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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14781
____________________
JEAN-DANIEL PERKINS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent- Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cv-04545-AT
____________________
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2 Opinion of the Court 20-14781
Before BRANCH and GRANT, Circuit Judges, and SCHLESINGER,∗
District Judge.
BRANCH, Circuit Judge:
After perpetrating elaborate bank and credit card fraud,
Petitioner Jean-Daniel Perkins “embarked upon a new scheme . . .
to ensnarl the proceedings against him” through obstructionist and
disruptive behaviors “so that he might avoid trial altogether.”
United States v. Perkins, 787 F.3d 1329, 1333 (11th Cir. 2015). His
scheme, however, did not end at trial or even when the jury issued
its guilty verdict. Rather, it continued through sentencing. Now,
on a motion to vacate his sentence pursuant to 28 U.S.C. § 2255,
Perkins advances two claims: a substantive competency due
process claim, contending that he was not competent at the time
of sentencing, and an ineffective-assistance-of-counsel claim. The
district court denied his § 2255 motion. After careful review and
with the benefit of oral argument, we affirm.
I. Factual Background
In June 2010, a federal grand jury indicted Perkins on two
counts of conspiracy to commit bank fraud, thirty counts of bank
fraud, four counts of access device fraud, and one count of
aggravated identity theft. These charges relate to three highly
complex banking and credit card fraud schemes perpetrated by
Perkins and various co-defendants.
∗ Honorable Harvey E. Schlesinger, United States District Judge for the Middle
District of Florida, sitting by designation.
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20-14781 Opinion of the Court 3
During Perkins’s initial appearance, a magistrate judge
appointed counsel to represent Perkins. After Perkins pleaded not
guilty to all counts, his counsel moved to withdraw because he and
Perkins had “reached a point where they [were] unable to work
together on the case.” Counsel stated that Perkins “informed [him]
that [Perkins was] not satisfied with [counsel’s] representation and
wishe[d] for him to withdraw from the case.” The magistrate
judge allowed counsel to withdraw and appointed a second
attorney to represent Perkins. Despite being represented by
counsel, Perkins filed various pro se filings, which the magistrate
judge struck as irrelevant and improper. 1
Perkins’s second attorney also moved to withdraw,
representing that Perkins did not want court-appointed counsel.
The magistrate judge held a hearing and, after asking if Perkins
wished to waive his right to counsel (to which Perkins gave a
nonresponsive answer), the magistrate judge denied the motion.
Counsel later filed a second motion to withdraw, attaching
an affidavit from Perkins stating that he did not want the attorney
to represent him. The district court took up the motion during the
pretrial conference. The district court denied the motion and
determined that Perkins’s refusal to acknowledge the court and his
attempts to dominate the proceeding by talking over the court
were “obviously designed to disrupt and obstruct the federal
1 The district court later referred to these filings (and Perkins’s behavior
generally) as “sovereign citizenship on steroids.”
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4 Opinion of the Court 20-14781
proceeding.” While characterizing Perkins’s behavior as “crazy
like a fox,” the district court concluded that Perkins’s actions were
“definitely studied, definitely contrived, definitely manipulative. So
[there was no] reason to send [Perkins] off for a competency
examination.” The district court stated that
the situation we have here [is] a person who
essentially his whole posture is simply to obstruct. He
will not follow the court’s directives. He believes the
court has no power on him. When I ask[] a very
simple question, he speaks in gibberish over and over
and over again.
1. Trial
Perkins’s trial began in June 2011. On the first day of trial,
Perkins refused to leave his holding cell in the courthouse and told
the marshals that if they forced him to go to the courtroom, he
would go “kicking and screaming.” The district court considered
a variety of resolutions, including forcing Perkins to exit the cell
and using audio/visual equipment to allow Perkins to observe the
trial. Ultimately, the district court met with Perkins in an interview
room, accompanied by counsel for the parties and a court reporter,
and attempted to advise Perkins of his rights with respect to trial,
but he shouted that he did not understand, agree, or consent to
being present at trial. The district court provided audio/visual
coverage to Perkins during the first day of trial and gave him the
opportunity to enter the courtroom at any time and to speak with
counsel.
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20-14781 Opinion of the Court 5
On the second day of trial, Perkins again refused to be
present in the courtroom. The district court observed that
Perkins’s antics were common to those espousing sovereign citizen
beliefs and stated that it thought Perkins was not unstable but
purely manipulative. The district court stated that it did not see a
need for a competency hearing because Perkins was using a
calculated strategy to disrupt and obstruct. Perkins refused to be
present in the courtroom for the remainder of the trial, requiring
restraints and marshal transport to the courthouse on day three.
On June 28, 2011, the jury found Perkins guilty on all counts.
2. Sentencing
Between trial and sentencing, 19 months elapsed. Perkins’s
sentencing hearing took place on February 25, 2013. The
presentence investigation report (“PSI”) prepared in advance of
sentencing calculated a guidelines range of life imprisonment, with
a mandatory two-year term of imprisonment for Count 37
(aggravated identity theft) to run consecutive to any other
sentence.2 Neither Perkins nor any member of his family agreed
to be interviewed for the PSI. The probation office therefore
prepared the PSI using information from Perkins’s presentence
2 The PSI calculated a total offense level of 45 and a criminal history category
of IV. Counts 1–32 carried 30 years’ imprisonment, Counts 33–34 carried 10
years, and Counts 35–36 carried 15 years, followed by Count 37’s mandatory
term of 2 years’ imprisonment.
