                    United States Court of Appeals,

                              Eleventh Circuit.

                                No. 95-4403.

               Carl Eugene WATTS, Petitioner-Appellee,

                                     v.

              Harry K. SINGLETARY, Respondent-Appellant.

                               July 18, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6258-CIV-UUB), Ursula Ungaro-Benages,
Judge.

Before KRAVITCH, DUBINA and CARNES, Circuit Judges.

     KRAVITCH, Circuit Judge:

     A habeas petitioner contends that his due process rights were

infringed when he was tried and convicted in state court for murder

while incompetent to stand trial.           We hold that petitioner has

failed to prove a violation of his procedural due process right to

a competency hearing or his substantive due process right not to be

tried while incompetent.

                                     I.

     In 1987, Carl Eugene Watts was tried in Florida state court

and convicted by a jury of second-degree murder.           Watts was asleep

through much of the five day trial.

     On the first day of trial, the judge recorded his initial

observation    of   Watts's    behavior:     "I'd   also   like   to   make   a

statement for the record at this time that during the entire voir

dire examination that I've conducted, since about 3:30 and it's 20

minutes to 5:00, that the defendant in this case, Mr. Watts, has

been sleeping at counsel table."          Trial tr. at 69.
     The next day, after two prospective jurors approached the

judge to express concern that Watts's sleeping would threaten their

ability to remain impartial,1 the judge questioned Watts about the
cause of his continuing somnolence:

     THE COURT: First thing I'd like to put on the record is that
     Mr. Watts for the second day in a row has slept through 90
     percent of the ... questioning this morning and Mr. Blostein
     [counsel for Watts] has on occasion had to wake him up. I'm
     sure the jurors have all seen this.    I'd like to ask some
     questions at this time.

     Mr. Watts, are you under the influence of any drugs or alcohol
     or medication today?

     WATTS:   No, sir.

     THE COURT:    Is there any particular reason why you are
     sleeping through this serious trial which is probably going to
     effect your life?

     WATTS:   No, sir.   I'm not sleeping through it.

     ....

     THE COURT: You have your eyes closed. You have your head
     down on your neck or your chest and it seems pretty obvious to
     everybody in the courtroom that you are sleeping.

Trial tr. at 130-31.

     As Watts continued to sleep, the judge initiated a similar

colloquy with Watts and his lawyer at least once on each subsequent

day of the trial.   After estimating the percentage of the recent

proceedings through which Watts had slept, the trial judge would

ask Watts if he was under the influence of any drugs;   Watts always

replied that he was not.    When pressed for an explanation of his

inability to stay awake, Watts on one occasion suggested that he

was not sleeping, but praying—a characterization that both the

judge and Watts's attorney strongly doubted.    On other occasions,

     1
      Neither of these two jurors was ultimately impanelled.
Watts    professed    to   having   no   explanation   for   his   sleeping,

disavowing physical illness, in addition to the use of alcohol,

medication, or drugs.         In response to a question from the bench,

Watts indicated that he had never been treated for mental illness.

        Watts's attorney at one point expressed frustration at his

inability to keep his client awake:

        MR. BLOSTEIN: For the record, and for my own protection on
        this, my thought is that Mr. Watts is also sleeping. I have
        over the last three days had to wake him up on numerous
        occasions including today and [addressed to Watts] if you were
        praying you didn't even notice that I attempted to wake you
        up.

        THE COURT: On one occasion I saw you hit him in the shoulder
        and he never even moved. He never budged.

        MR. BLOSTEIN: Exactly. I'm doing the best I can to represent
        Mr. Watts under the circumstances he's putting me in.

Trial tr. at 337-38.         Nevertheless, Watts's attorney never raised

the issue of Watts's competency at trial or requested a competency

hearing.

        Prior to closing arguments, the judge questioned Watts in an

attempt to ensure that he understood his decision not to testify on

his own behalf:

        THE COURT: You are doing all right. Okay. You remember last
        week when your attorney put a couple witnesses on for you; do
        you remember that?

        WATTS:   Yes, sir.

        THE COURT:   I think your mother came in and testified and your
        sister?

        WATTS:   Yes, sir.

     THE COURT: I want you to understand that you have a right to
     testify in this case if you want. Now your lawyer indicated
     to us last week that you were not going to testify and I just
     wanted to double check with you and make sure that that is
     what you want to do; that you do not want to testify in this
     case; is that true?
     WATTS:   That's correct.

     THE COURT:     Have you talked this over with your lawyer?

     WATTS:   Yes.

     THE COURT:     Are you satisfied with him as your lawyer?

     WATTS:   Yes.

Trial tr. at 482.

     At the conclusion of the trial, the judge instructed the jury

as follows:

          Before I get into the instructions, I would like to make
     a comment about Mr. Watts and his obvious sleeping throughout
     most of the trial. I don't know how that affected any of you
     but I'm going to tell you under your oaths as jurors you must
     not allow that to affect you in any way. I don't know why Mr.
     Watts has slept and you don't either and no matter what the
     reason was, even if we did know, that has nothing to do with
     whether he's guilty or not guilty of the charge that he's here
     on trial for today.

          So you must not allow that to affect your decision in
     this case and I'm going to tell you not even to discuss that
     in any way during your deliberations.

Trial tr. at 529.    Watts could not be awakened to stand as the jury

retired to deliberate.

     In the interim between conviction and sentencing, Watts was

examined by a psychologist.     Watts informed her that he had been

using drugs for seven years (since he was sixteen)2 and that he had
been smoking crack cocaine during the trial at night while he was

out on bond.      According to the trial judge, the psychologist

attributed Watts's inability to stay awake at trial to his staying

up nights taking crack "as well as thinking and doing a lot of




     2
      Watts had been enrolled in a drug abuse program in 1984.
crying."3     Watts explained to the psychologist that he had not

admitted in court to taking drugs because his relatives were

present and he did not want to upset them.

     At the sentencing hearing, Watts's counsel and the judge both

said that they had suspected Watts had been taking drugs during the

trial.   (Given that the parties had agreed before trial not to

mention Watts's use of drugs around the time of the murder, Watts's

counsel and the judge obviously were aware that Watts had used

drugs in the past.     They also knew that Watts was out on bond

during the trial.) Watts himself expressed concern that the jury's

verdict had been influenced by his sleeping:

     WATTS:   The jury made the decision because of my sleeping
     disorder.... They figured I didn't care.

