FILED
United States Court of Appeals
Tenth Circuit
August 30, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-6156
v. (W.D. Oklahoma)
UNDRAY LYNELL PERRY, (D.C. Nos. 5:11-CV-01210-F
and 5:10-CR-00114-F-1)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
Defendant Undray Lynell Perry, proceeding pro se, filed a motion for relief
under 28 U.S.C. § 2255 in the United States District Court for the Western
District of Oklahoma. The district court denied the motion. Defendant now seeks
a certificate of appealability (COA) from this court so that he may appeal the
district court’s decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal
denial of § 2255 relief). We deny the application for a COA and dismiss the
appeal because the district court’s decision is not debatable or wrong.
Defendant pleaded guilty on April 12, 2010, to possession with intent to
distribute cocaine base. See 21 U.S.C. § 841(a)(1). In part because of a delay
caused by the passage of the Fair Sentencing Act and the need for revised
sentencing guidelines, he was not sentenced until March 10, 2011, when he
received a sentence of 150 months’ imprisonment and five years’ supervised
release. Defendant’s § 2255 motion, filed on October 24, 2011, asserts that his
due-process rights were violated because he was mentally incompetent and was
not provided a competency hearing, and that his counsel was ineffective for
failing to request a competency hearing and for improperly causing him to plead
guilty by misinforming him about his potential sentence.
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). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) 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,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.
As the district court correctly recognized:
“Competency claims can raise issues of both substantive and
procedural due process.” “A procedural competency claim is based
upon a trial court’s alleged failure to hold a competency hearing,”
while a substantive competency claim is founded on the allegation
that a guilty plea was accepted while the defendant[] was, in fact,
incompetent.
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Order at 5, United States v. Perry, Nos. CR-10-114-F and CIV-11-1210-F (W.D.
Okla. June 4, 2012) (citation and brackets omitted) (quoting McGregor v. Gibson,
248 F.3d 946, 952 (10th Cir. 2001) (Order). “[T]o prevail on a procedural due
process competency claim a petitioner must raise a bona fide doubt regarding his
competency to stand trial at the time of conviction.” McGregor, 248 F.3d at 953
(footnote omitted). As the district court recognized, Defendant has raised no such
doubt: He was rational and cooperative at the plea hearing, he was not on
medication, he and his attorney both stated that they had no doubt about his
ability to understand the proceedings, and his statement that he read only “‘a little
bit’” does not equate to legal incompetence. Order at 7. He stated at his plea
hearing that he had been treated for a mental problem about five months earlier
and added, “I get it from my dad, mental disability.” Id. at 6. But he could not
recall what his mental illness was; and the presentence investigation report said
that he received a social security check based on his father’s mental illness and
that the mental-health facility identified by Defendant had no available records
and reported that he was not a client. We agree with the district court that the
mere fact that “defendant was purportedly seen five months prior to the plea
hearing for an unknown mental problem [did] not, without more, give rise to a
bona fide doubt as to defendant’s ability to understand the proceedings or consult
with his lawyer.” Id. at 7. Defendant’s substantive-incompetency claim similarly
fails because the minimal evidence presented—low language and reading scores
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and a nonspecific allegation of a mental problem unsupported by further
corroboration or elaboration—does not create a “real, substantial and legitimate
doubt” about his competency. Allen v. Mullin, 368 F.3d 1220, 1240 (10th Cir.
2004) (internal quotation marks omitted).
Defendant’s ineffective-assistance-of-counsel claims are likewise
unavailing. To succeed on an ineffective-assistance claim, a defendant must show
“that counsel’s performance was deficient . . . [and] that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). The district court correctly ruled that Defendant could not show
prejudice from failure to raise a competency issue because, for the reasons
discussed above, he did not show a reasonable possibility that he was incompetent
and that a court would have found him so. Regarding Defendant’s allegation that
his attorney provided misleading statements about how his sentence would be
calculated, the district court correctly recognized that Defendant had failed to
establish prejudice because he was correctly informed about the potential
sentence in the plea agreement, in the plea petition, and at the plea hearing itself.
No reasonable jurist would dispute the district court’s decision. We DENY
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the request for a COA and DISMISS the appeal. We GRANT the motion to
proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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