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6 Opinion of the Court 20-14781
report in his prior federal prosecution.3 That report, prepared in
August 2000, included information about Perkins’s prior diagnosis
of schizoaffective disorder and medications he was prescribed for
that disorder.
The PSI recounted a series of phone calls Perkins made in
June 2011 to his mother and others while imprisoned during the
proceedings below. Of note, during these phone calls, Perkins:
• Requested research on how to stop his trial from
proceeding;
• Indicated his belief that, if he acted crazy, he would
not be considered “present” for his trial;4
• Discussed the legal definition of presence under the
Federal Rules of Civil Procedure and case law; and
3 In June 2000, Perkins was found guilty after a jury trial of conspiracy to
produce false identification documents in the Eastern District of Louisiana.
4 Perkins told his mother:
I get it, I gotta go nuts before they even pick the jury, that’s
what I gotta do. I gotta go haywire in that bitch. Don’t never
act sensible. Just go crazy. Just keep on going crazy. You
bitches wanna play games, alright, this shit’s gonna get really
zoo-like.
He also stated: “If I’m there acting like a fucking lunatic, then I ain’t there, my
mind ain’t there.” Further, he told his mother that he would not enter the
courtroom to hear the verdict: “I don’t want to be there for the verdict. I’m
gonna go down there crazy as a motherfucker . . . I’m tryin’ every
motherfuckin’ thing. I got ‘em.”
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20-14781 Opinion of the Court 7
• Bragged that he had refused to enter the courtroom
and was uncooperative with the district court.
Perkins refused to attend his February 2013 sentencing
hearing. Again, the district court, counsel, and a court reporter
visited Perkins in his holding cell. The district court attempted to
give Perkins a copy of the PSI and then left the cell. During the
hearing, Perkins’s counsel presented mitigation evidence to the
court, including that Perkins had been previously diagnosed with
schizoaffective disorder, that he had been arrested 20 times before
the age of 14, and that he was raised in foster care. Counsel
requested mental health treatment for Perkins as part of his
sentence and a downward variance to 12 to 15 years’ total
imprisonment. The district court announced a provisional
sentence of 360 months’ imprisonment but kept the record open
to allow Perkins several weeks to review the PSI and make any
objections.
After the sentencing hearing but before the entry of the
sentence, Perkins’s counsel filed a motion for a competency
hearing. He stated that, despite having no recent contact with
Perkins, he received information from another client regarding
Perkins’s mental state: “[A]nother client, who I believe has no
interest in Mr. Perkins, inquired about my representation of him
(Perkins). He noted that Perkins ‘seemed crazy.’” Counsel also
stated that he was contacted by an acquaintance who grew up in
the foster care system with Perkins who believed Perkins had
mental health issues. This individual visited Perkins in prison and
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8 Opinion of the Court 20-14781
learned that he was taking antipsychotic and antidepressant
medications. Perkins told his visitor that he believed the
government and his attorney were conspiring to kill him and that
someone was tampering with his food. Based on that information
and the PSI’s note regarding Perkins’s schizoaffective disorder
diagnosis in 2000, counsel requested a competency hearing.
The district court entered a lengthy order denying the
motion (among others). The district court noted that Perkins’s
actions were part of a “sovereign citizenship litigation strategy”
designed to “delay the proceedings, create unnecessary work for
the [c]ourt and counsel, and distract the [c]ourt from adjudication
of the case on its merits.” The district court concluded that the
jailhouse telephone calls showed that Perkins’s refusal to cooperate
was a “premeditated litigation strategy to insulate himself from a
conviction.” Thus, it found that there “was certainly no question
that [he] was competent at the time of his trial.” The district court
also said that “his pro se motions prior to sentencing” and after trial
“suggest that this level of competency remained.” With respect to
sentencing, the district court stated that if Perkins was able to
“establish a stronger foundation for questioning his competency at
sentencing,” and if he “was truly not competent at the time of
sentencing, . . . it [would] be easy enough to resentence him once
that is established.”
Perkins’s sentence was finalized in July 2013. Following the
entry of final judgment, Perkins appealed. On direct appeal,
represented by new counsel, Perkins argued, among other things,
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20-14781 Opinion of the Court 9
that the district court erred in denying his motion for a competency
hearing. Perkins, 787 F.3d at 1340. We affirmed his sentence and
concluded that the district court did not abuse its discretion in
finding Perkins competent to stand trial or in denying the motion
for a competency hearing. Id. at 1339–40. We also held that the
record supported the district court’s conclusion that Perkins
“seemed lucid.” Id. at 1340.
3. The present § 2255 motion and evidentiary hearing
Perkins filed a motion to vacate pursuant to 28 U.S.C. § 2255
on December 7, 2016, raising five claims, only two of which are
relevant on appeal: (1) substantive and procedural competency
(“Claim One”); and (2) ineffective assistance of counsel related to
counsel’s failure to request a mental health evaluation (“Claim
Two”).5
To start, the government opposed the motion and asserted
that the issue of a competency hearing was procedurally barred,
Perkins was competent and thus was not prejudiced by allegedly
deficient representation, and his attorneys’ performance was not
deficient. In his reply, Perkins argued that his “counsels’ failure to
5 In addition to the two claims we address today, Perkins raised three
additional claims in his § 2255 motion: (3) a Sixth Amendment violation
relating to the district court’s meeting with Perkins in the Marshals’ lockup
prior to the start of trial; (4) ineffective assistance of counsel relating to
counsel’s failure to object to the meeting with the district court prior to the
start of trial; and (5) ineffective assistance of counsel for failure to move for a
recusal of the district court judge. He does not raise these issues on appeal.