     THE COURT: Maybe you're right. I told them not to regard
     that and not to consider that in their verdict.

     WATTS:    But you can't throw that out of a human mind.

     THE COURT:   You are probably right, Mr. Watts.    See how
     rational you are talking now.    You've now got some good
     judgment. You are thinking rational. Too bad that all this
     had to happen.

Trial tr. at 584-85.

     Watts's conviction and sentence were upheld on direct appeal,

and he is currently incarcerated.    Proceeding pro se, Watts filed

a petition for habeas corpus in federal district court in 1994,

claiming that, because he slept through most of his trial, he was

denied due process as a result of the trial judge's failure to


     3
      The psychologist determined that Watts did not have brain
damage; that his intellectual ability was at least average;
that he did not exhibit psychosis, hallucinations, or delusions;
and that he was not suffering from any major mental illness.
Trial tr. at 586-87.
order a competency hearing and as a result of his trial and

conviction while incompetent.             A magistrate judge agreed.             The

magistrate issued a report recommending that Watts's petition be

granted and appointed a Federal Public Defender to represent him.

The   district        court    adopted     the      magistrate's       report   and

recommendation and vacated Watts's conviction and sentence pending

retrial by the State.         The State now appeals.

                                         II.

      The Due Process Clause of the Fourteenth Amendment prohibits

the criminal prosecution of a defendant who is not competent to

stand trial.     A defendant is incompetent if he lacks "sufficient

present ability to consult with his lawyer with a reasonable degree

of rational understanding" or "a rational as well as a factual

understanding of the proceedings against him."                  Dusky v. United

States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960)

(internal quotation marks omitted).              As the Supreme Court recently

has emphasized,

      "[c]ompetence to stand trial is rudimentary, for upon it
      depends the main part of those rights deemed essential to a
      fair trial, including the right of effective assistance of
      counsel, the rights to summon, to confront, and to
      cross-examine witnesses, and the right to testify on one's own
      behalf or to remain silent without penalty for doing so."

Cooper v. Oklahoma, --- U.S. ----, ----, 116 S.Ct. 1373, 1376, 134

L.Ed.2d 498 (1996) (quoting Riggins v. Nevada, 504 U.S. 127, 139-

40, 112 S.Ct. 1810, 1817, 118 L.Ed.2d 479 (1992) (Kennedy, J.,

concurring)).     The competency inquiry, then, is a functional one.

It focuses on the criminal defendant's capacity to contribute

sufficiently     to    his    own   defense    to   allow   a   fair   trial    and,

ultimately, serves to protect both the defendant and society
against erroneous convictions.4

     The issue of Watts's competency to stand trial implicates both

the procedural and substantive dimensions of the right.                The

district   court   concluded,   first,   that   Watts's   procedural   due

process rights under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836,

15 L.Ed.2d 815 (1966), were infringed by the state trial court's

failure to conduct a competency hearing on its own initiative and,

second, that Watts's substantive due process rights were violated

because he was in fact tried while incompetent.           We will address

the procedural and substantive claims in turn.5


     4
      The ABA has usefully explained the functional,
trial-related nature of the competency inquiry as follows:

           A finding of mental incompetence to stand trial may
           arise from mental illness, physical illness, or
           disability; mental retardation or other developmental
           disability; or other etiology so long as it results in
           a defendant's inability to consult with defense counsel
           or to understand the proceedings.

           ....

           Because the fundamental purpose of the rule [of
           nontriability of incompetent defendants] is to promote
           accurate factual determinations of guilt or innocence
           by enabling counsel to evaluate and present available
           defenses to factfinders, defendants should have at
           least the intellectual capacity necessary to consult
           with a defense attorney about factual occurrences
           giving rise to criminal charges. Obviously, to
           accomplish that, defendants require a minimal
           understanding of the nature of criminal proceedings,
           the importance of presenting available defenses, and
           the possible consequences of either conviction or
           acquittal.

     ABA Criminal Justice Mental Health Standards § 7-4.1(c) &
     commentary (2d ed. 1986).
     5
      Both of these claims were exhausted in state court,
included in Watts's habeas petition, and decided by the district
court.
A. Procedural Due Process

         Pate established that a criminal defendant's due process

rights are presumptively violated when a state trial court fails to

conduct, on its own initiative, a competency hearing in the face of

sufficient doubt about the defendant's competency.6   This circuit

has derived from Pate the objective standard that, in order to

trigger the trial court's obligation to order a competency hearing,

the court must have information raising a "bona fide doubt" as to


     6
      The due process violation is only "presumptive" because
this circuit has interpreted Pate to allow post-deprivation
process to suffice in some circumstances. If the trial court
fails to order a competency hearing at trial when one is
warranted, the state may still attempt to prove that the
defendant was in fact competent at the time of trial at a nunc
pro tunc competency hearing, so long as a reliable inquiry into
the defendant's competency can still be made; the burden is on
the state. James v. Singletary, 957 F.2d 1562, 1570-71 & n. 11
(11th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 262, 126
L.Ed.2d 214 (1993); Fallada v. Dugger, 819 F.2d 1564, 1568 (11th
Cir.1987); Zapata v. Estelle, 588 F.2d 1017, 1020 (1979). If a
reliable ex post evaluation is impossible, the defendant must be
retried, if then competent to stand trial, or else released.
Fallada, 819 F.2d at 1568; Zapata, 588 F.2d at 1020.

          The Supreme Court has cautioned, however, that attempts
     to determine competency retrospectively by means of a nunc
     pro tunc hearing, even "under the most favorable of
     circumstances," face "inherent difficulties" which may
     render them futile. Drope v. Missouri, 420 U.S. 162, 95
     S.Ct. 896, 909, 43 L.Ed.2d 103 (1975); see also Pate, 383
     U.S. at 387, 86 S.Ct. at 843 ("[W]e have previously
     emphasized the difficulty of retrospectively determining an
     accused's competence to stand trial. [citation to Dusky, 362
     U.S. at 402, 80 S.Ct. at 789] The jury would not be able to
     observe the subject of their inquiry, and expert witnesses
     would have to testify solely from information contained in
     the printed record.").

