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                                       No. 95-2443
                                      ____________


Thomas Dean Vogt,                          *
                                           *
                       Appellant,          *
                                           * Appeal from the United States
         v.                                * District court for the
                                           * Northern District of Iowa
United States of America,                  *
                                           *
                       Appellee.           *

                                      ____________

                         Submitted:    December 15, 1995

                             Filed:     July 3, 1996
                                      ____________

Before McMILLIAN and BEAM, Circuit Judges, and PERRY,* District
      Judge.
                              ____________


McMILLIAN, Circuit Judge.


         Thomas Dean Vogt appeals from a final order entered in the District
     1
Court        for the Northern District of Iowa denying his 28 U.S.C. § 2255
petition for post-conviction relief on the grounds of incompetence to stand
trial and ineffective assistance of counsel.           United States v. Vogt, No.
CR89-0008 (N.D. Iowa May 30, 1995) (opinion and order).             For reversal
petitioner argues the district court erred in finding that there was
insufficient doubt as to his




         *The Honorable Catherine D. Perry, United States
         District Judge for the Eastern District of
         Missouri, sitting by designation.
         1
      The Honorable Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa.     Preliminary
matters were decided by the Honorable John A. Jarvey, Chief
Magistrate Judge, United States District Court for the Northern
District of Iowa.
competence to stand trial and that his trial attorneys were not ineffective
in not requesting a competency hearing.         For the reasons discussed below,
we affirm the order of the district court.
BACKGROUND FACTS


      In April 1989 a federal grand jury indicted petitioner and four
others and charged them with multiple counts of drug trafficking and
related offenses.        Petitioner was found guilty by a jury on all but two
counts.         The   district   court2   sentenced   petitioner   to   110   months
imprisonment, 5 years supervised release, a fine of $12,500, and a special
assessment of $200.      Certain property belonging to petitioner was subjected
to criminal forfeiture.          The conviction and sentence were affirmed on
appeal.       United States v. Vogt, 938 F.2d 184 (8th Cir. 1991) (table), cert.
denied, 502 U.S. 1092 (1992).


      In November 1992 petitioner filed the present § 2255 petition
asserting numerous grounds for relief.          The magistrate judge recommended
that the district court deny relief on all but two claims and hold an
evidentiary hearing on those two claims-- whether petitioner was in fact
incompetent to stand trial and whether he received ineffective assistance
of counsel because his trial attorneys did not request a competency
hearing.        The district court agreed with the recommendation of the
magistrate judge and held an evidentiary hearing.          The witnesses included
petitioner, members of petitioner’s family, his business associates, his
doctors, his trial attorneys, the attorneys who represented petitioner’s
co-defendants, various jail employees, the government case agent, the
prosecuting attorney, and the trial judge.        In addition, the district court
also considered the transcripts of petitioner’s testimony at trial and at
sentencing and his




          2
       The Honorable David R. Hansen, now Circuit Judge, United
States Court of Appeals for the Eighth Circuit.

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deposition in a civil malpractice case he had brought against his trial
attorneys.


        The district court found that petitioner had failed to produce
sufficient evidence of mental incompetence to warrant a competency hearing
or new trial.    Slip op. at 9-13.   The district court found that there was
“no reason to doubt [petitioner]’s competency at trial” despite his prior
hospitalization for bi-polar affective disorder in November 1988, his
behavior in April-May 1989, his doctor’s note in October 1989 referring to
a return of the kind of problems he had in November 1988, his mental
condition during trial, his post-trial psychotic condition in March 1990,
and subsequent prison hospitalization for psychiatric treatment.      Id. at
9.    The district court concluded that the evidence showed that petitioner
understood the nature of the proceedings and the charges against him and
was able to assist his trial attorneys before, during and after trial, and
at sentencing.   Id. at 10.   The district court also found that petitioner’s
trial attorneys acted reasonably in not requesting a competency hearing in
view of petitioner’s extensive assistance before and during trial, his
demeanor at trial and his performance as a witness.       Id. at 13-14.   The
district court noted that the trial attorneys knew about petitioner’s
November 1988 hospitalization and had questioned petitioner’s doctor about
petitioner’s likely prognosis (the doctor told defense counsel that
petitioner would be able to return to work and lead a normal life).       Id.
at 14.    The district court did not credit petitioner’s testimony that he
had informed his trial attorneys about his mental condition during trial.
Id.     The district court denied the § 2255 petition and this appeal
followed.
COMPETENCY TO STAND TRIAL