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10 Opinion of the Court 20-14781
request relevant medical records is one component of their failure
to properly make and support a request for a competency hearing,”
but also requested leave to amend his motion to add a claim based
on his counsels’ failure to request Perkins’s medical records if the
district court disagreed with that argument.6
The magistrate judge held an evidentiary hearing on one
issue: whether Perkins’s attorneys provided ineffective assistance in
failing to request a mental health evaluation prior to or during trial
or after trial and before sentencing.
The magistrate judge heard testimony from several
witnesses, including three medical professionals from the Bureau
of Prisons (“BOP”) who treated Perkins. Dr. Nancy Strauch, a BOP
psychiatrist, treated Perkins once in March 2010, at which time she
diagnosed him with substance-induced delusional disorder,
meaning that Perkins’s “paranoia . . . could be due to substance
misuse or abuse or dependence.” On direct examination, she
testified that Perkins did not mention to her that he was mentally
ill and that she believed medication was not necessary. On cross-
examination, Dr. Strauch testified that she never performed a
6 While the district court did not specifically reference Perkins’s motion to
amend his § 2255 petition, the magistrate judge acknowledged it in its report
and recommendation and found that such an “argument exceed[ed] the scope
of the claim delimited for the evidentiary hearing and . . . amount[ed] to
nothing more than speculation built upon speculation.” The district court
then adopted the report and recommendation as the order and opinion of the
court.
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20-14781 Opinion of the Court 11
competency evaluation of Perkins because it was not her job to do
so.
Dr. Amanda Eberle, a BOP psychologist, treated Perkins
from November 2013 to March 2017 and diagnosed him with
schizophrenia7 in 2014, placing him on various medications. While
she testified that she believed Perkins had delusional thoughts, she
did not offer any opinion as to Perkins’s competency because it was
not her job to do so. However, she also clarified on cross-
examination that the symptoms of delusions she reported were
based upon Perkins’s self-reporting. Counsel for the government
noted that Dr. Eberle did not document any delusions whatsoever
between September 2014 and September 2016.
Dr. Courtney Tibbetts, a BOP psychologist, treated Perkins
in 2017. She testified that Perkins’s symptoms were inconsistent
and largely self-reported and that she believed his symptoms were
calculated. 8 She testified that she did not believe Perkins had
7 Dr. Eberle explained the difference between schizophrenia and
schizoaffective disorder:
Schizoaffective disorder is basically a combination of
schizophrenia and a mood disorder. With Mr. Perkins I saw
symptoms of schizophrenia with the delusional belief, but I did
not see any evidence that any of that was tied to any kind of
mood disorder.
8 Dr. Tibbetts testified that Perkins’s self-reporting of symptoms typically
occurred in close temporal proximity to “goal-oriented behavior,” i.e., when
he wanted something.
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12 Opinion of the Court 20-14781
schizophrenia because carrying out the “rather intricate” fraud
with which he was convicted would not be typical for someone
with schizophrenia.
The magistrate judge also heard testimony from both of
Perkins’s appointed counsel. Perkins’s first attorney testified that
he received the 2000 PSI in June 2010, which included Perkins’s
prior schizoaffective disorder diagnosis, but that he had no
concerns about Perkins’s mental health because Perkins appeared
competent. He stated that Perkins never showed any signs of
delusions or that he was out of touch with reality but rather that
he understood the charges against him, possible defenses, and how
the criminal justice system functioned. Perkins’s second attorney,
who represented him at trial and sentencing, testified that Perkins
raised a sovereign citizen defense. He testified that he did not
discuss any mental health issues with Perkins and did not request
medical records but believed he should have done so after receiving
the 2000 PSI and talking to a relative about Perkins’s mental health
issues. He noted, however, that prior to receiving the PSI and
speaking with Perkins’s relative, he had no concerns about
Perkins’s competency.
Lastly, the magistrate judge heard testimony from two
expert witnesses. Dr. Adriana Flores, a clinical psychologist and
expert witness offered by Perkins, and Dr. Michael Vitacco, a
forensic psychologist and expert witness offered by the
government. Dr. Flores evaluated Perkins in 2019 and, based on
the evaluation, review of medical records, and the record in the
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20-14781 Opinion of the Court 13
case, concluded that Perkins was not competent at the time of his
2011 trial or 2013 sentencing. She testified that Perkins displayed
delusional, paranoid, and disjointed thoughts and that she believed
Perkins could not understand the consequences of the criminal
proceedings as a result.
Dr. Vitacco, on the other hand, did not evaluate Perkins but
reviewed his medical records, legal documents, and the jailhouse
phone calls and concluded that Perkins was competent at the time
of his trial and sentencing. He testified that Dr. Flores’s
conclusions ran counter to Perkins’s psychiatric history and that he
agreed with Dr. Tibbetts that Perkins’s behaviors and symptoms
were calculated.
Perkins also submitted his psychological records, one of
which contained information relating to a diagnosis of depressive
type psychosis he received from Dr. Victor Gonzalez9 at the BOP
on December 17, 2012, while Perkins awaited sentencing. Perkins
points to three additional purportedly relevant notations or
diagnoses in these medical records: (1) a psychology services intake
screening related to a prior case that occurred on October 23, 2001,
notes of which showed Perkins’s prior prescriptions of Vistaril,
9 Perkins relies heavily on a single record of his evaluation by Dr. Gonzalez,
but the record does not reveal much about Dr. Gonzalez himself or his
evaluation of Perkins other than that Dr. Gonzalez diagnosed Perkins with
depressive type psychosis at the United States Penitentiary in Atlanta, Georgia.
