Lay v. Sirmons

Filing 169

OPINION AND ORDER by Judge Terence Kern ; granting certificate of appealability; denying 18 Petition for Writ of Habeas Corpus (2241/2254); denying 144 Motion for Hearing; finding as moot 147 Motion to Strike Document(s); denying 168 Motion for Miscellaneous Relief (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WADE GREELY LAY,
Petitioner,
v.
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,
Respondent.

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Case No. 08-CV-617-TCK-PJC

OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action. Petitioner, Wade Greely Lay (Lay), is an
Oklahoma death row prisoner, currently incarcerated at the Oklahoma State Penitentiary in
McAlester, Oklahoma. In his petition (Dkt. # 18), Lay, who appears through counsel, alleges that
he “is confined by the State of Oklahoma under a first degree murder conviction and sentence of
death in violation of the laws and Constitution of the United States.” Id. at 1. Respondent filed a
response (Dkt. # 39) to the petition, and Lay filed a reply (Dkt. # 47) to the response. Lay also filed
a “renewed motion for evidentiary hearing” (Dkt. # 144). In response, Respondent filed a “motion
to strike, and alternatively, response to Lay’s renewed motion for evidentiary hearing” (Dkt. # 147).
Lay filed a reply (Dkt. # 152). The state court record has been produced.1 The Court considered
all of these materials in reaching its decision. For the reasons discussed below, the Court concludes
the petition shall be denied. In addition, Lay’s renewed motion for evidentiary hearing shall be
denied and Respondent’s motion to strike shall be denied.

1

References to the transcript of the trial shall be referred to as “Tr. Trans. Vol. __ at __.” The
original state court record for Tulsa County District Court, Case No. CF-2004-2320, shall
be identified as “O.R. Vol. ___ at ___.” Motion hearings shall be identified as “M. Trans.
(date) at ___.”

BACKGROUND
I. Factual Background
Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts found by the state court are presumed
correct. Following review of the record, including the trial transcripts and evidence, this Court finds
that the factual summary provided by the Oklahoma Court of Criminal Appeals (OCCA) in its order
resolving Lay’s direct appeal is adequate and accurate. Therefore, the Court adopts the following
factual summary as its own:
The facts in this case are largely undisputed. Lay does not challenge his
convictions but only the sentences he received for them. On May 24, 2004, Wade
Lay and his son, Chris, entered the MidFirst bank in Tulsa to rob the bank to fund
the purchase of guns to avenge the United States Government’s attacks on Ruby
Ridge and the Branch Davidians. The Lays believed that the United States
Government had become tyrannical and that they had to start a patriotic revolution
as was done by America’s founding fathers.
The Lays entered the bank armed, wearing ski masks and gloves. Christopher
Lay confronted bank employee Brian Easlon and ordered him to the ground. When
bank security guard Kenneth Anderson entered the lobby, a gun battle erupted
wounding the Lays and killing Anderson. The Lays, without obtaining any money,
fled across a field to their truck. Both were apprehended later that day and were
taken to the hospital. At trial, both Lays admitted guilt but asserted that their actions
were driven by a necessity for the greater good of the country.
Lay v. State, 179 P.3d 615, 619 (Okla. Crim. App. 2008) (hereinafter Lay). Additional facts
necessary for a determination of Lay’s claims will be set forth in detail throughout this opinion.
II. Procedural History
In Tulsa County District Court, Case No. CF-2004-2320, Lay was charged jointly with his
son and co-defendant, Christopher Lay (Chris), with First Degree Murder, or in the alternative,
Felony Murder, of Kenneth Anderson (Count I), and Attempted Robbery With a Firearm (Count II).
(O.R. Vol. I at 93-94). On October 25, 2004, the State filed a Bill of Particulars against both Lay,

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id. at 89-90, and Chris, id. at 91-92, seeking the death penalty on the first degree murder charge, and
alleging the following three (3) aggravating circumstances: (1) the defendant knowingly created a
great risk of death to more than one person; (2) the murder was committed for the purpose of
avoiding or preventing a lawful arrest or prosecution; and (3) the existence of a probability that the
defendant would commit criminal acts of violence that would constitute a continuing threat to
society.
Lay and Chris were tried jointly by jury. Lay exercised his constitutional right to selfrepresentation and proceeded pro se at trial. During trial, Lay presented his defense, summarized
by OCCA as follows:
Through his testimony and that of his son, Lay was allowed to present his defense:
he attempted to rob the bank to obtain money to buy guns to avenge perceived
government atrocities. In a nutshell, the Lays claimed they were trying to defend the
freedoms guaranteed by the founding fathers in the Constitution by overthrowing the
tyranny of our current government. Moreover, the Lays argued that they never
intended for anyone to be hurt in the attempted robbery but were prepared in the
event of confrontation.
Lay, 179 P.3d at 622. Lay’s trial was held September 19-28, 2005. At the conclusion of the
guilt/innocence phase, the jury found Lay guilty of both counts.2 (O.R. Vol. II at 362-63). At the
conclusion of the sentencing phase, the jury found the existence of all three alleged aggravating
circumstances, and recommended that Lay receive a sentence of death as to Count I. Id. at 359-60.
As to Count II, the jury recommended a sentence of twenty-five (25) years imprisonment. Id. at 361.

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The jury also found Chris guilty of both counts. (O.R. Vol. II at 354-55). On October 10,
2005, the trial judge sentenced Chris in accordance with the jury’s recommendations to life
imprisonment without the possibility of parole as to Count I and to twenty-five (25) years
imprisonment as to Count II, to be served consecutively. (O.R. Vol. III at 434-40). At trial,
attorneys Robert R. Nigh, Jr., and Kevin Adams represented Chris.
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On October 24, 2005, the trial judge sentenced Lay in accordance with the jury’s recommendations.
(O.R. Vol. III at 475-76, 480-83).
On October 21, 2005, Lay’s appellate counsel, Stephen James Greubel, filed a motion for
new trial and request for evidentiary hearing. (O.R. Vol. III at 444-53). In his motion, Lay asserted
that his substantial rights to a fair trial had been violated as a result of juror misconduct. Id. at 44650. On December 1 and 15, 2005, the trial court held a hearing on the motion for new trial. At the
conclusion of the hearing, the trial judge denied the motion. (M. Tr. 12/15/05 at 65).
Lay appealed his convictions and sentences to the OCCA in Case No. D-2005-1081.
Represented by attorney Greubel of the Tulsa County Public Defender’s Office, Lay raised the
following fourteen (14) propositions of error:
Part A: Assistance of counsel claims
Proposition I:

A defendant in a capital criminal trial has no constitutional right to
proceed without counsel during the penalty phase of that trial.

Proposition II:

The Sixth, Eighth, and Fourteenth Amendments require that a
defendant who represents himself in a capital criminal trial be
provided with a qualified second chair/standby counsel to assist him
with the penalty phase of that trial; alternatively, the district court
abused its discretion in failing to afford second chair/standby counsel
when Wade Lay requested such assistance.

Proposition III:

In this particular capital criminal trial the district court’s inquiry into
Wade Lay’s waiver of his Sixth and Fourteenth Amendment right to
counsel was inadequate to support the conclusion that Wade Lay
voluntarily and intelligently elected to forego representation by
counsel during the penalty phase of his trial.

Part B: Claims arising from penalty phase errors
Proposition IV:

The Eighth and Fourteenth Amendments require the jury to afford
each defendant separate and independent consideration during the
penalty phase.

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Proposition V:

The victim impact testimony violated Wade Lay’s Eighth and
Fourteenth Amendment rights.

Proposition VI:

Failure to instruct the jury that it must find aggravating circumstances
outweigh mitigating factors beyond a reasonable doubt violates the
Supreme Court’s holding in Ring v. Arizona.

Proposition VII:

The trial court failed to instruct the jury in accordance with OUJI
CR2d 4-77 that in regard to those aggravating circumstances proved
by circumstantial evidence “all of the facts and circumstances, taken
together, must be inconsistent with any reasonable theory or
conclusion other than the existence of the aggravating
circumstance[s].”

Proposition VIII:

Oklahoma’s “continuing threat” aggravating circumstance is
unconstitutional.

Part C: Juror misconduct claims
Proposition IX:

Internal juror misconduct deprived Wade Lay of his Sixth and
Fourteenth Amendment rights.

Proposition X:

External juror misconduct deprived Wade Lay of his Sixth and
Fourteenth Amendment rights.

Proposition XI:

The district court’s limited inquiry of prospective jurors during voir
dire was inadequate to allow Wade Lay to intelligently exercise his
peremptory challenges, and therefore violated Wade Lay’s Sixth and
Fourteenth Amendment rights.

Part D: Mandatory sentence review
Proposition XII:

The sentence of death was imposed under the influence of passion,
prejudice and/or other arbitrary factors.

Proposition XIII:

The evidence does not support the jury’s finding of a statutory
aggravating circumstance.
A.

The evidence does not support the jury’s finding that Wade
Lay created a great risk of death to more than one person.

B.

The evidence does not support the jury’s finding that Wade
Lay committed murder for the purpose of avoiding arrest or
prosecution.
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C.

The evidence supports the jury’s factual finding that Wade
Lay is a continuing threat to society, but the aggravating
circumstance itself is unconstitutional.

D.

In the event this court invalidates one or more of the
aggravating circumstances, it must remand the case for a new
trial of the penalty phase rather than re-weigh the remaining
aggravating circumstances against the mitigating factors.

Part E: Cumulative error
Proposition XIV:

Wade Lay was deprived of his Fifth, Eighth and Fourteenth
Amendment rights as a result of the accumulated errors presented
herein.

See Brief of Appellant in OCCA, Case No. D-2005-1081. On January 8, 2007, appellate counsel
filed a motion to supplement opening brief with Appellant’s pro se supplement brief. See Dkt. # 393. In his pro se supplemental brief, Lay argued, inter alia, that he was deprived of his constitutional
right to present his necessity defense. See Pro Se Supplemental Brief of Appellant on Direct
Appeal, filed in Case No. D-2005-1081. On February 12, 2008, the OCCA rejected all of Lay’s
claims, including the claims raised in his pro se supplemental brief, and affirmed his convictions and
sentences. Lay, 179 P.3d at 625.
Lay filed his first application for post-conviction relief on May 30, 2008. Represented by
Oklahoma Indigent Defense System (OIDS) attorneys Vicki Ruth Adams Werneke and Bobby G.
Lewis, he presented the following three (3) grounds for relief:
Proposition One:

Mr. Lay’s constitutional rights to a fair and reliable capital
proceeding were violated when he was allowed to proceed pro se
while suffering with a severe delusional disorder and while more than
likely incompetent to stand trial.

Proposition Two:

The introduction of the victim impact testimony violated Mr. Lay’s
constitutional right to a fair sentencing proceeding.

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Proposition Three:

Failure to provide counsel a copy of the preliminary hearing
transcript has deprived Mr. Lay of a complete and thorough post
conviction review.

See Application for Post-Conviction Relief, Case No. PCD-2006-1013. In an unpublished opinion,
the OCCA denied all requested relief, including Lay’s request for an evidentiary hearing. See
Opinion Denying Application for Post-Conviction Relief, entered Sept. 26, 2008, in Case No. PCD2006-1013.
Lay filed his second application for post-conviction relief on May 4, 2010, after the filing
of the instant habeas corpus case. Represented by attorneys Patti Palmer Ghezzi, an attorney with
the Federal Public Defender’s Office, and Susanna Gattoni, he raised the following propositions of
error:
Proposition I:

Mr. Lay was deprived of his right to confront a critical witness
against him in violation of his Sixth Amendment rights when the
medical examiner who performed the autopsy did not testify, even
though she was an available witness and her report was admitted as
evidence against Mr. Lay.

Proposition II:

Previous appellate counsel were ineffective and violated Lay’s Sixth
Amendment rights.

See Verified Second Application for Post-Conviction Relief, Case No. PCD-2010-407. Lay also
sought an evidentiary hearing on his claims. In an unpublished opinion, the OCCA denied the
subsequent application for post-conviction relief and the request for an evidentiary hearing. See
Opinion Denying Subsequent Post-Conviction Application, entered Oct. 13, 2010, in Case No.
PCD-2010-407.
Lay initiated this federal habeas action by filing an application to proceed in forma pauperis
(Dkt. # 2), and a request for appointment of counsel (Dkt. # 1). In his petition, Lay identifies the
following fourteen (14) claims for relief:
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Claim No. 1:

Mr. Lay is presently incompetent to proceed through federal habeas
corpus proceedings.

Claim No. 2:

Mr. Lay was incompetent to stand trial and incompetent to make trial
decisions without the assistance of counsel throughout all trial
proceedings in violation of his Sixth, Fourteenth, and Eighth
Amendment rights.

Claim No. 3:

The petitioner was deprived of his Sixth Amendment right to the
assistance of counsel and his due process right to a fair trial by the
trial judge’s acceptance of his invalid and uninformed purported
waiver of counsel despite anemic warnings to him about handling his
own defense, all in violation of his Eighth Amendment right to a
reliable sentencing hearing.

Claim No. 4:

The trial court’s egregious error in appointing standby counsel for
pro-se petitioner in this capital case, but preventing standby counsel
from providing the assistance of counsel envisioned by the United
States Constitution, resulted in an inadequate waiver of such counsel,
in violation of the Sixth Amendment and prevented Mr. Lay from
receiving a fair trial under the Fourteenth Amendment, resulting in a
death sentence that violates the Eighth Amendment.

Claim No. 5:

The trial court unfairly exposed Petitioner to a fundamentally unfair
trial by allowing a pro se petitioner to be the ultimate authority on
whether his trial would be severed from that of his son’s without
obtaining a knowing, intelligent, and voluntary waiver of his rights
and all in violation of his Sixth, Eighth, and Fourteenth rights under
the United States Constitution.

Claim No. 6:

Mr. Lay was deprived of his right to confront a critical witness
against him in violation of his Sixth Amendment rights when the
testifying medical examiner did not do the autopsy and merely
parroted the findings, conclusions, and report of the non-testifying
expert who could have been called as a witness, but was not. There
was no rigorous testing of evidence used against Mr. Lay, and his
resulting death sentence was obtained in violation of his Eighth
Amendment rights to a fair and reliable sentencing hearing.

Claim No. 7:

Internal juror misconduct deprived defendant of his Sixth and
Fourteenth Amendment rights and affected defendant’s right to a fair
trial.

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Claim No. 8:

Extrinsic evidence introduced through juror misconduct violated
Wade Lay’s constitutional right to a fair trial.

Claim No. 9:

The trial court did not adequately voir dire the jurors so as to allow
Wade Lay to exercise his peremptory challenges.

Claim No. 10:

Mr. Lay was denied effective assistance of prior counsel in violation
of the Sixth and Fourteenth Amendments.

Claim No. 11:

The introduction of victim impact testimony violated Mr. Lay’s
Eighth and Fourteenth Amendment rights to a fair sentencing
proceeding.

Claim No. 12:

Mr. Lay was deprived of his constitutional rights to a reliable jury
verdict as to two aggravating factors.

Claim No. 13:

Oklahoma’s continuing threat aggravating circumstance is
unconstitutionally vague and overbroad and permits jurors to make
a factual finding on a probability standard instead of the requisite
beyond a reasonable doubt standard.

Claim No. 14:

There is no assurance that all factual findings essential to the jury’s
authority to impose a penalty of death were made beyond a
reasonable doubt as is required by the Sixth, Eighth, and Fourteenth
Amendments.

(Dkt. # 18). Respondent filed a response (Dkt. # 39). Petitioner filed a reply (Dkt. # 47).
Throughout the pendency of this case, Lay has submitted numerous pro se letters and
documents. On February 28, 2013, Lay’s counsel filed a “motion to strike, remove, and delete pro
se documents not in compliance with Federal Rules of Civil Procedure and Local Rules and motion
for order prohibiting electronic filing of any future pro se documents not signed by counsel of
record.” (Dkt. ## 126, 127). Lay’s attorneys argued that the “[pro se] documents present
information which is potentially damaging to [Lay’s] own best interests and that of others, and
which unwittingly, though not necessarily accurately, describe confidential attorney/client
communications.” (Dkt. # 126 at 3). Counsel also acknowledged a “duty to protect Mr. Lay from

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his own actions.” Id. By Order filed March 22, 2013 (Dkt. # 131), the Court agreed with Lay’s
attorneys and granted the motions.
On September 18, 2015, Lay filed a motion “to reclaim deleted files stricken and removed
from the public record and refile all files electronically to be in compliance with Fed. R. Civ. P.
5(d)(4) and remove ruling binding Petitioner to signatory approval of attorneys of record under Fed.
R. Civ. P. 11” (Dkt. # 168). The Court’s concerns with regard to Lay’s pro se filings, as stated in
the prior Order (Dkt. # 131), have not changed. Furthermore, the Court finds Fed. R. Civ. P. 11(a)
applies to this proceeding and requires that every paper submitted for filing be signed by an attorney
of record. For those reasons, Lay’s most recent motion shall be denied.
GENERAL CONSIDERATIONS
I. Exhaustion
Generally, federal habeas corpus relief is not available to a state prisoner unless all state
court remedies have been exhausted prior to the filing of the petition. 28 U.S.C. § 2254(b)(1)(A);
Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994); see also Wainwright v. Sykes, 433 U.S.
72, 80-81 (1977) (reviewing history of exhaustion requirement). In every habeas case, the Court
must first consider exhaustion. Harris, 15 F.3d at 1554. “States should have the first opportunity
to address and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson,
501 U.S. 722, 731 (1991) (explaining that the exhaustion requirement is “grounded in principles of
comity”). In most cases, a habeas petition containing both exhausted and unexhausted claims is
deemed a mixed petition requiring dismissal. Where it is clear, however, that a procedural bar
would be applied by the state courts if the claim were now presented, the reviewing habeas court can
examine the claim under a procedural bar analysis instead of requiring exhaustion. Id. at 735 n.1.

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Also, the Court may exercise its discretion to deny an unexhausted claim that lacks merit. Fairchild
v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009); 28 U.S.C. § 2254(b)(2).
II. Procedural Bar
The Supreme Court has considered the effect of state procedural default on federal habeas
review, giving strong deference to the important interests served by state procedural rules. See, e.g.,
Francis v. Henderson, 425 U.S. 536 (1976). Habeas relief may be denied if a state disposed of an
issue on an adequate and independent state procedural ground. Coleman, 501 U.S. at 750; Medlock
v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000). A state court’s finding of procedural default is
deemed “independent” if it is separate and distinct from federal law. Ake v. Oklahoma, 470 U.S.
68, 75 (1985); Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir. 1998). If the state court finding
is “strictly or regularly followed” and applied “evenhandedly to all similar claims,” it will be
considered “adequate.” Maes v. Thomas, 46 F.3d 979, 986 (10th Cir. 1995) (citation omitted).
To overcome a procedural default, a habeas petitioner must demonstrate either: (1) good
cause for failure to follow the rule of procedure and actual resulting prejudice; or (2) that a
fundamental miscarriage of justice would occur if the merits of the claims were not addressed in the
federal habeas proceeding. Coleman, 501 U.S. at 749-50; Sykes, 433 U.S. at 91. The “cause”
standard requires a petitioner to “show that some objective factor external to the defense impeded
. . . efforts to comply with the state procedural rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Examples of such external factors include the discovery of new evidence, a change in the law, or
interference by state officials. Id. The petitioner must also show “‘actual prejudice’ resulting from
the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982). Alternatively,
the “fundamental miscarriage of justice” exception requires a petitioner to demonstrate that he is

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“actually innocent” of the crime of which he was convicted. McCleskey v. Zant, 499 U.S. 467, 495
(1991). He must make “a colorable showing of factual innocence” to utilize this exception. Beavers
v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000). It is intended for those rare situations “where the State
has convicted the wrong person of the crime. . . . [Or where] it is evident that the law has made a
mistake.” Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995).
III. Standard of Review - AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that a habeas
court apply a “highly deferential standard” under 28 U.S.C. § 2254, one that “demands that
state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, ---, 131
S. Ct. 1388, 1398 (2011) (internal quotation marks omitted). When a state court has adjudicated a
claim on the merits, a federal court cannot grant relief on that claim under § 2254 unless 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). The Supreme Court has emphasized that “review under
§ 2254(d)(1) focuses on what a state court knew and did”; thus, “[s]tate-court decisions are
measured against [Supreme Court] precedents as of the time the state court renders its decision.”
Pinholster, 131 S. Ct. at 1399 (internal quotation marks omitted). “[T]he phrase ‘clearly established
Federal law, as determined by the Supreme Court of the United States’ . . . refers to the holdings,
as opposed to the dicta, of th[e] Court’s decisions . . . .” Williams v. Taylor, 529 U.S. 362, 412
(2000). Federal courts may not “extract clearly established law from the general legal principles
developed in factually distinct contexts,” House v. Hatch, 527 F.3d 1010, 1017 n.5 (10th Cir. 2008),