          Given that Watts was tried almost nine years ago, and
     that his condition at the time of trial—influenced both by
     his use of drugs and despair over the murder—would be
     difficult to reconstruct ex post, we agree with the district
     court that "it is unlikely that a meaningful nunc pro tunc
     competency hearing ... could be had at this late date."
the defendant's competency.7        See James v. Singletary, 957 F.2d

1562, 1570 (11th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct.

262, 126 L.Ed.2d 214 (1993);        Fallada v. Dugger, 819 F.2d 1564,

1568 (11th Cir.1987). Relevant information may include evidence of

a defendant's irrational behavior, demeanor at trial, or prior

medical    opinion;     but   "[t]here    are,   of    course,   no    fixed    or

immutable signs which invariably indicate the need for further

inquiry to determine fitness to proceed."             Drope v. Missouri, 420

U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975).

         In this case, Watts has failed to establish that there was a

bona fide doubt as to his competency during the trial.                It is true

that Watts was conspicuously asleep through a large part of the

proceedings:     the transcript supports the state appellate court's

finding that Watts "slept through about 70% of his murder trial."

Watts v. State, 537 So.2d 699, 699 (Fla.Dist.Ct.App.1989).                     But

there is no constitutional prohibition against the trial and

conviction     of   a   defendant   who    fails      to   pay   attention     in

court—whether out of indifference, fear, confusion, boredom, or

sleepiness—unless that defendant also cannot understand the nature

of the proceedings against him or adequately assist counsel in

conducting a defense. We have no doubt, furthermore, that both the

trial judge and Watts's attorney, who were aware of Watts's history

of drug use and his release on bond throughout the trial, suspected

     7
      The term "bona fide doubt" comes from the Illinois statute
considered in Pate. The Pate Court did not adopt "bona fide
doubt" as a constitutional standard; it simply found this state
standard to be constitutionally adequate. Nonetheless, the "bona
fide doubt" standard has managed to insinuate itself into the
opinions of this circuit and is now commonly quoted as the
nominal constitutional standard.
that Watts's sleeping was related to contemporaneous drug use. But

even had Watts admitted in open court that he could not stay awake

at trial because he was up all night smoking crack, this would not

necessarily be sufficient to require a Pate hearing.

        In Fallada, this court noted that a defendant's use of drugs

(in that case, prescription drugs) does not, per se, necessitate a

competency hearing, but is "merely a relevant factor." 819 F.2d at

1569.   Recognizing the functional focus of the competency inquiry,

the court in Fallada stated, "To be entitled to a hearing a

defendant must present evidence demonstrating that the dosage given

him has affected him sufficiently adversely as to raise a doubt of

his ability to consult with his lawyer and to have a rational

understanding of the proceedings against him."    819 F.2d at 1569;

see also Pedrero v. Wainwright, 590 F.2d 1383, 1387-88 (5th Cir.)

(information that defendant was a drug addict insufficient to

require Pate hearing), cert. denied, 444 U.S. 943, 100 S.Ct. 299,

62 L.Ed.2d 310 (1979).    The fact that a defendant is taking drugs

(whether proscribed or prescribed) during trial should alert the

court to a potential competency issue, but need not, in itself,

necessitate a competency hearing.    Other information may convince

the court that a formal hearing is not necessary to be reasonably

certain that the defendant has the requisite capacity to understand

what is going on around him and to communicate with his lawyer.

     Here, the only apparent effect of Watts's drug use was his

intermittent inability to stay awake at trial.       When Watts was

awakened, he was able to provide, as the state appeals court found,

"lucid and not ... irrational" answers to questions from the bench.
Watts, 537            So.2d   at   699.    Certainly,     Watts   demonstrated        his

understanding of the proceedings against him, as he repeatedly
                                                                     8
expressed anxiety about being on trial for murder.                         There is no

reason to believe that Watts could not have engaged in the same

sort       of   coherent      colloquies    with   his    attorney       about   defense

strategy as he did with the trial judge about his sleeping problem.

            Because      legal     competency   is    primarily      a    function    of

defendant's role in assisting counsel in conducting the defense,

the defendant's attorney is in the best position to determine

whether         the    defendant's    competency     is   suspect.        Accordingly,

failure of defense counsel to raise the competency issue at trial,

while not dispositive, is evidence that the defendant's competency

was not really in doubt and there was no need for a Pate hearing.

See Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert.

denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).                         (For

the same reason, a defense counsel's request for a Pate hearing

must be taken seriously by the trial judge.)                In this case, Watts's

attorney did not raise the issue of Watts's competency or request

a Pate hearing.           Although he did make the comment, "I'm doing my

best to represent Mr. Watts under the circumstances he's putting me

in," the context of this remark implies that Watts's attorney was

primarily concerned that Watts's sleeping would prejudice the jury.

At no point during the trial did Watts's attorney suggest that the

       8
      See Trial tr. at 476-77, 484, 556. The dissent points out
that Watts "could not have had a factual understanding of the
proceedings against him" during the time he was asleep. Without
inviting metaphysical debate, we believe it is sufficient that
Watts did have such an understanding while he was awake, even if
the nature of the proceedings against him was not at all times
(sleeping or awake) the focus of his thoughts.
defense was suffering for lack of Watts's assistance.

