jury followed the instructions.  See Fero, 39  F.3d at  1474.  Also, the prosecutor acknowledged the jury must weigh the aggravating  and mitigating evidence before deciding whether the death penalty should be  imposed.


111
Mr. Walker argues the prosecutor implied the death penalty was mandatory  by suggesting the only way for Mr. Walker to pay is with his own life.  In light of  the weighing instructions, the jury would not have believed the death penalty was  mandatory.


112
Mr. Walker argues the prosecutor improperly told the jurors they had  discretion to consider the mitigating evidence.  The trial court instructed the jury  to consider and determine the mitigating evidence.  We assume the jury followed  the instructions.  See id.


113
Mr. Walker argues the prosecutor appealed to the jurors' passions and  prejudices by telling them Mr. Walker had made his actions the jurors' business. As in the first stage, this comment did not cause the trial to be fundamentally  unfair.


114
Citing only state law, Mr. Walker complains the prosecutor improperly  sought sympathy for the victims by referring to Donnie as cold in his grave and  by suggesting Juanita would take Donnie's comments seeking help with her to her  grave.  The Oklahoma appellate court found the second remark improper, but  harmless given the overwhelming evidence supporting the aggravating  circumstances.  See Walker, 887 P.2d at 321-22.  Although this court  does not  condone prosecutorial remarks encouraging the jury to allow sympathy to  influence its decision, it is likely the nature of the crime itself produced sympathy  before the prosecutor made any comments.  See Duvall, 139 F.3d at  795.  The  prosecutor's appeals to emotion were not sufficient to render the trial  fundamentally unfair.


115
According to Mr. Walker, the prosecution belittled the mitigating evidence,  including his abusive childhood, lack of criminal record and mental illness, and  urged the jury not to consider the mitigating evidence.  The prosecutor is  permitted to comment upon and to argue the appropriate weight to be given  mitigating factors.  See Fox v. Ward, 200 F.3d 1286, 1299-1300  (10th Cir. 2000), petition for cert. filed, (U.S. June 30, 2000) (No. 00-5995).  Furthermore, the  comments did not contradict the jury instructions directing the jury to determine  what circumstances were mitigating.  See id. at 1299.


116
Mr. Walker argues the prosecutor attempted to diminish the jury's  responsibility in violation of Caldwell v. Mississippi, 472 U.S. 320, 323, 328-29  (1985).  The Oklahoma Court of Criminal Appeals found no error because the  prosecutor was responding to defense comments and the prosecutor emphasized  the jury had the responsibility to decide whether the death penalty was warranted. See Walker, 887 P.2d at 322 (citing Caldwell).  The  Oklahoma Court of Criminal  Appeals did not unreasonably apply Caldwell.  See Pickens v.  Gibson, 206 F.3d  988, 1000 (10th Cir. 2000).  Placing the comments in the context of the entire  trial, see Greer v. Miller, 483 U.S. 756, 766 (1987), the jury would not  have felt  less responsible than it should, see Romano v. Oklahoma, 512 U.S. 1, 9  (1994). Furthermore, the jury instructions informed the jury it had the duty to determine  the proper penalty.


117
These comments, considered either individually or cumulatively, did not  violate Mr. Walker's constitutional rights or impede the jury's ability to consider  the evidence fairly.  The trial court instructed the jury at the first stage that  counsels' arguments and remarks were not evidence and at the end of the second  stage that the jury should rely on its recollection of the evidence and not  counsels' remarks.  In light of the strong evidence of guilt and the weight of the  aggravating circumstances, there is not a reasonable probability the outcome at  either stage of trial would have been different without the alleged misconduct. See Hoxsie v. Kerby, 108 F.3d 1239, 1244-45 (10th Cir. 1997).  The  Oklahoma  Court of Criminal Appeals' decision is not contrary to or an unreasonable application of Supreme Court precedent and is not based on an unreasonable  determination of the facts in light of the evidence presented.  See 28 U.S.C.  § 2254(d)(1), (2).