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and Supreme Court holdings “must be construed narrowly and consist only of something akin to
on-point holdings,” id. at 1015, 1016-17.
A state court decision is “contrary to” the Supreme Court’s clearly established precedent if
it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “confronts
a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405-06. It
is not necessary that the state court cite, or even be aware of, applicable Supreme Court decisions,
“so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early
v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state court decision is an “unreasonable application”
of Supreme Court precedent if the decision “correctly identifies the governing legal rule but applies
it unreasonably to the facts of a particular prisoner’s case.” Williams, 529 U.S. at 407-08. A court
assesses “objective[ ] unreasonable[ness],” id. at 409, in light of the specificity of the rule: “[t]he
more general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “[A]n unreasonable
application of federal law is different from an incorrect application of federal law.” Williams, 529
U.S. at 410. “[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.” Id. at 411. When the state court does not explain its decision, the
applicant must still show that “there was no reasonable basis for the state court to deny relief.”
Harrington v. Richter, 562 U.S. 86, 98 (2011); see Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.
1999) (“we owe deference to the state court’s result, even if its reasoning is not expressly stated”).
Under AEDPA, “a habeas court must determine what arguments or theories supported or . . . could

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have supported[ ] the state court’s decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
decision of [the Supreme] Court.” Richter, 562 U.S. at 102.
Review of substantive rulings under § 2254(d)(1) “is limited to the record that was before
the state court that adjudicated the claim on the merits.” Pinholster, 131 S. Ct. at 1398; see Black
v. Workman, 682 F.3d 880, 895 (10th Cir. 2012) (discussing § 2254 review of state-court merits
decisions after Pinholster); Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015). And a
federal court must accept a fact found by the state court unless the defendant rebuts the finding “by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The Supreme Court has emphasized in
the strongest terms the obstacles to relief, observing that § 2254(d) “reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute
for ordinary error correction through appeal.” Richter, 562 U.S. at 102-03 (internal quotation marks
omitted). To obtain relief, “a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded disagreement.”
Id. at 102. Thus, “even a strong case for relief does not mean that the state court’s contrary
conclusion was unreasonable.” Id. at 88.
Although federal court deference to the state court’s decision is appropriate only on claims
“adjudicated on the merits,” 28 U.S.C. § 2254(d), the petitioner has the burden of showing that the
claim was not so adjudicated. “When a federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the contrary.” Richter,

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562 U.S. at 99; accord Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013). “Where there is no
indication suggesting that the state court did not reach the merits of a claim, we have held that a state
court reaches a decision on the merits even when it fails either to mention the federal basis for the
claim or cite any state or federal law in support of its conclusion.” Dodd v. Trammell, 753 F.3d 971,
983 (10th Cir. 2013) (ellipsis and internal quotation marks omitted). Federal courts do not defer
under AEDPA when the state court did not determine the issue on its merits. If the claim is not
procedurally barred, this Court then decides the issue in the first instance. See Thacker v. Workman,
678 F.3d 820, 829-30 (10th Cir. 2012).
CLAIMS FOR RELIEF
I. Lay’s present competence in this federal habeas corpus proceeding
As the first claim of error, counsel for Lay argue that Lay is presently incompetent to proceed
through this federal habeas corpus proceeding. See Dkt. # 18 at 40. This claim has been rendered
moot by the Supreme Court’s decision in Ryan v. Gonzales, 133 S. Ct. 696 (2013) (finding that the
incompetence of a state prisoner does not require suspension of the prisoner’s federal habeas corpus
proceeding). See Dkt. # 136. For that reason, no relief is warranted on claim 1.
II. Lay’s competence at time of trial
As his second claim of error, Lay alleges that he was incompetent to stand trial and
incompetent to make trial decisions without the assistance of counsel throughout all trial
proceedings in violation of his Sixth, Fourteenth, and Eighth Amendment rights. See Dkt. # 18 at
57. Lay argues that, at the time of his trial, he suffered from a delusional disorder that “prevented
him from being competent to stand trial or waive his right to counsel, and undermined his mental
capacity to represent himself.” Id. at 58. He claims he suffers from “delusions” and that “[t]hese

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delusions about the government and American history were so intertwined in Mr. Lay’s mind that
he truly thought he was meant – in fact ‘called upon’ by a higher power – to enlighten the public
and bring them to the understanding that he had acted out of patriotism.” Id. Lay raises both
substantive and procedural due process claims. Id. at 59.
In support of this habeas claim, id. at 57-95, Lay cites to the expert opinions of Jeanne
Russell, Ed.D., dated May 16, 2008 (id., Ex. 22); Xavier F. Amador, Ph.D., dated September 3, 2009
(Ex. 24); and Michael J. Hanes, Licensed Professional Counselor and Board Certified Art Therapist,
dated August 31, 2009 (Ex. 25),3 along with the original record and the trial record. Lay also cites
the Declarations of Rob Nigh, dated May 11, 2009 (Ex. 4), and Kevin Adams, dated May 27, 2009
(Ex. 5), attorneys representing Chris Lay at trial; the Declaration of Diane Miller, Lay’s cousin,
dated July 24, 2009 (Ex. 6); the Declaration of Rhonda Kemp, Lay’s sister, dated August 26, 2009
(Ex. 7); the Declaration of Eleanor Anderson, Lay’s mother, dated August 26, 2009 (Ex. 9); the
Declaration of Doug Lay, Lay’s brother, dated May 19, 2009 (Ex. 11); the Affidavit of Tammy Lay
Marano, Lay’s ex-wife, dated August 26, 2009 (Ex. 13); the Affidavit of Frank Rhodes, a member
of Eastland Baptist Church, dated August 18, 2009 (Ex. 17); the Affidavit of Bill Field, a former
member of Eastland Baptist Church, dated August 26, 2009 (Ex. 18); the Affidavit of Kim Lay,
Lay’s daughter, dated August 26, 2009 (Ex. 19); the Affidavit of Troy Dorrell, the pastor at Eastland
Baptist Church, dated August 11, 2009 (Ex. 20); the Affidavit of John Mardirosian, the assistant
pastor over operations at Eastland Baptist Church, dated August 26, 2009 (Ex. 21); a second
Affidavit of Troy Dorrell, dated August 26, 2009 (Ex. 23); the Affidavit of Bobby Lewis, an OIDS

3

Of the three (3) expert opinions cited by Lay, only the opinion of Dr. Jeanne Russell (Ex. 22)
has been presented to the OCCA.
16

attorney representing Lay on post-conviction, dated April 29, 2008 (Ex. 27); and the Declaration of
Sid Conway, Lay’s court-appointed counsel before he decided to represent himself, dated July 24,
2009 (Ex. 35).4
In response, Respondent argues that because Lay did not challenge his competency at trial
or on direct appeal, the claim raised in claim two is procedurally barred. See Dkt. # 39. Respondent
also argues that, to the extent the claim was adjudicated on the merits by the OCCA, Lay is not
entitled to habeas corpus relief under 28 U.S.C. § 2254(d) based upon review of the record before
the OCCA.
In reply, Lay argues that the claim is not procedurally barred because the OCCA “was
provided in post-conviction with the most relevant and significant facts to support the salient issue:
‘whether the specific symptoms and/or deficits stemming from a mental disease or defect impair the
capacities for competency.’” (Dkt. # 47 at 38 (citing Ex. 1, ¶ 19 (Dr. Amador’s Declaration, dated
10/22/2010))). Lay acknowledges that many exhibits provided in support of his habeas claims have
not been presented to the OCCA, but contends that the observations contained in the exhibits could
be discerned from the record before the OCCA.5 Id. at 40.

4

Of the affidavits and declarations provided in support of his habeas claim, Lay presented
only the Affidavit of Bobby Lewis to the OCCA in support of his first application for postconviction relief. See Application for Post Conviction Relief, filed May 30, 2008, Case No.
PCD-2006-1013, Ex. 6. Lay also presented affidavits of Eleanor Anderson and Rhonda Lay
Kemp to the OCCA, see id., Exs. 7 and 8. However the affidavits of Eleanor Anderson and
Rhonda Lay Kemp filed as part of this habeas action contain significantly more and different
averments than were presented to the OCCA in Case No. PCD-2006-1013.

5

The Court disagrees with Lay. Much of the information contained in the exhibits attached
to the habeas corpus petition concerns impressions of attorneys and family members
regarding Lay’s conduct both inside and outside the courtroom and could not be discerned
from the record before the OCCA. While the Court recognizes that many of the habeas
exhibits may have been compiled to support Lay’s claim that he is incompetent to proceed
17

A. Procedural Background and the OCCA’s Decision
The record reflects that, for more than a year before being allowed to proceed pro se at trial,
Lay was represented by the Tulsa County Public Defender’s Office. Public Defenders Pete Silva
and Sid Conway represented Lay at the preliminary hearing, held August 3, 2004, and continued
their representation until excused on July 6, 2005, when Lay was allowed to proceed pro se. During
that time, Silva and Conway, both experienced capital defense attorneys, never raised the issue of
Lay’s competence with the trial judge. On direct appeal, Lay was represented by attorney Stephen
Greubel. The issues surrounding Lay’s competence at trial were not raised on direct appeal. When
asked, during oral argument at the OCCA, if there were any issues concerning Lay’s competence,
Greubel inexplicably responded that those issues were properly raised in an application for postconviction relief. Thus, Lay first raised his competence claims in his first application for postconviction relief.
The OCCA denied relief on Lay’s post-conviction challenge to his competence, finding as
follows:
Lay contends in Proposition I that he is entitled to a new trial because he was
incompetent and should not have been allowed to represent himself at trial. Lay also
asserts that his incompetence was obvious and that the trial court should have sua
sponte ordered a competency evaluation before allowing him to waive his right to an
attorney and proceed pro se. Lay further argues that a post-trial/appeal
psychological evaluation reveals that he suffers from a delusional disorder that he
also likely had at the time of trial. As a result of this disorder, Lay not contends that
he failed to present either an effective defense or available mitigation evidence at his
trial.

with this habeas corpus action (claim 1), the Supreme Court made clear in Pinholster that
this Court’s review of a claim adjudicated on the merits by the OCCA is limited to the record
before the OCCA when it adjudicated the claim. Pinholster, 131 S. Ct. at 1398 (explaining
parameters of 28 U.S.C. § 2254(d)).
18

This issue is waived as it should have been presented on direct appeal. Lay
attempts to circumvent this procedural bar by claiming that direct appeal counsel was
ineffective for failing to raise it. In support of his claim, he relies on appellate
counsel’s statement during oral argument that “such facts would be best presented
in a post-conviction application.” Appellate counsel’s belief in this regard is
insufficient to overcome this Court’s rules and his obligation to present this argument
on direct appeal.
Moreover, Lay’s application fails to support his contention that he was
incompetent to represent himself at trial. In fact, his supplementary evaluation
indicates his extremely high I.Q. Lay has failed to present this court with sufficient
evidence of his incompetence at trial. As a result, we find both that this claim is
procedurally barred and that appellate counsel was not ineffective for failing to raise
an unmeritorious issue on direct appeal. Moreover, we find that Lay has failed to
present sufficient evidence of his incompetence at trial to justify an evidentiary
hearing on this issue. Accordingly, this proposition and Lay’s request for an
evidentiary hearing are both denied.
(Opinion Denying Application for Post-Conviction Relief, entered Sept. 26, 2008, in Case No. PCD2006-1013, at 2-3). Thus, although the OCCA found that Lay’s challenge to his competence was
procedurally barred, the state appellate court also found that, based on the record before it, Lay had
failed to present sufficient evidence of his incompetence at trial or of his incompetence to represent
himself. In addition, the OCCA found insufficient evidence to justify an evidentiary hearing on the
issue. Moreover, in adjudicating Lay’s claim that appellate counsel provided ineffective assistance
in failing to raise the competency claim on direct appeal, the OCCA denied relief, finding that the
competence claim lacked merit and, as a result, appellate counsel was not ineffective for failing to
raise an “unmeritorious” claim.
The determination of whether or not the OCCA adjudicated the competence claim on the
merits is significant because a federal evidentiary hearing is permissible for a particular claim only
if, among other requirements, the claim was not “adjudicated on the merits by a state court.”
Pinholster, 131 S. Ct. at 1400. If the claim was adjudicated on the merits, a state prisoner is limited

19

to “the record that was before that state court” in seeking federal habeas relief. Id. Furthermore,
when a state court’s adjudication is ambiguous, i.e., when a claim is rejected without a clear
indication of whether the disposition was based on the merits of the claims presented or instead on
procedural grounds, a federal habeas court must presume that the decision was on the merits, but the
presumption may be overcome under certain circumstances. Richter, 562 U.S. at 98-100. Because
the OCCA characterized Lay’s competence claim as “unmeritorious” and found that, as a result,
appellate counsel did not provide ineffective assistance in failing to raise the claim on direct appeal,
this Court finds the OCCA adjudicated Lay’s competency claim on the merits. See Hooks v. State,
902 P.2d 1120, 1123 (Okla. Crim. App. 1995) (stating that the OCCA looks to the merits of the
omitted issue when it determines appellate counsel effectiveness). As a result, Lay is limited to “the
record that was before the state court” in seeking federal habeas relief. Pinholster, 131 S. Ct. at
1398.
B. Clearly Established Federal Law
It is well established that a criminal defendant has the constitutional right to be competent
to stand trial. See Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); Drope v. Missouri, 420 U.S. 162,
172 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966); Dusky v. United States, 362 U.S. 402
(1960) (per curiam). In Dusky, the Supreme Court held that the standard to determine competency
is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding – and whether he has a rational as well as factual understanding of
the proceedings against him.” Dusky, 362 U.S. at 402. When evidence raises a “bona fide doubt”
as to a defendant’s competence, the trial judge must hold a hearing on the issue. Pate, 383 U.S. at
385. “Competency claims may be based on violations of both procedural and substantive due

20

process.” Allen v. Mullin, 368 F.3d 1220, 1239 (10th Cir. 2004). “A procedural competency claim
is based upon a trial court’s alleged failure to hold a competency hearing, or an adequate
competency hearing, while a substantive competency claim is founded on the allegation that an
individual was tried and convicted while, in fact, incompetent.” Id. (citation omitted).
Lay is not entitled to habeas corpus relief on the claims raised in this ground of error unless
he demonstrates that the OCCA’s adjudication on the merits was “contrary to, or an unreasonable
application of, federal law as determined by the Supreme Court of the United States,” or “was based
on an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is a “difficult to meet,” Pinholster, 131 S. Ct. at
1398 (quoting Richter, 562 U.S. at 102), and “highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the benefit of the doubt,” id. (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks
omitted)). The petitioner carries the burden of proof. Id. (citing Visciotti, 537 U.S. at 25).
Furthermore, as emphasized throughout this Opinion and Order, “review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits.” Id.
C. Procedural Competency
Lay claims that “[t]he trial judge was being unreasonable in allowing Mr. Lay’s capital
murder trial to go forward when the totality of the circumstances before him should have raised a
‘bona fide doubt’ regarding the Petitioner’s competency to stand trial.” (Dkt. # 18 at 60). Lay
asserts that his “statements, demeanor, and behavior evidenced mental illness and raised a bona fide
doubt concerning his competency.” Id. Lay cites numerous instances during both stages of trial
when he believes the trial judge should have been concerned about his competence. He urges that

21

he “was not competent to recognize what was in his best interest.” Id. at 75-76. Lay repeats those
allegations in his reply (Dkt. # 47 at 42-48). Lay relies on Dr. Amador’s report, as well as the
declarations of Dr. DiStefano, Rob Nigh, Kevin Adams, and Sid Conway. Significantly, those
records have never been presented to the OCCA. However, this Court is limited to considering the
record before the state court when the claim was adjudicated on the merits. See Pinholster, 131 S.
Ct. at 1398 (stating that “review under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits”). As a result, this Court may not consider Dr.
Amador’s report and the declarations of Dr. DiStefano, Rob Nigh, Kevin Adams, and Sid Conway
in evaluating Lay’s habeas claims. Id.
The procedural due process right to a competency hearing is grounded on the obligation of
the state to provide adequate procedures to protect accused individuals from being tried while
incompetent. McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001) (citing Pate, 383 U.S. at 378).
In order for a habeas petitioner to prevail on a procedural competency claim, “the petitioner must
establish that a reasonable judge should have had a bone fide doubt as to his competence at the time
of trial. We view the evidence in the record objectively, from the standpoint of a reasonable judge
presiding over petitioner’s case at the time of trial.” Id. at 954. The petitioner “need not establish
facts sufficient to show he was actually incompetent or to show he was incompetent by a
preponderance of the evidence.” Id.; see also Gilbert v. Mullin, 302 F.3d 1166, 1178 (10th Cir.
2002). The Tenth Circuit has explained that:
In determining whether there was a “bona fide doubt” as to competence, there
are
no fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is often
a difficult one in which a wide range of manifestations and subtle
22

nuances are implicated. That they are difficult to evaluate is
suggested by the varying opinions trained psychiatrists can entertain
on the same facts.
Drope, 420 U.S. at 180, 95 S. Ct. 896. Tenth Circuit and Supreme Court precedent,
however, has established a number of factors that should be considered in making
this evaluation-factors that were synthesized in McGregor. Evidence of “irrational
behavior,” “demeanor at trial,” and “any prior medical opinion on competence to
stand trial are all relevant in determining whether further inquiry is required.”
McGregor, 248 F.3d at 954 (quoting Drope, 420 U.S. at 180, 95 S. Ct. 896).
Evidence of “mental illness and any representations of defense counsel about the
defendant’s incompetence” also may be considered. Id. (quoting Walker v. Gibson,
228 F.3d 1217, 1227 (10th Cir. 2000), cert. denied, 533 U.S. 933, 121 S. Ct. 2560,
150 L.Ed.2d 725 (2001)). Although “[e]ven one of these factors standing alone may,
in some circumstances, be sufficient” to find that a defendant is entitled to a
competency hearing, in the end we are required to “examine the totality of the
circumstances: all evidence should be considered together, no single factor ‘stand[s]
alone.’” Id. (quoting Drope, 420 U.S. at 180, 95 S. Ct. 896).
Gilbert, 302 F.3d at1178-79. In Gilbert, the petitioner did not present “the same quantum of
evidence that we have found sufficient in other cases to establish that a due-process violation has
occurred.” Id. at 1180-81 (citing Barnett v. Hargett, 174 F.3d 1128, 1135-36 (10th Cir. 1999)
(finding a bona fide doubt where defendant had a history of mental illness, counsel expressed its
belief that defendant was presently incompetent, and there were prior findings of defendant’s
incompetence during the proceedings); United States v. Williams, 113 F.3d 1155, 1157-59 (10th Cir.
1997) (finding a bona fide doubt where there had been outbursts and hysteria by the defendant in
court); Williamson v. Ward, 110 F.3d 1508, 1514-17 (10th Cir. 1997) (finding counsel ineffective
for not raising a competency claim where defendant had been diagnosed with and treated for mental
illness); Sena v. N.M. State Prison, 109 F.3d 652, 653-55 (10th Cir. 1997) (finding grounds for a
competency hearing where, even though an expert had determined defendant to be competent,
defendant had previously been found incompetent by the trial court)).

23

Upon review of the record in this case, including the pretrial and trial transcripts and the
exhibits presented to the OCCA in support of the first application for post-conviction relief, the
Court finds Lay has failed to demonstrate that the OCCA’s adjudication was contrary to, or an
unreasonable application of, federal law as determined by the Supreme Court, or resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. The record before the OCCA included the report of Jeanne
Russell, Ed.D., the Affidavit of Bobby Lewis, and the Affidavits of Eleanor Anderson and Rhonda
Kemp. Mr. Lewis, an attorney assigned to Lay’s post-conviction appeal states that, after reviewing
records concerning Lay’s social history, Lay “may have been more mentally unstable than was clear
from the trial transcripts.” See Application for Post Conviction Relief, filed May 30, 2008, Case No.
PCD-2006-1013, Ex. 6 at 1 ¶ 3. In her report, dated May 16, 2008, Dr. Russell states that the
purpose of her report was to assist Petitioner’s post-conviction counsel “in understanding Mr. Lay’s
mental health issues and their impact (if any) on his past and current functioning,” and to assess
Lay’s “potential risk for violence while incarcerated.” See id., Ex. 3 at 1. Dr. Russell also states
that Lay suffers from Delusional Disorder, that his delusional beliefs were present during trial, and
that “these beliefs appeared to interfere with his ability to conduct his own defense or work
rationally with an attorney.” Id. at 15, 16.
However, the trial record reflects that Lay had “sufficient present ability” to consult with his
lawyer with a reasonable degree of rational understanding and that he had “a rational as well as
factual understanding of the proceedings against him.” Dusky, 362 U.S. at 402. The trial judge
conducted two hearings on Plaintiff’s motion to proceed pro se. At the first hearing, the trial judge
asked Lay about his formal education. (M. Trans. 6/5/05 at 15). Lay told the judge he was a high

24

school graduate, id. at 15, when in fact he did not complete high school. Similarly, Lay told the trial
judge he had no history of mental health treatment, id. at 16, when in fact he had been treated for
depression in 2003 while in custody at the Arapaho County, Colorado, Detention Facility.
Significantly, however, during the hearings on Lay’s request to proceed pro se, Lay’s trial counsel
at that time did not make any representation to the trial judge that Lay might be incompetent or that
he suffered from any mental infirmity or illness that might interfere with his ability to stand trial or
to proceed to trial without the assistance of counsel. The trial judge asked Mr. Silva directly
whether he could “think of anything that I should ask [Wade Lay] or that you want to put on the
record in any way.” (M. Trans. 6/5/05 at 18). Mr. Silva responded, “[t]his is a bad idea. Sid
[Conway] and I are more than prepared and willing to continue to represent Mr. Lay. He is an
intelligent man. He has put a lot of work into it. But I would certainly try to dissuade him from this
route.” Id. at 19. Mr. Silva did not inform the judge of any concern for Lay’s competence, nor did
he correct the record with regard to either Lay’s education level or prior treatment for depression.
Counsels’ failure to raise the issue of competency at trial, while not dispositive, “is evidence that
the defendant’s competency was not really in doubt and there was no need for a Pate hearing.”
Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996) (noting that “[b]ecause legal competency
is primarily a function of defendant’s role in assisting counsel in conducting the defense, the
defendant’s attorney is in the best position to determine whether the defendant’s competency is
suspect”).
During the second hearing on Lay’s request for self-representation, Lay informed the trial
judge that he was “very confident in my ability to present a defense and that I will be able to handle
myself in the courtroom to a certain degree of professionalism where I won’t be a burden.” (M.

