Colburn v. Cockrell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-20782
_____________________

JAMES BLAKE COLBURN

Petitioner - Appellant

v.

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION

Respondent - Appellee

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
499-CV-4200
_________________________________________________________________
May 9, 2002

Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.

KING, Chief Judge:*

Petitioner - Appellant James Blake Colburn was convicted and

sentenced to death in Texas state court for the capital murder of

Peggy Murphy. He now requests a certificate of appealability to

appeal the federal district court’s denial of habeas corpus

*
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that this opinion should not be published and is not precedent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.
relief under 28 U.S.C. § 2254. For the following reasons, we

DENY Colburn’s request for a certificate of appealability.

I. Factual and Procedural History

On June 26, 1994, Colburn met Peggy Murphy while walking

across a road to visit a friend. Murphy was hitchhiking on the

road, which was near Colburn’s apartment. Colburn invited Murphy

up to his apartment for a drink of water. After unsuccessfully

attempting to force Murphy to have sexual intercourse with him,

Colburn killed Murphy in his apartment by choking her and

stabbing her in the neck with a knife. Colburn then went to a

neighbor’s apartment and asked the neighbor to call the police.

Colburn was indicted on August 10, 1995, for the offense of

capital murder.1 During his trial, the jury heard Colburn

describe his encounter with Murphy in a videotaped confession.

The jury found Colburn guilty of capital murder. Pursuant to

Article 37.071, Section 2 of the Texas Code of Criminal

Procedure, the jury was presented with two special issues at the

sentencing phase of Colburn’s trial.2 On October 10, 1995, the

1
Colburn’s attempted aggravated sexual assault of Murphy
elevated her murder to a capital offense. TEX. PENAL CODE ANN.
§ 19.03(a)(2) (Vernon 1994).
2
The special issues presented to the jury were as
follows:
(1) Whether there is a probability that the
defendant, James Blake Colburn, would commit
criminal acts of violence that would
constitute a continuing threat to society?
(2) Whether taking into consideration all of
the evidence, including the circumstances of

2
jury returned an affirmative answer to the first special issue

concerning future dangerousness and a negative answer to the

second special issue concerning whether mitigating circumstances

would warrant a life sentence. Accordingly, the trial court

sentenced Colburn to death by lethal injection, as the jury’s

findings required under Article 37.071, Section 2(g) of the Texas

Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 37.071,

§ 2(g) (Vernon Supp. 2002).

On direct appeal, the Texas Court of Criminal Appeals

affirmed Colburn’s conviction and sentence. Colburn v. State,

966 S.W.2d 511 (Tex. Crim. App. 1998). Colburn did not file a

petition for writ of certiorari to the United States Supreme

Court. On January 17, 1997, Colburn filed a state petition for

writ of habeas corpus. The trial court recommended that the writ

be denied, and on December 2, 1998, the Texas Court of Criminal

Appeals denied habeas relief to Colburn. The Court of Criminal

Appeals adopted most of the findings of fact and conclusions of

law recommended by the trial court but specifically refused to

adopt others.

the offense, the defendant’s character and
background, and the personal moral
culpability of the defendant, that there is a
sufficient mitigating circumstance or
circumstances to warrant that a sentence of
life imprisonment rather than a death
sentence be imposed?

3
 One year later, on December 2, 1999, Colburn filed his

federal habeas petition in federal district court. The director

of the Texas Department of Criminal Justice (“Respondent”) filed

a motion for summary judgment, and Colburn filed a cross-motion

for summary judgment. The district court granted summary

judgment in favor of Respondent, denied Colburn habeas relief,

and denied Colburn’s request for a certificate of appealability

(“COA”) on all of his claims on May 21, 2001. Colburn timely

appealed the district court’s denial of habeas relief, seeking a

COA from this court on four issues: (1) whether the district

court erred when it found Colburn’s procedural competency claim

to be defaulted and, alternatively, whether the district court

erred in denying Colburn relief on the merits of that claim; (2)

whether the district court erred in denying Colburn relief on his

claim that he was incompetent to stand trial; (3) whether the

district court erred in denying Colburn relief on his claim that

he received ineffective assistance of counsel due to his

attorneys’3 failure to request a competency hearing prior to

trial; and (4) whether the district court erred in denying

Colburn relief on his claim that he received ineffective

assistance of counsel due to his attorneys’ misuse of expert

witnesses.

3
Jerald Crow and F.M. “Rick” Stover represented Colburn
at trial. We refer to Crow and Stover collectively as “Colburn’s
attorneys” throughout this opinion.

4
 II. Standards of Review

We review the district court’s grant of summary judgment de

novo, applying the same standards as the district court. Fisher

v. Texas, 169 F.3d 295, 299 (5th Cir. 1999). Since Colburn filed

his federal habeas application in the district court after April

24, 1996, his claims are governed by the standards established in

the Anti-Terrorism and Effective Death Penalty Act of 1996 (the

“AEDPA”), 28 U.S.C. § 2254 (Supp. 2001). See Lindh v. Murphy,

521 U.S. 320, 336 (1997); Green v. Johnson, 116 F.3d 1115,

1119-20 (5th Cir. 1997). Under the AEDPA, before an appeal from

a denial of a § 2254 habeas petition can proceed, the petitioner

must obtain a COA, which 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) (Supp. 2001). “An applicant

makes a substantial showing when he demonstrates that his

application involves issues that are debatable among jurists of

reason, that another court could resolve the issues differently,

or that the issues are suitable enough to deserve encouragement

to proceed further.” Rudd v. Johnson, 256 F.3d 317, 318-19 (5th

Cir. 2001).