       Competency is contextual. 9         A criminal defendant represented

by counsel generally has limited responsibilities in conducting his

defense:10 primarily, recognizing and relating relevant information

to counsel and making the few trial-related decisions reserved for

defendants (i.e., whether to plead guilty, whether to request a

jury       trial,   whether   to   be   present   at   trial,   and   whether   to

testify).       The defendant need not participate in the bulk of trial

decisions, which he may leave left entirely to counsel (how to

select jurors, which witnesses to call, whether and how to conduct

cross-examination, what motions to make, and similar tactical

       9
      It is also historical. During the formative period of the
competency doctrine in mid-seventeenth century England, virtually
all defendants charged with serious crimes represented themselves
at trial. See Faretta v. California, 422 U.S. 806, 823, 95 S.Ct.
2525, 2535, 45 L.Ed.2d 562 (1975) ("While a right to counsel
developed early in civil cases and in cases of misdemeanor, a
prohibition against the assistance of counsel continued for
centuries in prosecutions for felony or treason."). This rule
remained in effect in England well into the nineteenth century,
though it was apparently abandoned in colonial America. See id.
at 824-27, 95 S.Ct. at 2536-37. During this period it was
obviously critical that the defendant be competent, for his
defense at trial was entirely in his own hands. Now that counsel
is constitutionally guaranteed in all serious criminal cases,
however, the common law basis for expansive competency rights is
largely outdated. See Bruce J. Winick, "Incompetency to Stand
Trial: An Assessment of Costs and Benefits, and a Proposal for
Reform," 39 Rutgers L.Rev. 243, 260-61 (1987). Modern analysis
of the scope of competency rights must be guided not by
Blackstone but by a contemporary understanding of the
attorney-client relationship. See Richard J. Bonnie, "The
Competence of Criminal Defendants: Beyond Dusky and Drope," 47
U.Miami L.Rev. 539, 552-53 (1993); see also Oliver Wendell
Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897) ("It
is revolting to have no better reason for a rule of law than that
so it was laid down in the time of Henry IV.").
       10
      Of course, the demands placed on the defendant may vary
significantly, depending on the complexity of the case, capacity
of counsel, and other factors. The competency inquiry is
necessarily fact-specific.
decisions). In this case, the judge monitored Watts throughout the

trial, in particular confirming that Watts understood and stood by

his   decision      not   to    testify,   and   verifying    that   Watts      was

communicating with his attorney.           See Trial tr. at 482.          We might

speculate that Watts was unable to be of much use to his attorney

in monitoring the testimony of witnesses and providing responsive

information that could be useful for cross-examination. If Watts's

attorney     had   encountered     unforeseen    or   problematic    testimony,

however, there is no reason to believe that he could not have

awakened Watts—requesting a recess if necessary—to explain and

discuss the matter.11          The record reveals nothing to suggest that

Watts was incapable of providing the level of input necessary to

mount an adequate defense.12

           The   competency    determination,    because     it   looks    to   the

capacity of a particular defendant to play a fact-specific role at

trial, requires case-by-case assessment.              See Drope, 420 U.S. 162,

180, 95 S.Ct. 896, 908 ("There are, of course, no fixed or

immutable signs which invariably indicate the need for further


      11
       Thus, the dissent's concern that our view would "justify
the trial and conviction of a defendant who had been rendered
comatose on the eve of trial" is baseless. Unlike Watts, such a
defendant could show that he lacked the capacity to respond to
his attorney's structured requests for assistance during the
course of the trial. (Watts replied rationally to the trial
judge's questions on each day of his trial). And of course a
comatose defendant, unlike Watts, would lack the capacity to
understand the nature of the proceedings against him during
trial.
      12
      The dissent asserts that Watts "was unable to contribute
anything at all to his defense during the majority of his trial."
This, however, does not differentiate Watts from most other
criminal defendants, who likewise contribute nothing to their own
defenses through the vast majority of the proceedings.
inquiry to determine fitness to proceed.").          Not surprisingly,

then, the numerous opinions addressing defendants' competency from

this and other circuits fail to establish a rigid standard of

competency that could be applied uniformly across cases.        Nor do

cases presenting superficially similar facts necessarily dictate

the same conclusions as to competency.

     For example, in Whitehead v. Wainwright, 609 F.2d 223 (5th

Cir.1980), the court affirmed the district court's conclusion that

the habeas petitioner, Whitehead, had been incompetent to stand

trial.    Whitehead had been agitated and nervous during the first

day and the morning of the second day of his two-day murder trial,

attempting to discharge his attorney several times and to take part

in the cross-examination of witnesses.        He was then given an

antihistamine and two prescription tranquilizers (two doses of each

within two hours).   As a result, during the afternoon of the second

day of trial Whitehead "seemed drunk, sleepy, staggering, and

glassy-eyed." He fell asleep in court, his speech was slurred, and

later he could not remember making statements attributed to him in

the transcript. See Whitehead v. Wainwright, 447 F.Supp. 898, 899-

901 (M.D.Fla.1978) (reciting facts).

     In    this   case,   Watts   displayed   none    of   Whitehead's

pre-medication aberrant behavior. Moreover, whereas Watts could be

awakened into drug-free lucidity—as confirmed by the trial judge on

each day of the trial—Whitehead was under the chemical influence of

drugs during most of the second day of his trial, apparently

rendering him unable to comprehend the proceedings or communicate

with his attorney even when he was awake.      Watts's situation is
simply too dissimilar to Whitehead's for a meaningful analogy to be

drawn.13   More than this, the comparison of the two cases only

serves to illustrate the need for the competency inquiry to be

functional and case-specific, not formalistic and rule-driven.

     In sum, we are convinced that the trial judge afforded all the

process due to make reasonably sure that Watts was competent to

stand trial.    Clinical evaluation of Watts in a formal
                                                       Pate hearing

simply was not necessary for the trial judge to make the functional

determination that Watts was competent.

     This is not to say that the trial judge's determination was

necessarily the correct one, however.   Whether Watts was, in fact,

competent is a separate question, to which we now turn.

B. Substantive Due Process

      Even though Watts was not entitled to a Pate hearing based on

the information available at trial, he has an independent due

process right not to be tried and convicted while incompetent. See

Pate, 383 U.S. at 377, 86 S.Ct. at 838.    In asserting this right,

the defendant bears the burden of proving by a preponderance of the

evidence that he was incompetent at the time of trial.    James, 957

F.2d at 1571.    We have warned that " "[c]ourts in habeas corpus

     13
      Irrespective of the distinguishing facts of Whitehead, the
inconsistency among competency cases makes analogizing to a
single case somewhat arbitrary. Compare Whitehead with United
States v. Rinchack, 820 F.2d 1557, 1564 n. 8, 1568-70 (11th
Cir.1987) (no due process problem with trying defendant who
suffers from brain damage causing dizziness, seizures,
disorientation, inability to think clearly, and amnesia) and
Thomas v. Kemp, 796 F.2d 1322, 1325-26 (11th Cir.1986) (Pate
hearing not required for defendant who had kept witness locked in
closet for a week and jumped on corpse of nine-year-old victim in
her presence, exhibited inability to communicate with his
attorney before trial, and sat throughout trial with his fist
raised in some sort of salute).
proceedings should not consider claims of mental incompetence to

stand trial where the facts are not sufficient to positively,

unequivocally,     and    clearly    generate   a   real,   substantial,    and

legitimate doubt as to the mental capacity of the petitioner.' "

See Sheley v. Singletary,           955 F.2d 1434, 1438 (11th Cir.1992)

(quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir.1973)).