25

Trans. 6/17/05 at 5-6). Lay also emphasized that “this is the most critical moment in my life. It is
very – my life is at risk,” id. at 7, thereby demonstrating his understanding of the charges against
him and the range of punishment he faced. The trial judge also read the charges against Lay and the
range of punishment for each charge and Lay told the trial judge that he understood. Id. at 11. After
the trial judge apprised him of the dangers of self-representation, id. at 12-14, including that Lay
would lose any claim of ineffective assistance of counsel, id. at 14, Lay told the trial judge he
wanted to represent himself. Id.
Thereafter, at a discovery hearing held July 6, 2006, the trial judge appointed Mr. Silva as
standby counsel and again asked Mr. Silva if he had anything else to tell the judge. (M. Trans.
7/6/05 at 18). Again, Mr. Silva failed to voice any concern regarding Lay’s competence and asked
only that he be apprised if the Court entertained a motion for continuance of the trial. Id.
After the trial commenced, the record reflects that, although Lay repeatedly attempted to
share his extreme political views with the jury and with the trial court and, at times, was given the
opportunity to share some of these beliefs, see, e.g., Tr. Trans. Vol. V at 873-876; Tr. Trans. Vol.
VI at 998-99, the fact that Lay had these radical ideas alone was not enough for a reasonable trial
judge to have a bona fide doubt as to Lay’s competence. As pointed out by Lay’s expert report
submitted in these proceedings, see Dkt. # 18-1 at 111-13, there were also several instances,
especially in his second phase closing arguments where Lay boasted of his extraordinary abilities
and gifts from God. See Tr. Trans. Vol. VIII at 1348, 1366. Viewed in hindsight by a mental health
professional, these may be indicators of Lay’s mental illness. However, viewed at the time of trial,
a reasonable trial judge would not likely register Lay’s remarks as indicative of possible
incompetence.

The trial transcripts reflect that Lay behaved in an orderly manner in the

26

proceedings; he was responsive to inquiries from the Court and communicated well, at times very
well; he seemed to understand the proceedings and even seemed to understand and follow the
procedural rules. There is no evidence on the record of any pretrial medical opinion suggesting
Petitioner was not competent to stand trial and there is no evidence that the trial judge was
presented with any evidence that Lay was mentally ill at the time of trial.6
Considering the totality of the circumstances, the record does not suggest that a reasonable
judge would have had a bona fide doubt as to Lay’s competency at the time of trial. Therefore,
Lay’s procedural competency claim lacks merit. Lay has not demonstrated that the OCCA’s
adjudication of this claim was “contrary to, or an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,” or was “based on an unreasonable determination
of the facts in light of the evidence presented” on direct appeal. 28 U.S.C. § 2254(d). Habeas
corpus relief is denied on Lay’s procedural competence claim as asserted in claim 2.
D. Substantive Competency
Lay argues that he was “in fact, tried and convicted while mentally incompetent.” (Dkt. #
18 at 82 (quoting Walker v. Gibson, 228 F.3d 1217, 1229 (10th Cir. 2000), abrogated on other
grounds, Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001)). This claim of substantive competency

6

Respondent provides the observations of Michael R. Basso, Ph.D., Associate Professor of
Psychology at the University of Tulsa, completed on May 10, 2005, or approximately one
month prior to the first hearing on Lay’s motion to proceed pro se at trial. (Dkt. # 39-1). Dr.
Basso evaluated Lay and administered the M.I.N.I. Plus exam. Id. at 8. At the request of
counsel for Respondent, William D. Ruwe, Psy.D., Ph.D., reviewed and summarized Dr.
Basso’s psychological evaluation of Lay. See Dkt. # 39-2. Dr. Basso’s observations, as
summarized by Dr. Ruwe, stand in stark contrast to the opinions expressed by Dr. Russell
and Dr. Amador. According to Dr. Ruwe, Dr. Basso observed no symptoms of
schizophrenia, an absence of paranoid ideation, an absence of delusional thinking, and an
absence of symptoms characteristic of a psychotic disorder. Id. at 4-7.
27

is not subject to procedural bar. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). In
support of his claim, Lay cites to “bizarre behaviors behind the scene that cement the fact that Mr.
Lay was not competent to stand trial.” (Dkt. # 18 at 82). Lay cites letters written to family
members. He also claims that symptoms of his disease of “paranoid schizophrenia” were evident
as early as 1984 when he was in his late twenties, id. at 85, and that his disease went undiagnosed
and untreated for years, id. at 87. Lay also complains that “[i]t was clearly unreasonable for the
OCCA . . . to rely on the single fact that Mr. Lay has ‘an extremely high I.Q.’ to reject the claim.”
(Dkt. # 47 at 46).
“[A] substantive competency claim is founded on the allegation that an individual was tried
and convicted while, in fact, incompetent.” McGregor, 248 F.3d at 952. However, the Court has
determined above that Lay’s procedural competency claim is without merit and that finding
forecloses his substantive challenge. See United States v. Cornejo-Sandoval, 564 F.3d 1225, 1236
(10th Cir. 2009) (citing United States v. Herrera, 481 F.3d 1266, 1272 n.1 (10th Cir. 2007) (“Since
we conclude no bona fide doubt exists that [the defendant] was not incompetent at trial, he likewise
fails to make a substantive due process claim.”)). “Where a petitioner cannot show a bona fide
doubt as to his competency, ‘he cannot meet the more stringent substantive due process competency
standard.’” Id. (quoting Walker, 228 F.3d at 1230). Therefore, Lay has failed to demonstrate
entitlement to habeas corpus relief on his substantive competency claim.
E. Ineffective assistance of appellate counsel
In its post-conviction analysis, the OCCA stated that Lay’s claim that he suffered from
delusions and was incompetent at the time of trial was procedurally barred. However, the OCCA
also determined that appellate counsel did not provide ineffective assistance in failing to raise the

28

claim because it was “unmeritorious.” As determined above, based on the record before the OCCA
at the time of its post-conviction ruling, the underlying claim of incompetence at trial was not
supported by the record. Because the omitted claim lacked merit, appellate counsel did not provide
ineffective assistance in failing to raise it. See Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir.
2004) (per curiam) (citing Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)). As discussed
in more detail in Part X below, the OCCA’s adjudication of Lay’s ineffective assistance of appellate
counsel claim is not contrary to, or an unreasonable application of federal law as determined by the
Supreme Court. His request for habeas corpus relief is denied on claim 2.
III. Validity of waiver of right to counsel
In claim 3, Lay alleges that he was deprived of his Sixth Amendment right to the assistance
of counsel and his due process right to a fair trial by the trial judge’s acceptance of his invalid and
uninformed purported waiver of counsel despite anemic warnings to him about handling his own
defense, all in violation of his Eighth Amendment right to a reliable sentencing hearing. (Dkt. # 18
at 96). On direct appeal, Lay claimed that the penalty phase of his trial was rendered unreliable
when it was held in the absence of legal counsel. (Principal Brief of Appellant on Direct Appeal at
12). Specifically, he claimed that a defendant in a capital criminal trial has no constitutional right
to proceed without counsel during the penalty phase of trial, that he should have been provided
qualified second chair/standby counsel to assist him during the penalty phase of trial (raised
separately as claim 4 and discussed below), and that the district court’s inquiry into his waiver of
his Sixth and Fourteenth Amendment right to counsel was inadequate to support the conclusion that
he voluntarily and intelligently elected to forego representation by counsel during the penalty phase

29

of his trial. Id. The OCCA rejected the claims raised by Lay, citing Faretta v. California, 422 U.S.
806, 833-34 (1975) (defendant entitled to self-representation at trial and may waive right to counsel).
Lay argues that the OCCA unreasonably applied clearly established federal law in ruling that
his waivers of his right to counsel at the guilt and sentencing phases of his capital trial were
knowing, voluntary, and intelligent. (Dkt. # 18 at 106). In support of this habeas corpus claim, Lay
argues that his decision to waive counsel was invalid because he was incompetent and he again
relies, in part, on a report prepared by Dr. Xavier P. Amador, Ph.D., dated September 3, 2009.7 He
also complains that, during the hearings on waiver of counsel, the trial judge gave “anemic,
superficial warnings” concerning the pitfalls of self representation and argues that the invalidity of
the waiver is supported by the record reflecting his focus on issues at the Tulsa County Jail. Lay
claims that the OCCA erred when it found his waiver of counsel included the second stage, that the
OCCA “glossed over” the trial court’s lack of a rigorous inquiry, and that the OCCA’s adjudication
of this claim was an unreasonable application of clearly established federal law because of the
failure to use the heightened standard of review required by the Constitution and Faretta. (Dkt. #
18 at 109-10 (citing Furman v. Georgia, 408 U.S. 238 (1972)). Counsel for Lay also argues that,
because “the trial court did not tailor any of the discussion with Mr. Lay on the dangers and
disadvantages of representing himself at the penalty phase of a capital case,” the OCCA’s decision
was “unreasonably based on the facts in the record,” and Lay is entitled to habeas relief under 28
U.S.C. § 2254(d)(2). Id. at 114.

7

As stated above, Dr. Amador’s report has never been presented to the OCCA. As a result,
this Court may not consider it in evaluating Lay’s claims under § 2254(d)(1). See Pinholster,
131 S. Ct. at 1398 (stating that “review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits”).
30

In response, Respondent argues that Lay has not demonstrated entitlement to relief under 28
U.S.C. § 2254(d). (Dkt. # 39 at 56). Respondent emphasizes that the right to present a defense is
a “personal one,” and that the standard of proof for waiver of counsel is found in Faretta: whether
the defendant knowingly and intelligently forgoes the benefits associated with the right to counsel.
Id. at 50. Respondent claims that the trial court’s warnings to Lay “were at least as rigorous” as the
warnings approved by the Supreme Court in Faretta. Id. at 51-52. Also, Respondent cites cases for
the proposition that Faretta applies to the sentencing phase of a capital trial. Id. at 55-56.
Lay replies that his incompetency claim and the inadequate warning claim are “intertwined”
and that Respondent ignores the independent Faretta requirement that “only a competent defendant
may knowingly, voluntarily, and intelligently waive his Sixth Amendment right to counsel.” (Dkt.
# 47 at 49 (citing Faretta, 422 U.S. at 833-34)). Lay claims that his incompetency resulted in an
invalid waiver. Id. at 50.
A. Competence to waive right to counsel
A criminal defendant has the right to represent himself without counsel, provided that he
knowingly and intelligently foregoes the benefits of having counsel assist him. Faretta, 422 U.S.
at 835. When a defendant exercises his right to self-representation and waives his right to counsel,
the validity of such a waiver contains two distinct inquiries: the court must first ensure that the
defendant is competent to waive counsel and it must then determine that the waiver is knowing and
voluntary. Maynard v. Boone, 468 F.3d 665, 676 (10th Cir. 2006).
In Indiana v. Edwards, 554 U.S. 164, 174-76 (2008), the Supreme Court found that the
standard for competence to stand trial and the standard for competence to represent oneself are
different. “In certain instances an individual may well be able to satisfy Dusky’s mental competence

31

standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to
carry out the basic tasks needed to present his own defense without the help of counsel.” Id. at 17576. However, it did not define what the standard for competence to represent oneself is noting that
“[m]ental illness itself is not a unitary concept. It varies in degree. It can vary over time. It
interferes with an individual’s functioning at different times in different ways.” Id. at 175. The
Court ultimately held that:
[T]he Constitution permits judges to take realistic account of the particular
defendant’s mental capacities by asking whether a defendant who seeks to conduct
his own defense at trial is mentally competent to do so. That is to say, the
Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial under Dusky but who still suffer from severe mental
illness to the point where they are not competent to conduct trial proceedings by
themselves.
Id. at 178. In United States v. DeShazer, 554 F.3d 1281 (10th Cir. 2009), the Tenth Circuit applied
the Supreme Court’s holding in Edwards as follows:
To the extent that Mr. DeShazer suggests that the district court was duty-bound to
deny him the right, we do not read Edwards as announcing such a new rule. By its
terms, the Edwards Court held only that “the Constitution permits States to insist
upon representation by counsel for those competent enough to stand trial . . . but who
still suffer from severe mental illness to the point where they are not competent to
conduct trial proceedings by themselves.” Edwards, 128 S. Ct. at 2388. Thus, while
the district court was not compelled to find Mr. DeShazer competent to waive his
right to counsel simply because the court had found him competent to stand trial, it
does not follow that the district court was absolutely prohibited from doing so. To
the contrary, Edwards itself reaffirmed that a court may constitutionally permit a
defendant to represent himself so long as he is competent to stand trial. Id. at 2385.
We are aware of no case that reads Edwards differently. Accordingly, the district
court did not err, let alone plainly err, in finding Mr. DeShazer competent to waive
his right to counsel and represent himself at trial. See United States v. Taylor, 514
F.3d 1092, 1100 (10th Cir. 2008) (explaining that error is plain when it is contrary
to well-settled law).
United States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009).

32

On direct appeal, the OCCA determined that Lay’s waiver of counsel “was valid for the
entire trial, including the sentencing phase.” Lay, 179 P.3d at 620. As discussed above, Lay is not
entitled to habeas corpus relief on his claim that he was tried while incompetent. Lay was assisted
by counsel at the hearings on his request to waive counsel. Counsel did not raise the question of
competency to the trial court, or offer any objection because of Lay’s mental state. The record
before the OCCA does not reflect that, at the time of trial, Lay suffered “from severe mental illness
to the point where [he was] not competent to conduct trial proceedings by [himself].” Edwards, 554
U.S. at 178. Lay has not demonstrated that the OCCA’s adjudication of this claim was “contrary
to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or was “based on an unreasonable determination of the facts in light of the evidence
presented” on direct appeal. 28 U.S.C. § 2254(d). Lay is not entitled to habeas corpus relief on his
challenge to his competence to waive counsel.
B. Adequacy of inquiry into waiver of right to counsel
On direct appeal, Lay challenged the adequacy of the trial judge’s inquiry into the waiver
of his right to counsel. The OCCA rejected the claim, finding as follows:
Lay does not challenge the validity of his waiver for the guilt/innocence phase of his
trial. In fact, Lay commends the district court for doing an “admirable job” in
securing Lay’s waiver that stage. “All that is required for an effective election for
self-representation is that the defendant have full knowledge or adequate warning
concerning this right and a clear intent to exercise it.” This is so the record will
establish “that ‘he knows what he is doing and his choice is made with eyes wide
open.’”
Here, Lay’s waiver of counsel was valid for the entire trial, including the
sentencing phase. He was informed of his right to counsel and the dangers of
self-representation. He was also informed that he would not have a second chair or
standby counsel in the courtroom. He was strongly discouraged from representing
himself. Although Lay was made well aware of the advantages and disadvantages
of self-representation, he knowingly and voluntarily chose to represent himself.
33

Lay, 179 P.3d at 620.
Under the facts of this case, the Court cannot find that Petitioner is entitled to relief under
28 U.S.C. § 2254(d). Whether a waiver was knowing, intelligent, and voluntary “depends in each
case upon the particular facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused.” Edwards v. Arizona, 451 U.S. 477, 482 (1981) (internal
quotations omitted). A defendant “should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish that ‘he knows what he is doing and his choice
is made with eyes open.’” Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann,
317 U.S. 269, 279 (1942)); see also Johnson v. Zerbst, 304 U.S. 458, 468 (1938) (stating that waiver
of counsel must be “competently and intelligently” made). The Supreme Court has provided
guidelines for courts to consider when accepting a waiver of counsel:
To be valid such waiver must be made with an apprehension of the nature of the
charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a broad understanding of the whole
matter.
Von Moltke v. Gillies, 332 U.S. 708, 724 (1948). “The record must show, or there must be an
allegation and evidence which show, that an accused was offered counsel but intelligently and
understandingly rejected the offer.” Carnley v. Cochran, 369 U.S. 506, 516 (1962). Whether the
waiver is knowing and voluntary hinges on the defendant’s understanding of the significance and
consequences of his decision, as well as whether the decision was coerced. Maynard, 468 F.3d at
677. Thus, the Tenth Circuit has said that “[i]t is ‘ideal’ when the trial judge conducts a ‘thorough
and comprehensive formal inquiry’ including topics such as the nature of the charges, the range of
punishment, possible defenses, and a disclosure of risks involved in representing oneself pro se.”

34

United States v. Turner, 287 F.3d 980, 983 (10th Cir. 2002) (quoting United States v. Willie, 941
F.2d 1384, 1388 (10th Cir. 1991)). However, “[n]o precise litany is prescribed.” United States v.
Padilla, 819 F.2d 952, 959 (10th Cir. 1987). Additionally, a defendant’s technical legal knowledge
is not relevant to an assessment of his knowing exercise of the right to waive counsel. Faretta, 422
U.S. at 836.

Nevertheless, failure to conduct this inquiry does not necessarily indicate a

constitutional violation if the surrounding facts and circumstances indicate that the defendant
“understood his right to counsel and the difficulties of pro se representation.” Willie, 941 F.2d at
1389. Even if a defendant “conduct[s] his own defense ultimately to his own detriment, his choice
must be honored out of that respect for the individual which is the lifeblood of the law.” Faretta, 422
U.S. at 834 (internal quotation omitted).
“In this context, knowing and intelligent means only that he was reasonably informed by the
court of the hazards of self-representation and had sufficient understanding of those hazards. The
trial court’s obligation is to impart enough information to the defendant so that the defendant can
make a fully informed choice.” Turner, 287 F.3d at 984 (determining that the district court provided
defendant enough information for knowing and intelligent waiver where “[t]he court informed Mr.
Turner that he had a right to competent counsel to represent him, advised Mr. Turner of the charges
against him, and explained to Mr. Turner that he would be required to follow court rules without any
assistance from the judge.”). In determining whether a defendant knowingly and intelligently
waived his right to counsel, “we must consider the total circumstances of the individual case
including background, experience and the conduct of the accused person.” Padilla, 819 F.2d at 958
(quotation omitted).