Moreover, “the determination of whether a COA should issue

must be made by viewing the petitioner’s arguments through the

lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).”

Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). Under

5
§ 2254(d), an application for a writ of habeas corpus shall not

be granted with respect to any claim that was adjudicated on the

merits in state court proceedings unless the adjudication of the

claim: “(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2); see also Wheat v. Johnson, 238 F.3d 357, 360 (5th

Cir. 2001). Additionally, a state court’s determination of

factual issues must be presumed correct, and the habeas

petitioner bears the burden of rebutting this presumption by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The

presumption of correctness is especially strong where, as here,

the trial and the state habeas proceedings occur before the same

state judge. See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.

2000).

III. Issues 1 and 2: Colburn’s Competency-Related Claims

In this federal habeas proceeding, Colburn raises two claims

related to his competency to stand trial. First, Colburn asserts

that the district court erred in denying Colburn relief on his

procedural competency claim.4 Second, Colburn asserts that the

4
This procedural competency claim is often referred to as
a Pate claim. The Supreme Court’s opinion in Pate v. Robinson,

6
district court erred in denying Colburn relief on his claim that

he was incompetent to stand trial.5 We conclude that Colburn

fails to make a substantial showing of the denial of a

constitutional right with respect to each of these competency-

related claims. Accordingly, we deny his request for a COA on

these claims.

A. Standard of Review

Colburn asserts that the district court erred in reviewing

his procedural and substantive competency claims under a

deferential rather than a de novo standard. Citing Bouchillon v.

Collins, 907 F.2d 589, 592-94 (5th Cir. 1990), Colburn argues

that because he did not receive a “full and fair hearing” on his

competency claims in state habeas proceedings, the presumption of

correctness that the AEDPA accords to state court findings of

fact must be abandoned. This contention is incorrect.

Colburn requests that this court enforce a standard that is

no longer valid. Bouchillon was decided under pre-AEDPA law,

under which the presumption of correctness could be abandoned if

the petitioner was denied a “full and fair hearing” in state

383 U.S. 375 (1966), established that a court must sua sponte
conduct an inquiry into a defendant’s mental capacity if the
evidence before the court raises a bona fide doubt as to the
defendant’s competency to stand trial. Id. at 385.
5
Colburn also asserts that the district court erred in
denying Colburn relief on his claim that he received ineffective
assistance of counsel due to his attorneys’ failure to request a
competency hearing prior to trial. We address this claim below.
See infra Part IV(B).

7
court. 907 F.2d at 593 & nn.11-12. Furthermore, when Bouchillon

was decided, there was no deferential standard of review for a

state court’s legal conclusions. The AEDPA abandoned the

standards of review used in pre-AEDPA cases like Bouchillon and

“put into place a deferential scheme, under which we must defer

to a state court adjudication on the merits.” Valdez v.

Cockrell, 274 F.3d 941, 950 (5th Cir. 2001). The AEDPA

“jettisoned all references to a ‘full and fair hearing’ from the

presumption of correctness accorded state court findings of fact”

so that “a full and fair hearing is not a prerequisite to the

application of 28 U.S.C. § 2254’s deferential scheme.” Id. at

949, 942.

B. Colburn’s Pate Claim

In his first competency-related claim, Colburn alleges that

the district court erred in denying Colburn relief on his claim

that the trial court committed a Pate violation during Colburn’s

trial. A trial court commits a Pate violation by failing to

conduct sua sponte an inquiry into a defendant’s mental capacity

to stand trial when the evidence raises a bona fide doubt as to

his competency at the time of trial. Pate, 383 U.S. at 385. The

test for competence is whether a person has (1) “sufficient

present ability to consult with the person’s lawyer with a

reasonable degree of rational understanding,” and (2) a “rational

as well as factual understanding of the proceedings against the

8
person.” TEX. CODE CRIM. PROC. ANN. art. 46.02, § 1A(a) (Vernon

Supp. 2002); see also Dusky v. United States, 362 U.S. 402, 402

(1960).

The State argues, and the district court found, that Colburn

failed to exhaust his Pate claim. We agree. “The exhaustion

requirement is satisfied when the substance of the federal habeas

claim has been fairly presented to the highest state court.”

Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). A review of

Colburn’s state habeas petition reveals that Colburn did not

present the legal or factual basis for a procedural Pate claim to

the state court. As the district court correctly recognized,

mere citation to Pate for a general legal principle is

insufficient to alert the state court to the existence of a

procedural competency claim. Colburn fails to persuade us that a

COA should issue on this point.

