                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 29, 2009
                    UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 MICHAEL TREVINO,
               Petitioner–Appellant,                      No. 09-1048
          v.                                   (Case No. 1:05-CV-02567-WYD)
 MICHAEL ARELLANO, Warden,                                 (D. Colo.)
 Arkansas Valley Correctional Facility;
 THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,
               Respondents–Appellees.


                                       ORDER *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.


      Petitioner, a state prisoner represented by counsel, seeks a certificate of

appealability to appeal the district court’s dismissal of his § 2254 habeas petition.

In his petition, he argued that his guilty plea in the state court was invalid because

he was not competent when he pled guilty and that trial counsel was ineffective

for failing to raise this competency issue. The district court initially dismissed

the petition as untimely, but we granted a certificate of appealability and reversed

and remanded the case for further proceedings. Trevino v. Watkins, No. 06-1291,



      *
        This order is not binding precedent, except under the doctrines of law of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.
225 F. App’x 746, 748 (10th Cir. 2007). On remand, the district court appointed

counsel for Petitioner and ordered additional briefing. The court ultimately

denied the petition, holding that Petitioner had not demonstrated that he was

entitled to a writ of habeas corpus under 28 U.S.C. § 2254(d).

      To obtain a certificate of appealability, Petitioner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, he must demonstrate “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted).

      Petitioner argues that the “state courts ignored or failed to credit evidence

indicating that Mr. Trevino suffered from serious, irreversible dementia.”

(Appellant’s Opening Br. at 30.) However, as the district court noted, the

evidence in Petitioner’s favor was contradicted by a substantial amount of

evidence that Petitioner was competent. The state trial court’s factual finding of

competency is presumed correct unless rebutted by clear and convincing

evidence. See Wilson v. Sirmons, 536 F.3d 1064, 1070-71 (10th Cir. 2008). And,

Petitioner’s disagreement with the appropriate weight to be given to the

conflicting evidence heard by the state court does not constitute clear and

convincing evidence that the state court’s finding was incorrect.

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      Petitioner also argues that the state courts entirely ignored the

uncontroverted evidence that he did not remember the events underlying the

charges against him, and he argues that the state courts’ rulings therefore

represented an unreasonable application of Dusky v. United States, 362 U.S. 402,

402 (1960). In responding to this argument, the district court noted that the state

trial court specifically found that reports indicated that Petitioner was malingering

and actively misleading others regarding his condition and its effects. Moreover,

the state court had before it evidence that cast doubt on the other evidence that

Petitioner did not remember any of the facts of his crime. For instance, one

doctor reported that Petitioner said his attorney told him not to talk about the

crime with anyone. The doctor stated that Petitioner “went on to say that he did

remember some of the events concerning his crime but his attorney had told him

not to discuss these.” (State Record Vol. 1 at 105.) Furthermore, Dusky does not

hold, nor does other federal law establish, that failing to remember the facts of a

crime renders a defendant incompetent to proceed. The circuits that have

considered this question have all concluded that amnesia about a crime does not

render a defendant per se incompetent to stand trial. See United States v.

Andrews, 469 F.3d 1113, 1119 (7th Cir. 2006) (collecting cases); see also United

States v. Borum, 464 F.2d 896, 898-900 (10th Cir. 1972) (holding that amnesia

does not cause a per se deprivation of due process and that the Dusky standard

was satisfied even if the defendant in this case suffered a genuine loss of

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memory).

      As for Petitioner’s claim that counsel’s failure to raise the competency

issue constituted ineffective assistance of counsel, the state court of appeals held

that this claim must be dismissed because the competency claim upon which it

was based lacked merit. The district court agreed with this conclusion below,

noting that Petitioner cannot demonstrate prejudice from counsel’s failure to raise

the competency issue if he was in fact competent. Because we conclude that

reasonable jurists would not debate whether Petitioner has rebutted the state

court’s finding of competency by clear and convincing evidence, we likewise

conclude that Petitioner’s ineffective assistance claim must necessarily fail.

      After carefully reviewing Petitioner’s brief, the relevant state court

decisions, the district court’s disposition, and the record on appeal, we conclude

that Petitioner has not met the standard required to obtain a certificate of

appealability. For substantially the reasons given by the district court, we DENY

Petitioner’s request for a certificate of appealability and DISMISS the appeal.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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