35

After receiving Lay’s request to waive his right to counsel, the trial judge conducted two (2)
ex parte hearings with Lay and his appointed attorneys, Public Defenders Pete Silva and Sid
Conway.8 At those hearings, the trial judge attempted to “dissuade” Lay from representing himself,
M. Trans. 6/2/05 at 2; advised Lay that he would be “bound by the rules,” and that he would be
hampered in marshaling evidence from jail, id. at 4; asked Lay about his education level and history
of treatment for mental illness, id. at 15, 16; advised Lay that his attorneys would be able to
undertake the “difficult task” of conducting a capital trial, id. at 21-22; that a “second chair” attorney
would not be appointed but that if Lay changed his mind during trial, the Public Defender’s Office
would be reappointed and brought back to the courtroom to represent Lay, M. Trans. 6/17/05 at 3;
advised Lay that he, the trial judge, could not “referee” incidents at the jail, id. at 8; read the charges
and the applicable punishments faced by Lay if convicted, id. at 11; advised Lay of the dangers of
self-representation, id. at 12, and that by choosing self-representation, Lay would lose any claim of
ineffective assistance of counsel, id. at 14. Lay repeatedly told the trial judge that he was “very
confident in representing myself,” that he “could accomplish the task,” comply with the court’s
rules, and “not be a burden,” M. Trans. 6/2/05 at 7, M. Trans. 6/17/05 at 3, 5-6. Lay also told the
trial judge that he would be more comfortable if standby counsel were present in the courtroom, M.
Trans. 6/2/05 at 17, but that he understood and respected the judge’s decision not to appoint a
“second chair [attorney],” M. Trans. 6/17/05 at 3; that he understood this to be “the most critical
moment in my life . . . my life is at risk,” id. at 7; and that he understood the charges and the range

8

Significantly, and as noted previously, Lay’s court-appointed attorneys, who had represented
Lay for more than a year, never raised any concern with regard to Lay’s competence during
the two hearings. When the trial judge asked Mr. Silva if he had anything for the record, Mr.
Silva stated only that “[t]his is a bad idea,” and assured the judge that he and Ms. Conway
“are more than prepared.” (M. Trans. 6/2/05 at 19).
36

of punishment he faced, id. at 11. Lay also stated that he intended to be prepared for trial, but that
incidents at the jail, including the disappearance of legal books and papers and lack of telephone
access, were making it difficult. M. Trans. 6/2/05 at 12. At the end of the second hearing, Lay told
the trial judge that he wanted to represent himself. M. Trans. 6/17/05 at 13-14.
Although Lay now describes the trial judge’s warnings concerning the pitfalls of selfrepresentation as “superficial,” (Dkt. # 18 at 96), and emphasizes that the trial judge never discussed
the importance of mitigation evidence during the second stage of a capital trial, id. at 110-13, the
Court nonetheless finds the trial court’s inquiry into Lay’s decision to waive counsel and proceed
pro se was adequate under Faretta. The Court further finds that, although Lay focused on conditions
and experiences at the jail during the hearings, his concerns, in large part, related to conditions
affecting his ability to prepare for trial. The record reflects that Lay’s decisions to waive his right
to counsel and exercise his right to self-representation were knowingly, intelligently and voluntarily
made. Lay has not demonstrated that the OCCA’s adjudication of this claim was “contrary to, or
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or was “based on an unreasonable determination of the facts in light of the evidence
presented” on direct appeal. 28 U.S.C. § 2254(d). For that reason, his request for habeas corpus
relief is denied.
C. Right to proceed without counsel during penalty phase of a capital trial
On direct appeal, the OCCA rejected Lay’s claim that a defendant in a capital criminal trial
has no constitutional right to proceed without counsel during the penalty phase of trial.
Lay initially claims that he had no right to self-representation in the penalty
phase of a capital trial and that it was error for the trial court to allow him to
represent himself in the penalty phase. Specifically, he argues that the increased
scrutiny demanded by the Eighth Amendment to the U.S. Constitution in a capital
37

trial overrides a defendant’s right to self-representation. Notwithstanding Lay’s
assertions, the right of self-representation is not limited based upon the type of trial,
and the law allows a competent defendant to waive any right to counsel during any
phase of a capital trial. We agree with the Seventh Circuit’s assessment [in Silagy
v. Peters, 905 F.3d 986, 1007 (7th Cir. 1990)]:
The [United States Supreme] Court in Faretta did not impose any
restrictions upon a defendant’s right to refuse assistance of counsel
except to state that the right must by “knowingly and intelligently”
waived. Moreover, we can think of no principled reason to deny a
death-eligible defendant his Faretta right to proceed without the
assistance of counsel. If an individual in a capital sentencing hearing
wishes to proceed pro se, Faretta grants him the right to do so.
Lay does not challenge the constitutionality of pro se representation at the
guilt/innocence stage of his trial which is as important – if not more so – than the
penalty stage. If a defendant is acquitted or convicted of a lesser crime, the death
penalty is not longer a sentencing option. Regardless we hold that a criminal
defendant may represent himself at all phases of a capital trial: guilt/innocence and
sentencing.
Lay, 179 P.3d at 619 (footnotes omitted).
This Court agrees with the OCCA and finds Lay’s argument has no basis in law. First,
neither Faretta nor any subsequent ruling by the United States Supreme Court limits the Sixth
Amendment right to self-representation to non-capital cases. Furthermore, the United States
Supreme Court has never held that the right to self-representation does not extend to the penalty
phase of a capital trial. As noted by the OCCA, the Seventh Circuit Court of Appeals has held that
the right to self-representation applies in capital sentencing proceedings. Silagy v. Peters, 905 F.2d
986, 1007-08 (7th Cir. 1990) (stating that “[i]f an individual in a capital sentencing hearing wishes
to proceed pro se, Faretta grants him the right to do so”). And, in another case cited by the OCCA,
United States v. Davis, 285 F.3d 378 (5th Cir. 2002), the Fifth Circuit Court of Appeals ruled that
the federal district court’s decision to appoint independent counsel for a pro se defendant at the
penalty phase of a capital murder case for the purpose of presenting mitigating evidence of the kind
38

that the defendant had specifically declined to present violated the defendant’s Sixth Amendment
right to self-representation. “Faretta teaches us that the right to self-representation is a personal
right. It cannot be impinged upon merely because society, or a judge, may have a difference of
opinion with the accused as to what type of evidence, if any, should be presented in a penalty trial.”
Davis, 285 F.3d at 384. Lay fails to demonstrate that the OCCA’s adjudication of this claim was
contrary to, or an unreasonable application of, federal law as determined by the Supreme Court. 28
U.S.C. § 2254(d). For that reason, his request for habeas corpus relief is denied.
IV. Trial court erred in preventing standby counsel from providing assistance during trial
In claim 4, Lay alleges that the trial court erred in preventing standby counsel from providing
assistance and that the error resulted in an inadequate waiver of counsel, thereby preventing Lay
from receiving a fair trial under the Fourteenth Amendment and resulting in a death sentence that
violates the Eighth Amendment. (Dkt. # 18 at 115). On direct appeal, Lay argued that the Sixth,
Eighth, and Fourteenth Amendments require that a defendant who represents himself in a capital
criminal trial be provided with a qualified second chair/standby counsel to assist him with the
penalty phase of the trial; alternatively, Lay argued that the district court abused its discretion in
failing to afford second chair/standby counsel when Wade Lay requested such assistance during the
hearings on his request for self-representation. (Principal Brief of Appellant on Direct Appeal at 1320). The OCCA denied relief on these claims, finding as follows:
Lay next argues a defendant who represents himself in the penalty phase of
a capital trial must be granted the assistance of qualified standby counsel. Lay again
premises his point on the claim that the penalty phase of a capital trial requires
additional protection based upon the Eighth Amendment. We have previously urged
trial courts to appoint standby counsel to advise the defendant and maintain orderly
proceedings when a defendant desires to represent herself/himself. Although trial
courts should appoint standby counsel in any case where a defendant desires self-

39

representation, at the time of Lay’s trial it was not required in any case, including the
sentencing phase of a capital trial.
Given that appointment of standby counsel was not required at the time of
Lay’s trial, we find that the district court did not abuse its discretion when it denied
his request for a second chair or standby counsel at trial. Additionally, when Lay
waived his right to representation, he knew he would not have standby counsel in the
courtroom to assist him at the hearings or trial, as the trial court informed Lay that
standby counsel would be available if needed but not in the courtroom. The trial
court further advised Lay that if he decided not to represent himself, counsel would
be appointed for him. Armed with this knowledge, Lay made his choice.
Even though it was not then, and is not now required by either the state or
federal Constitution, given the magnitude of a capital trial and its consequences, we
are of the opinion that the trial court should have required standby counsel to be
present at trial to assist Lay with his self-representation at all phases of the trial. In
the future, we require that the trial court appoint standby counsel in all capital cases
where an indigent defendant is representing himself/herself. Moreover, such standby
counsel shall be present at all court proceedings to assist the defendant in selfrepresentation but allow the defendant to maintain control of the case.
Lay, 179 P.3d at 620 (footnotes omitted).
Without citation to the record, Lay alleges in his habeas petition that, while the trial judge
accepted his “waiver” of counsel for the guilt stage, Lay requested the assistance of counsel in the
punishment stage, and the trial judge appointed his former counsel as “standby” counsel. (Dkt. #
18 at 115). Lay claims that, even though he told the trial judge that he would be “uncomfortable”
with his standby counsel “standing by in another building” (M. Trans. 6/2/05 at 17), the trial judge
nonetheless did not allow “standby” counsel to be present in the courtroom and required them to
remain on call across the street from the courthouse. (Dkt. # 18 at 115). Lay also alleges that the
trial judge erred when he told Lay to ask him or Chris Lay’s attorney, Rob Nigh, if he had any
questions during trial. Id. at 121, 124. Lay claims that the trial judge “completely missed the boat”
by appointing standby counsel and then refusing to allow them to assist Lay, an error of law of
“constitutional magnitude.” Id. at 122-23. He also claims that no reasonable fact finder could
40

determine that he “knowingly and voluntarily waived his right to the assistance of counsel in the
sentencing phase of his trial . . . .” Id. at 123. For those reasons, Lay asserts that the trial judge’s
failure to allow “Mr. Lay the benefit of [standby counsel in the courtroom] denies him a fair trial”
as guaranteed under the Sixth, Eighth, and Fourteenth Amendments, id. at 116, and that the OCCA’s
decision was “based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceedings,” id. at 123.
In response, Respondent argues that “[t]here is no clearly established federal law demanding
appointment of standby counsel for capital defendants.” (Dkt. # 39 at 57). Respondent also
maintains that after the trial judge told Lay that standby counsel would not be present in the
courtroom, Lay “acquiesced in the decision and nevertheless chose to proceed pro se.” Id. at 58.
In reply, Lay rebuts Respondent’s arguments, claiming that “[t]here are clearly established general
principles of Constitutional law that standby counsel is permitted to assist a pro-se defendant in
meaningful ways.” (Dkt. # 47 at 59-60 (citing McKaskle v. Wiggins, 465 U.S. 168, 170-74 (1984))).
A. Failure to appoint qualified standby counsel to assist with trial
Neither Faretta nor McKaskle, 465 U.S. at 184 (recognizing that where standby counsel has
been appointed over a defendant’s objection, excessive participation by standby counsel or the
appearance that the defendant is not representing himself may violate the defendant’s Sixth
Amendment right to self-representation), required the appointment of standby counsel. See, e.g.,
Moody v. Thomas, — F. Supp. 3d — , 2015 WL 1004683, *35 (N.D. Ala. 2015). There is no
federal constitutional right to appointment of standby counsel where a defendant has knowingly and
voluntarily waived his right to counsel and elected to exercise his right to self-representation.
Furthermore, in Oklahoma at the time of Lay’s trial, the appointment of “standby counsel” was a

41

“discretionary matter for the trial court to decide.” Parker v. State, 556 P.2d 1298, 1302 (Okla.
Crim. App. 1976); see also United States v. Gigax, 605 F.2d 507, 517 (10th Cir. 1979), overruled
on other grounds by United States v. Lang, 364 F.3d 1210 (10th Cir. 2004). The OCCA has
recognized that “there is no constitutional right to hybrid representation partially pro se and partially
by counsel.” Parker, 556 P.2d at 1302 (citing Stiner v. State, 539 P.2d 750, 759 (Okla. Crim. App.
1975)).
Lay has failed to demonstrate that OCCA’s adjudication of his challenge to the trial judge’s
failure to allow standby counsel to be present in the courtroom was “contrary to, or an unreasonable
application of, clearly established federal law as determined by the Supreme Court,” 28 U.S.C. §
2254(d)(1), or “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)(2). The record reflects that during
the first hearing on Plaintiff’s motion for self-representation, the trial court told Lay that “it’s my
belief that stand-by counsel, they’re standing by over in another building,” and that “it’s not as
though if you represent yourself, you have a lawyer there to answer every question that you have
and to help you through these tough spots because to me there’s no distinction between the two of
them. So you would be on your own.” (M. Trans. 6/2/05 at 4-5). Lay told the trial judge that his
“impression of stand-by counsel . . . was that they would be here in the courtroom with me. I
thought that’s what – the way that process worked, but if that’s not state law, then –“ Id. at 11. The
trial judge interjected:
[A]t least from my recollection, stand-by counsel, it’s not second chair . . . what
you’re describing to me is what we would call second chair. You would be lead
chair and one of these people would be second chair. Well, that’s not representing
yourself. That’s having an attorney, but having them be there to give you legal
advice and have you kind of run the show. And at least my impression is is [sic] that
that’s not what stand-by counsel is.
42

Id. at 12.
At the second hearing, held more than two (2) weeks later, the trial judge told Lay that, after
conducting more research on the issue, “stand-by counsel to me is just that, is that if it becomes
necessary . . . to appoint counsel, then I would reappoint the Public Defender’s Office and have them
back in here, but that your request to represent yourself means that you are representing yourself and
that I will not be appointing a second chair for you to give you legal advice as this matter goes
along.” (M. Trans. 6/17/05 at 3). The trial judge also stated that standby counsel would be available
to take the case over if necessary, and that Lay had the right to withdraw his waiver of counsel at
any time in the proceedings and to have counsel appointed to represent him. Id. at 13-14. As he had
done previously, Lay informed the trial judge that he wanted to represent himself, and he proceeded
to trial without the assistance of counsel. Id. at 14.
After Lay was allowed to proceed pro se and prior to commencement of trial, the trial judge
repeatedly admonished Lay that he needed to focus on preparing his defense, see M. Trans. 8/1/05
at 9-13, M. Trans. 8/12/05 at 15-21, M. Trans. 8/23/05 at 19, and reminded him that the death
penalty was on the table, see M. Trans. 8/12/05 at 22, M. Trans. 8/23/05 at 19. Although the trial
judge explained that Lay could withdraw his waiver of counsel “if he change[d his] mind in the
course of the trial,” see M. Trans. 6/17/05 at 13-14, and advised Lay that, if Lay failed to advance
his case through pretrial preparation, he would reappoint the Public Defender’s office, see M. Trans.
7/8/05 at 44, the record reflects that Lay never again expressed a need or desire to have standby
counsel present in the courtroom or to withdraw his waiver of counsel.
Lay has not established that the OCCA’s adjudication of this claim was contrary to, or an
unreasonable application of, clearly established federal law as determined by the Supreme Court.

43

28 U.S.C. § 2254(d)(1). Nor has Lay demonstrated that the OCCA’s decision 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)(2). He is not entitled to habeas corpus relief on this claim.
B. Fourteenth Amendment protection
Lay also claims that the OCCA’s refusal to apply to Lay its ruling that, in the future, trial
judges must appoint standby counsel to be present in the courtroom for pro se litigants in capital
cases, violated his due process rights under the Fourteenth Amendment. (Dkt. # 18 at 124-25).
While this claim was not presented to the OCCA as part of Lay’s post-conviction proceedings and,
as a result, is unexhausted and procedurally barred, the Court nonetheless denies relief under 28
U.S.C. § 2254(b)(2).
In support of this claim, Lay cites Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). In Hicks,
the Supreme Court held that Oklahoma violated due process guarantees by depriving the defendant
of an undisputed state statutory right to have his punishment determined by a jury. Id. The Court
explained that,
Where . . . a State has provided for the imposition of criminal punishment in the
discretion of the trial jury, it is not correct to say that the defendant’s interest in the
exercise of that discretion is merely a matter of state procedural law. The defendant
in such a case has a substantial and legitimate expectation that he will be deprived
of his liberty only to the extent determined by the jury in the exercise of its statutory
discretion, cf. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60
L. Ed. 2d 668 (1979), and that liberty interest is one that the Fourteenth Amendment
preserves against arbitrary derivation by the State.
Id.
The Court finds that Lay reads Hicks too broadly. In Lay’s case, the OCCA explicitly
recognized and emphasized that appointment of standby counsel in a capital case “was not then, and
is not now required by either the state or federal Constitution,” and then determined that, although
44

there had been no abuse of discretion in Lay’s case, “given the magnitude of a capital trial and its
consequences,” the appointment of standby counsel to be present at all court proceedings in capital
cases would be required in the future. Lay, 179 P.3d at 620. Thus, the OCCA’s ruling was not
premised on the trial court’s violation of a statutory or constitutional right and its failure to apply
its ruling to Lay did not violate Lay’s right to due process.9 Lay is not entitled to habeas corpus
relief on this claim.
V. Trial court error in allowing Lay to decide to be tried jointly with his son
As claim 5, Lay alleges that the trial court erred in allowing him to decide whether his trial
would be severed from that of his son. (Dkt. # 18 at 126). Lay raised this claim as Proposition IV
on direct appeal. The OCCA denied relief, finding as follows:
In Proposition IV, Lay submits that his Constitutional right to a fair and
individualized sentencing hearing was violated because the trial court failed to order
sua sponte a sentencing stage severance from his co-defendant, Chris Lay, at trial.
Alternatively, Lay claims that the trial court should have instructed the jury sua
sponte that evidence introduced on behalf of or against Chris Lay could not be
considered as evidence regarding him. Both arguments fail.
The trial court gave Wade Lay several opportunities to have his trial severed
from that of his son, Chris. However, both Lays repeatedly stated that they did not
want separate trials as they believed that their defense was stronger when united.
This was probably true for Chris at sentencing: as Wade’s appellate counsel details
at length in his brief, part of Chris’s second stage argument was that he was the

9

The Court notes that even when the OCCA takes corrective action as a result of trial court
error, that action is both authorized under Oklahoma law and constitutional. See Okla. Stat.
tit. 22, § 1066; see also Livingston v. State, 795 P.2d 1055, 1058 (Okla. Crim. App. 1990).
Because the OCCA has the authority to exercise its discretion to either modify a jury
sentence on appeal, or not, as a matter of state law, no due process violation occurs when it
exercises that discretion. Powers v. Dinwiddie, 2008 WL 4447059, *8 (W.D. Okla. Sept.
26, 2008) (unpublished opinion cited for its persuasive value) (citing Carbray v. Champion,
905 F.2d 314, 317-318 (Okla. Crim. App. 1990) (citing Clemons v. Mississippi, 494 U.S.
738, 746 (1990))).
45

victim of his father’s beliefs. As positive as the arguments might have been for
Chris, they also likely negatively affected Wade at sentencing.
However, Lay never requested severance and in fact, repeatedly opposed it.
The trial court told Lay that the trials would be severed if he changed his mind. The
trial court granted Wade Lay’s demand for a joint trial and as a result, he cannot now
complain of error. This argument is denied.
Lay, 179 P.3d at 622 (footnote omitted).
In his habeas petition, Lay argues that the trial court erred in failing to obtain a knowing,
intelligent, and voluntary waiver of the right to have the trial and/or sentencing phase severed. (Dkt.
# 18 at 126). The record reflects that, on July 6, 2005, after Lay was allowed to proceed pro se, the
prosecution filed a motion requesting that Lay and Chris be tried separately. (O.R. Vol. I at 153-55;
M. Trans. 7/6/05 at 19). The State was concerned that statements made by Chris to the police clearly
implicated Lay and that the introduction of Chris’s statements may violate the holding in Crawford
v. Washington, 541 U.S. 36 (2004), and the Confrontation Clause. (O.R. Vol. I at 153). On July
8, 2005, Lay advised the trial judge that he needed to confer with Mr. Nigh before finalizing his
response to the motion to sever. (M. Trans. 7/8/05 at 50). On July 18, 2005, Lay opposed the
motion to sever, advising the court that,
[T]here is no conflict with my position on Chris Lay’s statements to the Tulsa Police
Department. Our defense is in unison together. There’s no division there. And I
believe that Chris Lay will testify, and furthermore I agree with his statements to the
police department and that it’s true and accurate, but with further evidence will show
that we are not guilty.
(M. Trans. 7/18/05 at 4). On July 22, 2005, the State advised the trial judge that it had no legal basis
for a severance. (M. Trans. 7/22/05 at 8). On July 25, 2005, the State filed a “Response to
Defendant Wade Lay’s Oral Argument,” (O.R. Vol. I at 172-73) and stated “[i]f Defendant Wade
Lay makes a knowingly and intelligent waiver of [his right to a separate trial], the State of Oklahoma

46

no longer has a significant legal reason for severance.” Id. at 173. On July 26, 2005, Lay again
insisted that his trial not be severed from that of his son, (M. Trans. 7/26/05 at 9), and the trial judge
stated “we’re going to keep this joined,” id., and advised Lay that he can change his mind on the
issue of severance (id. at 10).
At a pretrial hearing held August 11, 2005, Chris addressed the court and advised that he
disagreed with his attorney’s plan to file a motion for severance. (M. Trans. 8/11/05 at 19). Chris
stated, “I’m not a child. And this is a decision that should be made purely of my own volition.” Id.
Lay again stressed that he and Chris “would like to have our defense in unison.” Id. at 21. He also
stated that “we believe it strengthens our defense to be tried together.” Id. at 22. Thereafter, on
September 6, 2005, Chris’s attorney, Rob Nigh, filed a motion for severance. (O.R. Vol. II at 25666). On September 9, 2005, the trial judge held a hearing on the motion for severance. Mr. Nigh
explained why it was critical for the trial to be severed. (M. Trans. 9/9/05 at 5-7). Chris Lay
vehemently objected, arguing that his and Lay’s defense is “strongest if it is in unison.” Id. at 4.
The State also objected, noting that no authority justified severance. Id. at 7. The trial judge
concluded that was “no legal cause for severance,” id. at 9, but agreed to revisit the issue if
confrontation rights became an issue, id. at 10. Ultimately, Lay and Chris were tried jointly.
According to counsel for Lay, the problems resulting from the joinder were apparent during
jury selection when counsel for Chris sought jurors who were sympathetic to the possibility of a son
being improperly influenced by his father and were especially apparent during sentencing phase,
when mitigating evidence for Chris became aggravating evidence for Lay. In his habeas petition,
Lay claims that, as a result of the joint sentencing phase, “Chris Lay’s life was spared, most likely,
at the expense of his father.” (Dkt. # 18 at 138).

