FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA (D.C. No. 4:08-CV-00617-TCK-PJC)
Susanna M. Gattoni of Hall, Estill, Hardwick, Gable, Golden
& Nelson, P.C., Oklahoma City, Oklahoma (Patti Palmer
Ghezzi, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, with her on the briefs), for Petitioner -Appellant.
Jennifer L. Crabb, Assistant Attorney General (E. Scott
Pruitt, Attorney General of Oklahoma, with her on the brief),
Oklahoma City, Oklahoma, for Respondent -Appellee.
KELLY, BRISCOE, and McHUGH, Circuit Judges.
Wade Greely Lay appeals from the district court's denial
of his petition for writ of habeas corpus made pursuant to 28
U.S.C. § 2254 and from the district court's refusal
to issue a competency-based stay. Lay v. Trammell,
No. 08-CV-617-TCK-PJC, 2015 WL 5838853 (N.D. Okla. Oct. 7,
2015). Our jurisdiction arises under 28 U.S.C. § 1291,
and we affirm.
2004, Mr. Lay and his son, Chris Lay, attempted to rob a bank
in Tulsa, Oklahoma. The Lays entered the bank wearing ski
masks and gloves and were armed. Chris immediately ordered a
bank employee to get on the ground, which caught the security
guard's attention. A shootout resulted in the security
guard's death. Injured, the Lays fled without any cash.
They did not get very far; authorities apprehended them later
Lays were tried together in September 2005. Chris was
represented by counsel and Mr. Lay chose to proceed pro se.
Both admitted guilt, but argued their actions were justified
because the government had become tyrannical, and they needed
funds from the bank to start a patriotic revolution as was
done by the Founding Fathers. Chris and Mr. Lay were
convicted of first-degree murder and attempted robbery with a
firearm. The jury sentenced Chris to life in prison without
parole and Mr. Lay to death. The Oklahoma Court of Criminal
Appeals (OCCA) affirmed Mr. Lay's sentence and conviction
on direct appeal, Lay v. State, 179 P.3d 615 (Okla.
Crim. App. 2008), abrogated on other grounds by
Harmon v. State, 248 P.3d 918, 938-39 (Okla. Crim.
App. 2011), and rejected both of his applications for
post-conviction relief, Lay v. State, No.
PCD-2006-1013 (Okla. Crim. App. Sept. 26, 2008)
(unpublished); Lay v. State, No. PCD-2010-407 (Okla.
Crim. App. Oct. 13, 2010) (unpublished); see also
Aplt. Br. Attachs. B & C.
September 2009, Mr. Lay filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In 2011, the
district court stayed the habeas proceedings due to Mr.
Lay's alleged mental incompetence. It also ordered Mr.
Lay to participate in a psychiatric evaluation, and it set an
evidentiary hearing. Almost two years later, but before an
evidentiary hearing was held, the Supreme Court held in
Ryan v. Gonzales that habeas petitioners on death
row do not have a statutory right to be competent during
habeas proceedings. 133 S.Ct. 696, 702-03, 706 (2013). The
district court then lifted the stay, explained that an
evidentiary hearing would be unnecessary, and denied habeas
relief. It also granted a certificate of appealability (COA)
on five of Mr. Lay's claims insofar as they relate to
competency or effective assistance of counsel:
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: [Mr. Lay] 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
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
Claim No. 5: The trial court unfairly exposed [Mr. Lay] 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
[Amendment] rights under the United States Constitution. . .
Claim No. 10: Mr. Lay was denied effective assistance of
prior counsel in violation of the Sixth and ...