C. Colburn’s Substantive Incompetency Claim

In his second competency-related claim, Colburn asserts that

the district court erred in denying Colburn relief on his claim

that he was incompetent to stand trial.6 “[A] habeas petitioner

6
The district court was “disinclined to find the
substantive competency claim unexhausted,” and disposed of the
claim on the merits, relying on the state court’s finding that
Colburn was competent to stand trial. Under § 2254(b)(2), “[a]n
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(2). Since we find that Colburn fails to make a
substantial showing of the denial of a constitutional right on
his substantive competency claim, we do not address exhaustion.

9
may collaterally attack his state conviction by directly alleging

incompetence at the time of trial, thereby claiming a violation

of the substantive right not to be tried and convicted while

incompetent . . . .” Carter v. Johnson, 131 F.3d 452, 459 n.10

(5th Cir. 1997). However, the petitioner’s burden to demonstrate

incompetency at the time of trial “is extremely heavy.” Johnson

v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983). This burden

requires the petitioner to “present facts sufficient to

positively, unequivocally, and clearly generate a real,

substantial and legitimate doubt” as to his competency. Id.

Pursuant to § 2254(e)(1), we presume the correctness of the

state habeas court’s fact finding that:

Based on the credible affidavits of trial
counsel, and [the state judge’s] personal
recollection, [Colburn] fully understood the
nature of the proceedings against him and was
able to communicate with and otherwise assist
trial counsel in his defense.

In other words, the state habeas court found that Colburn

satisfied both requirements for competency: (1) “sufficient

present ability to consult with [his] lawyer with a reasonable

degree of rational understanding,” and (2) a “rational as well as

factual understanding of the proceedings against [him].” TEX.

CODE CRIM. PROC. ANN. art. 46.02, § 1A(a); see also Dusky, 362 U.S.

at 402. The district court concluded that “[t]he evidence of

record is insufficient to raise a real and substantial doubt

concerning Colburn’s competency at the time of his trial.” We

10
agree. Colburn fails to adduce clear and convincing evidence of

his incompetency sufficient to overcome the presumption of

correctness that attaches to the state habeas court’s

determination that he was competent at the time of trial.7

i. The Evidence Supporting Colburn’s Competency

Substantial evidence supports the state habeas court’s

finding that Colburn was competent to stand trial. At Colburn’s

request, the state trial court appointed Dr. Walter Quijano to

determine Colburn’s competency. Dr. Quijano examined Colburn

approximately ten months prior to his trial. After interviewing

Colburn and reviewing his medical history, Dr. Quijano concluded

that Colburn “had a factual understanding of the proceedings

against him.” Dr. Quijano also reported that Colburn “appeared

to have a rational understanding of the proceedings against him”

because he “knew the events leading to arrest and related them to

the charge, the wrongfulness of the conduct charged, the

consequences of a guilty verdict, and the proceedings in court.”

Furthermore, Quijano concluded that Colburn had “substantial

ability to communicate and assist counsel in his own defense”

because he “knew his counsel, had sufficient interpersonal

rapport with them, could communicate the facts of the case to

them, and could and did participate in his defense strategy.”

7
Competency to stand trial is a fact determination
entitled to a presumption of correctness. Miller v. Fenton, 474
U.S. 104, 113 (1985).

11
For these reasons, Quijano opined that the “defendant appeared to

be competent to stand trial.”8

Colburn’s attorneys also retained Dr. Carmen Petzold, a

specialist in sexual crimes, to conduct a mental evaluation of

Colburn. Dr. Petzold examined Colburn three weeks prior to jury

selection. Dr. Petzold reported that “[d]espite [Colburn’s]

chronic mental illness, he does appear to be able to form a

logical and rational understanding of the charges against him, he

has an adequate understanding of the legal process as it relates

to him, he is able to adequately consult with his attorney in

order to prepare an adequate defense, and he appears to be

therefore, competent to stand trial.” The competency evaluations

of Drs. Quijano and Petzold provide valuable insight into

Colburn’s mental state at the time of trial. See Martin v.

Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) (“Medical evidence,

such as expert testimony from psychiatrists who have examined the

defendant near the time of trial or testimony based upon hospital

records reflecting defendant’s mental history, generally provide

sound material for reconstruction of defendant’s mental state.”).

Additionally, during state habeas proceedings, Colburn’s

attorneys opined that Colburn “was able to communicate with us

8
In an affidavit first submitted to the federal district
court in conjunction with Colburn’s federal habeas petition, Dr.
Quijano contradicted his original evaluation and stated that
Colburn was actually incompetent at the time of trial. We
discuss this additional evidence below. See infra Part
III(C)(ii).

12
throughout our representation” and that Colburn “had excellent

recall of the circumstances surrounding [his offense] and was

able to relate the facts to us.” Because Colburn’s relationship

with his attorneys is central to the question of his competence

to stand trial, his attorneys are in the best position to

determine that he was competent. See Medina v. California, 505

U.S. 437, 450 (1992) (stating that “defense counsel will often

have the best-informed view of the defendant’s ability to

participate in his defense”); see also Bryson v. Ward, 187 F.3d

1193, 1201 (10th Cir. 1999) (“Defense counsel is often in the

best position to determine whether a defendant’s competency is

questionable.”); Watts v. Singletary, 87 F.3d 1282, 1288 (11th

Cir. 1996) (same).