118
We have considered all of Mr. Walker's arguments on appeal and are not  persuaded constitutional error affected his trial.  Accordingly, we AFFIRM the  federal district court's denial of habeas corpus relief.16



Notes:


1
 Although labeled a competency hearing in  the transcript, the hearing  was not initiated as and did not take the form of a formal competency hearing. Actually, the hearing was a sanction against Mr. Walker for failing to disclose the  report of Dr. Nicholson, who had examined Mr. Walker to assess his sanity and  whether he constituted a continuing threat to society and whether he had created a  great risk of death to more than one person.  During the course of this hearing,  however, the trial court required Dr. Nicholson to state whether he believed  Mr. Walker was competent.


2
 This court has rejected Mr. Walker's  argument that the State cannot  challenge the district court's rejection of procedural bar without filing a cross  appeal.  See Jones v. Gibson, 206 F.3d 946, 955 n.4 (10th Cir.  2000).


3
 Mr. Walker also argues the trial court held a  competency hearing the  morning trial began without giving him notice.  See Okla. Stat. tit. 22,  § 1175.2(B).  Thus, according to Mr. Walker, trial counsel was unable to  subpoena or call witnesses or have Mr. Walker evaluated due to surprise and  ineffectiveness.  According to Mr. Walker, the lack of notice denied him due  process and a reliable assessment of his competency.  The Oklahoma Court of  Criminal Appeals concluded this argument was procedurally barred.  SeeWalker,  933 P.2d at 340.  The district court did not address this argument in its order, and  the State does not address it on appeal.  Because we conclude Mr. Walker has  failed to show a bona fide doubt as to his competency, we conclude this argument  is without merit.


4
 Mr. Walker incorrectly believes the bona  fide doubt standard applies  to substantive competency claims.  See Appellant's Br. at 16.


5
 Mr. Walker incorrectly argues his  seventy-five milligram daily  dosage of Loxitane is fifteen milligrams greater than is recommended for the most  severely disturbed patients.  See Appellant's Br. at 11.  Rather, a usual  therapeutic dosage range is sixty to one hundred milligrams daily.  See Physician's Desk Reference 3225 (53rd ed. 1999).


6
 The district court improperly applied  AEDPA standards when  deciding this claim.  AEDPA did not apply because the state appellate court did  not decide the claim on its merits.


7
 This report is not contained in the record.


8
 Oklahoma precludes consideration of juror  statements regarding  matters affecting the jury's deliberations.  See Okla. Stat. tit. 12,  § 2606(B).  The  State, however, fails to object to the statements on this basis.


9
 You are instructed that the defendant  is presumed  to be not guilty of the crime charged against him in the  Information unless his guilt is established by evidence  beyond a reasonable doubt and that presumption of  being not guilty continues with the defendant unless  every material allegation of the Information is proven by  evidence beyond a reasonable doubt.
O.R. vol. II at 206.


10
 Other courts have held in comparable  situations that there is no  constitutional error.  See Sherrill v. Hargett, 184 F.3d 1172, 1176 n.3  (10th Cir.)  (citing Kansas case holding "not guilty" instruction preserved presumption of  innocence, see State v. Pierce, 927 P.2d 929, 936 (Kan. 1996)), cert. denied,  120 S. Ct. 507 (1999); Zimmer v. McKune, 87 F. Supp. 2d  1153, 1160 (D. Kan.  2000) (finding no Supreme Court precedent mandating use of words "presumed  innocent" rather than "not guilty"), certificate of appealability denied, 216 F.3d  1089 (10th Cir. June 26, 2000) (table).


11
 Oklahoma does not consider the  error to be structural.  See Flores,  896 P.2d at 560 (citing Chapman v. California, 386 U.S. 18, 21-22 (1967), and  determining instructional error was not harmless beyond reasonable doubt).


12
 Mr. Walker admits "the main battle"  in this case was at the second  stage.  Appellant's Reply Br. at 11.


13
 This court has not determined  whether an issue of sufficiency of the  evidence to support the giving of a lesser included offense instruction is a factual  or legal question, reviewable respectively under § 2254(d)(1) or  § 2254(d)(2). See Valdez, 219 F.3d at 1242, 1244-45.  We do not decide this issue  here, because  the Oklahoma appellate court was not unreasonable in its determination of the  facts or application of the law.