This caution resonates with the difficulty of making competency

determinations ex post, as well as with our reliance on the more

readily policed procedural dimension of the due process right.

      In this case, the only difference between the merits of the

procedural and substantive claims is with respect to the relevant

factual   bases:         in   determining   whether    Watts    was   actually

incompetent, we are not limited to the information available to the

state trial court before and during trial, as we are in evaluating

the procedural claim.         See James, 957 F.2d at 1572.        For Watts,

however, this is not a difference that makes a difference.                  As

discussed previously, even given the fact, revealed at sentencing,

that Watts slept through much of his trial as a result of smoking

crack at night, the record—devoid of substantial evidence that

Watts could not adequately understand the proceedings or assist

counsel   in   his       defense—does    not    unequivocally    generate     a

substantial doubt about his competency to stand trial.

     The district court's grant of the writ of habeas corpus is

thus REVERSED.

     CARNES, Circuit Judge, dissenting:

     The issue in this case is whether the Constitution permits the

trial and conviction of a defendant whose condition is such that he
is not aware of what is going on during seventy percent of his

five-day trial.   The majority thinks so.   I think not.

                                 I.

     Before discussing my disagreement with the majority about the

issues that are presented in this appeal, it might be helpful to

discuss why we all agree that one issue is not presented.        An

explanation is in order because that issue seems so clearly raised

by the facts of this case.   It is, but the State of Florida chose

not to argue the issue to us.   The issue I am speaking of involves

the self-induced nature of Carl Watts' condition during his trial.

     Watts did not know what was going on during most of his murder

trial and, according to his trial counsel, was not able to assist

counsel during that time, because Watts stayed up all night every

night of the trial obtaining and smoking crack cocaine.      At the

time, Watts was a twenty-three year old crack addict, having been

hooked on cocaine for seven years.    He had shot his best friend to

death with a shotgun—after having prepared a sandwich for him a few

hours earlier—as a result of an argument over ten dollars worth of

a twenty dollar bill. Watts admitted the shooting but claimed self

defense.   He was out on bond during the trial, and he was scared,

depressed and anxious about what he had done, and about his

prospects.   So, Watts did what crack addicts do:   he spent all the

time he could scrounging around for and smoking crack.

     And Watts lied about it.    Crack addicts do that a lot, too.

Astonished by Watts' bizarre behavior of sleeping though the trial,

the judge periodically asked him point blank if he had been taking

drugs, and Watts point blank told him no.       The judge suspected
Watts was lying, but let it go.     He did not order Watts examined,

and he did not revoke his bond, which would have (hopefully) cut

off his access to crack.

      Nonetheless, no one held a gun to Watts' head and forced him

to run around smoking crack each night of the trial.         And no one

forced him to lie repeatedly to the judge about his condition.

Thus the facts frame the issue of whether self-induced incompetency

is to be treated differently or, to put it another way, whether one

whose own deliberate actions throughout the trial caused his

incompetency   has   waived   his   right   not   to   be   tried   while

incompetent.    Arguments can be made both ways, and it is an

interesting issue.    But it is not one that has been presented to

us.

      On direct appeal, the State of Florida argued that because

Watts had intentionally induced his condition at trial, he was

barred from complaining about being tried while in that condition.

The Florida appellate court rejected that contention, holding that

the Florida Supreme Court had previously foreclosed it.         Watts v.

State, 537 So.2d 699, 700 (Fla. 4th DCA 1989) (citing Lane v.

State, 388 So.2d 1022, 1026 (Fla.1980) ("Intentional action by a

defendant does not avoid or eliminate the necessity of applying the

test of whether a defendant has the sufficient present ability to

assist counsel with his defense and to understand the proceedings

against him.")).

      The Florida appellate court ruled in the State's favor in this

case anyway, affirming Watts' conviction.         The federal district

court did not, however, and the State could have chosen to argue
the self-inducement, or waiver, position to us.                After all, we are

no more bound by the Florida courts' holdings on such an issue than

those courts would be bound by an earlier holding of this Court on

some federal constitutional issue.             Nonetheless, the State chose

not to argue self-inducement or waiver to this Court.                 It is not

mentioned in the State's initial brief or in its reply brief, and

the   attorney    representing     the    State   tenaciously      resisted   our

efforts to explore the issue at oral argument.                 For that reason,

the majority does not address the issue, and I cannot say that the

majority is wrong for failing to do so.               See, e.g., Hartsfield v.

Lemacks, 50 F.3d 950, 953 (11th Cir.1995) ("We note that issues

that clearly are not designated in the initial brief ordinarily are

considered abandoned." (quotation marks and citation omitted));

Marek v. Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir.1995)

("Issues    not   clearly       raised    in   the    briefs    are   considered

abandoned."), petition for cert. filed, (U.S. March 22, 1996) (No.

95-9105);    16 Wright,     et al., Federal Practice and Procedure §

3974, at 421 n. 1 (1977) ("An issue not raised or argued in the

brief of the appellant may be considered waived and thus will not

be noticed or entertained by the court of appeals.").                  Whether a

defendant who induces his own incompetency can successfully assert

it as a bar to trial is an issue for another day.                  I turn now to

the issue that is presented to us, the issue for this day.

                                         II.

      "It   has   long   been    accepted      that   a   person   whose   mental

condition is such that he lacks the capacity to understand the

nature and object of the proceedings against him, to consult with
counsel,       and   to   assist     in   preparing    his      defense    may    not    be

subjected to trial."           Drope v. Missouri, 420 U.S. 162, 171, 95

S.Ct. 896, 903, 43 L.Ed.2d 103 (1975).                A defendant is not mentally

competent to stand trial unless he has "a rational as well as

factual understanding of the proceedings against him."                           Dusky v.