47

Respondent argues that Lay has not shown that the OCCA’s adjudication of this claim
resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings, or that was contrary to, or an unreasonable
application of, clearly established Supreme Court authority. (Dkt. # 39 at 63). Respondent further
alleges that, because Lay relies on evidence that has never been presented to the OCCA, including
Exhibits 3, 4, 5, 24, and 35 to the petition, this claim for relief is a mixture of exhausted and
unexhausted claims. Id. at 65. According to Respondent, any unexhausted claim is procedurally
barred. Id. Respondent also states that no Supreme Court decision requires severance during the
penalty phase of capital jury trials. Id. Respondent emphasizes that both defendants insisted that
they be tried jointly and that Chris Lay “vehemently objected” when his own attorney filed a motion
to sever. Id. at 67 (citing M. Trans. 7/18/05 at 4, 8/11/05 at 21, 9/9/05 at 4). In addition,
Respondent cites to the trial court’s advice to Lay that if he wanted a severance, all he had to do was
ask and that even if he insisted on waiving his right to a severed trial, he could revoke his waiver
later. Id. (citing M. Trans. 7/18/05 at 4, 7/22/05 at 8, 7/26/05 at 9-10). Further, Respondent cites
to the jury instructions requiring the jury “to give individualized consideration to Lay’s degree of
participation and focus on Lay’s individual culpability in the killing,” and to give separate
consideration as to each defendant with regard to the aggravating and mitigating circumstances. Id.
at 68 (citing O.R. Vol. III at 408, 409-14, 416-17, 419-20).
In reply, Lay claims that his “case is unique” and that “[t]he circumstances surrounding the
determination to proceed with a joint trial is [sic] unusually convoluted.” (Dkt. # 47 at 63-64). Lay
emphasizes that “all the players knew ahead of time and the state court acknowledged on appeal that
Chris Lay’s defense at the sentencing stage of trial was antagonistic to Mr. Lay.” Id. at 65. Lay also

48

argues that “[b]y failing to require an instruction that would have advised the jury that the mitigating
evidence presented on behalf of Mr. Christopher Lay was not to be used against Wade Lay, the
court’s decision was objectively unreasonable and denied Mr. Lay the reliable sentencing to which
he is entitled under the Constitution.” Id. at 68 (citing Enmund v. Florida, 458 U.S. 782, 798 (1982);
Lockett v. Ohio, 438 U.S. 586 (1978); Woodson v. North Carolina, 428 U.S. 280 (1976)).
Generally, severance is a question of state law not cognizable in federal habeas proceedings.
Fox v. Ward, 200 F.3d 1286, 1292 (10th Cir. 2000) (citing Cummings v. Evans, 161 F.3d 610, 619
(10th Cir.1998)). There is no constitutional right to severance without a strong showing of prejudice
caused by the joint trial. See id. Severance is not constitutionally required merely because defense
theories conflict or because one defendant is attempting to cast blame on another. Rather, a
petitioner must show “real prejudice.” Id. at 1293. “Such actual prejudice is shown if the defenses
are truly mutually exclusive, such that the jury could not believe the core of one defense without
discounting entirely the core of the other.” Id. (quotation omitted). “‘Mutually antagonistic
defenses are not prejudicial per se.’” Id. (quoting Zafiro v. United States, 506 U.S. 534, 538 (1993)).
After careful review of the record in this case, the Court finds that Lay has failed to
demonstrate that, as to the guilt-innocence stage of trial, he suffered prejudice as a result of being
tried jointly with his co-defendant, his son Chris. Although Rob Nigh, Chris’s attorney filed a
motion to sever, Chris vehemently objected to the motion. Both Lay and Chris demanded a joint
trial. Both Lay and Chris testified in his own behalf and asserted their defense of necessity. Their
testimony was consistent. Neither Lay nor Chris made a statement exculpating himself while
inculpating the other. Cf. Bruton v. United States, 391 U.S. 123, 131 (1968) (holding that the
admission in evidence of a co-defendant’s confession inculpating the defendant at a joint trial at

49

which the co-defendant does not testify violates the defendant’s Sixth Amendment right to confront
witnesses against him). While Chris’ attorney sought to establish that the evidence against Lay was
stronger and more substantial than the evidence against Chris, the “defenses” of Lay and Chris were
not mutually antagonistic.
Lay argues that the prejudice he suffered from being tried jointly with Chris was especially
acute in the penalty phase of his trial where mitigation witnesses for Chris testified that Chris was
controlled by his father and influenced by his father’s teachings. See, e.g., Tr. Trans. Vol. VII at
1123, 1143, 1157, 1216, 1219, 1251. As acknowledged by the OCCA in resolving this claim on
direct appeal, the second stage arguments may have been positive for Chris, but were likely negative
factors for Lay. Lay, 179 P.3d at 622. The Court agrees with the OCCA that the mitigation
evidence presented by Chris Lay, that he attempted to rob the bank at the urging of his father and
because of the ideals and values his father instilled in him, likely became aggravating evidence
against Lay in the eyes of the jury and may have suggested that Lay was a bad father to Chris.
However, Lay accepted the blame for his son’s actions and stated several times at trial that he would
gladly die to spare his son. Thus, Lay’s decision to be tried jointly with Chris was logical when
viewed as coming from a father who cared greatly for his son and desired to see his son as much as
possible. Furthermore, as mitigation evidence, Lay presented testimony from his daughters, April
and Kim. Both daughters testified that they had a good relationship with Lay. See Tr. Trans. Vol.
VII at 1262, 1265, 1268. April testified that Lay had been a loving father. See id. at 1262.
Moreover, Lay’s jury received the individualized sentencing instruction, see O.R. Vol. III at 408
(Supplemental Instruction No. 8), and Lay does not point to anything in the record tending to show
that the jury failed to follow this instruction. In addition, the jury received a set of instructions for

50

aggravating circumstances as alleged against Lay, see id. at 409, 411, 413, 416 (Supplemental
Instruction Nos. 9, 11, 12, 14), and a separate set of instructions for aggravating circumstances as
alleged against Chris, see id. at 410, 412, 414, 417 (Supplemental Instruction Nos. 10, 11(a), 12(a),
15). The jury also received an instruction summarizing Lay’s evidence of mitigating circumstances,
see id. at 420 (Supplemental Instruction No. 18), and a separate instruction summarizing Chris’
evidence of mitigating circumstances, see id. at 419 (Supplemental Instruction No. 17).
As emphasized above, Lay and Chris requested that they be tried together, and, in fact,
refused several offers made by the trial judge to sever. In light of the evidence and instructions
discussed above, and despite Lay’s arguments to the contrary, the trial court’s decision to allow Lay
the authority to be tried jointly with his son did not result in a fundamentally unfair trial. The Court
finds that the OCCA’s decision is not contrary to, or an unreasonable application of federal law as
determined by the Supreme Court, nor is it an unreasonable determination of the facts in light of the
evidence presented to the OCCA. 28 U.S.C. § 2254(d). Therefore, Lay is not entitled to habeas
relief on this claim of error.
VI. Violation of Sixth Amendment right of confrontation
As his sixth proposition of error, Lay argues that his rights under the Confrontation Clause
were violated when the testifying medical examiner, Ronald Distefano, D.O., did not perform the
autopsy and merely parroted the findings, conclusion, and report of the non-testifying expert, Vania
O. Revell, D.O., who could have been called as a witness, but was not. (Dkt. # 18 at 155). Lay
complains that, not only was Dr. DiStefano allowed to read Dr. Revell’s “testimony” into the record
when Dr. Revell was not an unavailable witness, but also that Lay failed to cross-examine because
he was upset and distracted by other events affecting his son. Id. at 156-57. As a result, “extremely

51

prejudicial” testimony that served to tell only part of the story was admitted with being subjected
to cross-examination in violation of Lay’s Sixth Amendment right of confrontation.

Id.

Specifically, Lay alleges that the conclusion contained in Dr. Revell’s report, that the cause of death
was “gunshot wound of head and shotgun wound of the trunk meaning the torso of the body,” left
the jury with the “erroneous impression that the gunshot wound caused by the shot fired by Wade
Lay was a fatal wound when it was not.” Id. at 158. Lay also claims that he was deprived of a fair
and reliable sentencing proceeding in violation of the Eighth Amendment. Id. at 162-63.
Lay first raised these claims to the OCCA in his second application for post-conviction relief.
The OCCA summarized the procedural rules applicable to claims raised in a subsequent application
for post-conviction relief, as follows:
We cannot consider the merits of a subsequent application for post-conviction relief
“unless the application contains sufficient specific facts establishing that the current
claims and issues have not been and could not have been presented previously in a
timely original application or in a previously considered application filed under this
section, because the factual or legal basis for the claim was unavailable.” A legal
basis is unavailable if it (a) either was not previously recognized or could not have
been reasonably formulated from a decision of an appellate court, or (b) is a new rule
of constitutional law given retroactive effect by an appellate court. A factual basis
is unavailable if it could not be previously ascertained through the exercise of
reasonable diligence.
Other procedural bars exist. We will not consider a subsequent application
for post-conviction relief “unless it its filed within sixty (60) days from the date the
previously unavailable legal or factual basis serving as the basis for a new issue is
announced or discovered.” Finally, in considering a subsequent application, we
cannot grant relief unless the underlying facts, if proven and weighed in light of the
evidence as a whole, would establish by clear and convincing evidence that, but for
the alleged error, no reasonable finder of fact would have convicted the petitioner or
imposed a death sentence.
(Order Denying Subsequent Post-Conviction Application, No. PCD-2010-407, Oct. 13, 2010, at 2-3
(footnotes omitted)). The OCCA went on to find that the factual basis for the Confrontation Clause

52

claim “ha[d] been available since the medical examiner testified at Lay’s trial,” id. at 4, and that the
dates of recent Supreme Court decisions forming the basis of Lay’s claims, including Crawford v.
Washington, 541 U.S. 36 (2004); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); and
Briscoe v. Virginia, 130 S. Ct. 1316 (2010), all fell outside the statutory 60-day limit, id. at 3-4. For
those reasons, the OCCA imposed a procedural bar, declining to consider the claim on the merits.
Id. at 4.
In response, Respondent asserts that Lay did not raise this claim on direct appeal or in his
application for post-conviction relief and that the claim is unexhausted. (Dkt. # 39 at 70). As a
result, Respondent urges the Court to either deem the claim procedurally barred, id. at 71, or deny
relief on the merits since Lay waived any confrontation error and has not shown prejudice flowing
from the alleged error, id. at 78.
In reply, Lay states that he exhausted this claim by raising it in his second application for
post-conviction relief. (Dkt. # 47 at 68). Although the OCCA imposed a procedural bar on the
claim, Lay argues that “[t]he Oklahoma procedural default rule being applied here is not being
applied even handedly or independently of federal law.” Id. at 69. As to the merits of the claim,
Lay argues that “the denial of his right to confront witness Vania O. Revell, who wrote the autopsy
admitted into evidence, resulted in both the conviction and the death sentence being unreliable and
in violation of Mr. Lay’s confrontation rights . . . .” Id. at 72.
The Court finds that, because Lay raised this claim in his second post-conviction
proceedings, the claim is exhausted. However, the OCCA found that the factual basis for this claim
had been available since the medical examiner testified at Lay’s trial, and thus, was “time-barred”
and procedurally barred and would not be considered on the merits. (Opinion Denying Subsequent

53

Post-Conviction Application, entered Oct. 13, 2010, in Case No. PCD-2010-407, at 4). The state
appellate court also rejected Lay’s argument that, under Valdez v. State, 46 P.3d 703, 710 (Okla.
Crim. App. 2002) (finding that suspension of statutory and procedural bars “is reserved for issues
which may gravely offend a defendant’s constitutional rights and constitute a miscarriage of
justice”), his confrontation clause claim warrants consideration on the merits. The OCCA concluded
that “[n]o such issue [as contemplated in Valdez] is presented here.” (Opinion Denying Subsequent
Post-Conviction Application, entered Oct. 13, 2010, in Case No. PCD-2010-407, at 5).
In his reply to Respondent’s response, Lay, relying upon Valdez, 46 P.3d at 704-05, 710-11,
and several other OCCA cases, claims that Oklahoma’s procedural bar is inadequate to preclude
federal habeas review because the OCCA has, on occasion, chosen to review the merits of a
defaulted claim to prevent a miscarriage of justice. (Dkt. # 47 at 69-70). The Tenth Circuit rejected
a similar claim in Spears v. Mullin, 343 F.3d 1215 (10th Cir. 2003), and found that Oklahoma’s
procedural bar is applied regularly and consistently in the “vast majority of cases.” Id. at 1254-55
(quoting Maes v. Thomas, 46 F.3d 979, 986 (10th Cir. 1995)). Moreover, the Supreme Court
recently recognized that “a state procedural bar may count as an adequate and independent ground
for denying a federal habeas petition even if the state court had discretion to reach the merits despite
the default.” See Walker v. Martin, 562 U.S. 307, 316 (2011) (citing Beard v. Kindler, 558 U.S.
53, 60-61 (2009)). This Court finds that Oklahoma’s procedural bar is adequate to preclude federal
habeas review.
Lay also relies upon Valdez to argue that this particular procedural default rule is not
independent of federal law. (Dkt. # 47 at 71). He claims that, because Valdez potentially permits
review of otherwise procedurally barred claims that impact important rights, the OCCA is required

54

to consider the constitutional underpinnings of a claim before it can apply a procedural bar. (Dkt.
# 18 at 230 n.69). Thus, Lay concludes that the OCCA’s decision was not independent of federal
law.
First, as discussed above, in its post-conviction decision on this issue, the OCCA found Lay’s
claim to be procedurally barred and did not rule on the merits of the claim. In response to Lay’s
assertion that his claims should be reviewed pursuant to the “miscarriage of justice” exception in
Valdez, the OCCA simply assumed without deciding that Lay’s defaulted claims were meritorious
and found that “failure to consider them on the merits does not result in a miscarriage of justice.”
(Opinion Denying Subsequent Post-Conviction Application, entered Oct. 13, 2010, in Case No.
PCD-2010-407, at 5). This statement does not reflect any due consideration of the issue. Second,
the OCCA’s decision, as a whole, does not reflect any holding that is not based on state law. The
OCCA referenced Lay’s litigation history, cited its procedural rules, and then applied them to Lay’s
claims. The OCCA found that its procedural rules prevented it from reaching the merits of Lay’s
claims, all of which could have been presented in his direct appeal and original post-conviction
application. Id. at 1-6.
Even if the OCCA’s above-quoted language is viewed as an application of its miscarriage
of justice exception, it does not show that federal law was involved in its determination. The Tenth
Circuit’s decision in Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009), cert. denied, 559 U.S. 993
(2010), is instructive. While ultimately resolving the petitioner’s issue on the merits, the Court
noted that a state court’s consideration of exceptions to its procedural bar would not automatically
result in a finding of lack of independence. In particular, the Court stated:
We do not think that a state’s decision to allow exceptions to its procedural bar in the
interest of preventing “fundamental unfairness,” which requires an examination of
55

the merits, makes the underlying bar any less procedural. If this were so, any
procedural bar with an exception based on avoiding a fundamental miscarriage of
justice would lose its character as an independent procedural ground under Michigan
v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L.Ed.2d 1201 (1983).
Gardner, 568 F.3d at 884. Consistent with Gardner, the Court finds that the OCCA’s consideration
of whether Lay’s defaulted claims would be considered “in the interests of justice” did not result in
a ruling dependant on federal law.
Based on the foregoing, the Court finds that the OCCA’s application of a procedural bar to
the issues presented in claim 6 is both adequate and independent. Accordingly, Lay’s claim 6 is
procedurally barred and federal habeas review is precluded unless Lay can establish cause and
prejudice or a fundamental miscarriage of justice. Due to Lay’s focus on the issues of adequacy and
independence, Lay has devoted little argument to satisfying these exceptions.
To establish cause for the default, Lay claims that his appellate counsel was ineffective. Lay
presented this claim of ineffective assistance of appellate counsel as a separate claim in his second
application for post-conviction relief. However, as discussed in more detail in Part X below, this
claim of ineffective assistance of appellate counsel is itself procedurally barred. For that reason, it
cannot serve as “cause” to overcome the procedural bar unless Lay can also establish cause excusing
his default of the ineffective-appellate-counsel claim. Spears, 343 F.3d at 1256 (citing Edwards v.
Carpenter, 529 U.S. 446, 451-52 (2000)). Because Lay fails to demonstrate cause, the Court need
not address the issue of prejudice as both are required to satisfy the first exception. Coleman, 501
U.S. at 750 (meeting the first exception requires a showing of both cause and prejudice). Lay also
fails to satisfy the fundamental miscarriage of justice exception. Lay makes no attempt to

56

demonstrate his actual innocence.10 Therefore, Lay’s claim 6 allegations of error are procedurally
barred and habeas corpus relief is denied on that basis.
VII. Internal juror misconduct
In claim 7, Lay alleges that “internal” juror misconduct deprived him of his Sixth and
Fourteenth Amendment rights to a fair trial. See Dkt. # 18 at 164. The record reflects that one of
the jurors, John Charles McDonald (McDonald), knew Lay’s ex-wife, Tammy Lay (Tammy),11 prior
to trial. Lay filed a motion for new trial based on this claim. At the conclusion of an evidentiary
hearing on the motion for new trial, the trial judge denied the motion, finding that there was no juror
misconduct or evidence “that would have made any difference in the outcome of the trial.” (M.
Trans. 12/15/05 at 65, 68). Lay then raised the claim on direct appeal. The OCCA reviewed the
claim on the merits, “giving substantial deference to the trial court’s findings.” Lay, 179 P.3d at
621. The OCCA summarized the facts underlying this claim, as follows:
According to Tammy Lay’s testimony at the hearing on the motion for a new trial,
this particular juror was a customer of the Westside Gentlemen’s Club where Tammy
worked as a waitress and manager. Tammy testified that the juror had sexually
propositioned her a few times and had offered to help her get a car despite credit
problems. The juror testified at the evidentiary hearing that he recognized Tammy
at trial but assumed it was from his occupation as a car salesman, although conceding
that it could have been from her employment as a waitress. The juror denied ever
propositioning Tammy or that their prior contact had any affect [sic] on his
impartiality as a juror.

10

In its Opinion denying Lay’s second request for post-conviction relief, the OCCA noted that
“Lay . . . never denied participating in the robbery or shooting and claimed that he instigated
the crimes.” (Opinion Denying Subsequent Post-Conviction Application, entered Oct. 13,
2010, in Case No. PCD-2010-407, at 5).

11

During the sentencing phase of trial, Tammy presented mitigating evidence on behalf of her
son, Chris Lay.
57

Id. The OCCA found that the trial court’s denial of the motion for new trial was supported by the
record and that “there was no evidence that the juror was anything other than fair and impartial,” id.,
and denied relief on the claim, concluding that Lay “failed to establish prejudice or harm by this
juror’s service.” Id. (footnote omitted).
Lay claims that evidence presented at the hearing on the motion for new trial demonstrated
that McDonald intentionally failed to disclose that he knew Tammy Lay and then gave evasive and
untruthful answers when questioned about his relationship with her. (Dkt. # 18 at 164-67). Lay
contends that McDonald’s lack of truthfulness demonstrates actual, or at least implied, bias against
Lay thereby violating Lay’s Sixth Amendment right to a fair trial. Id. at 167-68, 171.
In response, Respondent argues that Lay has failed to demonstrate, or even allege, that the
OCCA’s adjudication of this claim was contrary to, or an unreasonable application of, federal law
as determined by the Supreme Court. (Dkt. # 39 at 80). In reply, Lay contends that Respondent’s
argument “overlooks applicable law and relies on the state court’s erroneous, and objectively
unreasonable legal conclusion, which was based on salient facts that were ignored.” (Dkt. # 47 at
76).
Under the Sixth Amendment to the United States Constitution, a defendant has a right to trial
by an impartial jury. “One touchstone of a fair trial is an impartial trier of fact – ‘a jury capable and
willing to decide the case solely on the evidence before it.’” McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 554 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). Jurors
are presumed to follow the instructions. Zafiro, 506 U.S. at 540-41; Richardson v. Marsh, 481 U.S.
200, 211 (1987); see also United States v. McKissick, 204 F.3d 1282, 1299 (10th Cir. 2000) (denial
of motion for mistrial in absence of evidence in the record that jury was affected). Jurors are

58

presumed to be free of bias. United States v. Campbell, 300 F.3d 202, 214 (2d Cir. 2002); Wells v.
Murray, 831 F.2d 468, 472 (4th Cir. 1978) (jurors are presumed to be impartial in the absence of
evidence to the contrary). The Constitution guarantees a fair trial, not a perfect one. Delaware v.
Van Arsdall, 475 U.S. 673 (1986). A jury’s verdict “must be based upon the evidence developed
at trial,” Irvin v. Dowd, 366 U.S. 717, 722 (1961), not on extraneous information presented outside
“a public courtroom where there is full judicial protection of the defendant’s right of confrontation,
of cross-examination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 473 (1965); see also
Vigil v. Zavaras, 298 F.3d 935, 940 (10th Cir. 2002).
Furthermore, there is no rule that a juror cannot be acquainted in any way with any attorney
or witness in a case in order to have a fair trial. See, e.g., United States v. Frank, 901 F.2d 846 (10th
Cir. 1990) (affirming a trial court’s denial of a challenge for cause to remove a juror when that juror
acknowledged being acquainted with the prosecuting attorney and a founding member of MADD);
United States v. Rucker, 2007 WL 2990545, *4-5 (D. Kan. Oct. 11, 2007) (unpublished).12 Instead,
“[a]n important part of the district judge’s broad discretion centers on his response to allegations of
juror bias or misconduct. For example, it is within the trial court’s discretion to determine whether
and when to hold an evidentiary hearing on such allegations.” United States. v. Bradshaw, 787 F.2d
1385 (10th Cir. 1986) (declining to presume bias where a juror was acquainted with a Government
witness); see also United States v. Gallegos, 975 F.2d 710, 712 (10th Cir. 1992) (“Keeping in mind
the juror’s responses to the judge’s questions and the juror’s mere acquaintance with a defense