Finally, Dr. David Axelrad, one of Colburn’s medical

experts, evaluated Colburn shortly before Colburn filed his state

habeas petition. In his report, Dr. Axelrad opined that “the

evaluation and testimony of Dr. Walter Y. Quijano was sufficient

for purposes of arriving at an opinion regarding Mr. James Blake

Colburn’s competency to stand trial.”9 Furthermore, Dr. Axelrad

agreed with Dr. Petzold’s competency determination by stating in

his report that “the patient provided responses to Dr. Petzold

9
Like Dr. Quijano, Dr. Axelrad has altered his opinion
concerning Colburn’s competency at the time of trial. This
“addendum report” was first presented to the federal district
court in conjunction with Colburn’s federal habeas petition. We
discuss this additional evidence below. See infra Part
III(C)(ii).

13
that suggested he was competent to stand trial. The

contemporaneous conclusions of Drs. Quijano and Petzold, which

were found adequate by Dr. Axelrad, and the opinions of Colburn’s

attorneys, strongly support the state trial court’s finding of

Colburn’s competency at the time of his trial.

ii. The Evidence Presented by Colburn to Show Incompetency

Colburn attempts to rebut the state court’s finding that he

was competent to stand trial with evidence of: (1) his history of

mental illness, (2) his demeanor at trial, (3) psychotic episodes

occurring during his pretrial incarceration, (4) Dr. Axelrad’s

“addendum report” and recent affidavit, and (5) a recent

affidavit by Dr. Quijano. We find that, viewed as a whole, this

evidence does not add up to clear and convincing evidence that

the state court’s finding of fact - that Colburn was competent to

stand trial - is incorrect.

Colburn’s evidence of incompetence based on his history of

psychiatric illness is unpersuasive. First, Drs. Quijano and

Petzold fully considered Colburn’s medical history, yet both

initially determined that Colburn was nevertheless competent to

stand trial. Second, Colburn’s attorneys likewise found Colburn

to be competent to stand trial. Third, it is clear from the

record that Colburn’s history of mental illness was factored into

the state habeas court’s finding that he was competent.

14
 In McCoy v. Lynaugh, 874 F.2d 954 (5th Cir. 1989), we

confronted facts similar to the facts of this case in reviewing a

request for habeas relief. In McCoy, the state trial court

ordered an expert competency evaluation because of defendant

McCoy’s history of psychiatric problems and suicide attempts and

because of his medicated state. Id. at 960-61. Because both the

appointed expert and McCoy’s trial counsel found McCoy to be

competent, this court declined to overturn the findings of

competence by the state and federal habeas courts. Id. at 961.

As Dr. Axelrad correctly notes in his report, “the forensic test

for competency does not require that the person be free of

psychotic illness or psychiatric problems.” See Mata v. Johnson,

210 F.3d 324, 329 n.2 (noting that “the presence or absence of

mental illness or brain disorder is not dispositive” of

competency). In Colburn’s case, the experts, his attorneys, and

the trial court all found Colburn to be competent at the time of

trial despite his history of mental illness.

Colburn’s assertion that his demeanor at trial establishes

his incompetency is also unpersuasive. The trial record reflects

only one instance of Colburn’s drowsiness.10 However, Colburn

10
The following exchange occurred as Colburn fell asleep:
Counsel Crow: Do any of the drugs that
are used to treat paranoid
schizophrenics make them
sleepy?
Dr. Quijano: Yes.
Counsel Crow: And that sleep would be
pronounced if the drug

15
argues that this was not an isolated incident and that he fell

asleep several times during his trial. We need not determine the

number of times Colburn fell asleep during trial because whether

Colburn fell asleep once or slept through most of his trial is

not dispositive of Colburn’s competence. See Watts, 87 F.3d at

1287 (stating that the fact that the defendant slept through part

of his murder trial is insufficient by itself to establish

were taken within the
recent past?
Dr. Quijano: Yes. These antipsychotic
medications have a
sedating effect. So
agitated people like in
jail you would inject them
to give them a good
night’s rest for a day or
two.
Counsel Crow: Judge, can I approach the
bench a minute, please?
The Court: Yes, Sir.

(Whereupon the following was had at the
bench)

Counsel Crow: Judge, I don’t know that
it matters, but I think I
need a break to walk my
client around the room a
little bit. He’s snoring
kind of loud-
Counsel Stover: They apparently injected
him last time night (sic)
to calm him down and I
appreciate it. But he’s
sleeping right now.
Counsel Crow: I don’t know if it’s going
to matter too much, but I
think it would be better
if we had a minute to walk
him around to wake him up.

16
incompetency). Rather, to establish incompetency, Colburn must

show that his sleepiness rendered him unable to understand the

trial proceedings or to assist his attorneys in his defense.

Woods v. Johnson, 75 F.3d 1017, 1038 n.33 (5th Cir. 1996).

Colburn has presented no evidence that his sleepiness rises to

the level of incompetency, and his attorneys’ opinions and the

state habeas court’s findings of fact suggest otherwise.