United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824

(1960) (quotation marks omitted).               The majority does not quarrel

with     the    statement      of    these     fundamental       precepts,       and     it

acknowledges that Watts was asleep during seventy percent of his

trial.         Nonetheless,         the   majority     concludes         that    it     was

constitutionally permissible to try him in that condition.

       In reaching its holding that Watts, although asleep during

most of his murder trial, was nevertheless mentally competent to be

tried, the majority discounts the constitutional importance of a

defendant's ability to understand the proceedings against him, and

to aid in his defense.              It minimizes a defendant's role in his

murder     defense        by   characterizing         it   as     one     of     "limited

responsibilities," involving "few trial-related decisions reserved

for defendants (i.e., whether to plead guilty, whether to request

a jury trial, whether to be present at trial, and whether to

testify)." See Majority op. at 2675-76. The majority then reasons

that, because "[t]he defendant need not participate in the bulk of

trial    decisions,        which    may   be   left    entirely     to    counsel,"      a

defendant capable of making those few strategic decisions that only

a defendant can make is capable of "providing the level of input

necessary to mount an adequate defense," and therefore is competent

to stand trial.           See Majority op. at 2676.          Under the majority's
view, once a defendant has made those few strategy decisions, his

presence at trial, or at least his awareness of what is happening

during trial, is of no constitutional significance.              I disagree.

     The requirement that a defendant be mentally competent to

stand trial is a long-held tenet of common law.              See, e.g., Medina

v. California, 505 U.S. 437, 444, 112 S.Ct. 2572, 2577, 120 L.Ed.2d

353 (1992) ("The rule that a criminal defendant who is incompetent

should not be required to stand trial has deep roots in our

common-law heritage.");       Drope, 420 U.S. at 171, 95 S.Ct. at 903;

Youtsey     v.    United   States,   97   F.    937,   940    (6th   Cir.1899)

(recognizing mental competency requirement and that, "[t]o the same

effect are all the common-law authorities").           "The competency rule

did not evolve from philosophical notions of punishability, but

rather had deep roots in the common law as a by-product of the ban

against trials in absentia;          the mentally incompetent defendant,

though physically present in the courtroom, is in reality afforded

no opportunity to defend himself."             Stone v. United States, 358

F.2d 503, 507 n. 5 (9th Cir.1966) (quotation marks and citation

omitted).        The rule against trying the mentally incompetent does

embrace concerns that a defendant be able to make major decisions

that may determine his fate.         As Blackstone wrote, one who becomes

"mad" after the commission of an offense should not be arraigned

for it "because he is not able to plead to it with that advice and

caution that he ought."        4 William Blackstone, Commentaries *24.

But the rule extends beyond pleading concerns.                Blackstone also

wrote that if a defendant becomes mad after pleading, he should not

be tried, "for how can he make his defence?"            Id.;    see also 1 M.
Hale, Pleas of the Crown *34-*35 (same).                The prohibition against

trying     a       defendant   whose    condition      renders     him   unable    to

participate in his defense is an important safeguard "fundamental

to an adversary system of justice," and incorporated into the Due

Process Clause.         Drope, 420 U.S. at 172, 95 S.Ct. at 904;           see also

Cooper v. Oklahoma, --- U.S. ----, ----, 116 S.Ct. 1373, 1376, 134

L.Ed.2d 498 (1996) ("We have repeatedly and consistently recognized

that the criminal trial of an incompetent defendant violates due

process."      (quotation      marks    and   citation    omitted));       Pate    v.

Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815

(1966) ("[T]he conviction of an accused person while he is legally

incompetent violates due process....").

     Faced with the long and distinguished pedigree of the right

not to be tried while incompetent, the majority struggles to

diminish the importance of that right, and its struggle produces a

remarkable conclusion.          Citing a law review article, whose title

suggests       a    cost-benefit   analysis,     the    majority    engages   in    a

"[m]odern analysis" using "contemporary understanding" and reaches

the conclusion that "the common law basis for expansive competency

rights is largely outdated."               Majority op. at 2676 n. 9.             The

competency rights recognized in courts of Blackstone's day are too

liberal for us, it seems.              But see Cooper, --- U.S. at ----, 116

S.Ct. at 1376 ("No one questions the existence of the fundamental

right that petitioner invokes....             Nor is the significance of this

right open to question.")1

     1
      The majority opinion quotes Holmes for the proposition
that, "It is revolting to have no better reason for a rule of law
than that so it was laid down in the time of Henry IV." Majority
     We sometimes speak of "the evolving standards of decency that

mark the progress of a maturing society," but I always thought it

understood that the evolution was supposed to be forward.           This is

the first time I have heard it suggested that our standards have

progressed in such a way that contemporary understanding in the

last decade of the twentieth century would deny an American citizen

the full benefit of an important trial right guaranteed Englishmen

at least as early as the middle of the seventeenth century.               Some

understanding.      Some progress.

     The majority's opinion today reduces the important safeguard

against being tried while incompetent to one that merely requires

that a defendant be able to make a few strategic decisions, and it

is apparently enough for the majority if those decisions are made

before the trial even begins.         But see Cooper, --- U.S. at ---- -

----, 116 S.Ct. at 1381-82 ("After making the profound choice

whether to plead guilty, the defendant who proceeds to trial ...

also is called upon to make myriad smaller decisions concerning the

course   of   his   defense.    The    importance   of   these   rights    and

decisions     demonstrates     that   an   erroneous     determination      of


op. at 12 n. 9 (quoting Oliver Wendell Holmes, The Path of the
Law, 10 Harv.L.Rev. 457, 469 (1897)). That is a nice quote. But
Holmes, as he said, had in mind such things as "the technical
rule as to trespass ab initio, as it is called which I attempted
to explain in a recent Massachusetts case." Holmes, supra, at
469 (footnote containing citation omitted). He was not thinking
of or speaking about any of an accused's criminal trial rights,
and certainly not about a criminal trial right so "fundamental to
an adversary system of justice," Drope, 420 U.S. at 172, 95 S.Ct.
at 904, as to be incorporated into the Due Process Clause,
Cooper, --- U.S. at ----, 116 S.Ct. at 1376. Nor did Holmes
disparage the use of history as part of the process of
determining the law. Indeed, in the same article he said, "The
rational study of law is still to a large extent the study of
history." Holmes, supra, at 469.
competence    threatens   a     fundamental      component     of     our   criminal

justice system—the basic fairness of the trial itself." (quotation

marks and citations omitted)).             Apparently, under the majority's

view, the necessary decisions can be made at any time, and once

they are made, any claim of incompetency is foreclosed.                     Thus the

majority's position quickly reduces to the absurd.                  It would, for

example, justify the trial and conviction of a defendant who had

been rendered comatose on the eve of trial, provided only that he

had communicated his views on the necessary strategic decisions to

his counsel beforehand.