        As a preliminary matter, we reject the government’s argument that
petitioner has waived or defaulted on his mental incompetency claim because
he did not raise this claim in the district court or




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on direct appeal and has not shown cause and prejudice (or actual innocence
or that a fundamental miscarriage of justice would occur if his claim were
not   considered) in order to excuse the procedural default.                          “[T]he
procedural default rule . . . does not operate to preclude a defendant who
failed to request a competency hearing at trial or pursue a claim of
incompetency on direct appeal from contesting his [or her] competency to
stand trial and be sentenced through post-conviction proceedings.”                     See,
e.g., Adams v. Wainwright, 764 F.2d 1356, 1359 (11th Cir. 1985) (citing
Pate v. Robinson, 383 U.S. 375, 384 (1966) (noting that it is contradictory
to    argue       that a defendant may be incompetent and yet knowingly or
intelligently waive right to have the court determine capacity to stand
trial)), cert. denied, 474 U.S. 1073 (1986).


        Petitioner argues the district court erred in finding that there was
insufficient doubt about his competence to stand trial.                Petitioner argues
his history of mental problems established a sufficient doubt about his
competence to stand trial--his psychiatric hospitalization in November
1988,       his    diagnosis     of   bi-polar    affective   disorder     and    continued
psychiatric         treatment,    including      the   prescription   of   anti-psychotic
medication, his erratic behavior and deteriorating mental condition before
and     during       trial,    and    his   psychotic     condition    and       psychiatric
hospitalization after sentencing.             He also argues the district court erred
in considering his demeanor at trial as evidence of competency because
persons with bi-polar affective disorder could be mentally impaired but
appear to be normal.           The government argues the district court’s finding
that petitioner failed to present facts sufficient to create the requisite
“sufficient doubt” about his competence to stand trial is not clearly
erroneous.


        Due process prohibits the trial and conviction of a defendant who is
mentally incompetent.          Drope v. Missouri, 420 U.S. 162, 172 (1975).             This
is    the    “substantive”       competency    principle.     See,    e.g.,   Weisberg    v.
Minnesota, 29 F.3d 1271, 1275-76 (8th Cir. 1994),




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cert. denied, 115 S. Ct. 935 (1995); see also Medina v. Singletary, 59 F.3d
1095, 1106-07 (11th Cir. 1995), cert. denied, 1996 WL 163786 (No. 95-8394)
(U.S. June 10, 1996).       “[D]ue process [also] requires that a hearing be
held   whenever     evidence    raises     a    sufficient      doubt     about    the    mental
competency of an accused to stand trial.”                   Griffin v. Lockhart, 935 F.2d
926,   929   (8th   Cir.   1991)    (footnote            omitted).   “[This       ‘procedural’
competency]    principle       operates    as        a   safeguard   to   ensure        that   the
[`substantive' competency] principle is not violated.”                            Id.     Claims
involving these principles raise similar but distinct issues:                           the issue
in a substantive competency claim is whether the defendant was in fact
competent to stand trial, but the issue in a procedural competency claim
is whether the trial court should have conducted a competency hearing.
See, e.g., Sheley v. Singletary, 955 F.2d 1434, 1438 (11th Cir. 1992);
United States v. Day, 949 F.2d 973, 982 (8th Cir. 1991).                          “A denial of
either of these rights may provide the basis for habeas relief.”                        Weisberg
v. Minnesota, 29 F.3d at 1276.


       Here, petitioner made a substantive competency claim by alleging that
he was in fact tried and convicted while mentally incompetent.                      The burden
of persuasion was on petitioner to show that he was incompetent by a
preponderance of the evidence.            See, e.g., Medina v. Singletary, 59 F.3d
at 1106; Branscomb v. Norris, 47 F.3d 258, 261 (8th Cir.) (noting that,
absent some contrary indication, state and federal trial judges may presume
defendants are competent), cert. denied, 115 S. Ct. 2260 (1995).                        We review
the district court’s competency finding for clear error.                          Weisberg v.
Minnesota, 29 F.3d at 1278.         “Retrospective determinations of whether a
defendant is competent to stand trial . . . are strongly disfavored.”                          Id.
The test for determining competence to stand trial is whether the defendant
has “a sufficient present ability to consult with his [or her] lawyer with
a reasonable degree of rational understanding--and whether [the defendant]
has a rational as well as factual understanding of the proceedings against
him [or her].”      Dusky v. United States, 362 U.S. 402, 402 (1960).