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14 Opinion of the Court 20-14781
Effexor, and Risperdal; 10 (2) a March 12, 2010, psychological
evaluation at the Robert A. Deyton Detention Center, during
which Perkins exhibited a “flight of ideas” and signs of paranoia
about the AIDS virus; and (3) Dr. Strauch’s March 17, 2010,
psychiatric evaluation, when she observed Perkins exhibiting
paranoid ideations she associated with substance abuse.
Following the hearing and supplemental briefing, the
magistrate judge issued a report and recommendation
recommending that the district court deny Perkins’s § 2255 motion
and deny a certificate of appealability (“COA”). Regarding Claim
One (substantive and procedural competency), the magistrate
judge concluded that Perkins was procedurally barred from raising
the claim on collateral review because we denied it on direct
appeal. The magistrate judge also concluded Perkins was
competent at the time of trial and at sentencing. As for Claim Two
(ineffective assistance of counsel), the magistrate judge determined
10 Vistaril, or hydroxyzine, is prescribed to treat anxiety and tension. See
Hydroxyzine (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-
supplements/hydroxyzine-oral-route/proper-use/drg-20311434?p=1, (last
updated June 1, 2023). Effexor, or venlafaxine, is an anti-depressant used to
treat general anxiety disorder, social anxiety disorder, and panic disorder. See
Venlafaxine (Oral Route) Description and Brand Names, Mayo Clinic,
https://www.mayoclinic.org/drugs-supplements/venlafaxine-oral-
route/description/drg-20067379, (last updated June 1, 2023). Risperdal, or
risperidone, is an anti-psychotic prescribed to treat schizophrenia, bipolar
disorder, or irritability associated with autism. See Risperidone (Oral Route),
Mayo Clinic, https://www.mayoclinic.org/drg-20067189?p=1, (last updated
June 1, 2023).
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20-14781 Opinion of the Court 15
that Perkins had not demonstrated that his counsel was deficient
before or during trial, as well as before sentencing, because any
competency motion likely would have been futile. The magistrate
judge, expressly discounting Dr. Flores’s testimony as not credible
and unreliable, determined that Perkins did not demonstrate that
he suffered prejudice because he had not established that he was
incompetent at trial or at sentencing. 11
Perkins filed objections to the magistrate judge’s
recommendation that Claims One and Two be denied and that a
COA be denied. Nonetheless, the district court adopted the report
and recommendation. The district court stated that “[f ]rom a
review of the record it is clear that [Perkins], leading up to his trial,
during his trial, and afterward, attempted to fake being mentally
incompetent in an effort to disrupt his criminal proceedings.” The
district court also concluded that because we ruled on direct appeal
that the district court had not erred in denying Perkins’s motion for
a competency hearing, we implicitly found that there was no bona
11 Specifically, the magistrate judge stated:
[A]lthough Dr. Flores opined that [Perkins] was not competent
at trial or sentencing, the undersigned finds that Dr. Flores’s
testimony is entitled to little, if any, weight. Dr. Flores
primarily based her opinion on her personal observations of
[Perkins], yet it is difficult to see how such present
observations, conducted in late 2019, could reveal whether
[Perkins] was competent in 2011, over eight years beforehand.
Dr. Flores’s conclusion . . . is also at odds with the
observations of numerous other doctors.
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16 Opinion of the Court 20-14781
fide doubt as to Perkins’s competency. As for Claim Two, the
district court agreed that Perkins had not proven prejudice for his
ineffective-assistance-of-counsel claim because the trial and
sentencing court would not have granted a motion for a
competency hearing and Perkins had not established that he was
incompetent.
Although the district court adopted the report and
recommendation and denied Perkins’s § 2255 motion, it granted a
COA on one issue, noting “the long time gap between the trial and
the sentencing hearing (roughly 19 months) and the fact that
[Perkins] has presented significant evidence that his mental health
legitimately appeared to deteriorate in the interim.”
Perkins timely appealed the denial of his § 2255 motion. He
also filed a motion to expand the COA, which we denied in part
and granted in part. There are now two issues on appeal:
1) “Whether Mr. Perkins’s substantive due process
rights were violated when he was denied a
competency hearing in connection with his
sentencing hearing because of the long[]time gap
between the trial and sentencing and because he had
presented evidence that his mental health
legitimately appeared to have deteriorated over that
time period;” and
2) “Whether trial counsel provided ineffective assistance
by failing to seek a mental-health evaluation or
request Mr. Perkins’s mental-health records when
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20-14781 Opinion of the Court 17
trial counsel learned, after trial but before sentencing,
that Mr. Perkins suffered from mental-health issues.”
II. Discussion
In reviewing a district court’s denial of a motion to vacate
under 28 U.S.C. § 2255, 12 we review legal conclusions de novo and
findings of fact for clear error. Stoufflet v. United States, 757 F.3d
1236, 1239 (11th Cir. 2014).
A. Perkins’s substantive competency claim (Claim One)
We turn first to the merits of Perkins’s substantive
competency during sentencing claim. 13 The Due Process Clause
12 Under § 2255, a prisoner in federal custody may file a motion to vacate, set
aside, or correct a sentence when he claims
the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack.