12

This unpublished opinion is not precedential but is cited for its persuasive value. See Fed.
R. App. P. 32.1; 10th Cir. R. 32.1.
59

witness, we are hard pressed to see how the district court’s conduct constituted error, let alone plain
error.”).
“[U]nder § 2254(e)(1), a state-court fact finding is binding on the federal courts unless
rebutted by clear and convincing evidence.” Richie v. Workman, 599 F.3d 1131, 1135 (10th Cir.
2010). The Court notes that at the evidentiary hearing on Lay’s motion for new trial, the trial court
found McDonald credible. (M. Trans. 12/15/05 at 65). A trial judge’s determination of a potential
juror’s bias is a factual finding entitled to the presumption of correctness under the AEDPA. Castro
v. Ward, 138 F.3d 810, 824 (10th Cir. 1998). The Tenth Circuit has specifically held that federal
courts may only reverse state court determinations of juror impartiality upon a showing of “manifest
error.” Brecheen v. Reynolds, 41 F.3d 1343, 1350 (10th Cir. 1994); see also Cannon v. Gibson, 259
F.3d 1253, 1280 (10th Cir. 2001) (deferring to a trial judge’s finding as to whether a potential juror
is biased unless the finding is rebutted by clear and convincing evidence); accord Sallahdin v.
Gibson, 275 F.3d 1211, 1224 (10th Cir. 2002). This limited review is justified by a trial judge’s
unique advantage in observing and evaluating the demeanor of jurors. Brecheen, 41 F.3d at 1350
(citing Church v. Sullivan, 942 F.2d 1501, 1519 (10th Cir. 1991)). Lay fails to present clear and
convincing evidence that rebuts the state court’s factual findings. See 28 U.S.C. § 2254(e)(1).
Lay also argues that juror bias should be presumed because McDonald was allegedly
dishonest. Even if the Court were to assume that McDonald was dishonest, Lay cites no applicable
Supreme Court precedent establishing that it is appropriate to assume bias in that situation. In a civil
case, the Supreme Court has found that, in order to obtain a new trial in situations involving juror
dishonesty, “a party must first demonstrate that a juror failed to answer honestly a material question
on voir dire, and then further show that a correct response would have provided a valid basis for a

60

challenge for cause.” McDonough Power Equip., Inc., 464 U.S. at 556. Lay has not established nor
even alleged that McDonald dishonestly answered any material question during voir dire.
Lay also argues that juror bias should be presumed because if Ms. Lay is to be believed,
McDonald had a very personal connection with her. In support of this claim, Lay relies on United
States v. Brooks, 569 F.3d 1284, 1288-89 (10th Cir. 2009). In Brooks, the Tenth Circuit found that
a defendant would be entitled to a new trial if he could establish facts allowing an implication that
a juror was biased, such as a “personal connection to the parties or circumstances of the trial.” Id.
at 1289. A “personal connection” can be shown, for example, by “a revelation that the juror is an
actual employee of the prosecuting agency, that the juror is a close relative of one of the participants
in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the
criminal transaction.” Id. at n.3 (citation omitted). Lay has not established a “personal connection”
between McDonald and Ms. Lay sufficient to allow an implication of bias. Even if Ms. Lay were
to be believed that McDonald had a sexual interest in her, Ms. Lay did not testify that they had a
close relationship, much less one equivalent to the relationship between close relatives. Moreover,
McDonald did not witness or was not otherwise involved in the criminal acts giving rise to Lay’s
convictions.
Lay has failed to establish that the OCCA’s determination that there was no “internal juror
misconduct” was “based on an unreasonable determination of the facts in light of the evidence
presented” on direct appeal, nor has he demonstrated that the OCCA’s adjudication of this claim was
“contrary to, or an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court.” 28 U.S.C. § 2254(d). Habeas corpus relief on Lay’s claim 7 is denied.

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VIII. Introduction of Extrinsic Evidence Through Juror Misconduct
In claim 8, Lay alleges that McDonald read a newspaper article about the crime and
disclosed facts from the article to another juror. (Dkt. # 18 at 174). Lay raised this claim on direct
appeal to the OCCA. The OCCA stated that Lay had raised this claim in his motion for a new trial
and that evidence presented at the hearing on that motion demonstrated that the only information
McDonald learned from the article was that the case involved a father and son who had robbed a
bank. Citing Tomlinson v. State, 554 P.2d 798, 804 (Okla. Crim. App. 1976), the OCCA found that
Lay had failed to demonstrate that “the media reports were prejudicial to the judgment.” Lay, 179
P.3d at 621.
Lay claims that when McDonald read a newspaper article about the case prior to trial and
told at least one other juror about it, McDonald became an unsworn witness with the meaning of the
Confrontation Clause. (Dkt. # 18 at 175). Furthermore, although McDonald “would not admit his
wrongful conduct [at the hearing on the motion for new trial], it is impossible for Wade Lay to
ascertain what newspaper account of the trial Juror McDonald read and shared with a fellow juror”
and, because the Eighth and Fourteenth Amendments require a heightened degree of certainty when
reviewing issues in a death penalty case, Lay requests that prejudice be presumed. Id. at 174-75.
In addition, Lay seeks discovery of the juror questionnaires, kept “sealed” with the trial court, to
support his claim that McDonald was untruthful during voir dire. Id. at 177.
In response, Respondent argues that Lay is not entitled to habeas corpus relief on this claim
because he cannot demonstrate prejudice. (Dkt. # 39 at 87). In reply, Lay states that, because he
cannot ascertain the exact newspaper account read by McDonald, “it is impossible for [him] to be
able to ascertain the total harm suffered by him.” (Dkt. # 47 at 80). Lay again asserts that

62

“prejudice should be presumed as the Eighth and Fourteenth Amendments require this Court to
exercise a heightened degree of certainty when reviewing issues in a death penalty case.” Id. (citing
Mills v. Maryland, 486 U.S. 367, 376-77 (1988)).
The constitutional standard of fairness requires that a defendant have “a panel of impartial,
‘indifferent’ jurors” who are free from undue influence from the media. Sheppard v. Maxwell, 384
U.S. 333, 350-51 (1966); Irvin, 366 U.S. at 722. “Qualified jurors need not, however, be totally
ignorant of the facts and issues involved.” Murphy v. Florida, 421 U.S. 794, 799-800 (1975). The
law will not presume that jurors were exposed to publicity or were prejudiced thereby. Welch v.
United States, 371 F.2d 287, 291-92 (10th Cir. 1966). Further,
To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror’s impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.
Irvin, 366 U.S. at 723 (citation omitted).
The basis of Lay’s claim of “external juror misconduct” is that McDonald had allegedly read
a newspaper account of Lay’s case prior to trial and had told at least one other juror about it. The
evidence developed at the hearing on Lay’s motion for new trial demonstrated that one juror,
Timothy Brown, remembered McDonald mentioning having seen a newspaper article about Lay’s
case, i.e., that it was a bank robbery involving a father and son. (M. Trans. 12/1 & 15/05 at 25).
Brown recalled that the comment had come before either McDonald or Brown had been called to
the jury box. Id. at 25-26. McDonald denied reading any newspaper articles about the crime and
consequently denied making any comments to any other jurors from the newspaper. Id. at 47. Apart

63

from Brown, no other juror testified that McDonald had indicated he had any information about the
case other than what was presented in court. Id. at 6-7, 9, 11, 14, 16-17, 18, 20, 23, 55, 57.
Nothing in the record demonstrates that either the jury or any one juror was biased due to
exposure to a news story or the information possibly shared by McDonald. This is not a case of
undue influence by pervasive media nor is it a case involving prejudicial extrinsic evidence. As
stated above, the jury need not “be totally ignorant of the facts and issues involved.” Murphy, 421
U.S. at 799-800. Assuming for the sake of the argument that McDonald had indeed read a
newspaper article concerning the bank robbery, the only information Lay can show McDonald
gleaned from the article was that a bank was robbed and that the perpetrators were a father and son.
Id. at 25. That information was revealed in open court by the time of opening statements.
Moreover, these facts were established at trial through properly admitted evidence. There is no
record evidence that would permit the Court to infer prejudice or harm from McDonald having read
a newspaper article relating to this case or having discussed the few details he recalled with another
juror.
Lay, relying upon a Ninth Circuit case, United States v. Keating, 147 F.3d 895, 901 (9th Cir.
1998), also complains that McDonald became an unsworn witness within the meaning of the
Confrontation Clause. (Dkt. # 18 at 175).13 This case is easily distinguished from Keating. In
Keating, during the course of the trial, at least one juror learned of, and several jurors discussed, the
defendant’s prior state conviction which was not a part of the trial record. Keating, 147 F.3d at 901.
The circuit court found that jurors who communicated the information testified against Keating in

13

Lay cites Crawford v. Washington, 541 U.S. 36 (2004), for the proposition that denial of a
confrontation right requires reversal.
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violation of his Sixth Amendment confrontation rights. Id. The Ninth Circuit distinguished such
a case from a “pretrial publicity case” in that those cases do not involve midtrial exposure to
extrinsic evidence, nor do those cases involve jurors discussing inadmissible evidence. Id. This
case is more akin to the “pretrial publicity cases” discussed in Keating. Here, as discussed above,
one juror may have read an article prior to trial and may have discussed with another juror simple,
undisputed facts that were later properly admitted into evidence. See M. Trans. 12/1 and 15/05 at
25. Based on the facts of this case, Lay’s right to confront witnesses against him was not
implicated.14 Furthermore, even if the Court assumes that a Confrontation Clause violation occurred,
because of the minimal nature of the information allegedly conveyed by McDonald to only one other
juror, Lay has not demonstrated that any resulting Confrontation Clause violation had a “substantial
and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 637-38 (1993); see also Matthews v. Workman, 577 F.3d 1175, 1181 (10th Cir. 2009) (applying
Brecht harmless error standard in a habeas case involving juror misconduct).
This Court finds that the OCCA’s determination that Lay was not prejudiced by juror
misconduct based on the trial court’s factual findings at the hearing on the motion for new trial was
not unreasonable in light of the evidence presented, nor was it contrary to, or an unreasonable
application of, any clearly established rule of federal law as determined by the United States
Supreme Court. Accordingly, Lay is not entitled to habeas relief on claim 8. In addition, Lay has

14

As in claim 7, Lay also alleges that he might be entitled to relief pursuant to McDonough
Power Equipment, Inc., 464 U.S. 548 (see discussion of claim 7, supra), as a result of
potential juror dishonesty on the part of McDonald regarding newspaper accounts. (Dkt. #
18 at 176). This argument is rejected. The record does not reflect that McDonald was
dishonest.
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not demonstrated the need for discovery with regard to this claim. For that reason, his motion for
discovery is denied.
IX. Inadequate voir dire by trial court
In claim 9, Lay alleges, as he did on direct appeal, that it was error for the trial court to not
ask potential jurors if they knew the potential witnesses in the case. See Dkt. # 18 at 178. As a
result of the error, Lay asserts that a biased juror, McDonald, was allowed to serve on the jury
despite having “had a past relationship with Tammy Lay.” Id. at 178-79. Lay raised this claim on
direct appeal where it was rejected by the OCCA, as follows:
The trial court has discretion over the manner and method of voir dire. Moreover,
it is trial counsel’s responsibility to examine prospective jurors and discover any
facts that may affect their qualifications to serve. Lay had the opportunity to
examine the jurors, including asking them if they knew the potential witnesses but
failed to do so. Here, Lay is trying to shift the responsibility to the trial court for his
own failures as his own pro se counsel. Lay has not shown that the trial court denied
him a substantial right or that he was prejudiced by the trial court’s method of jury
selection.
Lay, 179 P.3d at 621-22 (footnotes omitted).
Lay provides a recap of evidence produced at the hearing on his motion for new trial,
including that the relationship between McDonald and Tammy “involved numerous encounters at
a local Gentleman’s Club and numerous phone calls, wherein Juror McDonald propositioned witness
Tammy Lay for sex.” (Dkt. # 18 at 179). Lay claims that the trial court’s failure to question the
potential jurors about their knowledge of the witnesses affected his decisions with regard to
peremptory challenges resulting in a violation of his Sixth Amendment right to an impartial and fair
trial. Id. Lay further claims that, because he was allowed to proceed pro se, all aspects of his trial
should be reviewed under the Eighth Amendment to insure that the death sentence was not imposed
under sentencing procedures that created “‘a substantial risk that it [was being] inflicted in an
66

arbitrary and capricious manner.’” Id. at 180-81 (quoting Gregg v. Georgia, 428 U.S. 153, 188
(1976)). Lay concludes by arguing that the OCCA’s finding that any inadequacy in the voir dire was
Lay’s fault is clearly unreasonable and contrary to the law. Id. at 181.
Respondent responds by claiming that, while Lay’s Sixth Amendment claim was presented
to the OCCA on direct appeal, he has never presented his Eighth Amendment claim to the OCCA
and that claim is unexhausted. (Dkt. # 39 at 90). For that reason, Respondent argues that the Eighth
Amendment claim should be denied as procedurally barred. Id. As to the Sixth Amendment claim,
Respondent asserts that “[i]n the absence of a showing that McDonald lied during voir dire or
intentionally misled the court during trial and the absence of any showing that Lay was prejudiced
by [McDonald’s] limited relationship with Tammy, Lay has failed to demonstrate that the OCCA’s
rejection of his Sixth Amendment claim was an unreasonable application of clearly established
federal law, or was based on an unreasonable determination of the facts.” Id. at 93.
In reply, Lay does not contest Respondent’s position that his Eighth Amendment claim is
unexhausted and procedurally barred. See Dkt. # 47 at 81-83. The Court agrees with Respondent
and finds that the Eighth Amendment claim is procedurally barred. However, as to the Sixth
Amendment claim, Lay asserts that “Respondent’s claim that failing to advise the jury of the
witnesses’ names prior to trial had no prejudicial effect on Wade Lay’s trial is misplaced,” and that
the OCCA’s rejection of this claim was “clearly an unreasonable determination of the relevant facts
and an unreasonable application of federal law.” Id. at 82, 83.
There is no clearly established federal law holding that in a capital case the trial court must
inform the jury of the names of the potential witnesses during voir dire, whether the defendant has

67

counsel or not.15 The difficulty with Lay’s claim is that the connection between the failure of the
trial court to ask the jurors about the names of potential witnesses and Lay’s statutory right to
exercise peremptory challenges is too attenuated to give serious consideration. As discussed above
with regard to claims 7 and 8, Lay has not shown that McDonald was biased at the time of voir dire
due to any relationship with Tammy Lay. It should be noted that, prior to trial, in response to a
request from Chris’s counsel, the court advised the parties that it would normally introduce the
parties and counsel to the jury, summarize the Information, read the name of the victim, but that it
did not normally read all the witnesses to the jury. (M. Trans. 9/15/05 at 34). Neither Lay nor
Chris’s counsel objected to this procedure. Neither defendant questioned the potential jurors
regarding the identity of any potential witnesses.
Lay has not demonstrated that the OCCA’s adjudication of this claim was “contrary to, or
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or was “based on an unreasonable determination of the facts in light of the evidence
presented” on direct appeal. 28 U.S.C. § 2254(d). Habeas corpus relief is denied on claim 9.
X. Ineffective assistance of prior counsel
As his tenth proposition of error, Lay complains that his direct appeal counsel provided
ineffective assistance of counsel when he failed to (1) argue that Lay’s right to confront witnesses

15

The OCCA has stated that “[i]t is the duty of defense counsel to investigate on voir dire
those matters, which affect a venireman’s qualifications to sit as a juror.” Warner v. State,
144 P.3d 838, 859 (Okla. Crim. App. 2006) (citing Peters v. State, 712 P.2d 799, 801 (Okla.
Crim. App. 1986)). “That which would have been disclosed by reasonable diligence during
voir dire cannot later be made grounds with which to attack the verdict.” Id.

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against him was violated by the introduction of Dr. Revell’s testimony through a surrogate medical
examiner, (2) argue that Lay was incompetent based on counsel’s erroneous belief that such claims
should be raised in an application for post-conviction relief, (3) argue that the lack of mitigation
evidence at trial prejudiced Lay and resulted from allowing an incompetent defendant to proceed
pro se, (4) argue that the trial court failed to apprise the jury of the limited use of victim impact
testimony, (5) file a petition for writ of certiorari at the United States Supreme Court, and (6) argue
for an instruction limiting the use of the mitigating evidence for Chris Lay as aggravating evidence
against Wade Lay. (Dkt. # 18 at 182-83). Lay claims that “[d]irect appeal counsel’s performance
as to the above claims was unreasonable, and the Oklahoma Court’s conclusion that there was no
prejudice from ineffective performance is neither reasonably based upon established federal law or
reasonable from the facts within the state record.” Id. at 183.
Respondent states that Lay exhausted subclaims 2 and 3 when he raised those claims of
ineffective assistance of appellate counsel in his first application for post-conviction relief. As to
subclaims 1, 4, 5, and 6, Respondent asserts that those claims of ineffective assistance of appellate
counsel have not been presented to the OCCA and are unexhausted and procedurally barred.
However, as noted in his reply (Dkt. # 47 at 85, 91), Lay raised subclaim 4 in his first application
for post-conviction relief, and subclaims 1, 5, and 6 in his second application for post-conviction
relief, filed May 4, 2010. After Respondent filed the response in this case, the OCCA ruled on Lay’s
second application for post-conviction relief and found that, because the claims of ineffective
assistance of prior counsel could have been but were not raised in the first application for postconviction relief and were untimely under the post-conviction statute, the claims would not be
considered on the merits.

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A. Procedural bar
Claims of ineffective assistance of appellate counsel raised in the second application for postconviction relief are procedurally barred. In adjudicating Lay’s second application for postconviction relief, the OCCA, citing Okla. Stat. tit. 22, § 1089(D)(8), (9) (2006), and Rule 9.7(G)(3),
Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. (2002), found
as follows:
We cannot consider the merits of a subsequent application for post-conviction relief
“unless the application contains sufficient specific facts establishing that the current
claims and issues have not been and could not have been presented previously in a
timely original application or in a previously considered application filed under this
section, because the factual or legal basis for the claim was unavailable.” A legal
basis is unavailable if it (a) either was not previously recognized or could not have
been reasonably formulated from a decision of an appellate court, or (b) is a new rule
of constitutional law given retroactive effect by an appellate court. A factual basis
is unavailable if it could not be previously ascertained through the exercise of
reasonable diligence.
Other procedural bars exist. We will not consider a subsequent application
for post-conviction relief “unless it is filed within sixty (60) days from the date the
previously unavailable legal or factual basis serving as the basis for a new issue is
announced or discovered.” Finally, in considering a subsequent application, we
cannot grant relief unless the underlying facts, if proven and viewed in light of the
evidence as a whole, would establish by clear and convincing evidence that, but for
the alleged error, no reasonable finder of fact would have convicted the petitioner or
imposed a death sentence.
....
In Proposition II Lay claims that previous appellate and post-conviction
counsel were ineffective for failing to preserve and present meritorious issues,
including: (a) the Confrontation Clause issue raised in Proposition I; (b) appellate
counsel’s failure to file a petition for writ of certiorari to the United States Supreme
Court; (c) appellate counsel’s failure to raise the extra-record issues surrounding the
Confrontation Clause claim in Proposition I and to investigate the testifying medical
examiner’s conclusions; (d) appellate counsel’s failure to raise competency issues;
(e) appellate counsel’s failure to investigate and present mitigating evidence
concerning Lay’s competency issues and ability to represent himself; and (f)
appellate counsel’s failure to raise claims of errors in instruction at trial on victim
70

impact evidence and mitigating circumstances. The factual bases for all these claims
were available more than sixty days before this Application was filed. They are not
timely under the post-conviction statute and we do not consider them on their merits.