Colburn’s evidence relating to psychotic episodes is

likewise insufficient to overcome the state habeas court’s

finding of Colburn’s competency. Colburn demonstrates that there

were gaps in his psychological treatment while he was

incarcerated, which Colburn asserts led to “florid psychotic

episodes, suicidal ideation, and enuresis during pretrial

detention.” First, we note that anecdotal evidence of

psychiatric problems is insufficient to overcome the presumption

of correctness that attaches to the state habeas court’s

determination of competency. Carter, 131 F.3d at 461. Mental

illness is not equivalent to incompetency. Mata, 210 F.3d at 329

n.2. Colburn presents no evidence that his alleged psychotic

episodes rendered him incompetent to stand trial. Second, two

months before his trial, Colburn’s psychological treatment

resumed on August 4, 1995, and remained uninterrupted thereafter.

There is no evidence of psychotic episodes after that date.11 On

11
The jail record describes Colburn as complaining of
“anxiety and chest wall pain” on September 30, 1995, but there is

17
August 16 and August 21, 1995, Dr. Petzold evaluated Colburn and

unequivocally found him competent to stand trial. After

Colburn’s treatment resumed, Colburn’s attorneys also voiced the

opinion that Colburn was competent. Thus, the fact that Colburn

may have experienced an occasional psychotic episode while

incarcerated does not establish his incompetency to stand trial,

especially when Dr. Petzold’s and Colburn’s attorneys’ competency

evaluations occurred after all such episodes had ceased.

Additionally, Dr. Axelrad’s “addendum report” and recent

affidavit are insufficient to overcome the state habeas court’s

finding of Colburn’s competency. Dr. Axelrad did not evaluate

Colburn before his trial and was not present at the trial.

Rather, Dr. Axelrad first evaluated Colburn in January 1997, over

a year after the conclusion of the trial, and his resulting

report was presented to the state habeas court in conjunction

with Colburn’s state habeas petition. In that original report,

Dr. Axelrad concluded that the competency determinations of Drs.

Quijano and Petzold were adequate but did not independently

analyze Colburn’s competency. After “reviewing additional

records,” Dr. Axelrad created an addendum report in December

1999, which was first presented to the federal district court in

conjunction with Colburn’s federal habeas petition. In the

addendum report, Dr. Axelrad states that the additional records

no evidence that this complaint was part of a psychotic episode.

18
he reviewed raise “serious questions and concerns regarding

[Colburn’s] competency to stand trial” at the time of the trial.

Dr. Axelrad presented an affidavit to the district court

declaring that “[b]ased on my review of information available to

the trial court, it is my forensic psychiatric opinion that

evidence that Mr. Colburn was actually incompetent during trial

is clear and convincing.” More specifically, Dr. Axelrad’s

current opinion is that, although Colburn appeared competent at

the time of Dr. Quijano’s evaluation, sedating medication

administered to Colburn during trial rendered him incompetent.

In Dunn v. Johnson, 162 F.3d 302, 306-07 (5th Cir. 1998), we

questioned the persuasiveness of retrospective psychiatric

opinions because of “the difficulty of conducting a retrospective

evaluation spanning several years.” See also Walker v. Gibson,

228 F.3d 1217, 1229-30 (10th Cir. 2000) (noting that

“post-conviction affidavits, prepared over seven years after

trial, . . . are of little assistance” in determining

competency), overruled on other grounds by Neill v. Gibson, 278

F.3d 1044 (10th Cir. 2001). In the instant case, the state

court’s finding of competency is based on two contemporaneous

competency evaluations, the credible opinions of Colburn’s

attorneys, and the state court’s first-hand recollections of

Colburn at trial. Dr. Axelrad’s retrospective addendum report

and affidavit, prepared more than four years after Colburn’s

19
conviction, cannot overcome this strong evidence of Colburn’s

competency.

Like Dr. Axelrad’s affidavit, Dr. Quijano’s recent affidavit

is unpersuasive. Dr. Quijano presented an affidavit to the

district court declaring that “it is my forensic psychological

opinion that it is not reasonably probable that during trial Mr.

Colburn was legally competent to stand trial.” In support of

this statement, Dr. Quijano cites to the portion of Colburn’s

medical records indicating that Colburn was injected with the

sedating drug Haldol and to the portion of the trial record

indicating that Colburn fell asleep during trial.12 Dr.

Quijano’s recent affidavit is suspect for two reasons. First,

although Dr. Quijano testified at Colburn’s trial and had the

opportunity to directly observe Colburn’s demeanor at trial, Dr.

Quijano’s recent opinion of incompetency is based only on the

trial record and medical records. Dr. Quijano never mentions any

personal observations to support his new opinion of Colburn’s

incompetency. Second, Dr. Quijano’s opinion is based only on

Colburn’s injection with Haldol and the one instance of

sleepiness found in the record. Dr. Quijano uses these facts to

tentatively speculate that it is “not reasonably probable” that

Colburn was competent during his trial. Dr. Quijano’s

speculative affidavit does not demonstrate incompetency and is

12
See supra note 10 for the text of that portion of the
record that indicates Colburn’s sleepiness during trial.

20
insufficient to overcome the state habeas court’s finding of

Colburn’s competency.