28 U.S.C. § 2255(a).
13 The government argues that Perkins is procedurally barred from raising
both of his claims because, according to the government, we held on direct
appeal that Perkins was competent at the time of trial and sentencing. We
may decline to consider whether an issue is procedurally barred where it will
ultimately fail on the merits. See, e.g., Loggins v. Thomas, 654 F.3d 1204, 1215
(11th Cir. 2011) (“When relief is due to be denied even if claims are not
procedurally barred, we can skip over the procedural bar issues[.]”). Even
assuming that Perkins is not procedurally barred from raising either of his
claims, they would fail on the merits, as we discuss below. We therefore
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18 Opinion of the Court 20-14781
of the Fifth Amendment prohibits the government from trying a
defendant who is incompetent. See U.S. Const. amend. V; Pate v.
Robinson, 383 U.S. 375, 378 (1966). This right extends to sentencing.
See United States v. Rahim, 431 F.3d 753, 759–60 (11th Cir. 2005).
A petitioner “is entitled to no presumption of incompetency
and must demonstrate his . . . incompetency by a preponderance
of the evidence.” Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d 464,
481 (11th Cir. 2012) (quoting James v. Singletary, 957 F.2d 1562, 1571
(11th Cir. 1992)). “[T]he standard of proof is high,” and the facts
must “positively, unequivocally and clearly generate [a] legitimate
doubt.” Card v. Singletary, 981 F.2d 481, 484 (11th Cir. 1992)
(quotation omitted). The determination of competence asks
“whether [a defendant] has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—
and whether he has a rational as well as factual understanding of
the proceedings against him.” Medina v. Singletary, 59 F.3d 1095,
1106 (11th Cir. 1995) (quoting Dusky v. United States, 362 U.S. 402,
402 (1960)).
“Not every manifestation of mental illness demonstrates”
that the defendant is incompetent; “rather, the evidence must
indicate a present inability to assist counsel or understand the
charges” at the time of the relevant proceeding, such as trial or
sentencing. Battle v. United States, 419 F.3d 1292, 1299–1300 (11th
decline to address whether Perkins is procedurally barred from raising either
his substantive competency claim or his ineffective-assistance-of-counsel
claim.
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Cir. 2005) (distinguishing the defendant’s behavior in the
courtroom at trial with his purported “history of mental illness”).
Likewise, neither low intelligence nor mental deficiency can be
equated with mental incompetence. Id.; see also Wright v. Sec’y for
Dep’t of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002). The fact that a
petitioner was prescribed psychiatric drugs, standing alone, does
not raise a bona fide doubt as to his competence to stand trial. See
Pardo v. Sec’y, Fl. Dep’t of Corr., 587 F.3d 1093, 1101 (11th Cir. 2009)
(“Absent evidence of such an inability [to assist counsel or
understand the charges], evidence of low intelligence, mental
deficiency, bizarre, volatile, or irrational behavior, or the use of
anti-psychotic drugs is not sufficient to show incompetence to
stand trial.”).
Whether a petitioner is substantively competent is a factual
determination. United States v. Izquierdo, 448 F.3d 1269, 1278 (11th
Cir. 2006). Thus, we review a district court’s competency
determination for clear error. United States v. Bradley, 644 F.3d 1213,
1267 (11th Cir. 2011). Clear error review, which is “highly
deferential,” asks whether a factual finding, supported by evidence,
leaves us “with the definite and firm conviction that a mistake has
been committed.” Eers v. Alabama, 876 F.3d 1086, 1094 (11th Cir.
2017). Faced with conflicting expert testimony, a district court does
not clearly err by crediting one opinion over another where other
record evidence also supports the conclusion. Battle, 419 F.3d at
1299; see also Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985) (“Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly
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erroneous.”). “[A]n appellate court . . . must afford ‘due regard . . .
to the opportunity of the trial court to judge of the credibility of
the witnesses.’” Eers, 876 F.3d at 1095 (quoting Amadeo v. Zant,
486 U.S. 214, 223 (1988)).
The magistrate judge and district court did not clearly err,
in ruling on Perkins’s § 2255 motion, in choosing not to credit the
expert testimony of Dr. Flores and determining that Perkins was
competent at the time of sentencing. The magistrate judge
primarily relied on (1) Perkins’s June 2011 jailhouse phone calls
demonstrating his knowledge of criminal procedure and the court
proceedings; and (2) the expert testimony presented at the
evidentiary hearing. The district court, in adopting the report and
recommendation of the magistrate judge, stated that “[h]aving . . .
reviewed the record,” it agreed that Perkins was competent at the
time of trial and sentencing and that it would not disturb the
magistrate judge’s credibility determinations as to Dr. Flores.
Based on the evidence in the record and the testimony
presented at the § 2255 evidentiary hearing, there is no indication,
much less one that would lead to a “definite and firm conviction”
on appeal, that the district court’s conclusion that Perkins was
competent during sentencing was wrong.
First, Perkins’s 2011 phone calls to his mother are strong
evidence that Perkins’s bizarre behavior throughout trial and
during the sentencing phase was a contrived and intentional
attempt to disrupt the district court’s proceedings. Of course, the
19-month gap between the time of these phone calls and his 2013
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20-14781 Opinion of the Court 21
sentencing is not insignificant. But, importantly, the phone calls are
evidence that immediately prior to trial, Perkins intentionally
feigned mental illness in an attempt to avoid and thwart the
proceedings against him. Accordingly, the magistrate judge did not
clearly err in affording some weight to these phone calls when
determining that Perkins was competent at the time of sentencing.
