UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10138
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GARY ANTHONY COLE,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:96-CV-823-A)
December 23, 1997
Before JOLLY, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Gary Anthony Cole (“Cole”) (federal prisoner #227-07-077)
seeks a certificate of appealability (COA) from the district
court’s denial of motion to vacate, set aside or correct his
sentence. 28 U.S.C. § 2255. We grant COA.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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FACTS AND PRIOR PROCEEDINGS
Cole pleaded guilty to delaying interstate commerce,
conspiring to do so, and using and carrying a firearm in relation
to a crime of violence. The district court sentenced Cole to 295
months’ imprisonment to be followed by four years’ supervised
release. Cole took no appeal and, consequently, the transcript of
rearraignment and sentencing were not produced.
Proceeding pro se, Cole filed a 28 U.S.C. § 2255 motion to
vacate, set aside or correct his sentence, which the district court
denied without a hearing. Cole appealed the denial of the motion.
This court construed Cole’s notice of appeal as a request for COA,
Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997); see Fed. R.
App. P. 22(b), and remanded the case to the district court. The
district court denied Cole a COA, finding that Cole had not raised
any grounds upon which relief could be granted, nor had he made a
substantial showing of the denial of a constitutional right. The
case is now back before this court to determine whether Cole should
be granted a COA and whether he is entitled to reversal on the
merits.
APPLICATION FOR COA
Section 102 of the AEDPA amends 28 U.S.C. § 2253 to provide:
(c)(1)Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken
to the court of appeals from . . .
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
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substantial showing of the denial of a constitutional
right.
Prior to the AEDPA, no threshold showing was required to
appeal the denial of a § 2255 motion. However, appeal from the
denial of a § 2254 motion has long required a certificate of
probable cause (“CPC”). See 28 U.S.C. § 2253 (pre-AEDPA). We have
construed the AEDPA standard governing the issuance of a COA to
require the same showing as that for obtaining a pre-AEDPA CPC.
Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996), overruled on
other grounds, Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997).
Thus, Cole must raise constitutional issues and allege specific
facts demonstrating that the issues he raises are “debatable among
jurists of reason.” See Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983).
Cole’s allegations satisfy this requirement. Cole alleges,
inter alia, that he received ineffective assistance of counsel when
he entered the plea agreement because his attorney did not raise
the issue of competency prior to his guilty plea. The conviction
of an incompetent defendant violates constitutional due process,
see Pate v. Robinson, 383 U.S. 375, 378 (1966), and ineffective
assistance of counsel violates the Sixth Amendment. See Strickland
v. Washington, 466 U.S. 668 (1984). Thus, Cole clearly has alleged
a violation of his constitutional rights.
To support his claims, Cole directs the court’s attention to
the presentence investigation report (“PSR”) that sets out facts
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relevant to his competency claim. He had received two gun shot
wounds in the head in a drive-by shooting. One of the bullets was
surgically removed, but one was left in his head. The wound
resulted in damage to the Broca’s area of his brain, which impacts
an individual’s ability to produce language. Moreover, Cole was
borderline mentally retarded, with an IQ of 73, and was making his
fourth attempt at ninth grade work when he dropped out of high
school. He was receiving counseling and medication for “depression
and intermittent explosive disorder” as a condition of his
previously imposed parole at the time of the plea hearing. In
addition to the information in the PSR, Cole contends that he was
receiving Social Security disability payments on account of his
mental disability and that his attorney “knew [he was on
medication] and told [him] not to file nothing to the courts or say
nothing to no one.” Finally, he asserts that the attorney who
represented him at his plea hearing got state charges arising out
of the same incident dismissed on the basis of incompetency. These
allegations are sufficient to support the issuance of a COA.
COA GRANTED.
DENIAL OF AN EVIDENTIARY HEARING
We agree with the district court that nearly all the grounds
Cole alleged to support his ineffective assistance of counsel claim
are clearly refuted by the record or are waived for failure to
raise them on direct appeal. Moreover, to the extent Cole raises
additional issues for the first time on this appeal, we shall not
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consider them. See United States v. Smith, 915 F.2d 959, 964 (5th
Cir. 1990) (per curium). Thus, we address only Cole’s claims that
defense counsel rendered ineffective assistance by failing to raise
the issue of his competency prior to his guilty plea and that
conviction of an incompetent defendant violated due process. The
sole issue Cole raises with respect to these claims is whether the
district court erred by denying habeas relief without conducting an
evidentiary hearing on his competence at the time of his guilty
plea.
Examining Cole’s allegations, the district court concluded
that “nothing in the record or in the papers attached to the
present motion raises a genuine issue as to petitioner’s competency
at the time of trial” and that “the allegations made by petitioner
simply do not support a claim that he received ineffective
assistance of counsel.” As a result, it found “no need for a
hearing on petitioner’s motion.” On the record before us, however,
we cannot agree.
Habeas petitioners claiming incompetency bear a threshold
burden of demonstrating facts that “positively, unequivocally and
clearly generate a real, substantial and legitimate doubt” as to
their mental capacity to “meaningfully participate and cooperate
with counsel during trial.” Washington v. Johnson, 90 F.2d 945,
950 (5th Cir. 1996). As noted above, Cole has alleged specific
facts sufficient to raise a question concerning his competence at
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the time he entered his guilty plea. Although the district court
suggests that the record does not support Cole’s contentions, its
factual basis for this conclusion is not clear. For instance,
Cole’s responses to questioning at his rearraignment hearing might
wholly contradict Cole’s allegations of incompetence, but the
record contains no transcript of this hearing. Similarly, Cole
alleges that he was found incompetent in state court proceedings,
but the record contains no evidence of such proceedings.
In short, the present record is insufficient to support the
district court’s conclusion that a retrospective competency hearing
was unnecessary. This is not to say, however, that the district
court on remand must conduct such a hearing. See United States v.
Drummond, 910 F.2d 284, 285 (5th Cir. 1990), cert. denied, 498 U.S.
1104 (1991). It is possible, for example, that the issues can be
developed adequately by examination of the transcript of the plea
hearing, Social Security Administration and state court documents,
or perhaps affidavits of Cole and his attorney. See United States
v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). We reverse and
remand so that the district court can develop the record and, if
necessary, hold an evidentiary hearing concerning Cole’s competence
and the related issue of ineffective counsel.
REVERSED AND REMANDED.
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