Lay claims that, given appellate counsel’s failing, post-conviction counsel
had the duty to raise the issues outlined above but failed to do so. Again, any claim
of ineffective assistance of post-conviction counsel has its factual basis in acts and
omission[s] which were available more than sixty days before this Application was
filed. We do not consider these untimely claims on their merits.
(Opinion Denying Subsequent Post-Conviction Application, entered Oct. 13, 2010, in Case No.
PCD-2010-407, at 2-5 (footnotes omitted)).
The Tenth Circuit has recognized that “Oklahoma’s procedural rule barring post-conviction
relief for claims petitioner could have raised on direct appeal constitutes an independent and
adequate ground” barring federal habeas corpus review. Sherrill v. Hargett, 184 F.3d 1172, 1175
(10th Cir. 1999). The Tenth Circuit has also affirmed the adequacy of the Oklahoma procedural bar
as applied to claims that could have been but were not raised in an initial state application for
post-conviction review. Cannon, 259 F.3d at 1266 (citing Thomas v. Gibson, 218 F.3d 1213, 122122 (10th Cir. 2000); Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000); Smallwood v. Gibson,
191 F.3d 1257, 1267-69 (10th Cir. 1999); Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir.
1998)).
Applying the principles of procedural bar to this case, the Court concludes that Lay’s claims
of ineffective assistance of appellate counsel first raised in his second application for post-conviction
relief are procedurally barred. The OCCA’s procedural bar is based on an “independent” ground
because state law, including Okla. Stat. tit. 22, § 1089(D)(8), (9), provides “the exclusive basis for
the state court’s holding.” Maes, 46 F.3d at 985. As to the adequacy of the procedural bar imposed
on Lay’s claims of ineffective assistance of appellate counsel, the Tenth Circuit has recognized that
71

a procedural bar imposed on a claim brought in a second application for post-conviction relief that
could have been but was not raised in a previous application is adequate to preclude habeas review
of ineffective assistance of counsel claims. Smallwood, 191 F.3d at 1268 (citing Moore, 153 F.3d
at 1097). Thus, the procedural bar imposed by the OCCA on Lay’s ineffective assistance of
appellate counsel claims first raised in his second application for post-conviction relief, i.e.,
subclaims 1, 5, and 6, is adequate to preclude federal review. Sherrill, 184 F.3d at 1175.
To overcome the procedural bar, Lay must demonstrate either: (1) good cause for failure to
follow the rule of procedure and actual resulting prejudice; or (2) that a fundamental miscarriage of
justice would occur if the merits of the claims were not addressed in the federal habeas proceeding.
Coleman, 501 U.S. at 749-50; Wainwright v. Sykes, 433 U.S. 72, 91 (1977). Lay fails to make the
necessary showing. Therefore, his claims of ineffective assistance of appellate counsel, identified
above as subclaims 1, 5, and 6, and first raised in his second application for post-conviction relief,
are denied as procedurally barred.
B. Claims raised in first application for post-conviction relief
As discussed with respect to habeas claims 2 above and 11 below, the OCCA adjudicated
Lay’s subclaims 2, 3, and 4 of ineffective assistance of appellate counsel as part of Lay’s first
application for post-conviction relief. In denying post-conviction relief on subclaims 2 and 3, the
OCCA found that Lay had “failed to present this Court with sufficient evidence of his incompetence
at trial. As a result, we find both that this claim is procedurally barred and that appellate counsel
was not ineffective for failing to raise an unmeritorious issue on direct appeal.” (Opinion Denying
Application for Post-Conviction Relief, entered Sept. 26, 2008, in Case No. PCD-2006-1013, at 3).
As to subclaim 4, arising from an alleged instructional error, the OCCA found as follows:

72

[T]o establish ineffective assistance of counsel on appeal, Lay must prove that the
result of his appeal would have differed. Lay cannot meet this test. The absence of
the limiting instruction was not prejudicial as it had no affect [sic] on the outcome
of the trial in general or Lay’s sentence in specific. Even had the argument been
raised on direct appeal, it would not have changed the result. This argument is
denied.
Id. at 4.
Lay is not entitled to habeas relief on these claims of ineffective assistance of appellate
counsel unless he demonstrates that the OCCA’s adjudication was contrary to, or an unreasonable
application of, Strickland v. Washington, 466 U.S. 668 (1984). When assessing claims of ineffective
assistance of appellate counsel, this Court applies the Strickland two-pronged standard used for
general claims of ineffective assistance of trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000)
(citing Strickland, 466 U.S. 668). Under Strickland, a defendant must show that his counsel’s
performance was deficient and that the deficient performance was prejudicial. Strickland, 466 U.S.
at 687; Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993).
A defendant can establish the first prong by showing that counsel performed below the level
expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at 687-88.
There is a “strong presumption that counsel’s conduct falls within the range of reasonable
professional assistance.” Id. at 688. In making this determination, a court must “judge . . . [a]
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690. Moreover, review of counsel’s performance must be highly deferential. “[I]t
is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable.” Id. at 689.
To establish the second prong, a defendant must show that this deficient performance
prejudiced the defense, to the extent that “there is a reasonable probability that, but for counsel’s
73

unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694; see also
Sallahdin, 275 F.3d at 1235; Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). “The likelihood
of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. If Lay is
unable to show either “deficient performance” or “sufficient prejudice,” his claim of ineffective
assistance fails. Strickland, 466 U.S. at 700. Thus, it is not always necessary to address both
Strickland prongs. This Court’s review of the OCCA’s decision on ineffective assistance of counsel
claims is “doubly deferential.” Pinholster, 131 S. Ct. at 1403 (noting that a habeas court must take
a “highly deferential” look at counsel’s performance under Strickland and through the “deferential”
lens of § 2254(d)).
When a habeas petitioner alleges that his appellate counsel rendered ineffective assistance
by failing to raise an issue on direct appeal, the Court first examines the merits of the omitted issue.
Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999). In Cargle v. Mullin, 317 F.3d 1196
(10th Cir. 2003), the Tenth Circuit directed that:
If the omitted issue is so plainly meritorious that it would have been unreasonable
to winnow it out even from an otherwise strong appeal, its omission may directly
establish deficient performance; if the omitted issue has merit but is not so
compelling, the case for deficient performance is more complicated, requiring an
assessment of the issue relative to the rest of the appeal, and deferential consideration
must be given to any professional judgment involved in its omission; of course, if the
issue is meritless, its omission will not constitute deficient performance.
Id. at 1202 (citation and footnote omitted); see also Parker v. Champion, 148 F.3d 1219, 1221 (10th
Cir. 1998).
The Court has determined above that the trial record does not support Lay’s claim of
incompetence at the time of trial. Also, the Court finds below that Lay’s claim that his due process

74

rights were violated by the trial court’s failure to give an instruction limiting the use of victim
impact testimony is procedurally barred and that ineffective assistance of appellate counsel cannot
serve as cause to overcome the procedural bar because the claim lacks merit. Under the “doubly
deferential” standard applicable to ineffective assistance of counsel claims, Pinholster, 131 S. Ct.
at 1403, the Court finds that Lay fails to carry his burden of demonstrating that the OCCA
unreasonably applied Strickland. For that reason, as discussed herein with respect to habeas claims
2 and 11, Lay is not entitled to habeas corpus relief under 28 U.S.C. § 2254(d), as to subclaims 2,
3, and 4 of ineffective assistance of appellate counsel.
XI. Improper use of victim impact testimony
In claim 11, Lay alleges that his Eighth and Fourteenth Amendment rights to a fair
sentencing proceeding were violated based on the introduction of improper victim impact testimony.
(Dkt. # 18 at 185). Lay claims that the victim impact evidence presented at his trial exceeded the
scope contemplated by the Eighth and Fourteenth Amendments when the victim’s sisters “openly
wept as they recounted their brother’s life; the promises made to him about the raising of his
daughter; and the promises made to their mother that they would not allow anything to ever happen
to him.” (Dkt. # 18 at 186-87). Lay also asserts that the error in admission of the victim impact
testimony was compounded by the lack of “evidence regarding Mr. Lay’s troubled background.”
Id. at 188. As a result, the sentencing proceeding was impermissibly “unbalanced” and “unreliable,”
in violation of the Eighth Amendment. Id. at 188-89. Furthermore, Lay also complains that the trial
court failed to provide OUJI-CR 9-45, the instruction for victim impact evidence in capital cases,
in violation of his right to due process under the Fourteenth Amendment. Id. at 190. While
recognizing that a claim challenging the lack of a limiting instruction was not raised on direct

75

appeal, Lay alleges ineffective assistance of appellate counsel as cause for the omission of the claim.
Id. at 190-91.
Respondent argues that the only exhausted claim in ground 11 is the claim that victim impact
testimony introduced at trial violated Oklahoma law and that the remaining claims are unexhausted
and procedurally barred. (Dkt. # 39 at 101-02). In reply, Lay contends that because the victim
impact testimony surpassed statutory and Constitutional constraints, he was denied a fair sentencing
hearing because “the death sentence ultimately rendered was based on emotion – not a well reasoned
judgment.” (Dkt. # 47 at 94).
A. Merits of Eighth Amendment claim
On direct appeal, Lay challenged a portion of the testimony of the victim’s sister, Tona
Collier, and argued that both Collier and the victim’s other sister, Kimilla Tryon, displayed improper
emotion during their testimony. The OCCA rejected the claims, finding as follows:
Lay specifically argues that Collier exceeded the bounds of appropriate
victim impact testimony when she testified that: “I made a promise to my mother
before she died to always be there for Kenny and watch out for him. I feel so much
like I failed my mother.” Lay did not object to this testimony. Regardless, there
was no error. Collier’s statement was proper because it concerned the specific
emotional burden that her brother’s death placed on her.
It does appear that the victim impact witnesses cried while testifying. Lay
did not object to their testimony or ask for a recess to allow either witness to regain
composure. More importantly, their display of emotion does not appear to have
interfered with the recitation of their statements. Both witnesses’ statements were
in compliance with the law as they were brief, proper, and neither unduly emotional
or prejudicial. As a result, we find no error in the victim impact testimony.
Lay, 179 P.3d at 623 (footnotes omitted).

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In 1992, Oklahoma enacted legislation permitting victim impact evidence. See Okla. Stat.
tit. 21, § 701.10(C) (1992),16 and Okla. Stat tit. 22, §§ 984, 984.1 (1999).17 If a state chooses to
allow the admission of victim impact evidence, the Eighth Amendment erects no per se bar. The
established Supreme Court precedent involving victim impact statements is set forth in Payne v.
Tennessee, 501 U.S. 808 (1991). Hain v. Gibson, 287 F.3d 1224, 1238 (10th Cir. 2002). The
Supreme Court in Payne held that “the only constitutional limitation on such evidence is if it ‘is so
unduly prejudicial that it renders the trial fundamentally unfair.’ In such an event, the Court
indicated, ‘the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.’”
Id. (quoting Payne, 501 U.S. at 825). The prohibition against the victim’s family giving their
“characterizations and opinions about the crime, the defendant, and the appropriate sentence”
remains in place. Id. at 1238-39 (quoting Booth v. Maryland, 482 U.S. 496, 502 (1987), overruled
in part by Payne, 501 U.S. at 825); see also Dodd v. Trammell, 753 F.3d 971, 996 (10th Cir. 2013).
The Supreme Court in Payne specifically outlined why victim impact evidence was relevant to a
capital jury’s sentencing decision:
We are now of the view that a State may properly conclude that for the jury to assess
meaningfully the defendant’s moral culpability and blameworthiness, it should have
before it at the sentencing phase evidence of the specific harm caused by the

16

Section 701.10(C) of Title 21 provides, “[i]n the sentencing proceeding, . . . the state may
introduce evidence about the victim and about the impact of the murder on the family of the
victim.”

17

Section 984 of Title 22, in effect at the time of Lay’s crime and trial, defines “victim impact
statements” as “information about the financial, emotional, psychological, and physical
effects of a violent crime on each victim and members of their immediate family, and
includes information about the victim, circumstances surrounding the crime, the manner in
which the crime was perpetrated, and the victim’s opinion of a recommended sentence.”
Under section 984.1, copies of the victim impact statements are to be made available to the
parties.
77

defendant. The State has a legitimate interest in counteracting the mitigating
evidence which the defendant is entitled to put in, by reminding the sentencer that
just as the murderer should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and in particular to his
family.
Payne, 501 U.S. at 825 (citation omitted) (internal quotation marks omitted).
To the extent Lay seeks habeas corpus relief based on a violation of state law, he is not
entitled to relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating that “a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United
States”). Furthermore, the victim impact evidence introduced at Lay’s trial was not “‘so unduly
prejudicial that it render[ed] the trial fundamentally unfair.’” See Hain, 287 F.3d at 1238 (quoting
Payne, 501 U.S. at 825). As noted by the OCCA, the record reflects that the victim’s sisters cried
while reading their prepared statements to the jury. (Tr. Trans. Vol. VI at 1108). However, it does
not appear that their emotions interfered with their ability to read their statements. As they read their
statements, the victim’s sisters described the victim as an individual and told of the specific harm
and unique loss they suffered emotionally as a result of the murder. The victim’s sisters’ statements
were not lengthy – the testimony was limited to descriptions of the victim and the impact of the
murder on the victim’s family. See Payne, 501 U.S. at 827. The OCCA’s determination was not
contrary to, or an unreasonable application of, Payne. Habeas relief on claim 11 is denied.
B.

Instructional Error

Lay also argues that the trial court’s failure to give OUJI-CR 2d 9-45 (limiting the
consideration of victim impact evidence “to a moral inquiry into the culpability of the defendant,
not an emotional response to the evidence”) violated his due process rights, citing Hicks, 447 U.S.
343. (Dkt. # 18 at 189-92). The instruction explains, inter alia, “[y]ou may consider this victim

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impact evidence in determining the appropriateness of the death penalty only if you first find that
the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt
by evidence independent from the victim impact evidence, and find that the aggravating
circumstance(s) found outweigh the finding of one or more mitigating circumstances.” OUJI-CR
2d 9-45. In response to the petition, Respondent asserts that this claim is unexhausted. (Dkt. # 39
at 101). Respondent is incorrect. Lay raised this issue in his first post-conviction proceeding, see
Application for Post Conviction Relief - Death Penalty, No. PCD-2006-1013, at 32-35, and the
OCCA found that the claim could have been but was not raised on direct appeal and, as a result,
denied the claim as procedurally barred. See Opinion Denying Application for Post-Conviction
Relief, entered Sept. 26, 2008, in Case No. PCD-2006-1013, at 4.
The Court finds that the OCCA’s procedural bar is both independent and adequate to
preclude federal habeas corpus review. This Court “may not consider issues raised in a habeas
petition that have been defaulted in state court on an independent and adequate procedural ground
unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.”
Welch v. Workman, 639 F.3d 980, 992 (10th Cir. 2011).
In his reply, Lay attributes any “supposed failure” to raise portions of his claim to ineffective
assistance of appellate counsel. (Dkt. # 47 at 93). In denying the first application for postconviction relief, the OCCA denied relief on Lay’s claim of ineffective assistance of appellate
counsel for failing to challenge the lack of a limiting instruction, finding that the claim “would not
have changed the result” of the direct appeal had the claim been raised. (Opinion Denying
Application for Post-Conviction Relief, entered Sept. 26, 2008, in Case No. PCD-2006-1013, at 4).
The Court agrees with the OCCA. Lay cannot establish that he was prejudiced by the trial court’s

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failure to give OUJI-CR 2d 9-45. Even had the jury received OUJI-CR 2d 9-45, it is not likely that
the jury would have recommended a sentence less than death.

As discussed above, Lay

unapologetically declared war on the federal government. He introduced only limited mitigating
evidence on his behalf, including testimony of his two daughters and his own testimony. The
evidence supporting the three aggravating circumstances was ample. Lay cannot establish that the
result of his appeal would have been different had appellate counsel raised a claim based on
omission of the jury instruction. Thus, Lay’s claim of ineffective assistance of appellate counsel
lacks merit and cannot serve as “cause” to overcome the procedural bar.
Furthermore, Lay does not claim to be actually innocent of the crimes of which he was
convicted. Therefore, he does not fall within the fundamental miscarriage of justice exception. The
Court concludes that Lay’s claim 11 challenge to the omission of the jury instruction limiting the
use of victim impact evidence is procedurally barred and is denied on that basis.
XII. Unreliable jury verdict as to two aggravating factors
In claim 12, Lay argues that the jury was given the wrong instruction with regard to
determining the existence of aggravating circumstances (Dkt. # 18 at 193), and insufficient evidence
was presented to support two of the aggravating circumstances, “‘avoid arrest,’ and ‘great risk of
death.’” Id. at 194.
A.

Instructional error

As to the jury instruction claim, Lay alleges that the trial judge failed to give the jury OUJICR (2d) 4-77 (providing the “reasonable hypothesis” standard for determining the existence of
aggravating circumstances proven entirely or in part by circumstantial evidence). Id. at 193. In
support of this claim, Lay again cites Hicks, 447 U.S. at 346, and argues he was “deprived of a life

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and liberty protection afforded by Oklahoma law” as a result of the trial judge’s failure to instruct
the jury as to the appropriate standard. Id. at 193-94. He alleges that, “[u]nder the [reasonable
hypothesis] standard, there exist reasonable hypotheses that obviate the finding of two of the
aggravating circumstances, ‘avoid arrest,’ and ‘great risk of death.’ There was insufficient evidence
as to these factors under any standard, but particularly so applying the appropriate reasonable
hypothesis test.” Id. Specifically, under the reasonable hypothesis test, Lay claims that no evidence
supported a finding that he intended to harm or kill anyone other than the decedent, who was
shooting at Lay and his son. Id. at 195-96. Lay argues that the OCCA unreasonably decided this
claim with respect to the “great risk of death” aggravating circumstance by applying a theory of
transferred intent. Id. at 197. According to Lay, “[a]lthough multiple shots were fired in this case,
there is absolutely no indication Mr. Lay intended to place anyone else at great risk of death.” Id.
As a result, insufficient evidence supported the “great risk of death to more than one person”
aggravating circumstance. Also, Lay argues that the OCCA unreasonably decided the claim with
respect to the “avoid arrest” aggravating circumstance by “offering only a conclusory statement of
intent bereft of specific factual support.” Id. at 198.
Respondent asserts that any claim relying on Hicks, 447 U.S. at 346, is unexhausted and
procedurally barred. (Dkt. # 39 at 105). As to Lay’s remaining challenges to the sufficiency of the
evidence supporting the two aggravating circumstances, Respondent argues that the OCCA’s
adjudication was not unreasonable. Id. at 106-112.
Lay replies that Respondent’s exhaustion argument is misplaced because Lay’s direct appeal
argument included a citation to Mills v. Maryland, 486 U.S. 367, 376-77 (1988), and thus
encompassed his due process argument. (Dkt. # 47 at 97). Lay also argues that had the OCCA

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applied the reasonable hypothesis test, “there would have been insufficient evidence to support
either aggravating circumstance of ‘great risk of death’ or ‘avoiding arrest,’” and reasserts his
challenge to the sufficiency of the evidence supporting the two aggravating circumstances. Id. at
98, 99. Lay also clarifies that he does not base this claim on state law grounds, and states that he
“is seeking enforcement of his life and liberty Due Process interest in the reasonable hypothesis test
pursuant [to] Hicks.” (Dkt. # 47 at 98). Lay also relies on Rojem v. Gibson, 245 F.3d 1130, 1137
(10th Cir. 2001), for his argument that the trial court’s failure to instruct on the “reasonable
hypothesis” test deprived him of his Fourteenth Amendment right to due process.
This Court need not decide the exhaustion issue because, even if Lay’s claim is unexhausted,
the Court may deny relief on the merits of an unexhausted claim. See 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the State.”).
The OCCA denied relief on Lay’s instructional error claim as raised on direct appeal, finding
as follows:
In Proposition VII, Lay claims that the trial court erred in failing to instruct
the jury as required by OUJI-CR (2d) 4-77. This instruction requires that when the
State relies in part, as here, on circumstantial evidence to prove the existence of the
aggravating circumstances, “all of the facts and circumstances, taken together, must
be inconsistent with any reasonable theory or conclusion other than the existence of
the aggravating circumstances.” The trial court modified this instruction for
guilt/innocence determinations to conform to the holding of Easlick v. State.
Easlick overruled years of settled law and abolished the “reasonable hypothesis”
standard in the guilt/innocence instructions and on appellate review of sufficiency
of the evidence claims. Easlick did not address OUJI-CR (2d) 4-77. As a result, the
“reasonable hypothesis” instruction is still the required jury instruction for
aggravating circumstances proven, entirely or in part, by circumstantial evidence.
However, Lay failed to object to the instruction as modified, waiving all but
plain error. There was no plain error as “when the evidence is both direct and
circumstantial, it is not error to fail to give an instruction when none is requested.”
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Here, the evidence was clearly a combination of both direct and circumstantial
evidence. Moreover, as indicated in Proposition XIII, all the aggravating
circumstances were overwhelmingly proven beyond a reasonable doubt. As a result,
this Proposition is denied.
Lay, 179 P.3d at 623 (footnotes omitted).
“The defendant . . . has a substantial and legitimate expectation that he will be deprived of
his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and
that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation
by the State.” Hicks, 447 U.S. at 346 (citation omitted). In Hicks, the petitioner was deprived of the
statutory right to have his punishment fixed by jury. Id. at 345-46. Thus, the Supreme Court found
that “[s]uch an arbitrary disregard of the petitioner’s right to liberty is a denial of due process of
law.” Id. at 346. In Rojem, the Tenth Circuit relied upon Hicks and affirmed the district court’s
finding that the trial court’s failure to instruct the jury that it must find that the aggravating
circumstances outweighed the mitigating circumstances violated the petitioner’s right to due process.
Rojem, 245 F.3d at 1138. The district court concluded that without a weighing instruction, the
mitigating instruction suggested consideration of mitigating circumstances was optional. Id. at
1135-36. The Tenth Circuit explained that, “Oklahoma requires weighing by the fact finder, in this
case the jury. Thus, the trial court deprived Rojem of his legitimate expectation under state law –
he did not receive the assurance the death penalty would be imposed only if the aggravating
circumstances outweighed the mitigating circumstances. . . . The State therefore deprived Rojem of
his liberty without due process.” Id. at 1138 (citations omitted).
In this case, unlike in Hicks and Rojem, Lay has not shown that he was deprived of a
substantial and legitimate expectation under state law nor has he shown that he was deprived of his
liberty by a jury acting outside of its statutory discretion. First, in light of the Easlick decision
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discussed by the OCCA in Lay’s direct appeal decision, Lay had no substantial and legitimate
expectation that his jury would be given the “reasonable hypothesis” instruction. As explained in
a subsequent OCCA decision:
The Easlick decision did not address OUJI-CR(2d) 4-77, but the reasoning in Easlick
makes it logical to apply to this second-stage instruction as well. In Easlick, the
Court abandoned the “reasonable hypothesis” test to review appellate claims of
insufficient evidence in cases based entirely on circumstantial evidence and adopted
the standard for cases involving direct and circumstantial evidence to use in all future
cases regardless of the type of evidence used to convict. Easlick, 2004 OK CR 21,
¶ 4, 90 P.3d at 557. The Easlick court reasoned that because the “reasonable
hypothesis” test was “based on antiquated ideas concerning the value of
circumstantial evidence and because we have a test that can be utilized in a universal
manner, the ‘reasonable hypothesis’ test should meet its demise in this State in
accord with the vast majority of jurisdictions.” Easlick, 2004 OK CR 21, ¶ 15, 90
P.3d at 559. To comport with the decision, the Court modified the uniform
first-stage instruction on circumstantial evidence. Id., 2004 OK CR 21, ¶ 15 n. 3, 90
P.3d at 559 n. 3. We find, based on the reasoning of Easlick and the facts of this
case, that the trial court did not err in removing the “reasonable hypothesis” [sic] test
in its modification of OUJI-CR(2d) 4-77.
Harmon v. State, 248 P.3d 918, 938-39 (Okla. Crim. App. 2011) (footnotes omitted). Second, even
accepting the OCCA’s finding that the “‘reasonable hypothesis’ instruction was still the required
jury instruction for aggravating circumstances proven, entirely or in part, by circumstantial
evidence” at the time of Lay’s trial and direct appeal, Lay has not shown that the failure to provide
this instruction resulted in a jury decision that was outside the scope of the jury’s statutory
discretion. Lay has not shown that the “reasonable hypothesis” test was a part of Oklahoma’s
statutory scheme, and hence, Hicks and Rojem are inapplicable.
Lay has failed to show that the OCCA’s decision regarding the trial court’s failure to give
the “reasonable hypothesis” instruction was contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court, or was based on an unreasonable