Second, the magistrate judge did not clearly err when it
afforded “little, if any, weight” to the testimony of Dr. Flores as a
result of (1) the long period between her evaluation and the
relevant time period in this case and (2) the fact that her testimony
conflicted with the other experts’ testimonies.
Dr. Flores evaluated Perkins on September 5 and 26, 2019—
more than eight years after his trial and more than six years after
sentencing. This time gap notwithstanding, based upon her
evaluation of Perkins and review of various record materials, she
determined that Perkins was not competent in June 2011 at the
time of trial, nor was he competent in February 2013 at the time of
sentencing. However, Dr. Flores’s report is based almost
exclusively on Perkins’s own recollections of his prior mental
state. 14 These observations may touch on Perkins’s understanding
14 For instance, she wrote: “About sentencing, [Perkins] said, he ‘Had not
talked to anyone about nothing. [He] wasn’t really into it. [He] didn’t care’
(he indicated that he was on Risperdal and Prozac at the time).” She also
recounted that “Mr. Perkins said, ‘I didn’t give a shit about nothin’. I knew
what this dude [his attorney] was up to. I knew he was out to get me. But,
for the most part, I didn’t care about anything.’”
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22 Opinion of the Court 20-14781
of his mental state at the time of sentencing, but they are not
specific or probative enough to disturb the district court’s
competency finding because information provided by Perkins in
late 2019 does very little to shed light on his mental state in 2013.
Furthermore, at the evidentiary hearing, Dr. Flores could not
provide any additional explanation as to how she concluded, based
upon her 2019 evaluation, that Perkins was incompetent at the time
of sentencing. For instance, she conceded that there was no record
of Perkins experiencing hallucinations at the time of trial or
sentencing.15 She also admitted that it was difficult to assess
15 Dr. Flores testified as follows:
Q [by the government]. And . . . your observing hallucinations
are part of your bases for the conclusion that [Perkins was]
incompetent?
A [by Dr. Flores]. I’m saying that those symptoms are
consistent with a severe and persistent thought disorder that
existed at the time of trial and sentencing.
Q. Okay. But there’s no evidence of him ever experiencing
these hallucinations at the time of this trial, right?
A. No, there’s – there’s nothing that points to that, that’s
correct.
Q. Or even after his trial before you saw him?
A. There’s mention – there’s mention in the record multiple
times he has reported experiencing hallucinations in the past.
***
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20-14781 Opinion of the Court 23
Perkins’s competency retrospectively. Accordingly, Dr. Flores’s
own report and testimony undermine her conclusion that Perkins
was incompetent, and the magistrate judge and the district court
did not clearly err in concluding that Dr. Flores’s severely post-
dated competency determination was not credible.
Additionally, the magistrate judge and the district court did
not clearly err in choosing not to credit Dr. Flores’s opinion in light
of its conflict with those given by the other doctors who examined
Perkins post-sentencing, but prior to Dr. Flores. For example, the
magistrate judge noted that while Dr. Flores observed Perkins
displaying signs of psychosis immediately upon meeting her, Dr.
Eberle did not report any psychotic symptoms between September
2014 and September 2016 and Dr. Tibbetts did not report any
psychotic problems between May and December 2017 while
treating Perkins regularly. In the magistrate judge’s view, it was
simply not credible that Perkins’s symptoms reappeared “precisely
at an important evaluation for his motion to vacate,” especially
considering that Dr. Tibbett had observed that Perkins’s symptoms
tended to be goal oriented. The district court agreed, noting that
it was “clear” that Perkins maintained “his efforts to ‘game’ the
Q. And is it your conclusion in this case that he was
experiencing hallucinations at the time of his trial and
sentencing?
A. There’s some indication that he may have been, but I don’t
have anything in the record, that’s completely a self-report.
(emphasis added).
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24 Opinion of the Court 20-14781
system to his advantage.” Our review of the record reveals that
neither the magistrate judge nor the district court clearly erred in
declining to credit Dr. Flores’s opinion.
Perkins has not demonstrated that the magistrate judge, and
subsequently the district court, clearly erred in choosing to
discredit Dr. Flores’s report and testimony, given that Dr. Flores’s
opinions were based upon primarily Perkins’s own self-reporting
six years after his sentencing and her opinions conflicted with the
opinions of other doctors who had evaluated Perkins prior to 2019.
We are not left with a “definite and firm conviction” that a mistake
was made by the district court in denying Claim One of Perkins’s
§ 2255 petition. We therefore affirm the district court’s denial of
Perkins’s substantive competency claim.
B. Perkins’s ineffective assistance of counsel claim (Claim
Two)
Perkins has alleged that he received ineffective assistance of
counsel because of his “counsel’s failure to secure relevant records,
investigate [his] mental health issues, or attempt to secure a mental
health evaluation or a competency evaluation.” 16
16 While Perkins raised this argument below, the magistrate judge focused on
counsel’s decision not to move for a competency hearing prior to trial,
concluding that the trial and sentencing court would not have granted such a
motion based on its statements indicating that it thought that “in no uncertain
terms . . . [Perkins] was competent.” The district court, likewise, agreed with
the magistrate judge that Perkins had not established deficient performance or
prejudice because it likely would not have granted a motion for a competency
hearing and Perkins had not established that he was incompetent. Neither the
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20-14781 Opinion of the Court 25
“In a 28 U.S.C. § 2255 proceeding, we review a district court’s
legal conclusions de novo and factual findings for clear error.”
Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008).
Whether counsel was ineffective is a mixed question of law and fact
that we review de novo. Id. A defendant is entitled to the effective
assistance of counsel not only during the guilt or innocence phase
of a criminal trial, but also during sentencing, resentencing, and on
direct appeal. See Strickland v. Washington, 466 U.S. 668, 686 (1984).
