Robert Leroy BRYAN, Petitioner-Appellant, v. Gary GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee, 276 F.3d 1163

MURPHY, Circuit Judge. Robert Leroy Bryan appeals the denial of habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first degree malice murder conviction and death sentence. On appeal, Bryan challenges the sufficiency of the evidence to convict him, the retrospective determination that he was competent to stand trial, and his attorney’s representation. We affirm. The jury convicted Bryan of murdering his aunt. After finding that Bryan had previously been convicted of a violent felony and was a continuing threat to society, the jury sentenced Bryan to death.

The Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence, and denied post-conviction relief. See Bryan v. State, 935 P.2d 338 (Okla.Crim.App.1997); Bryan v. State, 948 P.2d 1230 (Okla.Crim.App.), cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). Bryan then filed his federal habeas petition.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), Bryan is entitled to relief only if he can show that the state court’s resolution of his claims was “contrary to, or involved an unreasonable application of, clearly established” Supreme Court precedent, or represented “an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d). We presume state court factual findings are correct, absent clear and convincing proof to the contrary. Id. § 2254(e)(1).

If the state court did not address a claim’s merit, however, this court then reviews the district court’s legal determinations de novo and its factual findings for clear error. See Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir.2000). I. Sufficiency of evidence to convict Bryan of first deyree malice murder. Bryan argues the State’s primarily circumstantial case was insufficient to support his first degree malice murder conviction.

The appropriate inquiry here is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Applying Jackson, the Oklahoma Court of Criminal Appeals held there was sufficient evidence to support Bryan’s capital murder conviction. Bryan, 935 P.2d at 358 n. 58, 358-59. That determination was reasonable.

See, e.g., Romano, 239 F.3d at 1164 (reviewing state court’s sufficiency-of-the-evidence determination for reasonableness). Under Oklahoma law, see Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781, “ ‘[a] person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.’ ” Bland v. State, 4 P.3d 702, 713 (Okla.Crim.App.2000) (emphasis omitted) (quoting Okla.

Stat. tit. 21, § 701.7(A)), cert. denied, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001). Viewed in the light most favorable to the State, see Jackson, 443 U.S. at 319, 99 S.Ct. 2781, the trial evidence established the following: Bryan’s widowed aunt, Ina-bel Bryan, disappeared from her home on Saturday, September 11, 1993. A neighbor found tire skid marks left in both the victim’s front and back yards. The width between those tracks matched that of a 1986 Lincoln Bryan had rented for that weekend. The victim’s friends and family also found a fresh potted plant in her home.

Bryan had bought that plant Saturday afternoon, September 11. Police would later find, near the victim’s body, a receipt for that purchase. Police found the victim’s body on Thursday, September 16, on Bryan’s parents’ rural property, about a quarter of a mile from the home where Bryan lived with his parents. The victim had a pillowcase duct-taped over her head and had died from a gunshot wound to the forehead. There was a single vehicle’s tracks through that field. A tire track across a mushroom there had the same tread pattern as the right rear tire on Bryan’s rented Lincoln.

Authorities had decided to search that particular field on the Bryan property because, several years earlier, Bryan had solicited an undercover police officer to kidnap and kill a local banker. That failed scheme had involved the same location where police found Ms. Bryan’s body. The previous kidnapping scheme had also included plans to force the banker to sign a number of promissory notes, which Bryan intended to enforce against the banker’s estate after his murder. Bryan had further planned to have the banker sign several personal checks, making them payable to Bryan.

Likewise, police in this case found in Bryan’s bedroom several handwritten promissory notes and agreements purportedly between the victim and Bryan, wherein the victim agreed she owed Bryan millions of dollars as a result of her investment in Bryan’s faded businesses.' A handwriting expert testified Bryan had written those agreements and had forged the victim’s signatures. Additionally, police found several of the victim’s personal checks among Bryan’s papers.

According to the handwriting expert: The victim had signed one blank check; Bryan had forged the victim’s signature on another; and the victim had signed four others, which Bryan had made payable to himself in varying amounts. Police also found the victim’s checkbook just outside the Bryan home, burned in a can of ashes. On September 8, the Wednesday before the victim’s disappearance, Bryan had rented the 1986 Lincoln from a local car dealership. When making these arrangements, he had requested a car with a large trunk. He returned the Lincoln on Monday, September 13.

Although he could not pay for the car’s rental at that time, he did show the car dealership’s owner one of the checks signed by the victim and made payable to Bryan. Police found a hair, similar to the victim’s, in that rental car’s trunk. They also found grass and vegetation, like that found on the Bryan property, throughout the car’s undercarriage. And the fibers lining the car’s trunk were similar to those found on the victim’s clothes and tape found on or near the victim’s body.

In addition, police found a roll of duct tape in Bryan’s room which was the same type as tape pieces found near the victim’s body, as well as the duct tape holding the pillowcase over the victim’s head. An expert testified that the edges of that tape roll taken from Bryan’s bedroom matched the edges of one of the pieces of tape found near the body. The bullet that killed the victim was most probably a .22 caliber bullet. It was also more consistent with CCI ammunition than it was to other brands. In one of the bedrooms in the Bryan home, police found a .22 caliber rifle loaded with one round of CCI ammunition.