14
 Mr. Walker also submited an  affidavit, prepared August 13, 1996, in  which he stated that he was going to kill himself when he went to the trailer if  Shelly did not listen to him.  He averred he did not remember much of what  happened that day.  We reject this much belated, self-serving affidavit.


15
 Additionally, Mr. Walker has failed  to establish the adequate  provocation element of heat passion first degree manslaughter.  Adequate  provocation is "any improper conduct of the deceased toward the defendant which  naturally or reasonably would have the effect of arousing a sudden heat of passion  within a reasonable person in the position of the defendant."  Washington v. State,  989 P.2d 960, 968 n.4 (Okla. Crim. App. 1999).  Here, there was no evidence of  adequate provocation for first degree manslaughter.  Mr. Walker initiated the  attacks.  He attacked Shelly after she and Juanita refused to allow him to take the  baby.  Donnie and Juanita entered into the confrontation only after Mr. Walker  began attacking Shelly.


16
 Although this court declined to issue  a COA on the following three  issues, Mr. Walker was allowed to state them at the end of his brief.  We reaffirm  the denial of a COA on the issue that the continuing threat aggravating  circumstance is unconstitutionally vague and overbroad.  We have repeatedly  rejected that proposition.  See James v. Gibson, 211 F.3d 543, 559 n.8 (10th Cir.  2000).  We likewise reaffirm the denial of a COA on the issue that the jury was  not adequately instructed on the sentencing scheme because it was not informed it  had the option to return a life sentence even if it found aggravation outweighed  mitigation.  This, too, has been rejected.  See LaFevers, 182 F.3d at 717-18. Finally, we reaffirm the denial of a COA on the issue that AEDPA standards  were improperly and retroactively applied to Mr. Walker.  The Supreme Court  has rejected any argument that application of AEDPA is improper.  See Williams,  120 S. Ct. at 1518.



119
MURPHY, Circuit Judge, concurring in part and concurring in the result.


120
I concur in the majority opinion with the exception of section I.A.  As to  that section, I concur only in the result.  In resolving Walker's procedural  competency claim, the majority relies heavily on McGregor v. Gibson, 219 F.3d  1245, 1250-52 (10th Cir. 2000).1  I  continue to adhere to the view that McGregor was wrongly decided.  See id. at 1257-63 (Murphy, J., dissenting).  In particular, I  believe the majority in McGregor improperly compartmentalized each of the  factors bearing upon the question of bona fide doubt, analyzing only whether each  individual factor, considered in isolation, created a bona fide doubt as to  competency.  More importantly, the McGregor majority significantly undervalued  the repeated, serious statements of trial counsel, made in open court, that  McGregor was unable to assist in his own defense or grasp the seriousness of the  proceedings.  Because McGregor sets the tone for the majority's resolution of  Walker's procedural competency claim, I cannot join section I.A. of the majority  opinion.


121
I concur, however, with the majority that Walker has not stated a viable  procedural competency claim.  Rather than recapitulating the factors set out in the  majority opinion, I simply note that viewing all that occurred at trial holistically,  it cannot be said that the trial judge ignored facts which, viewed objectively, raise  a bona fide doubt as to Walker's competency to stand trial.  See Walker v.  Attorney General, 167 F.3d 1339, 1343-45 (10th Cir. 1999).  In particular,  Walker's attorney specifically disavowed any question as to Walker's competency  at trial; although Walker does have a history of mental illness, there was no  medical testimony that should have placed the trial judge on notice that a  competency question existed; there were no instances of bizarre or irrational  behavior that should have caused the trial judge to question Walker's  competency; and, although Walker was taking psychotropic medication at the  time of trial, there is no indication that the dosage changed during the trial or that  Walker was receiving his medication irregularly.  Accordingly, I concur in the  majority opinion except as to Section I.A. and concur in the judgment.



Notes:


1
 As noted in the majority opinion, McGregor will be reheard en banc.


