                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-2083
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 JOANNE M. SEELEY,
                                             Appellant
                                    _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                     (D.C. Cr. Action No. 1-11-cr-00056-001)
                    District Judge: Honorable Sylvia H. Rambo
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 21, 2014
                                  ______________

     Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges.

                             (Opinion Filed: July 17, 2014)

                                    ______________

                                       OPINION
                                    ______________

GREENAWAY, JR., Circuit Judge.

      Joanne M. Seeley (“Appellant”) appeals from the District Court’s order denying

her petition seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2255.
                                            1
Appellant also contends that the District Court erred in failing to hold a competency

hearing sua sponte prior to her sentencing. For the following reasons, we will affirm the

District Court’s denial of her habeas petition, and find that the District Court did not err

in failing to hold a competency hearing.

                               I. Facts and Procedural History

       Because we write primarily for the benefit of the parties, we recount only the facts

essential to our discussion.

       Between 2005 and 2008, Seeley masterminded a scheme that ultimately defrauded

the owners of 46 homes out of more than $2.4 million. Seeley convinced the owners of

properties facing foreclosure to sell their properties to her. Seeley then assured each

homeowner that she would lease the property back to them temporarily, and allow them

to purchase the property back within a year. Homeowners would sign over the equity in

their properties to her to be placed in escrow as a down payment on the repurchase of

those properties. However, instead of delivering the funds to escrow, she converted the

funds to her own use. In order to perpetuate her scheme, Seeley submitted numerous

false statements and other documentation to lending institutions in order to obtain the

mortgages necessary to purchase the foreclosure rescue properties.

       On February 23, 2011, a grand jury in the Middle District of Pennsylvania issued a

10-count indictment alleging five counts of wire fraud, and five counts of money

laundering.

       Seeley contends that her lawyer, Lori Ulrich, was aware of her history of mental
                                              2
illness from the outset of their attorney/client relationship, admitting to Ulrich that she

suffered from Bipolar disorder. Seeley’s mental health issues created problems,

principally communicative, between she and Ulrich. At times, Seeley failed to return

Ulrich’s phone calls or assist in discussing the impending trial. In light of these

difficulties, Ulrich arranged for Seeley to undergo a private competency hearing. Ulrich

opted for a private consultation, in part, because she did not want to subject Seeley to the

risk of being placed in the Bureau of Prisons’ custody.

       On June 30, 2011, Seeley visited Dr. Kristi Compton of Dallas, Texas for a

competency evaluation. As a result of the visit, Dr. Compton issued a competency report.

Dr. Compton indicated that Seeley: 1) had a sufficient factual and rational understanding

of the role of each party in a criminal justice proceeding; 2) was significantly impeded in

her ability to comprehend instructions and to make rational decisions regarding her case;

3) was prevented from being able to testify calmly and rationally; 4) was at risk of

engaging in inappropriate behavior in the courtroom; and 5) was able to assist her

attorney in a fact-finding and/or mitigation investigation, though when in a manic state,

her ability to do so would be “unlikely.”

       As a result of these findings, Dr. Compton concluded that Seeley was not

competent to stand trial. However, the Doctor did note that with some adjustments to

Seeley’s medication, she could return to competency with outpatient treatment in as little

as four weeks.

       The next day, Ulrich received a plea offer from the United States Attorney’s
                                              3
Office.

       Ulrich and Seeley spoke by phone two times on July 11, 2011. They discussed Dr.

Compton’s findings, and Seeley agreed to follow-up with her treating psychiatrist for

medication management in an effort to progress towards competency. Due to continued

communication problems and concerns that Seeley was not taking her medication in

sufficient doses to restore her competency, Ulrich and an investigator from the Federal

Public Defender’s Office traveled to Texas in mid-July 2011 to meet with Seeley. At the

meeting, Seeley and Ulrich discussed the case for hours and Seeley proved to be helpful

in preparing her defense. They also discussed the government’s plea offer, despite Dr.

Compton’s finding of Seeley’s incompetency to stand trial. Seeley was not interested in

pleading guilty, rather she continued to avow her innocence.

       In light of the meeting and how Seeley comported herself, Ulrich believed that

Seeley understood the nature of the plea agreement she had rejected. On the other hand,

Ulrich also continued to be concerned about Seeley’s failure to adjust her medications.