And, on Saturday night, September 11, a witness had seen what appeared to be that same weapon in the Lincoln’s trunk. Officers also found, in Bryan’s bedroom, two spent .22 caliber CCI-brand shells, one in Bryan’s coveralls and another in his dresser drawer. That rifle had fired both those rounds. In addition, officers found, in Bryan’s bedroom, a full box of fifty Winchester .22 caliber bullets, and a partial box of .22 caliber CCI ammunition. And police recovered a .22 caliber CCI bullet from the rental ear’s floor.

A metallurgy study indicated that all the .22 caliber CCI bullets—the one that killed the victim, the one found in the rental car, and the ones found in the Bryan home were manufactured at the same time and could have come from the same box. This evidence, although circumstantial, was certainly sufficient to support Bryan’s first degree murder conviction. See Rojem v. Gibson, 245 F.3d 1130, 1141 (10th Cir.2001) (in dicta, determining circumstantial evidence was sufficient to support murder conviction); see also Romano, 239 F.3d at 1164-65.

The state appellate court, therefore, reasonably denied Bryan relief on this claim. II. Competency. Prior to the murder trial, the state court held a jury trial to determine Bryan’s competency. Although the jury found Bryan competent, it did so under an unconstitutional burden of proof. See Cooper v. Oklahoma, 517 U.S. 348, 350, 355-56, 369, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). On direct appeal, therefore, the Oklahoma Court of Criminal Appeals remanded Bryan’s case for the trial court to determine whether a retrospective competency hearing was feasible.

The trial court found that it was and, in 1996, held another competency jury trial. That jury again found that Bryan had been competent to stand trial in January 1995. Here, Bryan challenges the feasibility of that retrospective competency hearing and asserts that he was in fact incompetent at the time of trial. A. Feasibility of retrospective competency hearing. Due process mandates that a state provide adequate procedures to prevent prosecuting an incompetent criminal defendant. See, e.g., Medina v.

California, 505 U.S. 437, 449, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). “Although retrospective competency hearings are disfavored, they are permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively” the defendant’s competency. Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir.1999) (quotation omitted); see also McGregor v.

Gibson, 248 F.3d 946, 962 (10th Cir.2001) (en banc). “A meaningful” retrospective competency “determination is possible where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant’s condition at the time of the original state proceedings.” Clayton, 199 F.3d at 1169 (quotation omitted). Here, the Oklahoma Court of Criminal Appeals affirmed the trial court’s determination that a retrospective competency hearing was feasible. See Bryan, 935 P.2d at 347, 351. That determination was reasonable. See 28 U.S.C. § 2254(d).

In considering the feasibility of a such a hearing, a federal habeas court considers four criteria—the passage of time, available contemporaneous medical records and prior competency determinations, the defendant’s statements during trial, and available witnesses who interacted with him at the time of trial. See, e.g., McGregor, 248 F.3d at 962-63. In this case, these factors support the state courts’ determination that a meaningful, yet retrospective, competency hearing was possible.

The trial court conducted the retrospective competency hearing in August 1996, just one and one-half years after Bryan’s January 1995 trial. See, e.g., Clayton, 199 F.3d at 1168-69 (almost six years between trial and retrospective competency hearing was “troubling,” but did not preclude feasibility of retrospective competency determination in that case); cf., e.g., Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (determining there could not be meaningful retrospective competency determination after six years); Pate v.

Robinson, 383 U.S. 375, 377, 387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (same); McGregor, 248 F.3d at 963 (determining meaningful retrospective competency hearing could not be held after eleven years and in light of minimal contemporaneous medical evidence). Moreover, “[t]he passage of time is,” in any event, “not an insurmountable obstacle if sufficient contemporaneous information is available.” Clayton, 199 F.3d at 1169 (quotation omitted). Here, it was.

Four mental health experts, who had personally examined Bryan within the year before, or a few months after, his trial, were available to testify at the retrospective hearing. See Barefield v. New Mexico, 434 F.2d 307, 309 (10th Cir.1970); cf. McGregor, 248 F.3d at 963 (noting “disturbing lack of contemporaneous medical evidence” where only one psychiatrist testified for the State at previous competency hearing and he had not personally evaluated defendant, but rather testified from another doctor’s five-year-old notes).

Those experts also had access to Bryan’s medical records, as well as records from a brief mental hospitalization in early 1990 and a lengthier eight-month stay in 1989. Further, at the retrospective competency hearing, Bryan was able to present the testimony of the four defense attorneys who represented him before and during trial. His sister, an acquaintance, and his physician also testified as to Bryan’s condition at the time of trial. In addition, the State presented the testimony of two guards and a sheriff who were around Bryan during this time.

In light of these factors, there was clearly sufficient evidence available at the time of the retrospective hearing to provide Bryan with a meaningful competency hearing. See Clayton, 199 F.3d at 1169-70. The state appellate court’s decision upholding the trial court’s retrospective competency hearing, therefore, was not unreasonable. See 28 U.S.C. § 2254(d). B. Substantive due process claim. Bryan also asserts a substantive due process claim, alleging that he was in fact incompetent at the time of trial.