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determination of the facts. in light of the evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d).
B. Sufficiency of the evidence
Lay argues that, under any standard, there was insufficient evidence supporting the “great
risk of death” and “avoid arrest” aggravating circumstances. On direct appeal, the OCCA ruled as
follows:
We review the evidence in a light most favorable to the State to determine whether
any rational trier of fact could have found the facts necessary to support the
aggravating circumstance beyond a reasonable doubt. Under this standard, the
evidence here was sufficient.
In determining the sufficiency of this aggravating circumstance, this Court
reviews the evidence to determine if Lay created a great risk of death to another in
close proximity in time and intent to the murder. Here, Lay and his son entered
Midfirst Bank armed with guns in an attempt to rob the bank. They were confronted
by the victim, an armed security guard, and a gun battle ensued. While Lay argues
that he did not intend to shoot anyone other than the victim so the additional
employees were not at risk of death, that unknown intent easily transfers to any
unintended victims. As Lay concedes, the victim and five other bank employees
were in the lobby area of bank when the guns were fired. All these employees were
at a great risk of death at the time the shots were fired. This argument is denied.
Lay argues that the evidence was insufficient to support the aggravating
circumstance that the murder was committed to avoid or prevent lawful arrest or
prosecution. We review the evidence of this aggravator for proof of a predicate
crime, separate from the murder, from which the defendant is attempting to avoid
arrest or prosecution. Here, Lay committed an attempted armed robbery of Midfirst
Bank. Kenneth Anderson intervened and foiled the robbery. In the process,
Anderson was shot and killed so that Lay and his son could escape the bank and
avoid arrest. The evidence was sufficient to support this aggravating circumstance.
This Proposition is denied.
Lay, 179 P.3d at 624 (footnotes omitted).
The Supreme Court has held that, with regard to the sufficiency of the evidence for
aggravating circumstances, the standard of review set forth in Jackson v. Virginia – whether any

85

rational trier of fact, viewing the evidence in the light most favorable to the State, could have found
the essential elements of the crime beyond a reasonable doubt – is applicable.18 Lewis v. Jeffers,
497 U.S. 764, 781-82 (1990) (citing Jackson, 443 U.S. 307 (1979)); see also Lockett v. Trammel,
711 F.3d 1218, 1243 (10th Cir. 2013). Although aggravating circumstances are not “elements” of
any offense, the standard of review for determining whether evidence is sufficient to convict is
equally applicable to protecting a defendant’s Eighth Amendment right to be free from the arbitrary
and capricious imposition of the death penalty. Lewis, 497 U.S. at 782. Like factual findings, state
court findings of aggravating circumstances often require a sentencer to “resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Id.; see also Boltz v. Mullin, 415 F.3d 1215, 1232 (10th Cir. 2005); Fields v. Gibson, 277
F.3d 1203, 1220 (10th Cir. 2002).
The Tenth Circuit has recognized that a federal habeas court’s review under Jackson is
“sharply limited, and a court faced with a record of historical facts that supports conflicting
inferences must presume – even if it does not affirmatively appear in the record – that the trier of
fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”

18

This Court rejects any implication from Lay’s argument that it should apply the “reasonable
hypothesis” test in adjudicating Lay’s sufficiency of the evidence claim on collateral review.
Matthews, 577 F.3d at 1183 n.3 (rejecting habeas petitioner’s claim that reasonable
hypothesis test applied to sufficiency of evidence challenge to conviction and instead
applying Jackson v. Virginia, 443 U.S. 307, 319 (10th Cir. 2009)); Romano v. Gibson, 239
F.3d 1156, 1164-65 (10th Cir. 2001) (applying Jackson standard instead of “reasonable
hypothesis” standard applied by OCCA). The Supreme Court has expressly rejected the
“reasonable hypothesis” standard, Holland v. United States, 348 U.S. 121, 139-40 (1954),
instead opting for Jackson’s rational trier of fact standard. Jackson, 443 U.S. at 318 n.9
(citing Holland, 348 U.S. at 140). Hence, the appropriate standard of review on habeas is
supplied by Jackson. Romano, 239 F.3d at 1164-65. Because the AEPDA applies to the
OCCA’s rejection of this claim, the more specific issue is whether the OCCA’s application
of Jackson was reasonable. Id.
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Boltz, 415 F.3d at 1232. Additionally, federal review “is even more limited given that AEDPA
governs this issue.” Id. The Tenth Circuit has referred to the standard of review regarding
evidentiary sufficiency challenges under AEDPA as “deference squared.” Young v. Sirmons, 486
F.3d 655, 666 n.3 (10th Cir. 2007).
Lay fails to show that the OCCA’s adjudication of his sufficiency of the evidence claim was
either contrary to, or an unreasonable application of, Jackson, or that it was based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d). “Sufficiency of the evidence on a
habeas petition is a mixed question of law and fact. We ask whether the facts are correct and
whether the law was properly applied to the facts . . . . In light of the presumption of correctness
afforded by 28 U.S.C. § 2254(e), we must defer to any determination of a factual issue by the state
court.” Brown v. Sirmons, 515 F.3d 1072, 1089 (10th Cir. 2008) (quoting Maynard v. Boone, 468
F.3d 665, 673 (10th Cir. 2006)). This Court looks to Oklahoma law in determining the substantive
elements of the aggravating circumstance. Id.
The OCCA’s finding that sufficient evidence supported the “great risk of death” aggravating
circumstance was wholly reasonable in light of the governing law and facts. In order to establish
the “great risk of death” aggravating circumstance under Oklahoma law, the defendant’s acts must
knowingly “create the risk of death to another which are in close proximity, in terms of time,
location and intent to the act of killing itself.” Valdez v. State, 900 P.2d 363, 382 (Okla. Crim.
App.1995). The State presented evidence at trial that Lay and his son came to the bank armed with
multiple loaded weapons. Tr. Trans. Vol. IV at 532, 575, 577, 595, 612, 655-56. Lay cannot deny
the “knowingly” aspect of the aggravating circumstance as he was aware from previously casing the
bank that multiple employees would be present. When Lay engaged in a gun battle with the guard,

87

as far as Lay would have known, all of the employees present were exposed to the risk of being
injured or killed. Even though some of the employees made it into the bank vault, they were not
entirely free of risk from Lay’s introduction of a loaded weapon into the bank and his willingness
to use it during the attempted robbery. Moreover, at least two of the employees, Brian Easlon and
Cindy Champlin, remained exposed outside the vault during the gun battle. The fact that neither
were in fact struck by any bullets does not defeat the finding that Lay knowingly created a great risk
of death to more than one person. A rational trier of fact, viewing the evidence in the light most
favorable to the State, could have found the essential elements of the great risk of death aggravating
circumstance beyond a reasonable doubt. The OCCA’s determination that the evidence was
sufficient to establish the great risk of death aggravating circumstance was not an unreasonable
application of Jackson.
In order to prove the avoid arrest or prosecution aggravating circumstance, the State must
prove that the murder was committed in order to avoid arrest or prosecution for a predicate crime,
separate from the murder itself. DeRosa v. State, 89 P.3d 1124, 1153 (Okla. Crim. App. 2004).
Moreover, the intent may be proven by circumstantial evidence.

Id.

The evidence was

overwhelming that Lay and his co-defendant took steps to avoid or prevent arrest or prosecution for
the attempted armed robbery of the bank. In addition to carrying weapons sufficient to overcome
any resistance to their demand for money, they wore masks to hide their identity and chose this
particular bank because there was a wooded area behind the bank through which they could escape.
Once they entered the bank and ordered “everybody on the floor,” see Tr. Trans. Vol. IV at 532, the
crime of attempted robbery was complete. It was after that time when Anderson, the victim, entered
the lobby, apparently to prevent the robbery and to protect the bank employees. Whether shooting

88

Anderson was part of an attempt to complete a robbery or a response to Anderson’s lawful use of
lethal force, neither negated the fact that Lay shot Anderson also to avoid or prevent being arrested.
Moreover, even after he had been shot, Lay still ran from the scene, rather than throw down his
weapon and stay for medical treatment. A rational trier of fact, viewing the evidence in the light
most favorable to the State, could have found the essential elements of the avoid arrest aggravating
circumstance beyond a reasonable doubt. The OCCA’s determination that the evidence was
sufficient to establish this aggravating circumstance was not an unreasonable application of Jackson.
Lay has not established that the OCCA’s determination of this issue was contrary to, or an
unreasonable application of, federal law as determined by the Supreme Court, or involved an
unreasonable determination of the facts in light of evidence presented at trial. Lay is denied habeas
relief on claim 12.
XIII. Continuing threat aggravating circumstance is unconstitutionally vague and overbroad
In claim 13, Lay argues that Oklahoma’s continuing threat aggravating circumstance is
unconstitutionally vague and overbroad and permits jurors to make a factual finding on a probability
standard instead of the requisite beyond a reasonable doubt standard. (Dkt. # 18 at 200-02).
Specifically, Lay asserts that the continuing threat aggravating circumstance is (1)
unconstitutionally vague and overbroad due to the OCCA’s failure to show a predictable pattern of
application of this aggravating circumstance; and (2) the use of a “probability standard” in the
definition of the aggravating circumstance is contrary to the beyond a reasonable doubt standard of
In re Winship, 397 U.S. 358, 364 (1970). On direct appeal, the OCCA simply noted the fact that it
had previously found this aggravating circumstance constitutional and concluded Lay had failed to
present any grounds to justify the court’s coming to a different conclusion. Lay, 179 P.3d at 623-24.

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The court also explicitly noted that it had rejected Lay’s “probability” argument in Myers v. State,
133 P.3d 312, 333-34 (Okla. Crim. App. 2006). Lay,179 P.3d at 623 n.29. Respondent contends
that the OCCA reasonably rejected Lay’s attack on the continuing threat aggravating circumstance.
(Dkt. # 39 at 112). Lay replies that “the aggravating circumstance as written is overly broad, and
as such, violates the Eighth Amendment.” (Dkt. # 47 at 100).
As to his first contention, Lay concedes that in Nguyen v. Reynolds, 131 F.3d 1340 (10th
Cir. 1997); Ross v. Ward, 165 F.3d 793 (10th Cir. 1999); and Castro v. Ward, 138 F.3d 810 (10th
Cir. 1998), the Tenth Circuit has rejected his argument that the continuing threat aggravating
circumstance is unconstitutionally vague and overbroad. (Dkt. # 18 at 200 n.67). More recently,
the Tenth Circuit has again upheld this aggravating circumstance against charges it was vague and
overbroad. Brown, 515 F.3d at 1092. Based on those decisions, the Court finds that Tenth Circuit
precedent forecloses Lay’s facial challenge to Oklahoma’s continuing threat aggravating
circumstance as unconstitutional.
Lay’s second contention is that use of a probability standard rather than beyond a reasonable
doubt violates the Due Process Clause and is an unreasonable application of In re Winship. Under
Winship, any finding of fact entrusted to a jury must be proven beyond a reasonable doubt.
Winship, 397 U.S. at 364. However, Lay confuses the standard of proof – beyond a reasonable
doubt – with what must be proven: a probability that Lay would commit criminal acts of violence
that would constitute a continuing threat to society. The jury was instructed that in order to find that
the continuing threat aggravating circumstance exists, it must find beyond a reasonable doubt that
“defendant’s behavior has demonstrated a threat to society” and there was “a probability that this
threat will continue to exist in the future.” O.R. Vol. III at 411 (Supplemental Instruction No. 11);

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see also O.R. Vol. III at 409 (Supplemental Instruction No. 9); O.R. Vol. III at 401 (Supplemental
Instruction No. 1). The requirement that this probability be proven beyond a reasonable doubt
satisfies Winship.
Lay fails to show that the OCCA’s decision on this issue was “contrary to, or involved
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” §2254(d)(1). Thus, he is not entitled to habeas corpus relief on claim 13.
XIV. Insufficient instruction regarding findings necessary to impose the death penalty
As his final proposition of error, Lay complains that his jury was improperly instructed
regarding imposition of the death penalty. (Dkt. # 18 at 203). Specifically, he complains that the
trial court failed to instruct the jury that a sentence of death could be imposed only if the jury found
both an aggravating circumstance and that aggravation outweighs mitigation beyond a reasonable
doubt. Id. The OCCA found that “this issue has been addressed and denied. Lay offers no
compelling reason for this Court to reconsider this issue. This Proposition is denied.” Lay, 179 P.3d
at 623 (footnote omitted).
Lay contends that the failure to require a finding that aggravation outweighed mitigation
beyond a reasonable doubt violated Lay’s rights under the Sixth, Eighth, and Fourteenth
Amendments. (Dkt. # 18 at 204). He argues that the OCCA’s adjudication of this claim is contrary
to Jones v. United States, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Ring v. Arizona, 536 U.S. 584 (2002). Id. at 208. The constitutional error, according to Lay, is
structural and not amenable to harmless error analysis. Id. at 210. And, even if the error were
subject to harmless error review, the error was not harmless especially as his incompetence
prevented him from presenting a complete case in mitigation. Id. at 210-12.

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Respondent claims that only Lay’s Sixth Amendment claim is exhausted. (Dkt. # 39 at 117).
Respondent also argues that, to the extent Lay challenges the weighing instruction on state law
grounds, he is not entitled to habeas corpus relief. Id. at 118. Furthermore, Respondent argues that
Lay’s exhausted federal claim is precluded by the Tenth Circuit’s ruling in Matthews, 577 F.3d at
1195 (finding the petitioner’s “Apprendi argument is certainly barred on the merits by dint of our
recent decision in United States v. Barrett, 496 F.3d 1079, 1107-08 (10th Cir. 2007)”). Id. at 119.
In addition, Respondent argues that the OCCA’s rejection of Lay’s Ring claim was “wholly
reasonable” and that Lay cannot demonstrate that the state court’s opinion was contrary to, or an
unreasonable application of, federal law because “[t]here is simply no clearly-established Federal
law, articulated in Supreme Court case law, that the OCCA could unreasonably apply.” Id. at 12223. As to Lay’s remaining claims, that the uniform weighing instruction also violated the Eighth
Amendment and that the error is structural and not subject to harmless error analysis, Respondent
contends that the claims are unexhausted and procedurally barred. Id. at 117-18.
Lay replies that Respondent’s dissection of his claim “does not dictate a finding [that] any
aspect is unexhausted.” (Dkt. # 47 at 102). Lay also “recognizes the force” of the Tenth Circuit’s
decisions in Barrett and Matthews, but submits that the holdings in those cases “are contrary to
United States Supreme Court law.” Id. at 103.
The Court agrees with Respondent that Lay failed to exhaust his Eighth and Fourteenth
Amendment claims, as well as his claim that this error is not subject to harmless error review.
However, in light of the procedural posture of this case, it would be futile to require Lay to return
to state court because his unexhausted claims would undoubtedly be subject to a procedural bar
independent and adequate to prevent habeas corpus review. Therefore, there is no available state

92

corrective process, and consideration of the petition is not precluded by the exhaustion requirement
of § 2254(b). Nonetheless, the Eighth and Fourteenth Amendment and harmless error claims are
procedurally barred and are denied on that basis. Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n.7
(10th Cir. 2007) (describing application of “anticipatory procedural bar” to an unexhausted claim
that would be procedurally barred under state law if the petitioner returned to state court to exhaust
it).19
As to Lay’s Sixth Amendment claim, the OCCA rejected the claim on the merits, noting that
it had previously addressed and rejected an identical claim in Torres v. State, 58 P.3d 214, 216
(Okla. Crim. App. 2002). Lay, 179 P.3d at 623. In Matthews, 577 F.3d at 1195, an Oklahoma
capital habeas petitioner, relying on both Apprendi and Ring, argued that his jury should have been
instructed to find that the aggravating circumstances outweighed the mitigating circumstances
beyond a reasonable doubt. See id. Without this determination, Matthews argued his death sentence
was invalid. Relying on its decision in Barrett, 496 F.3d at 1107, the Tenth Circuit found no merit
to the claim. In particular, the court found that the jury’s weighing of the factors in aggravation and
mitigation “is not a finding of fact subject to Apprendi but a ‘highly subjective, largely moral
judgment regarding the punishment that a particular person deserves.’” Matthews, 577 F.3d at 1195
(quoting Barrett, 496 F.3d at 1107).
In accordance with Matthews, Lay fails to show that the OCCA’s determination of this issue
was an unreasonable application of federal law. Lay’s request for habeas corpus relief on claim 14
is denied.

19

Lay’s claim that anything in Wilson v. Workman, 577 F.3d 1284, 1294-95 (10th Cir. 2009)
permits him to present unexhausted constitutional claims in his habeas proceedings is
squarely rejected.
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XV.

Requests for an evidentiary hearing and for discovery
In his petition (Dkt. # 18 at 213-27), Lay requests that he be allowed to engage in discovery

(Dkt. # 18 at 213-22) and that the Court hold an evidentiary hearing on claims 1-5, and 10 (Id. at
223-28). In addition, Lay filed a motion renewing and supplementing his request for an evidentiary
hearing contained within his petition (Dkt. # 144). In response to the motion, Respondent filed a
motion to strike or, in the alternative, response to the renewed motion for evidentiary hearing (Dkt.
# 147).
As the disposition of Lay’s habeas corpus petition does not require reference to any materials
beyond those that are available and currently part of the record, the Court finds that there is no need
for an evidentiary hearing or discovery in this case. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
There are no disputed factual questions remaining that could possibly entitle Lay to habeas corpus
relief. He has failed to demonstrate the need for an evidentiary hearing under either 28 U.S.C. §
2254(e)(2), or any other governing principle of law. Pinholster, 131 S. Ct. at 1399-1401 (2011);
Williams, 529 U.S. 420 (2000). Accordingly, Lay’s requests for an evidentiary hearing and for
discovery are denied. Respondent’s motion to strike is declared moot.
CERTIFICATE OF APPEALABILITY
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” The Court recognizes that “review of a death sentence is among the most
serious examinations any court of law ever undertakes.” Brecheen, 41 F.3d at 1370. To be granted
a certificate of appealability, however, Lay must demonstrate a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner can satisfy that standard by

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demonstrating that the issues raised are debatable among jurists of reason or that the questions
deserve further proceedings. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). “Obviously the
petitioner need not show that he should prevail on the merits. He has already failed in that
endeavor.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citations omitted).
The Court reviewed each of Lay’ propositions of error, and found none of the claims merited
or warranted habeas relief. However, the Court has carefully considered each issue and finds that
the following enumerated issues could be debated among jurists or could be resolved differently by
another court:
Claims 2, 3, 4, 5, and 10: insofar as each raises an issue regarding Lay’s competency and/or
ineffective assistance of counsel.
Additionally, this Court finds that these same issues are adequate to deserve encouragement to
proceed further. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot, 463 U.S. at
893).
CONCLUSION
After careful review of the record in this case, the Court concludes that Lay has not
established that he is in custody in violation of the Constitution or laws of the United States. His
petition for writ of habeas corpus shall be denied.

ACCORDINGLY IT IS HEREBY ORDERED that:
1.

The petition for writ of habeas corpus (Dkt. # 18) is denied.

2.

Lay’s motion for an evidentiary hearing (Dkt. # 144) is denied.

3.

Respondent’s motion to strike (Dkt. # 147) is declared moot.

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4.

Lays’ motion “to reclaim deleted files stricken and removed from the public record and refile
all files electronically to be in compliance with Fed. R. Civ. P. 5(d)(4) and remove ruling
binding Petitioner to signatory approval of attorneys of record under Fed. R. Civ. P. 11”
(Dkt. # 168) is denied.

5.

A certificate of appealability is granted as to the claims specifically enumerated above.

6.

A separate judgment shall be entered in this matter.
DATED this 7th day of October, 2015.

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