       After the meeting, Ulrich sent Seeley a letter expressing her concern that Seeley

had not taken the steps necessary to return herself to competence. Ulrich warned Seeley

that she (Ulrich) would be obligated to a file a motion for a competency hearing with the

District Court if Seeley did not cooperate with her. The warning compelled Seeley to

adjust her medication. Upon reevaluation in September, Dr. Compton found Seeley to be

competent to stand trial.

       At Seeley’s trial, the jury convicted Seeley on eight counts. After her conviction,
                                             4
Seeley was displeased with Ulrich’s performance as her lawyer. In June 2012, Seeley

submitted a letter to the District Court requesting new counsel. In the letter, Seeley

complained that Ulrich had not alerted the District Court to Seeley’s incompetency prior

to trial, and had discussed the July 1, 2011 plea offer with her while she was incompetent.

This letter was the initial notice to the District Court of Seeley’s mental issues and

incompetency.

       On July 11, 2012, the District Court conducted an ex parte hearing. Seeley

presented her arguments regarding Ulrich’s removal. As part of the hearing, Seeley

informed the court that she was taking new medications and she was not yet up to

therapeutic dosage levels. Ulrich testified that she had no reason to doubt Seeley’s

competency prior to trial, nor in light of Seeley’s impending sentencing hearing. While

on the stand, Ulrich pointed to a meeting and email communication to demonstrate that

Seeley appeared competent. The District Court declined to remove Ulrich as counsel,

and no competency hearing was requested or ordered as a result of that hearing.

       Seeley’s sentencing hearing was conducted the following week and she was

sentenced to a term of imprisonment of 238 months.

       On October 22, 2012, Seeley filed a timely motion to vacate her sentence pursuant

to 28 U.S.C. § 2255, alleging that her trial counsel was ineffective. After additional

briefing and appointment of new counsel, the District Court held a hearing. The District

Court denied Seeley’s § 2255 motion, and declined Seeley’s request for issuance of a

certificate of appealability.
                                              5
       Seeley filed a timely notice of appeal, followed soon after by an application

seeking a certificate of appealability. This Court granted Seeley’s certificate of

appealability regarding the two issues now before us: 1) whether trial counsel rendered

ineffective assistance in connection with Seeley’s mental competence during plea

bargaining, before trial, and before sentencing; and 2) whether the District Court erred by

not holding a competency hearing sua sponte before sentencing.

                        II. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. § 2255. We have jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253. “In a federal habeas corpus proceeding, we

exercise plenary review of the district court’s legal conclusions and apply a clearly

erroneous standard to the court’s factual findings.” United States v. Lilly, 536 F.3d 190,

195 (3d Cir. 2008).

                                       III. Analysis

       Seeley argues that her trial counsel and the District Court failed to observe the

necessary procedural safeguards to ensure that she was competent during each stage of

the criminal case against her.

       Ineffective Assistance of Counsel

       Seeley offers two reasons why Ulrich’s counsel was ineffective. First, she argues

that her trial counsel should have requested that the District Court hold a competency

hearing. Second, she argues that Ulrich was ineffective in that she only discussed the

government’s plea offer with her during a period of undisputed incompetency. Seeley
                                             6
contends that since her mental health has improved, she would have accepted the plea

agreement, thereby altering the outcome of her case.

       A prisoner in federal custody may move to vacate a sentence if it “was imposed in

violation of the Constitution or laws of the United States[.]” 28 U.S.C. § 2255(a). A

prisoner seeking relief on the grounds of ineffective assistance of counsel bears the

burden to demonstrate two requirements. “First, the defendant must show that counsel’s

performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

Second, “the defendant must show that the deficient performance prejudiced the

defense.” Id. In this regard, the defendant “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

       We have “endorsed the practical suggestion in Strickland [that we may] consider

the prejudice prong before examining the performance of counsel prong because this

course of action is less burdensome to defense counsel.” Lilly, 536 F.3d at 196 (alteration

in original) (internal quotation marks and citation omitted). Finding that approach

appropriate here, we conclude that Seeley fails to demonstrate the requisite prejudice

entitling her to relief. To that end, her claim may be resolved on this ground without

deciding whether counsel’s performance was constitutionally deficient. 1



       1
       While our analysis does not require it, it is worth noting that counsel’s
performance was suspect in one respect: presenting a plea agreement to one’s client,
knowing that a professional doctor retained by counsel had just declared Seeley to be
                                              7
       Seeley states that Ulrich, “rather than filing a motion requesting a competency

evaluation,” “arranged for a private evaluation” instead. Appellant’s Br. 15. This

decision, according to Seeley, was antithetical to procedural safeguards and not strategic.