See McGregor, 248 F.3d at 952. “A defendant may not be put to trial unless he ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.’ ” Cooper, 517 U.S. at 354, 116 S.Ct. 1373 (quoting Dusky v. United, States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)). There is no real dispute here that Bryan possesses above-average intelligence and factually understood the legal proceedings against him.

The fact “[t]hat a defendant can recite the charges against [him], list witnesses, and use legal terminology!, however, is] insufficient to demonstrate that he had a rational, as well as factual, understanding of the proceedings.” McGregor, 248 F.3d at 952 (further quotation omitted). The question here, therefore, is whether Bryan had such a rational understanding at the time of trial. See Lafferty v.

Cook, 949 F.2d 1546, 1550 & n. 2 (10th Cir.1991). “[A] defendant lacks the requisite rational understanding if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.” Id. at 1551. “[Sufficient contact with reality” is, thus, the “touchstone for ascertaining the existence of a rational understanding.” Id. Despite significant evidence that Bryan is mentally ill, the jury at the retrospective competency hearing found that Bryan remained competent to stand trial. The Oklahoma Court of Criminal Appeals affirmed.

See Bryan, 935 P.2d at 348-49. Because competency is a factual issue, see, e.g., Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (citing Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam)), this court’s review is very limited. We must presume the jury’s competency finding is correct, see Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (per curiam) (applying pre-AEDPA law), absent clear and convincing evidence that Bryan was in fact incompetent at the time of his trial, see 28 U.S.C. § 2254(e)(1).

See also, e.g., Wallace, 191 F.3d at 1243-44. Bryan has failed to make such a showing. Bryan did present evidence at the retrospective competency trial that he suffers from a paranoid delusional condition resulting from significant organic brain damage. Nonetheless, “this circuit has long recognized that the presence of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to assist in his own defense.” United States v.

Markovich, 209 F.3d 1227, 1233 (10th Cir.) (direct criminal appeal) (further quotation, alteration omitted), cert. denied, 531 U.S. 905, 121 S.Ct. 248, 148 L.Ed.2d 179 (2000); see also Walker v. Gibson, 228 F.3d 1217, 1227 (10th Cir.2000), cert. denied, — U.S.-, 121 S.Ct. 2560, 150 L.Ed.2d 725 (2001), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir.2001). Two mental health experts, Dr. Philip Murphy, Ph.D. and Dr. John Smith, M.D., testified that Bryan was probably incompetent at the time of trial.

And four different defense attorneys testified that Bryan was unable to assist them rationally because he believed and asserted facts in his defense that could never be verified and were apparently untrue. Specifically, Bryan told his attorneys that, at the time of the murder, he had been involved with three other individuals in negotiating with the victim to settle her debt owed to Bryan as a result of her investment in Bryan’s failed businesses. It was these men, according to Bryan, who had directed him to rent the Lincoln that weekend and purchase the potted plant found in the victim’s home.

Bryan had, in fact, previously been involved in two business enterprises which eventually did fail, after enjoying initial success. There was, however, no evidence that the victim had ever been involved in any way in these business ventures. Nor could anyone ever locate the three individuals Bryan implicated in these events surrounding the murder. Bryan’s attorneys asserted, however, that, despite their apparent falsity, Bryan genuinely believed these facts were true. According to Dr. Murphy, Bryan’s mental illness focused on these failed businesses.

The doctor, therefore, opined that this unfounded defense Bryan consistently asserted to his attorneys was probably part of Bryan’s delusional system. That system centered on his belief that he had had a very lucrative idea or invention that would have revolutionized food processing, but that people had stolen this idea or invention from him, causing Bryan’s businesses to fail. Bryan contends that he was unable to assist his attorneys rationally at the time of trial because he was mired within these delusions, which colored his communications and the way he processed information.

Despite this testimony, however, there was also evidence supporting the jury’s competency finding. Dr. Richard Kahoe, Ph.D., evaluated Bryan in December 1993, just over a year before trial, and found that Bryan was competent. Dr. Kahoe determined that Bryan, at that time, was not delusional, nor psychotic. In addition, Dr. Frederick Smith, Ph.D., a prison psychologist, saw Bryan professionally from April 1994 through the time of trial, in January 1995. During that time, Bryan exhibited no significant abnormalities. Nor did Dr. Smith note any evidence of hallucinations or detect any delusions.

Psychological testing further supported Dr. Smith’s observations. Additionally, two corrections officers and a county jail administrator all testified that Bryan, at the time of trial, was able to understand jail procedures, communicate with them, and understand their directions. Even Bryan’s own expert, Dr. John Smith, testified that when he examined Bryan in December 1995, eleven months after his conviction and sentencing, Bryan was competent.