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“Although there are no facts which invariably create a sufficient doubt
about a defendant’s competency, attention should be paid to any evidence
of [the defendant’s] irrational behavior, [the defendant’s] demeanor before
the trial court, available medical evaluations, and whether trial counsel
questioned the defendant’s competency before the court.”            United States v.
Day,   949   F.2d   at   982   (discussing   “sufficient   doubt”    in   context   of
procedural competency claim).          “‘[N]ot every manifestation of mental
illness demonstrates incompetence to stand trial . . . .’                 Similarly,
neither low intelligence, mental deficiency, nor bizarre, volatile, and
irrational behavior can be equated with mental incompetence to stand
trial.”      Medina v. Singletary, 59 F.3d at 1107 (citations omitted).
“Treatment with anti-psychotic drugs does not per se render a defendant
incompetent to stand trial.”        Sheley v. Singletary, 955 F.2d at 1438.


       We have carefully reviewed the record and we hold the district
court’s finding that there was insufficient doubt as to petitioner’s
competence to stand trial is not clearly erroneous.           The record supports
the district court’s finding that petitioner understood the nature of the
proceedings and the charges against him and was able to assist his
attorneys and consult with them with a degree of rational understanding.
As noted by the district court, petitioner’s history of mental illness,
including his treatment with anti-psychotic medication, was substantially
offset by petitioner’s extensive and effective communication with his
attorneys before, during and after trial, his demeanor during trial and as
a witness, his failure to tell his trial attorneys about his mental
condition during trial, and the opinion of his doctor (petitioner was
psychotic in November 1988 and in March 1990, but the doctor could not
speculate as to petitioner’s competence at time of trial).




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INEFFECTIVE ASSISTANCE OF COUNSEL


      Petitioner also argues the district court erred in finding that he
did not receive ineffective assistance of counsel because his trial
attorneys did not request a competency hearing.            Petitioner argues his
trial attorneys failed to adequately investigate his competence even though
they knew he had a history of mental illness and had been hospitalized in
November 1988.     Petitioner also argues his trial attorneys improperly
relied on their own assessments of his competence, assessments which he
argues were especially unreliable given the elusive nature of bi-polar
affective disorder.      The government argues the trial attorneys’ performance
was not deficient under the circumstances, particularly in light of
petitioner’s behavior and demeanor before and during the trial and his
failure to tell them about his allegedly deteriorating mental condition
during trial.    The government also argues that petitioner failed to show
that his understanding of the nature of the proceedings and the charges
against him or his ability to assist or consult with his attorneys was
compromised by his alleged incompetence.


      In order to prove ineffective assistance of counsel, a petitioner
must show deficient performance, that is, “counsel’s representation fell
below an objective standard of reasonableness,” and actual prejudice, that
is, “a reasonable probability that, but for counsel’s unprofessional
errors,   the   result    of   the   proceeding   would   have   been   different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).                “[A] court
deciding an actual ineffective-ness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct.”         Id. at 690.    “[T]he court should
recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.”        Id.   "[S]trategic choices made after thorough
investigation of law and facts relevant to plausible




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options are virtually unchallengeable . . . .”   Id.   “[C]ounsel has a duty
to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.”    Id. at 691.    “The failure
of trial counsel to request a competency hearing where there was evidence
raising a substantial doubt about a petitioner’s competence to stand trial
may constitute ineffective assistance of counsel.”     Speedy v. Wyrick, 702
F.2d 723, 726 (8th Cir. 1983).


      We agree with the district court that petitioner's trial attorneys
acted reasonably in not requesting a competency hearing.          The trial
attorneys made a reasonable investigation of petitioner’s mental condition
under the circumstances.   They discussed the November 1988 hospitalization
with petitioner, obtained petitioner’s medical records, asked petitioner’s
doctor about petitioner’s condition and his ability to return to work and
to lead a normal life after hospitalization, and had a psychologist consult
with petitioner in preparing for trial.   They had worked extensively with
petitioner during trial preparation and had observed his demeanor during
the trial, including his performance as a trial witness, and had not
observed or experienced anything which made them question his competence
to stand trial.   The district court did not credit petitioner’s testimony
that he told attorney Riley about his allegedly deteriorating mental
condition during trial.    The description by petitioner's trial attorneys
of petitioner's behavior and demeanor as unexceptional during the trial was
corroborated by the trial judge, the prosecuting attorney, the case agent,
and the trial attorneys who represented petitioner’s co-defendants.     They
testified at the evidentiary hearing that petitioner appeared to be
rational and alert and acted appropriately during the trial.


      Accordingly, we affirm the order of the district court.




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A true copy.

      Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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