       Ulrich was aware of Seeley’s mental health issues. As noted above, such concerns

prompted Ulrich to arrange for Seeley to receive a private competency evaluation by Dr.

Compton. While Dr. Compton did find Seeley to be incompetent, she informed Ulrich

that Seeley’s competency could be restored with proper medication in as little as four

weeks. This initial examination finding Seeley to be incompetent to stand trial, also

found that Seeley was able to understand the charges against her, the potential

consequences of the criminal proceedings, and the adversarial nature of those

proceedings as well as the average person. This indicates that, while there were

intermittent communication issues, even while Seeley was deemed incompetent, she was

still able to assist in her defense.

       Prior to trial, Ulrich confirmed that Seeley’s competence was, in fact, restored, by

having Seeley participate in a follow-up examination with Dr. Compton. The follow-up

examination revealed that Seeley had been competent for the two months leading up to

the trial and throughout the trial proceedings. Based upon this second evaluation, we

agree with the District Court that “there would have been no cause for defense counsel to

have requested an incompetency hearing prior to trial.” App. 6. As a result, Seeley’s



incompetent, is questionable. However, for the reasons discussed infra, Seeley was not
prejudiced by such conduct.
                                             8
constitutional rights were adequately protected, and Ulrich’s decision not to request a

competency hearing did not infringe those rights.

       Jermyn v. Horn is instructive in determining whether any rights were impinged.

266 F.3d 257, 302 (3d Cir. 2001). In that case, we concluded that counsel was not

ineffective for failing to seek a competency hearing for his paranoid schizophrenic client,

despite the fact that he had been evaluated for incompetency by prior counsel. Similarly,

we find that Ulrich was not ineffective for failing to seek a competency hearing for

Seeley from the District Court, in spite of her knowledge that Seeley had been found to

be incompetent in June 2011.

       In addition, Seeley’s competency was restored, as confirmed by Dr. Compton, in

September 2011. Because she was competent during her trial (November 2011), and

during the months leading up to trial, she cannot demonstrate the requisite prejudice

prong of Strickland to mandate the grant of the relief she seeks. The failure to request a

second competency hearing prior to her sentencing is not violative of Strickland.

       Seeley’s next contention is that she was completely incompetent during the

discussions between herself and Ulrich regarding the plea offer. Specifically, she claims

that she does not recall the discussions at all. She claims that, had she been competent,

she would have accepted the government’s plea offer.

       Seeley was offered two plea agreements: one in or about May 2010 when she was

represented by counsel other than Ulrich, and then the July 2011 plea offer at issue here.

Seeley signed the first plea agreement; however, she orally declined to plead at the guilty
                                             9
plea hearing. As Ulrich professed, Seeley consistently proclaimed her innocence and

ultimately expressed no interest in pleading guilty.

       Even given Seeley’s incompetency during the time of the plea discussion, Seeley

cannot meet the second prong of Strickland. To demonstrate prejudice in the context of a

rejected plea offer, a defendant must show that, “but for the ineffective advice of counsel

there is a reasonable probability that the plea offer would have been presented to the

court (i.e., that the defendant would have accepted the plea and the prosecution would not

have withdrawn it in light of intervening circumstances), that the court would have

accepted its terms, and that the conviction or sentence, or both, under the offer’s terms

would have been less severe than under the judgment and sentence that in fact were

imposed.” Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012).

       Ulrich testified that, throughout her dealings with her client, Seeley never gave her

any indication that she was interested in cooperating with the government or pleading

guilty. Seeley maintained a steadfast insistence that she was innocent. Seeley fails to

establish that, but for her mental state, she would have accepted the government’s July

2011 plea offer.

       District Court’s Obligation to Hold a Sua Sponte Competency Hearing

       Seeley next argues that once the District Court became aware of Seeley’s history

of mental illness and Dr. Compton’s competency evaluations, it had an obligation to hold

a competency hearing sua sponte prior to sentencing, and erred by failing to do so.