And, although psychiatric experts had previously deemed Bryan incompetent to stand trial on earlier charges, in March 1989, he did regain his competency in late 1989 and was again deemed competent in 1990 to stand trial on those charges. The evidence concerning Bryan’s competency was, thus, controverted. And resolving the competency question depended heavily on the factfinders’ “appraisal of witness credibility and demeanor.” Thompson, 516 U.S. at 111, 116 S.Ct. 457; see also Maggio, 462 U.S. at 117-18, 103 S.Ct. 2261.

Jurors “apparently accepted the prosecution’s argument that” a criminal defendant’s seeking to shift blame to other, perhaps fictitious individuals was not a product of Bryan’s mental illness so much as it was an attempt to avoid criminal liability. Mackovich, 209 F.3d at 1232 (direct criminal appeal). In light of that, Bryan has failed to rebut, by clear and convincing evidence, the jury’s factual finding that he was competent to stand trial. See 28 U.S.C. § 2254(e)(1).

Nor can we say the jury’s factual determination was unreasonable, “in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). III. Ineffective assistance of trial counsel. At trial, defense counsel failed to present any of the substantial evidence available concerning Bryan’s mental illness. Bryan now argues that his trial attorney was constitutionally ineffective for failing to do so. A. Conñict of interest.

Bryan first contends that his retained trial attorney did not present any psychiatrie evidence because Bryan’s parents, who were paying the attorney, did not want evidence of Bryan’s mental illness to be presented at trial. Because Bryari did not raise this conflict-of-interest claim until his state post-conviction relief application, however, the Oklahoma Court of Criminal Appeals deemed him to have defaulted this claim. See Bryan, 948 P.2d at 1232-33. As cause excusing this default, Bryan asserts that his appellate attorney was ineffective for failing to raise this claim on direct appeal. See, e.g., Sherrill v.

Hargett, 184 F.3d 1172, 1175 (10th Cir.1999). Direct-appeal counsel will be ineffective if counsel was “objectively unreasonable” in failing to raise the conflict-of-interest claim on direct appeal and if there is a “reasonable probability” that, had counsel raised this claim, Bryan “would have prevailed on his appeal.” Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The Oklahoma Court of Criminal Appeals rejected Bryan’s ineffective-appellate-assistance claim, without discussion of the underlying claim’s merit. See Bryan, 948 P.2d at 1232-33.

The district court, following an evidentiary hearing, made relevant factual findings, which we review only for clear error. See Thomas, 218 F.3d at 1220; see also United States v. Migliaccio, 34 F.3d 1517, 1526 (10th Cir.1994) (on direct criminal appeal, reviewing factual findings underlying actual conflict claim only for clear error). We conclude Bryan’s conflict-of-interest claim lacks clear merit. The state appellate court’s decision rejecting this claim, therefore, was not unreasonable. See 28 U.S.C. § 2254(d); see also Aycox v.

Lytle, 196 F.3d 1174, 1177-78 (10th Cir.1999) (affording deference, under AEDPA, to state court’s rejection of claim’s merit, despite that court’s failure to express its reasoning). Bryan’s parents initially retained attorney Raymond Munkres to represent Bryan. Munkres withdrew, however, after the initial competency trial. Two court-appointed attorneys, first Wesley Gibson and then Steven Hess, subsequently represented Bryan. In preparation for trial, Hess filed notice that he intended to present an insanity defense and listed several mental health experts as expected trial witnesses.

Within just a few weeks of trial, however, Bryan replaced Hess with another retained attorney, Jack Freeman. Bryan’s parents paid Freeman’s fees. Freeman represented Bryan at his first trial, which resulted in a first-stage mistrial. At that trial’s start, Freeman withdrew the insanity defense. At the second trial, four months later, Freeman did not present any evidence concerning Bryan’s mental problems, at either the first or second stage. Bryan now contends that Freeman failed to do so because Bryan’s parents did not want such evidence presented.

A criminal defendant has a Sixth Amendment right to conflict-free representation. See Smith v. Massey, 235 F.3d 1259, 1265 (10th Cir.2000) (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)), cert. denied, — U.S. -, 122 S.Ct. 235, 151 L.Ed.2d 169 (2001), abrogated on other grounds by Neill, 278 F.3d at 1044 (10th Cir.2001). That right “extends to any situation in which a defendant’s counsel owes conflicting duties to that defendant and some other third person.” Hale v.

Gibson, 227 F.3d 1298, 1312 (10th Cir.2000) (further quotation omitted), cert. denied, — U.S.-, 121 S.Ct. 2608, 150 L.Ed.2d 764 (2001). And there are certainly “inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party....” Wood v. Georgia, 450 U.S. 261, 268-69, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).

Where, as here, however, Bryan “raised no objection at trial,” Cuyler, 446 U.S. at 348, 100 S.Ct. 1708, he cannot now prevail unless he demonstrates “that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance,” Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (further quotation omitted). If he can make that showing, we will presume prejudice to his defense. See id.; see also Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708. The mere possibility of a conflict, however, is insufficient.

See Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. “An actual conflict of interest results if counsel was forced to make choices advancing other interests to the detriment of his client.” United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir.1998) (28 U.S.C. § 2255 proceeding). Here, Bryan has failed to demonstrate that there was an actual conflict of interest. First, the district court found that Bryan’s parents had not hired Freeman on the express condition that he not present any psychiatric evidence. See District Ct. Order at 77-78; see id. at 68.