In light of the substantial evidence supporting Colburn’s

competency, we find that Colburn fails to provide the clear and

convincing evidence required to overcome the presumption of

correctness that attaches to the state habeas court’s fact

finding that he was competent to stand trial. Accordingly,

Colburn fails to make a substantial showing of the denial of a

constitutional right with respect to this issue, and we deny his

request for a COA.

IV. Issues 3 and 4: Colburn’s Ineffective Assistance of Counsel
Claims

In addition to his competency-related claims, Colburn raises

two ineffective assistance of counsel claims. First, Colburn

asserts the district court erred in denying Colburn relief on his

claim that he received ineffective assistance of counsel due to

his attorneys’ failure to request a competency hearing prior to

trial. Second, Colburn argues that the district court erred in

denying Colburn relief on his claim that he received ineffective

assistance of counsel due to his attorneys’ misuse of expert

witnesses.13 We conclude that Colburn fails to make a

13
Colburn also argues that the district court erred in
denying Colburn’s request for an evidentiary hearing to resolve
factual conflicts surrounding his ineffective assistance claims.
We review the district court’s denial of an evidentiary hearing
for abuse of discretion. McDonald v. Johnson, 139 F.3d 1056,
1059 (5th Cir. 1998). A habeas petitioner is only entitled to a
hearing “[w]hen there is a ‘factual dispute, [that,] if resolved

21
substantial showing of the denial of a constitutional right with

respect to both of these ineffective assistance of counsel

claims. Accordingly, we deny his request for a COA on these

claims.

A. Standard of Review

Colburn argues that the district court erred in reviewing

his ineffective assistance of counsel claims under a deferential

rather than a de novo standard. Colburn asserts that de novo

review is proper because the Texas Court of Criminal Appeals

(“TCCA”) failed to adjudicate his ineffective assistance claims

on the merits. See Valdez, 274 F.3d at 946 (stating that the

AEDPA’s deferential scheme “operates when the state court has

adjudicated the petitioner’s claim on the merits”). Colburn

points to the unconventional facts surrounding the TCCA’s denial

of relief to support his argument.

After state habeas proceedings, the state court recommended

that the TCCA adopt the following conclusion of law:

Trial counsel rendered effective assistance
of counsel. Hernandez v. State, 726 S.W.2d

in the petitioner’s favor, would entitle [him] to relief.’”
Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (quoting
Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)). We find
that Colburn’s case does not present any factual disputes that
require development at an evidentiary hearing in order to
properly adjudicate the claims. Because the district court had
sufficient facts to make an informed decision regarding the
merits of Colburn’s claims, the court did not abuse its
discretion by refusing to grant Colburn’s request for an
evidentiary hearing. Murphy v. Johnson, 205 F.3d 809, 816-17
(5th Cir. 2000).

22
 53, 57 (Tex. Crim. App. 1986); Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).

The TCCA denied Colburn relief and adopted most of the trial

court’s findings of fact and conclusions of law. Without any

explanation, however, the TCCA specifically refused to adopt

several findings and conclusions, including the conclusion

concerning Colburn’s effective assistance of counsel. Because of

this action, the state habeas record contains no conclusions of

law regarding Colburn’s ineffective assistance claims and only

one finding of fact indirectly related to those claims.14

Although the TCCA’s denial of relief suggests an

adjudication on the merits, that court’s refusal to adopt the

conclusion of law concerning Colburn’s effective assistance of

counsel is puzzling. Fortunately, we need not determine whether

Colburn’s ineffective assistance claims were adjudicated on the

merits in state habeas proceedings because we conclude that

Colburn fails to make a substantial showing of the denial of a

constitutional right with respect these claims under de novo

review. See Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997)

(declining to determine whether the state habeas court

sufficiently adjudicated the petitioner’s claim on the merits

because the petitioner’s claim fails “even applying the pre-AEDPA

de novo standard of review”).

14
See infra note 20 for this finding of fact.

23
B. The Failure to Request a Competency Hearing

In his first ineffective assistance claim, Colburn argues

that the district court erred in denying Colburn relief on his

claim that he received ineffective assistance of counsel due to

his attorneys’ failure to request a competency hearing prior to

trial. Colburn contends that his history of mental illness

combined with his drowsiness at trial should have alerted his

attorneys to his incompetency. Quoting McCoy, 874 F.2d at 964,

the district court found that “‘[t]here can be no deficiency in

failing to request a competency hearing where there is no

evidence of incompetency.’” We agree.

In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court established the federal constitutional standard for

effectiveness of counsel. To obtain federal habeas relief on

grounds of ineffective assistance of counsel, a petitioner must

show “that counsel’s performance was deficient” and “that the

deficient performance prejudiced the defense.” Id. at 687. To

prove a deficient performance, a petitioner must demonstrate that

a counsel’s errors were so serious as to “render[] the result of

the trial unreliable or the proceeding fundamentally unfair.”

