                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 26, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff–Appellee,

          v.                                            No. 11-1452
                                             (D.C. Nos. 1:03-CR-00582-REB-1,
 DAVID LEROY HARTMAN,                              1:07-CV-01921-REB)
                                                       (D. Colorado)
                 Defendant–Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



      Appellant, a federal prisoner, seeks a certificate of appealability to appeal

the district court’s dismissal of his § 2255 habeas petition. In 2004, a federal jury

found Appellant guilty of possession of a firearm by a felon, possession with

intent to distribute a controlled substance (cocaine base and methamphetamine),

possession of a firearm in furtherance of a drug-trafficking crime, and use of

another’s identification to commit unlawful activity. The district court sentenced

him to prison terms of 180 months and 12 months, to run concurrently, and a term


      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of 60 months to run consecutively. The five-year consecutive sentence Appellant

received was the mandatory minimum for possession of a firearm in furtherance

of a drug crime pursuant to 18 U.S.C. § 924(c). The government added this

charge in a superceding indictment after telling Appellant if he failed to accept

the proffered plea agreement, it would charge him with additional crimes. On

appeal, this court affirmed Appellant’s conviction and sentence. See United

States v. Hartman, 194 F. App’x 537 (10th Cir. 2006). Appellant did not seek

certiorari review.

      Appellant filed this § 2255 motion, which raises the following claims: (1)

this court erroneously affirmed on appeal the district court’s denial of Appellant’s

motion to suppress; (2) this court erroneously affirmed the district court’s denial

of Appellant’s motion to sever counts; (3) Appellant received ineffective

assistance of counsel at trial; and (4) Appellant was improperly convicted and

sentenced based on various errors. After numerous proceedings, including a

hearing on the ineffective assistance of counsel claim, the district court held

Appellant was foreclosed from raising claims one and two in a collateral

proceeding because they had already been adjudicated in the direct appeal. See

United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). The district court

held claim four was procedurally barred because Appellant failed to show cause

for failing to raise the issues in his direct appeal or actual prejudice from the

alleged errors. See United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir. 2002).

                                         -2-
      As to Appellant’s ineffective assistance of counsel claim, he alleged three

specific instances of ineffective assistance of counsel: (1) counsel failed to

retrieve discovery and investigation reports from prior, disbarred counsel; (2)

counsel failed to have prior counsel held in contempt after he did not respond to a

subpoena for the discovery materials; and (3) counsel improperly advised

Appellant concerning the consequences of not accepting a plea bargain.

Appellant also alleged counsel failed to present his medical records to the district

court, which presumably would have prompted the court to conduct a competency

hearing before trial.

      The district court allowed Appellant to reshape his claim at the hearing to

focus on two allegations—Appellant received bad advice regarding the plea

agreement, and counsel failed to consider Appellant’s mental health in her

communications with him and should have raised a competency issue before the

trial court. The district court ultimately held Appellant failed to show counsel’s

conduct fell below the objective standard of reasonableness required by

Strickland v. Washington, 466 U.S. 668 (1984). Specifically, counsel “was aware

of and considered carefully the mental health, including the competency, of

[Appellant],” counsel “concluded reasonably that [Appellant] was competent,”

and counsel “provided [Appellant] with timely, relevant, complete, accurate, and

competent legal advice concerning the proposed plea agreement.” (R. Vol. 2 at

252.) The district court concluded Appellant “failed to establish either the

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deficient performance or prejudice prong of Strickland.” (Id. at 253.)

      To appeal the denial of his habeas petition, Appellant must obtain a

certificate of appealability. See 28 U.S.C. § 2253(c)(1). Appellant argues

through appointed counsel that the Supreme Court’s recent decision in Lafler v.

Cooper, 132 S. Ct. 1376 (2012), applies in this case because it clarifies, contrary

to some courts’ interpretation, that Lockhart v. Fretwell, 506 U.S. 364 (1993),

does not stand for the proposition that conviction at a fair trial cures counsel

incompetence in plea negotiations. However, not only did the district court not

use Fretwell to suggest counsel’s alleged incompetencies were cured by a fair

trial, but the district court specifically held Appellant’s counsel provided

competent advice at the plea negotiation stage. As Lafler notes, “a defendant

must show the outcome of the plea process would have been different with

competent advice.” 132 S. Ct. at 1384. We agree with the district court that

Appellant received competent advice, and we thus conclude Lafler does not assist

Appellant’s claims.

      Appellant has also filed a pro se motion in which he raises several

arguments regarding his claim that counsel should have requested a competency

hearing. At the habeas hearing, counsel testified she was aware of Appellant’s

“long history of mental illness,” but that Appellant was very smart, was “able to

communicate fairly well,” despite being “pretty emotional,” and was “clear” and

“under[stood] what was going on.” (R. Vol. 3 at 17.) Counsel testified she

                                          -4-
therefore did not request a competency evaluation for Appellant. Counsel also

testified as to her nine-year experience as a state public defender in dealing with

competency issues. At the same hearing, Appellant testified trial counsel had

“never [received] any of [Appellant’s] psychiatric records, period. She never

checked into my mental health at all.” (Id. at 69.) In support of his pro se motion

to this court, Appellant submitted medical-release waivers he had signed on

November 30, 2004—after the date of his trial. 1 Appellant argues these waivers

refute counsel’s testimony that she obtained waviers and began receiving some of

his medical health records during the first months of her representation.

      We conclude that even if Appellant could satisfy Strickland’s first prong by

showing counsel’s alleged failure to obtain Appellant’s medical records and move

for a competency determination “fell below an objective standard of

reasonableness,” 466 U.S. at 688, Appellant has not satisfied Strickland’s second

prong. Appellant has not demonstrated he was prejudiced by counsel’s alleged

failures because he has not shown a reasonable probability he would have been

found incompetent to stand trial if counsel had requested and obtained a

competency hearing. See id. Although Appellant has a history of mental health

issues, “[n]ot every manifestation of mental health illness demonstrates

incompetence to stand trial.” United States ex rel. Foster v. DeRobertis, 741 F.2d



      1
          We have no indication these are the only waivers counsel obtained.

                                         -5-
1007, 1012 (7th Cir. 1984). There is no indication Appellant did not have a

rational understanding of the proceedings against him, and all of the evidence

indicates he was able to assist counsel and understand the charges against him.

      After carefully reviewing Appellant’s brief, his pro se motion, and the

record on appeal, we conclude reasonable jurists would not debate whether the

district court erred in dismissing the petition. 2 See Slack v. McDaniel, 529 U.S.

473, 484 (2000). We therefore DENY the application for a certificate of

appealability and DISMISS the appeal. We DENY Appellant’s motion to appoint

new habeas counsel.


                                               ENTERED FOR THE COURT


                                               Monroe G. McKay
                                               Circuit Judge




      2
       Appellant’s only arguments in both his counseled brief and his pro se
motion concerned his ineffective assistance of counsel claim. He made no
arguments regarding the district court’s dismissal of his other § 2255 claims.
Regardless, we agree with the district court’s dismissal of these claims and have
nothing to add to its thorough analysis. Reasonable jurists would not debate
whether the district court erred in dismissing these claims. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).

                                         -6-