     The majority does not justify its cribbed reading of the

competency requirement, a reading which affords no protection to a

defendant such as Watts who was unable to contribute anything at

all to his defense during the majority of the trial.                   The Supreme

Court has instructed us that "it is not enough ... that the

defendant     [is]   oriented       to    time   and   place    and    [has]    some

recollection of events."           Dusky, 362 U.S. at 402, 80 S.Ct. at 788-

89 (alteration in original) (quotation marks omitted).                      Instead,

the critical inquiry is into "whether he 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."     Id.

(alteration     in   original)       (emphasis     added)      (quotation      marks

omitted).    Watts was neither oriented in time and place, nor able

to consult with his lawyer during seventy percent of his five-day

murder trial.    He could not have had a factual understanding of the

proceedings against him during that time, because he was not
cognizant of those proceedings or of anything else, save perhaps

for what he may have been dreaming.      Because of his condition,

Watts was unable to contribute sufficiently to his defense.

     Contrary to what one might infer from reading the majority

opinion, Watts' attorney could not communicate with him whenever he

thought it necessary, and the judge did not verify that counsel

could.    Although the record shows that counsel could sometimes

awaken Watts, it also shows that on more than one occasion during

the trial, counsel was unable to wake him up, and the court noted

that fact for the record.    At one point, defense counsel said to

Watts:   "[Y]ou didn't even notice that I attempted to wake you up,"

and the judge observed, "On one occasion I saw you hit him in the

shoulder and he never even moved.   He never budged."   (Trial Tr. at

337-38). As the majority concedes, "Watts could not be awakened to

stand as the jury retired to deliberate."    Majority op. at 2671.

     Nor is it accurate to infer, as one might from the majority

opinion, that when counsel stated in exasperation, "I'm doing the

best I can to represent Mr. Watts under the circumstances he's

putting me in," Majority op. at 2671, that counsel was simply, or

primarily, concerned that the jury might be prejudiced by seeing

Watts sleep through his trial.   At sentencing, which occurred just

eight days after the trial, defense counsel made the following

representation to the judge:

          I went through a trial where my client was literally
     unable to help me, whatever. I was unable to even talk to him
     because I couldn't wake him up. That was the reason why.

(Trial Tr. at 567-68).   The trial judge did not express any doubt

about the accuracy of counsel's statement, nor did the state
appellate court.   After considering the record as a whole, and

crediting defense counsel's statement, the district court concluded

that "there were lengthy periods during critical stages of his

murder trial that [Watts] was unable to assist his attorney."

(Report of Magistrate Judge at 19).2   That is a factfinding of the

district court, and it is certainly not clearly erroneous.

     The prosecution presented thirteen witnesses against Watts,

many of whom described the scene where the killing occurred, or his

actions near the time of it.   However, there were no eyewitnesses

to the actual killing, other than Watts, who did not testify.   The

evidence presented a close issue about self defense—the man Watts

shot was much larger than he, had a violent nature, and was

advancing on him inside Watts' own apartment when the shooting

occurred.   Because of the closeness of that issue, and the nature

of the testimony, Watts' ability to assist his counsel with the

facts as the testimony unfolded was critical. Yet Watts was unable

to assist his lawyer in formulating cross-examination, because he

did not hear most of the testimony.

     Watts may have been able to contribute generally to his

lawyer's cross-examination strategy hours or days in advance of it.

In the same way, he was able to make certain strategic decisions in

advance—such as his decision not to testify, which he communicated

to his lawyer more than a week before the trial began.    However,

Watts was not presently able to assist his lawyer during the

majority of his trial.   Nor was he able to reconsider any of his


     2
      The magistrate judge's report and recommendation was
adopted and approved in its entirety by the district court.
strategic decisions, such as his decision not to take the stand, in

light of the testimony against him;             he was not able to do that,

because he did not hear most of the testimony against him.

     The majority's holding in this case is contrary to this

Court's decision in Whitehead v. Wainwright, 609 F.2d 223 (5th

Cir.1980).        In that case, Whitehead, the defendant, had taken

Benadryl for his allergies, and also the tranquilizers Valium and

"Roche 66."       With the court's permission, those tranquilizers had

been prescribed by a doctor who examined Whitehead and treated him

for a nervous condition during the trial.             As a result of taking

that medication, Whitehead became extremely drowsy during one

afternoon of his two-day trial.             Whitehead v. Wainwright, 447

F.Supp. 898, 900-01 (M.D.Fla.1978).               Whitehead's lawyer later

testified    he    could   not   recall   the    nature   or   extent   of   his

communication with his client during the afternoon of the second

day of trial, but he thought it had been as much as was necessary.

He did remember that Whitehead had his head on the table in front

of him at times during the afternoon, and that, toward the end of

the trial, he had rested his head in his arms much of the time.

Id. at 901.         Two family members testified that Whitehead had

"seemed drunk, sleepy, staggering, and glassy-eyed."               His lawyer

would "punch" him to awaken him.            Id.    Whitehead himself later

testified that he had fallen asleep at the defense table.               Id.

     As a result of that testimony, the district court in Whitehead

held that the defendant, because he had been groggy or asleep

during   one-fourth     of   his   trial,   had    been   unable   to   consult

sufficiently with his lawyer, had lacked a sufficient rational or
factual understanding of the proceedings against him, and therefore

had been incompetent to stand trial.         The district court granted

habeas relief.     Id. at 902-03.    On appeal, we affirmed the district

court's holding that the defendant had been incompetent on the

afternoon of the second day of his trial, and affirmed its grant of

relief.   We concluded by saying:

     While we are convinced that the state trial judge did all he
     could to assure petitioner a fair trial, short of dismissing
     the jury and starting anew at a later date, the district
     court's finding of incompetence is supported by the record and
     must be left undisturbed.