In making this factual finding, the district court credited defense attorney Freeman’s testimony to this effect. The court further noted this testimony was bolstered by Freeman’s testimony that he had had Dr. Murphy present and ready to testify on the eve of sentencing. See id. at 78. Conversely, the district court discounted Bryan’s mother’s affidavit that Freeman had agreed, at the outset, not to present any evidence of Bryan’s mental problems. Mrs. Bryan had executed this affidavit after doctors diagnosed her as suffering from moderate to severe cardiovascular dementia. See id.

Furthermore, Bryan’s mother never reviewed her own affidavit for accuracy. Instead, Bryan’s post-conviction attorneys had Bryan’s sister review the affidavit for accuracy. Because “[t]he credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court,” United States v. Browning, 252 F.3d 1153, 1157 (10th Cir.2001) (direct criminal appeal; further quotation omitted), these factual findings are not clearly erroneous. See also, e.g., Romano, 239 F.3d at 1175 (deferring to district court’s credibility determination).

It is also clear, however, and the district court further found, that Freeman was aware that Bryan’s parents did not want him to present mental-illness evidence at trial. See District Ct. Order at 78. For that reason, the district court presumed there was an actual conflict between Bryan’s parents’ wishes and Bryan’s best interest in asserting such evidence to the jury. See id. at 77. In doing so, the district court disregarded the fact that Bryan did not want his defense attorney to present any psychiatric evidence. See October 27, 1999 Hr’g Tr. at 21, 22, 36; see also Appellant’s Opening Br. at 45.

The district court reasoned that, despite Bryan’s wishes, it would, nevertheless, have been in his best interest for defense counsel to present such evidence. See District Ct. Order at 68, 77. The district court’s reasoning, however, is “clearly inconsistent with the Supreme Court’s view of the attorney-client relationship.... [T]he Court [has] noted that ‘a client controls the significant decisions concerning his representation’ and can thus ‘fire his attorney if he is dissatisfied with his attorney’s performance.’ ” Smith, 235 F.3d at 1269 (quoting Chauffeurs, Teamsters & Helpers, Local No. 391 v.

Terry, 494 U.S. 558, 568-69, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990)). In light of Bryan’s earlier replacing his second court-appointed attorney, who was preparing to present evidence of Bryan’s mental problems, and Bryan’s post-conviction testimony that he did not want his attorney to present any psychiatric evidence, “we are unwilling to assume that [Bryan] would have allowed” Freeman to present any evidence pertaining to Bryan’s mental problems. Id. (holding no actual conflict existed).

Further, although the district court noted that “a person suffering from mental illness or delusions may well believe that he is not mentally ill and may be unable to make decisions based on a realistic evaluation of his best interests,” District Ct. Order at 68-69, Bryan was in fact found competent to stand trial.

See generally Cooper, 517 U.S. at 354, 116 S.Ct. 1373 (“Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel.” (further quotation omitted)). “Clearly one who is competent to stand trial is competent to make decisions as to the course of his future.” Evans v. Bennett, 440 U.S. 1301, 1304, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979) (Rehnquist, C. J., nevertheless granting capital defendant’s mother’s motion for stay of execution, where defendant sought to be executed).

The record, therefore, establishes that Bryan, like his parents, did not want defense counsel to put on any psychiatric evidence. Because “[a] conflict does not arise” unless “the interests of [the third party] and defendant [are] divergent in the current litigation, such that the [third party] has an interest in the outcome of the particular case at issue that is adverse to that of the defendant,” Hale, 227 F.3d at 1313, Bryan has failed to establish that there was any actual conflict here.

Even if we assume, as did the district court, that there was an actual conflict, however, Bryan has failed to prove that the conflict adversely affected defense counsel’s representation. See, e.g., Burger, 483 U.S. at 785, 107 S.Ct. 3114 (determining that, even if there was an actual conflict, it did not harm counsel’s advocacy). Freeman testified that Bryan’s parents’ wishes did not dictate his defense strategy. See October 27,1999 Hr’g Tr. at 89,108. The district court found this testimony “highly credible and convincing.” District Ct.

Order at 79; see Burger, 483 U.S. at 784-85, 107 S.Ct. 3114; Smith, 235 F.3d at 1269 n. 4 (dicta). That credibility finding is also not clearly erroneous. See, e.g., Browning, 252 F.3d at 1157; Romano, 239 F.3d at 1175. Even had Bryan’s direct-appeal counsel raised this conflict-of-interest claim on direct appeal, therefore, there is not a reasonable probability that Bryan would have prevailed. See Robbins, 528 U.S. at 285-86, 120 S.Ct. 746. His appellate attorney, thus, was not constitutionally ineffective for failing to raise this claim on direct appeal.

