FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 18, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Respondent-Appellee, No. 08-7004
v. (E.D. of Okla.)
GARY LYNN GAINES, (D.C. Nos. 6:05-CV-00249-JHP and
6:02-CR-00063-JHP-1)
Petitioner-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY and McCONNELL, Circuit Judges.
Gary Lynn Gaines, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) to challenge the district court’s denial of his 28 U.S.C. §
2255 petition. In 2002, Mr. Gaines pled guilty to aggravated sexual abuse of a
child in Indian country. In 2005, Mr. Gaines filed this petition for habeas relief
under § 2255, arguing that his guilty plea was not knowing and voluntary because
he was incompetent when he entered it. The district court denied his request for a
COA. Mr. Gaines now applies to this court for a COA, which we deny.
I. Background
We described the facts leading to Mr. Gaines’s instant petition for habeas
relief in United States v. Gaines, 214 F. App’x 849 (10th Cir. 2007):
After he was indicted, Mr. Gaines asked for and received a
competency examination. Dr. Thomas Patenaude, a psychologist,
performed it. After receiving Dr. Patenaude’s report, the court held a
competency hearing and then issued an order deeming Mr. Gaines
competent to stand trial. On December 18, 2002, approximately one
week after the district court deemed him competent, Mr. Gaines
pleaded guilty. The district court sentenced him to 168 months in
prison and a sixty-month term of supervised release.
On December 19, 2003—one year after Mr. Gaines was
sentenced—the Federal Bureau of Prisons (“BOP”) sent a letter to the
district judge informing him that an internal investigation of Dr.
Patenaude revealed “sufficient evidence to question the credibility
and accuracy of a psychological evaluation” Dr. Patenaude had
prepared in another case. The letter continued:
This internal investigation could call into question the
credibility of other psychological evaluations conducted by
this psychologist. Our records show that this psychologist
issued a report in a case before your court: United States v.
Gary L. Gaines, Case No. CR-02-063-P, concerning defendant
Gary Lynn Gaines, Register Number 29031-177. Accordingly,
we bring this information to your attention for any action the
court may deem appropriate.
Id. at 851.
The district court denied Mr. Gaines’s § 2255 petition. We granted COA,
and after receiving further briefing remanded to the district court for an
evidentiary hearing to determine whether, in light of the BOP’s letter, Mr. Gaines
was entitled to collateral relief on the ground that the credibility of his mental
competency evaluation had been called into question. 214 F. App’x at 852. We
also ordered that counsel be appointed. The district court conducted the
evidentiary hearing in accordance with this Court’s decision, and concluded that
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Mr. Gaines “presented absolutely no evidence [other than the BOP letter] to
support [his] allegation.” Dist Ct. Op. 5. The court found that “all of the
evidence presented establishes [that] the psychological evaluation of [Mr. Gaines]
was conducted in a routine manner and during the course of the evaluation [of
him] nothing came to the attention of the evaluators which would cause this Court
to question [Mr. Gaines’s] competency.” Id. On the basis of this evidence and
the district judge’s own recollection of Mr. Gaines’s plea colloquy, the district
court denied Mr. Gaines’s petition.
II. Analysis
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, a petitioner must demonstrate that “reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation
marks omitted).
We do not believe that standard was met. The district court conducted an
evidentiary hearing as required by this Court’s prior decision. Petitioner,
represented by counsel, had full opportunity to present evidence in support of his
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position. Based on that evidence, the district court reached a factual conclusion
that the psychological examination of Mr. Gaines was “conducted in a routine
manner” and that there was no reason to question the original finding of
competency. That factual conclusion is subject to review in this Court only for
clear error, which we do not discern.
Mr. Gaines bases his argument here primarily on a 2007 submission by the
government to the Eastern District of Oklahoma in a different case involving Dr.
Patenaude, in which the government reported that “the actions taken by the
Courts, government, and defense counsel [in response to the BOP’s letter on Dr.