Whitehead, 609 F.2d at 224.

     The majority attempts to deal with the binding precedent of

the Whitehead decision in two ways, neither of which is convincing.

First, the majority suggests that Whitehead, the defendant in that

case, had been in materially worse shape than Watts was in this

case,   because,    the   majority   says,   Whitehead   was   "unable   to

comprehend the proceedings or communicate with his attorney even

when he was awake."       Majority op. at 2677.   That would be news to

Whitehead's attorney and to the courts that decided the case.

Whitehead's lawyer testified that, in his opinion, Whitehead had

been aware of what was happening in the courtroom, and that he

thought he had been able to communicate with Whitehead as much as

was necessary during the afternoon in which his condition was in

question.   447 F.Supp. at 901.        Nonetheless, the district court

held that Whitehead had been incompetent to stand trial, and we

affirmed.

     The second way the majority attempts to deal with the binding

precedent of the Whitehead decision is by suggesting that there can
be no binding precedent in this area of the law.                  That is so, the

majority implies, because "the inconsistency among competency cases

makes analogizing to a single case somewhat arbitrary."                       Majority

op. at 2677 n. 13.        This proposition, if true, bodes ill for the

rule of law.          Surely our circuit law is not so confused and

inconsistent that decision by analogy, i.e., by rule of law, has

been reduced to a "somewhat arbitrary" process that justifies

throwing up our hands and simply picking a result that seems to

comport with our feelings at the time.              If the majority were right

that our precedents are so inconsistent that following them was, at

best, "somewhat arbitrary," then the situation cries out for en

banc review, and this case can be a vehicle for it.

     Even   if   our    decisions      in    this   area   of    the    law    are    as

inconsistent     as    the   majority       believes,   however,       there    is    no

inconsistency as it relates to the specific issue in this case.                       At

least not until today.            Before today, neither this Court, nor any

other court that I am aware of, had ever held that a defendant who

is not aware of what is going on during most of his trial is

competent to stand trial.            Our holding in        Whitehead was that a

defendant who is groggy, sleepy, and asleep during one afternoon of

his two-day trial is incompetent to stand trial.                       That holding

cannot be reconciled with the majority's holding in this case that

someone who is asleep during most of his trial is not incompetent.

A defendant who is not consciously aware of what is happening

during seventy percent of his trial, whether because he is in a

drug-induced     stupor      or    simply    asleep,    cannot    rationally         and

factually understand the proceedings during that time, nor can he
react to any testimony or other evidence and communicate with his

lawyer about it.

     In Ferrell v. Estelle, 568 F.2d 1128 (5th Cir.), withdrawn,

573 F.2d 867 (5th Cir.1978),3 we affirmed the district court's

grant of habeas relief to a petitioner who became deaf between the

time of the murder with which he was charged and the time of his

trial.   In the brief period from the onset of his deafness to his

trial, Ferrell did not learn to read lips or to understand sign

language. His counsel asked the court to provide stenographers who

could contemporaneously transcribe the words spoken during the

trial.   The judge denied the request.     We affirmed the grant of

habeas relief.    Although Ferrell was able to communicate with his

lawyer from time to time (by exchanging notes), and was therefore

able to make important strategic decisions regarding his defense,

he was not able to understand contemporaneously the testimony

against him.4    In this case, Watts' inability "to consult with his

lawyer with a reasonable degree of rational understanding," and

obvious lack of "a rational as well as factual understanding of the


     3
      Our decision   in Ferrell was withdrawn upon discovery that
the petitioner had   died three months before the decision was
released. Because    it was withdrawn, the Ferrell decision is not
binding precedent,   but I discuss it here because the reasoning is
persuasive and the   facts pose such a thought-provoking
hypothetical.
     4
      The Court in Ferrell did not reach the issue of whether
Ferrell's incompetency deprived him of substantive, as
distinguished from procedural, due process. The Court conceived
of other alternatives, besides stenographers (who would have
slowed down the trial), that would have given Ferrell the ability
to contemporaneously understand the proceedings. The Court
concluded that "Ferrell's rights were reduced below the
constitutional minimum," because the district court failed to
explore such other possibilities. Id. at 1133.
proceedings," Dusky, 362 U.S. at 402, 80 S.Ct. at 789, was at least

as profound as Ferrell's.

     Although supported by the binding precedent of the Whitehead

decision and by the withdrawn opinion in Ferrell, my position is

not dependent upon either of them.        Instead, it rests on its own

simple logic: A defendant who is contemporaneously unaware of what

is going on during most of his trial does not have a rational as

well as factual understanding of what is occurring, as it is

occurring, and lacks the present ability to consult with his

attorney   during   the   trial   and    in    response   to   its   events.

Therefore, the trial and conviction of a defendant who suffers from

such a condition is unconstitutional.         I would affirm the district

court decision granting Watts relief for the violation of his

substantive due process right not to be tried while mentally

incompetent.

                                  III.

     Because I conclude that Watts was tried while incompetent,

which   violates    his   substantive    due    process   rights,    it   is

unnecessary for me to decide whether a violation of his procedural

due process rights also occurred because the trial judge did not

conduct a hearing into Watts' competency to stand trial.

     However, I do note that the judge knew that Watts was a drug

addict, knew he was out on bond, knew he was behaving strangely

during trial, was told by defense counsel at the time that he was

"pretty sure" Watts was using drugs (Trial Tr. at 564, 566), and

the judge did not believe Watts' denials.         As the judge stated on

the record at sentencing, "everybody that was a witness to Carl's
conduct had some suspicions that he was probably taking some kind

of drugs."   (Trial Tr. at 567).    Suffice it to say, in view of all

of the circumstances, it seems to me that the judge not only should

have had, but actually did have "a bona fide doubt" as to Watts'

competency to stand trial.

                                   IV.

     I dissent from the Court's reversal of the district court's

grant of habeas relief.   We should affirm.