Bryan’s procedural default, therefore, precludes further habeas review of his conflict-of-interest claim. B. Ineffective representation. Bryan argues that, even if Freeman was not laboring under an actual conflict of interest, he was, nevertheless, constitutionally ineffective for failing to present any mental health evidence at either the trial’s first or second stage. Bryan will be entitled to habeas relief on this claim only if he can establish both that trial counsel’s performance was deficient and that he was thereby prejudiced. See Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we resolve this ineffective-assistance claim by addressing Freeman’s performance, we affirm the denial of habeas relief without addressing Strickland’s prejudice inquiry. See id. at 697, 104 S.Ct. 2052. “Judicial scrutiny of counsel’s performance must be highly deferential....

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. And there is a “strong presumption that defense counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.; see also Kimmelman v. Morrison, 477 U.S. 365, 383, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

To prevail, therefore, Bryan must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quotation omitted). “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690, 104 S.Ct. 2052. There is no question in this case that trial counsel had investigated and was well aware of the significant amount of evidence available concerning Bryan’s mental condition.

Nor is there any question that counsel’s decision not to present any mental health evidence, at either trial stage, was strategic. When Freeman first took over Bryan’s representation, within one month of the first trial, he inherited appointed counsel’s preparation for a defense relying upon this psychiatric evidence.

By that time, appointed counsel had filed notice of his intent to rely on an insanity defense and had garnered substantial evidence establishing Bryan’s mental illness, including a brain scan, previous mental hospitalization records, and reports from several mental health experts who were listed as expected trial witnesses. Yet, Freeman, aware of this mental health evidence and having met with these experts, chose, at the beginning of the first trial, to withdraw the insanity defense and to defend, at both the first and second trials, without introducing any such evidence. Cf. Battenfield v.

Gibson, 236 F.3d 1215, 1229 (10th Cir.2001) (holding counsel made “no strategic decision at all because [he] was ignorant of various other ... strategies he could have employed”). “The relevant question [here, then] is not whether counsel’s choices were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); see also, e.g., Burger, 483 U.S. at 789 n. 7, 107 S.Ct. 3114. 1. First stage.

Bryan contends that his defense attorney should have presented evidence of his mental illness during the trial’s first stage in support of either an insanity defense or a second-degree murder instruction. See Appellant’s Opening Br. at 40, 43-44. The Oklahoma Court of Criminal Appeals, in denying relief, held that counsel had investigated and was aware of the evidence of Bryan’s mental illness, but made the strategic decision instead to challenge the State’s evidence of guilt. See Bryan, 935 P.2d at 363 (holding also that such strategy did not prejudice Bryan).

That denial was not contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). To assert an insanity defense, “Oklahoma ... requir[es] the defendant to show that at the time of the crime he suffered from a mental disease or defect rendering him unable to differentiate between right and wrong, or unable to understand the nature and consequences of his actions.” James v. Gibson, 211 F.3d 543, 553 (10th Cir.2000) (further quotation omitted), cert. denied, 531 U.S. 1128, 121 S.Ct. 886, 148 L.Ed.2d 794 (2001). Dr.

Murphy, in his May 1994 report, did indicate that “Mr. Bryan suffers from a serious mental disorder which places in serious question ... his legal culpability in the crimes for which he is charged.” O.R. at 270. Nonetheless, Freeman testified that Dr. Murphy later indicated to Freeman that Bryan was not legally insane. See October 27, 1999 Hr’g Tr. at 83-85. Nor was there any other evidence specifically supporting a legal insanity defense. See id. at 26, 70-73, 83-85, 96, 106. In addition, under Oklahoma law, second degree murder “occurs ‘[w]hen perpetrated by

an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.’” Gilson v. State, 8 P.3d 883, 917 (Okla.Crim.App.2000) (quoting Okla. Stat. Ann. tit. 21, § 701.8(1)), cert. denied, 532 U.S. 962, 121 S.Ct. 1496, 149 L.Ed.2d 381 (2001). The facts in this case, however, do not suggest the lack of a premeditated intent to kill the victim. Rather, the victim was abducted from her home and shot, having had a pillowcase taped over her head.

Further, there was little evidence specifically indicating Bryan was not capable of forming the requisite intent for first degree malice murder. See October 27,1999 Hr’g Tr. at 72-73, 85-86, 87. In contrast, the State’s case, albeit strong, was almost entirely circumstantial. See Smith v. Gibson, 197 F.3d 454, 461-62 (10th Cir.1999) (holding defense counsel’s argument was reasonable strategy in light of State case’s circumstantial nature).

And there was evidence indicating that Bryan’s physical condition had so deteriorated at the time of the murder, due to his diabetes, that he was physically incapable of carrying out this crime. Moreover, Bryan did not want his attorney to present evidence suggesting he was mentally ill. And we must presume Bryan was competent to rationally assist defense counsel at trial. See supra

section 11(B). “The reasonableness of counsel’s actions[, therefore,] may be determined or substantially influenced by the defendant’s own statements or actions.

Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052, see also, e.g., Romano, 239 F.3d at 1181, citing cases. “Although trial counsel has an independent duty to investigate and make a case in [defense], counsel also has to be responsive to the wishes of his client.” Romano, 239 F.3d at 1181; see also Wallace, 191 F.3d at 1247 (holding attorney’s decision to acquiesce to petitioner’s wishes that attorney not present any mitigating evidence was not deficient performance).