       Indubitably, Seeley has a due process right not to be tried while incompetent.
                                             10
Drope v. Missouri, 420 U.S. 162, 171-72 (1975) (noting that the prohibition against

trying a person who lacks the capacity to understand the nature and object of proceedings

against him is “fundamental to an adversary system of justice”). 2 In order to be

competent to stand trial, a defendant must understand the proceedings against her, and be

able to cooperate with her counsel in the defense. Cooper v. Oklahoma, 517 U.S. 348,

354 (1996).

       When determining whether a district court properly applied the standard for

determining the necessity of a competency hearing, our review is plenary. United States

v. Renfroe, 825 F.2d 763, 766 (3d Cir. 1987).

       A criminal defendant whose competency is in question may be subjected to a

competency hearing. 18 U.S.C. § 4241(a). If neither the defendant nor the government

moves for a competency hearing, a trial court may do so on its own motion. Id. “[T]he

trial court must have ‘reasonable cause’ to believe that the defendant is ‘presently’

suffering from an impairment resulting in mental incompetency.” United States v.

Leggett, 162 F.3d 237, 241 (3d Cir. 1998) (citations omitted). A court must look at the

unique circumstances of the case and decide whether the defendant “(1) has the capacity

to assist in her or his own defense and (2) comprehends the nature and possible

consequences of a trial.” United States v. Jones, 336 F.3d 245, 256 (3d Cir. 2003)


       2
         “It is clear that the conviction of a legally incompetent defendant and the failure
to provide adequate procedures to determine competence would violate a defendant’s
constitutional right to a fair trial.” United States v. Renfroe, 825 F.2d 763, 765-66 (3d
Cir. 1987).
                                             11
(internal quotation marks omitted). “[E]vidence of a defendant’s irrational behavior, his

demeanor at trial, and any prior medical opinion on competence to stand trial are all

relevant in determining whether further inquiry is required . . . .” Drope, 420 U.S. at 180.

       The District Court, at the time it was made aware of Seeley’s past and finite period

of incompetence, had no reasonable cause to believe that Seeley was presently suffering

from an impairment resulting in mental illness.

       Upon careful review of the record, it is apparent that the District Court observed

Seeley’s demeanor and her assistance to counsel during the trial, and noted that her

responses to questions and conduct demonstrated her awareness. Even Seeley’s June

2012 letter to the Court, which explained her mental illness and requested the withdrawal

of Ulrich as counsel, evidenced a clear understanding of the nature of the proceedings,

her role in the proceedings, and the role of the other participants. The District Court also

observed Seeley’s demeanor during the ex parte hearing regarding whether Ulrich was

effective or not as Seeley’s counsel, and saw no reason to be concerned regarding

Seeley’s competence.

       The District Court specifically addressed Seeley’s complaint regarding Ulrich’s

failure to report Dr. Compton’s initial incompetence finding. The District Court found

that Ulrich had acted in Seeley’s best interest in working to ensure that she was found

competent to stand trial, while simultaneously protecting her interest in not being

remanded to the custody of the Bureau of Prisons. Moreover, Seeley was, in fact, found

to be competent to stand trial two months before the trial began.
                                             12
       During the July 2012 hearing, the District Court relied upon the testimony of

Ulrich, to find that, while occasionally noncommunicative, Seeley did exhibit an overall

ability to understand the proceedings and to assist in her defense. By this time, the

District Court was also aware of Dr. Compton’s finding that Seeley’s competency had

been restored through proper treatment. The District Court also took judicial notice of

the complexity and scale of the scheme, which required “mental acuity.” App. 8. This

allowed the District Court to conclude that Seeley was competent prior to trial and

sentencing. Furthermore, the testimony of Dr. Compton during Seeley’s sentencing itself

established that, even suffering from Bipolar disorder, Seeley could go through periods of

relative stability even before her medication was properly adjusted.

       Given the circumstances of this case, the District Court had no “reasonable cause”

to believe that Seeley was “presently” suffering from an impairment resulting in mental

incompetency at the time of her sentencing. Leggett, 162 F.3d at 241. We decline to find

that the District Court erred by failing to sua sponte order a competency hearing at the

time of Seeley’s sentencing.

                                     IV. Conclusion

       For the foregoing reasons, we will affirm the order of the District Court.




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