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Although an

attorney has a duty to make reasonable investigations on behalf

of clients, there is a strong presumption that an attorney’s

performance is reasonable. See Strickland, 466 U.S. at 690-91

(stating that “strategic choices made after thorough

24
investigation of the law and facts relevant to plausible options

are virtually unchallengable”).

At the time of Colburn’s trial, abundant evidence pointed to

his competency.15 Two experts, one appointed by the court

pursuant to Colburn’s request and the other hired by Colburn’s

attorneys, found no evidence of incompetency. Furthermore, his

attorneys’ observations convinced them that Colburn “was able to

communicate with us throughout our representation” and that

Colburn “had excellent recall of the circumstances surrounding

[his offense] and was able to relate the facts to us.” Colburn’s

attorneys’ affidavits stated that, based on the expert opinions

of Drs. Quijano and Petzold as well as their own observations,

they “did not request a competency hearing because [they] had no

evidence to support such a request.” Such action is reasonable

and not deficient. McCoy, 874 F.2d at 963-64. Colburn’s

attorneys had no duty to hire a third expert in the hopes of

producing an opinion suggesting that Colburn was incompetent.

See Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000)

(holding that “trial counsel was not deficient by not canvassing

the field to find a more favorable defense expert”). In fact,

Colburn’s attorneys “had no reason to believe that another

psychiatrist might reach a [different] conclusion” where the

initial expert evaluations were “consistent with [the attorneys’]

15
See discussion supra Part III(C)(i).

25
own perception and observation of [Colburn].” Clark v. Collins,

19 F.3d 959, 964 (5th Cir. 1994). Thus, Colburn fails to

establish that his attorneys were deficient and rendered

ineffective assistance by failing to seek a competency hearing.16

Accordingly, Colburn fails to make a substantial showing of the

denial of a constitutional right with respect to this issue, and

we deny his request for a COA.

C. The Use of Expert Witnesses

In his second ineffective assistance claim, Colburn argues

that the district court erred in denying Colburn relief on his

claim that he received ineffective assistance of counsel due to

his attorneys’ misuse of expert witnesses. More specifically,

Colburn asserts two distinct claims: (1) that the district court

erred when it found that Colburn’s attorneys’ failure to retain a

psychiatrist, rather than a psychologist, to testify at trial did

not amount to ineffective assistance; and (2) that the district

court erred when it found that Colburn’s attorneys’ reliance, to

the exclusion of other experts, on Dr. Quijano’s testimony was

not deficient. In analyzing these claims, we apply the two-

pronged Strickland standard. See supra Part IV(B).

16
Because Colburn fails to demonstrate that his attorneys
were deficient, we need not consider whether he has established
actual prejudice. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir.
1995) (stating that “a court need not address both prongs of the
conjunctive Strickland standard, but may dispose of such a claim
based solely on a petitioner’s failure to meet either prong of
the test”).

26
 i. The Failure to Retain a Psychiatrist

Colburn argues that he received ineffective assistance

because his attorneys hired Dr. Petzold, a psychologist, rather

than a psychiatrist, as an expert. Colburn explains that his

“psychiatric history and the circumstances of the crime

demonstrate that a competent counsel would have retained a

psychiatrically trained expert who could explain the

pharmacological and medical evidence to the jury.”17 We

disagree.

Due to the sexual nature of the murder, Colburn’s attorneys

retained the services of Dr. Petzold, a psychologist specializing

in sex crimes. After reviewing Colburn’s medical history and

interviewing Colburn for two days, Dr. Petzold reported on

Colburn’s competency to stand trial as well as his sanity at the

time of the offense.18 As previously discussed, Dr. Petzold

concluded that Colburn was competent to stand trial. See supra

17
It is important to note that Colburn is not asserting an
Ake violation before this court. In Ake v. Oklahoma, 470 U.S. 68
(1985), the Supreme Court held that a criminal defendant has a
constitutional right to the assistance of a psychiatrist in
certain situations. Id. at 83. The state habeas court denied
Colburn relief under Ake and entered a conclusion of law stating
that Colburn “received all the expert assistance to which he was
entitled.” Colburn does not challenge this conclusion.
18
Under Texas law, insanity “is an affirmative defense to
prosecution” if the actor can show by a preponderance of the
evidence that “at the time of the conduct charged, the actor, as
a result of severe mental disease or defect, did not know that
his conduct was wrong.” TEX. PENAL CODE ANN. § 8.01(a) (Vernon
1994).

27
Part III(C)(i). With respect to Colburn’s sanity, Dr. Petzold

concluded that Colburn “knew the difference between right and

wrong at the time of the alleged offense, was capable of

conforming his behavior to the law, and would therefore, not meet

the criteria for the insanity defense.” Given these conclusions,

Colburn’s attorneys decided not to use Dr. Petzold as a defense

witness at trial.19

The hiring of expert witnesses and the presentation of their

testimony is a matter of trial strategy. Yohey v. Collins, 985

F.2d 222, 228 (5th Cir. 1993). Where a previous mental health

examination appears to be very thorough, where counsel has no

reason to suspect that another expert might reach a different

conclusion, and where the original expert conclusion comports

with counsel’s own perceptions and observations of the defendant,

counsel is not deficient in not seeking another expert. See

Clark, 19 F.3d at 964. First, Colburn presents no evidence that

establishes that Dr. Petzold’s evaluation was not thorough or

careful.20 Second, Colburn’s attorneys had no reason to suspect

19
Instead, Colburn’s attorneys relied exclusively on Dr.
Quijano’s testimony at trial.
20
The state habeas court entered a finding of fact
stating:
This Court has reviewed the report prepared
prior to trial by Dr. Petzold, and finds that
Dr. Petzold conducted a thorough and careful
evaluation of Applicant with regard to the
possible relevant issues in Applicant’s case,
including his sanity and future
dangerousness.