To prevail on a claim for ineffective assistance of counsel, a
petitioner must show that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced his defense. Id. at 687.
“Judicial scrutiny of counsel’s performance must be highly
deferential.” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.
2000) (en banc) (quoting Strickland, 466 U.S. at 689).
Deficient performance “requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687. In assessing attorney performance, the reviewing
court should make every effort “to eliminate the distorting effects
magistrate judge nor the district court addressed Perkins’s claim that, had his
counsel sought medical records or requested a mental health or competency
evaluation, counsel could have used such evidence in support of mitigation
during sentencing. But, as we explain below, counsel’s performance was not
deficient, and Perkins has not established that he was prejudiced by his
counsel’s allegedly deficient performance as related to his medical records or
potential mental health or competency evaluations.
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26 Opinion of the Court 20-14781
of hindsight” and “evaluate the conduct from counsel’s perspective
at the time.” Id. at 689.
There is a “‘strong presumption’ that counsel’s performance
was reasonable and that counsel ‘made all significant decisions in
the exercise of reasonable professional judgment.’” Chandler, 218
F.3d at 1314 (quoting Strickland, 466 U.S. at 689). For this reason, in
order for a petitioner “to show that [counsel’s] conduct was
unreasonable, [he] must establish that no competent counsel
would have taken the action that his counsel did take.” Id. at 1315.
This is “a difficult burden.” Johnston v. Singletary, 162 F.3d 630, 634
(11th Cir. 1998).
Prejudice occurs when there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
“It is not enough for the [petitioner] to show that the errors had
some conceivable effect on the outcome of the proceeding,”
because “[v]irtually every act or omission of counsel would meet
that test.” Id. at 693. Rather, “[c]ounsel’s errors must be ‘so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 687).
“[U]nder certain circumstances, trial counsel’s failure to
apprise the court of a client’s changing mental state . . . can
constitute ineffective assistance.” Johnston, 162 F.3d at 635
(emphasis in original). To establish deficient performance in this
context, a defendant must show that his counsel failed to bring
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20-14781 Opinion of the Court 27
“information raising a bona fide doubt regarding [his] competency”
to the trial court’s attention when every reasonable attorney would
have done so. James, 957 F.2d at 1570. Further, to establish
prejudice, he must show that “there was a reasonable probability
that he would have received a competency hearing and been found
incompetent had counsel requested the hearing.” Lawrence, 700
F.3d at 479 (emphasis in original).
We have held that where counsel fails to conduct a
“thorough investigation of law and facts,” his performance can be
ineffective. Sullivan v. Sec’y, Fla. Dep’t of Corr., 837 F.3d 1195, 1204
(11th Cir. 2016). However, “[c]ounsel’s investigation does not fall
below Strickland’s standard so long as a reasonable lawyer could
have decided, under the circumstances, not to investigate particular
evidence.” Id. at 1204–05 (quotation omitted and alteration
adopted). Furthermore, a petitioner must be able to point to
evidence of prejudice that amounts to more than mere speculation.
See Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002)
(“[S]peculation is insufficient to carry the burden of a habeas
corpus petitioner as to what evidence could have been revealed by
further investigation.” (quoting Aldrich v. Wainwright, 777 F.2d 630,
636 (11th Cir. 1985)).
1. Deficient Performance
Perkins’s second attorney, who represented him at trial and
sentencing, testified during the evidentiary hearing that he did not
request medical records or a mental health evaluation even though
he “probably should have” and that “there was no good reason not
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28 Opinion of the Court 20-14781
to” request an evaluation.17 However, he also stated that he did
not request the records or evaluation because he did not learn of
Perkins’s mental health issues until he received the PSI and did not
have any reason to believe that Perkins was incompetent. He
recalled that Perkins had not cooperated with him prior to trial and
thus he had no meaningful opportunity to learn anything from
Perkins, including any information about his mental health.18
After he received the PSI and learned of Perkins’s mental
health issues, counsel spoke with Perkins’s mother about Perkins’s
mental health history. At sentencing, counsel informed the district
court that Perkins had a history of schizoaffective disorder and that
there was “something wrong” with Perkins. Counsel also
requested mental health treatment for Perkins. He testified that
after issuance of the district court’s provisional sentence of 360
months’ imprisonment, he realized he “had not done something
right” and that he wanted Perkins’s competency evaluated. It was
then that he filed his motion for a competency hearing.19
17 Perkins’s first attorney testified at the evidentiary hearing that he did not
have any concerns about Perkins’s mental health or competency.
18 From the start of his representation of Perkins through trial, Perkins’s
second attorney was under the impression that Perkins ascribed to the beliefs
of the sovereign citizen movement. And in his testimony, counsel never
attributed any of Perkins’s sovereign citizen beliefs or bizarre behavior, such
as refusing to attend his trial, to mental illness or mental incompetence.
19 By this time, counsel had also learned through another client incarcerated
with Perkins that Perkins “seemed crazy.”
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20-14781 Opinion of the Court 29
According to Perkins, however, his attorney should have
requested Perkins’s medical records and moved for a mental health
evaluation upon learning about Perkins’s mental health issues
from the PSI before sentencing. Perkins contends that if counsel
had obtained Perkins’s medical records and an evaluation, that
additional evidence could have been used as mitigation at the
sentencing hearing or bolstered the motion for a competency
hearing after sentencing. He argues that the medical records, if
counsel had requested and reviewed them, would have shown “a
history of mental health issues that would have warranted further
investigation at the time of sentencing.” Specifically, Perkins relies
on the December 2012 diagnosis of depressive type psychosis by
Dr. Gonzalez while Perkins was incarcerated in Atlanta.