In light of these facts, the state appellate court’s denial of relief was not contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). 2. Second stage. Bryan argues that, regardless of whether trial counsel reasonably decided not to present the available psychiatric evidence during the trial’s first stage, counsel should have presented it in mitigation during the capital sentencing proceeding.

The Oklahoma Court of Criminal Appeals held that trial counsel had investigated and was aware of the available psychiatric evidence, but made a plausible strategic decision not to use that evidence, instead relying on any residual doubt the jury might have had as to Bryan’s guilt. See Bryan, 935 P.2d at 363. The state appellate court further determined trial counsel reasonably believed that presenting any psychiatric evidence would undermine that defense. See id. The state appellate court’s decision was again not contrary to, nor an unreasonable application of, clearly established Supreme Court precedent.

See 28 U.S.C. § 2254(d)(1). “ ‘[R]esidual doubt has been recognized as an extremely effective argument for defendants in capital cases.’ ” Smith, 197 F.3d at 462 (quoting Lockhart v. McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (further quotation omitted)). Such a strategy here was reasonable in light of the entirely circumstantial case supporting Bryan’s guilt and the existence of some evidence suggesting Bryan was not physically able to carry out the murder. See id. at 457-58, 462, 106 S.Ct. 1758.

Bryan, nonetheless, argues that trial counsel’s strategy cannot be considered reasonable because it was founded upon counsel’s mistaken belief that this mental health evidence could not be useful at sentencing unless it would establish that Bryan was either incompetent to stand trial or legally insane at the time of the murder. Although Freeman was primarily concerned with incompetence and legal insanity, see October 27, 1999 Hr’g Tr. at 86, 87, 96-97, 105-06, 108-09, he further believed, reasonably, that presenting this evidence would also undermine his residual doubt defense, see id. at 86-87, 89.

And, while evidence that Bryan was mentally ill would have been legitimate mitigating evidence, see Burger, 483 U.S. at 789 n. 7, 107 S.Ct. 3114, defense counsel feared that, here, it would actually further support the State’s claim that Bryan represented a continuing threat to society, giving jurors more reason to sentence Bryan to death. See October 27, 1999 Hr’g Tr. at 85-86, 105-06. The state appellate court determined trial counsel was reasonable in that belief, too. See Bryan, 935 P.2d at 363. Such psychiatric evidence does present a double-edged sword.

See also October 27, 1999 Hr’g Tr. at 30 (Bryan’s legal expert). Further, although that evidence might have explained that Bryan, in abducting and killing his aunt, was acting- under a delusional belief that his aunt owed him money as a result of his failed business, Freeman’s mental health experts would also have testified that he knew right from wrong and remained capable of forming the intent to kill. See id. at 26, 70-73, 83-85, 87, 96, 106.

Thus, although Freeman might have been able to explain why Bryan irrationally believed his aunt, and others, owed him money, the evidence still indicated Bryan had killed his aunt, and had earlier plotted to abduct and murder a local banker, with the understanding that what he was doing was wrong. Freeman, therefore, could have reasonably feared that this evidence, rather than providing a basis for jurors not to sentence Bryan to death, might instead actually support the State’s contention that Bryan was a continuing threat and deserved to die. See Burger, 483 U.S. at 793-94, 107 S.Ct. 3114; see also Darden v.

Wainwright, 477 U.S. 168, 184-87, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). This is so even in light of the evidence indicating antipsychotic medication might improve Bryan’s condition. During his eight-month commitment in 1989, Bryan regained his competency after treatment that included daily doses of Navane. Although the hospital discharged Bryan on Navane in 1989, the record indicates he stopped taking that medication immediately upon his hospital release. He, nonetheless, retained his competency after that.

And testimony indicated that Navane would not correct Bryan’s organic brain syndrome, although it might be helpful in suppressing its secondary symptoms, including his delusions. Lastly, but perhaps most importantly, Bryan did not want defense counsel to present any psychiatric evidence. See, e.g., Romano, 239 F.3d at 1181; Smith, 235 F.3d at 1278; Wallace, 191 F.3d at 1247-48. And in this case, we must presume that Bryan was competent to make that determination. See supra

section 11(B).

Again, “[cjounsel’s actions are usually based, quite properly, on [the defendant’s] informed strategic choices.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052; see Wallace, 191 F.3d at 1246-47 (holding trial counsel was not ineffective in acquiescing to competent capital defendant’s wish that attorney not present mitigating circumstances or challenge State’s aggravating evidence); see also Smith, 235 F.3d at 1278 (holding defense attorney’s second-stage strategy was reasonably shaped by capital defendant’s decision not to testify that she was under influence of drugs and alcohol at time she committed murder).

See generally Hale, 227 F.3d at 1315 (“[T]he failure to present available mitigating evidence is not per se ineffective assistance of counsel.”) (quotation omitted). Therefore, we cannot say, under these facts, that counsel’s strategic choice not to present this psychiatric evidence during the capital sentencing proceeding was completely unreasonable. Cf.