28
that another expert might reach a different conclusion regarding

either Colburn’s sanity or his competency since Drs. Petzold and

Quijano agreed that Colburn was both competent to stand trial and

sane at the time of the offense.21 Third, the opinions of Drs.

Petzold and Quijano are consistent with the observations

expressed by Colburn’s attorneys in their affidavits. For these

reasons, Colburn’s attorneys’ reliance on psychologists rather

than psychiatrists was not deficient and, therefore, did not

constitute ineffective assistance. Clark, 19 F.3d at 964.

Accordingly, Colburn fails to make a substantial showing of the

denial of a constitutional right with respect to this issue, and

we deny his request for a COA.

ii. The Use of Dr. Quijano

Colburn asserts that he received ineffective assistance

because his attorneys relied, to the exclusion of other experts,

on Dr. Quijano’s testimony at trial.22 Colburn suggests that his

attorneys should not have called Dr. Quijano as a witness or, in

the alternative, should have called Dr. Petzold to rebut certain

Because we are conducting a de novo review of this issue,
however, we decline to defer to this finding of fact.
21
This is especially true given Dr. Quijano’s extensive
psychiatric experience as the former director of psychiatric
services for the Texas Department of Corrections. Colburn’s
attorneys had no reason to believe that a psychiatrist would
reach a different conclusion that Dr. Quijano.
22
Colburn’s assertion covers his attorneys’ reliance on
Dr. Quijano during the guilt/innocence phase and the sentencing
phase of his trial.

29
parts of Dr. Quijano’s testimony. In support of his argument,

Colburn asserts that Dr. Quijano’s unrebutted testimony impaired

the viability of his insanity defense at trial. These assertions

lack merit.

We begin by noting that “strategic choices made after

thorough investigation of the law and facts relevant to plausible

options are virtually unchallengable.” Strickland, 466 U.S. at

690. The decision to present or not to present certain evidence

is a matter of trial strategy, as is the use of expert witnesses.

Smith v. Black, 904 F.2d 950, 977 (5th Cir. 1990); Yohey, 985

F.2d at 228. In their affidavits, Colburn’s attorneys stated

that they relied on Dr. Quijano’s testimony because they “were of

the opinion that Dr. Quijano’s report provided . . . enough

information that [they] could possibly raise a sanity issue for

submission to the jury in spite of Dr. Quijano’s conclusion that

Mr. Colburn was sane at the time of the commission of the

offense.” This strategy was reasonable.

During direct examination by Colburn’s attorneys, Dr.

Quijano suggested that Colburn was responding to a “command

hallucination” at the time of his offense and stated that it is

“very possible that he did not know” his conduct was wrong. This

testimony supported Colburn’s insanity defense. Furthermore,

through Dr. Quijano’s testimony, Colburn’s attorneys were able to

introduce Colburn’s extensive history of mental illness. Dr.

Quijano opined that Colburn suffered from chronic, intractable

30
paranoid schizophrenia that is “difficult to manage and difficult

to treat.” Thus, calling Dr. Quijano as a defense witness was a

reasonable strategy that was beneficial to Colburn.

Colburn also claims that his attorneys should have called

Dr. Petzold to rebut certain parts of Dr. Quijano’s testimony.

Dr. Petzold’s report, however, is no more favorable to Colburn’s

defense than Dr. Quijano’s report. While both experts allowed

for the possibility that Colburn was insane at the time of the

offense, both ultimately concluded that he was sane. Colburn’s

attorneys reviewed both reports and decided that Dr. Quijano’s

testimony at trial was more likely to be favorable than Dr.

Petzold’s. Such a strategic decision, especially when it yielded

favorable testimony, is reasonable. We reject Colburn’s

assertion that his attorneys were unreasonable for not retaining

a third expert to supplement or rebut Dr. Quijano’s testimony.

See Dowthitt, 230 F.3d at 748 (holding that “trial counsel was

not deficient by not canvassing the field to find a more

favorable defense expert”). Colburn’s attorneys’ reliance on Dr.

Quijano’s testimony was not deficient and, therefore, did not

constitute ineffective assistance. Accordingly, Colburn fails to

make a substantial showing of the denial of a constitutional

right with respect to this issue, and we deny his request for a

COA.

V. Conclusion

31
 We find that Colburn fails to make a “substantial showing of

the denial of a constitutional right” under § 2253(c).

Accordingly, we DENY Colburn’s request for a certificate of

appealability.

32