But Perkins ignores that counsel did, in fact, request that the
district court order mental health treatment as part of any sentence
imposed. Counsel also moved for a competency hearing following
sentencing so “a record regarding Mr. Perkins[’s] mental status
could be developed”—all this without being equipped with the
additional medical records from the BOP.
Perkins’s counsel’s performance was not deficient. After
learning of Perkins’s mental health issues from the PSI, he spoke
with Perkins’s mother, raised his concerns about Perkins’s mental
state to the district court during the sentencing hearing, and
continued to keep the district court apprised of a suspected change
in Perkins’s mental state by moving for a competency hearing after
the sentencing hearing. Any failure to strengthen the motion for a
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30 Opinion of the Court 20-14781
competency hearing or the mitigation evidence presented at
sentencing does not render counsel’s performance unreasonable
under Strickland. See Harrington, 562 U.S. at 110 (“Strickland does
not guarantee perfect representation[.]”); Johnston, 162 F.3d at 635;
James, 957 F.2d at 1570.
2. Prejudice
Even assuming these alleged failures constitute deficient
performance, Perkins has not established prejudice. He has not
shown that there was a reasonable probability that he would have
received a more lenient sentence as a result of any mitigating
evidence contained in his medical records beyond what counsel
presented at sentencing or that would have been uncovered during
a mental health evaluation.
First, there are no documents in the medical or BOP records
upon which Perkins relies demonstrating or even mentioning his
competence, i.e., his ability to understand the proceedings or to
assist counsel in his defense. For instance, Perkins’s December 2012
diagnosis of depressive type psychosis from Dr. Gonzalez is
contained only in a one-line entry in a single medical record. The
record contains no notes, discussion, or elaboration on the
diagnosis. While a diagnosis of depressive type psychosis might
suggest that Perkins was suffering from a mental illness that could
have impaired his competency, Perkins has pointed to no evidence
that this illness did, in fact, render him incompetent at the time of
sentencing. Similarly, Perkins points to information from Dr.
Strauch’s evaluation in 2010 contained in his medical records. That
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20-14781 Opinion of the Court 31
information shows that Perkins was taking various psychiatric
drugs and was exhibiting certain paranoid behaviors but,
importantly, those documents do not contain any information or
opinion from Dr. Strauch as to Perkins’s competency. The lack of
any competency determination from Dr. Strauch is not surprising,
given that Dr. Strauch testified at the evidentiary hearing that she
did not provide any opinion as to Perkins’s competency because it
was not her job to do so. 20 Because those records do not contain
any indication that any of Perkins’s several providers found him not
to be competent, he has not demonstrated that bringing those
records to the court’s attention before the imposition of his
sentence would have given the district court a bona fide doubt as
to his competency. See James, 957 F.2d at 1570.
Second, Perkins again relies upon Dr. Flores’s testimony
during the evidentiary hearing about her 2019 evaluation of
Perkins, arguing that, had a similar evaluation been conducted
sooner, the results of that earlier evaluation could have been used
as mitigation evidence at sentencing. Again, Perkins points to no
indication in his medical records or from the evidentiary hearing
that any evaluation conducted at the time of his 2013 sentencing
20 Perkins also points to a May 2014 diagnosis of schizophrenia from a BOP
physician, which he argues demonstrates that Perkins “actually had a
diagnosable mental illness close in time to sentencing.” It should go without
saying that Perkins could not have been prejudiced by counsel’s failure to
request medical documents that post-date his sentencing by over 14 months.
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32 Opinion of the Court 20-14781
would have resulted in a diagnosis that would have given the
district court a bona fide doubt as to his competency. See id.
Indeed, the district court noted on numerous occasions
before, during, and after trial, as well as during and after
sentencing, that Perkins exhibited obstructionist behavior that was
“studied, definitely contrived, definitely manipulative,” and
appeared to be “sovereign citizenship on steroids,” designed to be
“dramatic” and “provocative.” The district court also indicated that
it was possible that Perkins’s post-trial statements made to the
acquaintance who visited Perkins in prison could have been “a
further effort to manipulate the court system,” and that his post-
trial pro se motions indicated that Perkins remained competent.
With such a definitive impression of Perkins as a competent,
deliberate obstructionist, it is highly unlikely that the district court
would have changed its mind about Perkins’s competency if it were
presented with an additional diagnosis of mental illness at the time
of sentencing, given Perkins’s prior transparent attempts to game
the system. In short, Perkins has failed to establish a reasonable
probability that he would have received a mental health evaluation
before or after the sentencing hearing had counsel requested
Perkins’s medical records and that he would have been found
incompetent as a result. Lawrence, 700 F.3d at 479.
For these reasons, we affirm the district court’s rejection of
Perkins’s claim for ineffective assistance of counsel.
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20-14781 Opinion of the Court 33
III. Conclusion
Perkins’s substantive due process rights were not violated
when the district court denied his motion for a competency
hearing. Nor did Perkins receive constitutionally deficient
performance from court-appointed counsel when they failed to
request his medical records or request a mental health evaluation.
Even if such failures constituted deficient performance, Perkins has
not demonstrated that he was prejudiced as a result. Thus, the
district court did not err in denying Perkins’s § 2255 motion and we
affirm.
AFFIRMED.