Burger, 483 U.S. at 793-94, 107 S.Ct. 3114 (holding counsel had reasonable basis for his strategic decision that explanation of petitioner’s troubled history would not have minimized his risk of receiving death sentence). “There are countless way to provide effective assistance in any given case.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).

And we are mindful that it 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.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Nix, 475 U.S. at 165, 106 S.Ct. 988. Instead, “in considering claims of ineffective assistance of counsel, ‘[w]e address not what is prudent or [even] appropriate, but only what is constitutionally compelled.’” Burger, 483 U.S. at 794, 107 S.Ct. 3114 (quoting United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)).

Here, Bryan has failed to establish that “in light of ah the circumstances, [counsel’s] identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052; see also, e.g., Kimmelman, 477 U.S. at 382, 106 S.Ct. 2574 (noting only those habeas petitioners whose attorneys’ “gross incompetence” has denied them fair trial are entitled to habeas relief); Gonzales v.

McKune, 247 F.3d 1066, 1072 (10th Cir.2001) (holding that, for counsel’s performance to be constitutionally ineffective, his decision must have been “not simply wrong, but instead ... completely unreasonable”). Because we are able to resolve this ha-beas claim on Strickland’s performance prong, we need not further address any resulting prejudice. IV. Conclusion. For these reasons and having considered all Bryan’s arguments, we affirm the district court’s denial of habeas relief and deny all pending motions. .

This court has not yet determined whether, under AEDPA, it reviews the state court’s sufficiency-of-the-evidence determination as a legal issue under 28 U.S.C. § 2254(d)(1), or a factual finding under § 2254(d)(2) and (e)(1). See, e.g., Romano v. Gibson, 239 F.3d 1156, 1164 n. 2 (10th Cir.), cert denied, - U.S. -, -, 122 S.Ct. 624, 628, 151 L.Ed.2d 545, 548 (2001). In this case, we would reach the same result under either standard. See id. .

Bryan also appears to argue that the State, in any event, failed to present any of this available evidence at the hearing to determine the feasibility of a retrospective competency hearing and, therefore, the state trial court erred in determining such a hearing was feasible. According to Bryan, because of the State's failure to present sufficient evidence at the feasibility hearing, he should never have had to prove his incompetence at the retrospective competency hearing.

"[I]t is enough[, however,] that the State affords the criminal defendant on whose behalf a plea of incompetence is asserted a reasonable opportunity to demonstrate that he is not competent to stand trial.'' Medina, 505 U.S. at 451, 112 S.Ct. 2572 (addressing whether State can constitutionally require criminal defendant to bear burden of proving his incompetence). This the state court did. . Bryan appears to assert that this court should not presume this competency finding is correct because the state appellate court employed the wrong legal standard on direct appeal.

See Lafferty, 949 F.2d at 1549-50 (noting first inquiry in determining whether factual finding should be presumed correct is whether factfinder employed correct legal standard in making that finding). While this court presumes correct factual findings made by either the state trial or appellate court, see, e.g., Sumner v. Mata, 455 U.S. 591, 592-93, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (per curiam), in this case, our review focuses on the jury's competency finding, see Profitt v.

Waldron, 831 F.2d 1245, 1250 (5th Cir.1987) (pre-AEDPA case affording presumption to jury's competency finding); see also, e.g., Wallace v. Ward, 191 F.3d 1235, 1242-43 (10th Cir.1999) (focusing habeas review on state trial court's competency decision); Bryson v. Ward, 187 F.3d 1193, 1203-04 (10th Cir.1999). See generally Mata, 455 U.S. at 592-93, 102 S.Ct. 1303 (noting correctness presumption "is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact” (emphasis added)).

And, here, Bryan does not in any way challenge the legal standard with which the trial court instructed the competency jury. . Dr. Smith did, in later state post-conviction proceedings, question this competency determination. . On appeal to this court, Bryan does not challenge this procedural bar's adequacy or its independence from federal law. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also, e.g., Smallwood v.

Gibson, 191 F.3d 1257, 1268 (10th Cir.1999) (holding that, although State bears ultimate burden of proof, habeas petitioner has burden to set forth specific allegations challenging state bar's adequacy, once State pleads that affirmative defense). . The State does not challenge the district court’s conducting an evidentiary hearing. See generally Romano, 239 F.3d at 1174 n. 9 (declining to address whether habeas petitioner was entitled to evidentiary hearing, when district court had already conducted one). .

This court, in Lafferty, 949 F.2d at 1556, held that due process does not permit assuming "a defendant suffering from paranoid delusions is to be held competent to make decisions on how best to present his mental state to a judge and jury even though that mental illness may strip him of the ability to realistically determine where his best interests lie.” Nonetheless, Lafferty is distinguishable. In that case, this court refused to presume the state court's competency determination was correct because the state court had applied an incorrect constitutional standard when it determined competence. See id. at 1551.

There is no similar problem here. . Bryan does not assert that our failure to review this claim further will result in a fundamental miscarriage of justice. See, e.g., Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). . For these same reasons, Bryan's claim also fails to the extent he is arguing that this evidence could have supported other, lesser offenses. See Appellant's Opening Br. at 40.