Patenaude] [have] varied.” Government Response to Motion for Continuance
(September 10, 2007), 2. In some of the cases briefly described by the
government, the defendant was resentenced; in one, Dr. Patenaude’s study was
rejected and another study ordered; in another, a court found that nothing in the
BOP letter had anything to do with the particular defendant before that court, and
the defendant’s sentence was upheld. Id. at 2–3. Given these different outcomes,
Mr. Gaines suggests, reasonable minds must be able to debate whether he is
entitled to habeas relief.
This argument fails to recognize that in each case, the court is bound to
consider the import of the BOP’s letter as to the particular defendant before it.
The unfortunate history of Dr. Patenaude provided ample reason for this Court to
insist that an evidentiary hearing be conducted, but that hearing failed to uncover
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any evidence that Mr. Gaines’s psychological test was faulty or the results
incorrect. That in other cases there was such evidence avails Mr. Gaines not at
all.
As a brief review of the BOP’s complaint against Dr. Patenaude and the
record in this case will demonstrate, the district court was not mistaken in
concluding that Mr. Gaines is not entitled to habeas relief. The basis of the
BOP’s complaint against Dr. Patenaude was that he allegedly “falsified the
records of four federal inmates to make it appear he met with inmates when in
fact he had not.” Violette v. United States, 365 F. Supp. 2d 2, 4 (D. Me. 2005)
(internal quotations omitted). 1 If, therefore, this were a case where the district
judge had based his competency determination solely on Dr. Patenaude’s word
that he met with Mr. Gaines and found him competent, we might agree that
reasonable minds could at least debate whether Mr. Gaines was entitled to a new
competency hearing. The facts here, however, are different. At the evidentiary
hearing, testimony confirmed that Dr. Patenaude did, in fact, meet with Mr.
Gaines. A second doctor, Dr. Balduzzi, who was then completing a pre-doctoral
internship program at the Federal Medical Center-Devens, recalled assisting Dr.
Patenaude with the interview. As the district court noted, “Dr. Balduzzi
1
Dr. Patenaude apparently claims that this was merely the result of a clerical
error on his part. For purposes of this appeal, we assume the allegations against
Dr. Patenaude are true.
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remembered interviewing the defendant and the defendant’s life story as he told it
to her. Dr. Balduzzi administered the psychological tests referred to in
Petitioner’s Forensic Mental Health Evaluation and none of the testing results
gave her any reason to question [Mr. Gaines’s] competency.” Dist. Ct. Order
(Oct. 17, 2007), 4.
Mr. Gaines gives us no reason to question Dr. Balduzzi’s account. Her
independent recollection of Mr. Gaines’s case also bolsters the credibility of Dr.
Patenaude’s statement at the evidentiary hearing that Mr. Gaines presented an
“easy” case of competency, such that it was appropriate for a pre-doctoral intern
to handle. Id. at 2–3.
The district judge also based his conclusion that the BOP letter did not
impeach Mr. Gaines’s competency determination on his own interaction with Mr.
Gaines during the plea process. The district court found that Mr. Gaines
“personally appeared before this Court and communicated rationally and
effectively in entering a change of plea.” Id. at 5. Indeed, our own review of Mr.
Gaines’s plea colloquy with the district court convinces us that it would be hard
to conclude anything other than that Mr. Gaines was competent to plead guilty.
Not only did Mr. Gaines engage rationally and articulately with the district judge,
but he clearly understood the implications of receiving different advisory
Guidelines scores on the basis of his plea and his willingness to accept
responsibility for his actions.
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Because Mr. Gaines’s competency at trial was confirmed by several
sources, each of which supported the conclusion that he was competent, we find
that there is little risk that Mr. Gaines was incompetent to enter a guilty plea.
Therefore, we DENY Mr. Gaines’s request for a certificate of appealability.
All of Mr. Gaines’s other motions are DENIED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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