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Lay v. Royal

United States Court of Appeals, Tenth Circuit

June 26, 2017

WADE GREELY LAY, Petitioner - Appellant,
v.
TERRY ROYAL, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

         APPEAL 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.

          Before KELLY, BRISCOE, and McHUGH, Circuit Judges.

          KELLY, Circuit Judge.

         Petitioner-Appellant 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.

         Background

         In May 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 that day.

         The 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.

         In 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 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 [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 ...

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