                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0284n.06

                                          No. 11-6544
                                                                                     FILED
                                                                                Apr 15, 2015
                         UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )
                                                     ON APPEAL FROM THE UNITED
                                               )
                                                     STATES DISTRICT COURT FOR THE
                                               )
                                                     EASTERN DISTRICT OF TENNESSEE
FRANCISCO MARTIN,                              )
                                               )
       Defendant-Appellant.                    )
                                               )



BEFORE:       DAUGHTREY, MOORE, and CLAY, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. At his initial appearance following

his indictment on three related charges involving child pornography, defendant Francisco Martin

invoked his right to self-representation, waived his right to an attorney, and was appointed

standby counsel. At the same time, the magistrate judge gave instructions that standby counsel

could only answer Martin’s questions and file pleadings that Martin drafted. In light of Martin’s

largely incomprehensible pleadings and his report of disturbances in his mental health, the

government moved for a competency hearing. The district court granted the motion and ordered

a psychiatric examination. Based on the resulting report finding Martin competent to stand trial

and on Martin’s verbal assurance to the court that he considered himself to be competent, the

magistrate judge found him competent to stand trial. Martin subsequently represented himself at

trial and was convicted of all the charges against him. He now contends that the magistrate
No. 11-6544
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judge’s instructions to standby counsel unconstitutionally deprived him of counsel during his

competency hearing. In response, the government argues that the case should be remanded for

an evidentiary hearing to determine whether standby counsel’s non-participation during Martin’s

competency hearing was in compliance with the limitations placed on counsel’s role or was the

result of an independent, strategic decision by standby counsel not to contest competency.

Because there is nothing in the record to suggest that counsel represented Martin at the hearing

or participated in any way in the determination of Martin’s competency, we conclude that the

convictions must be set aside and the case remanded to the district court for a valid competency

hearing and, if justified, a new trial.


                       FACTUAL AND PROCEDURAL BACKGROUND


        Following the return of the three-count indictment charging receipt, possession, and

distribution of child pornography, Martin made his initial appearance before the magistrate judge

and waived his right to counsel, despite repeated urging by the court that he accept the

appointment of counsel. Martin did, however, agree to the appointment of standby counsel. In

appointing standby counsel, the magistrate judge instructed Martin that his decision to represent

himself barred standby counsel from doing anything more than answering legal questions Martin

had and typing and filing pleadings written by Martin:

        [Y]ou need to understand, Mr. Martin, stand-by counsel, you cannot be halfway
        represented by an attorney and halfway represented by yourself. It’s all or
        nothing. Stand-by counsel, if appointed for you, Mr. Martin, will [sit] behind
        you; and if you have a question about an evidentiary matter or rule of procedure
        or something like that, you can turn around and ask your lawyer advice, your
        stand-by lawyer advice; and then based upon that advice, which you may or may
        not take, you can proceed accordingly; but the lawyer, stand-by lawyer, will not
        participate actively to any extent in a trial of the case or any pretrial proceeding.




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       The magistrate judge emphasized that standby counsel could not take an active role in

representing Martin: “[S]tandby counsel,” the court informed Martin, “can’t do anything except

talk to you, that’s about the bottom line, give you advice. You are representing yourself; so

whatever happens in this case, Mr. Martin, will be you. Your lawyer will not do anything on

your behalf. He cannot do anything on your behalf.”

       When asked to enter his plea during his initial appearance, Martin referred to the Uniform

Commercial Code’s section 1-207. This action, as well as Martin’s indication to a probation

officer that he had recently suffered suicidal ideation and anxiety, spurred the government to

move for a competency hearing. The district court granted the motion and ordered the Bureau of

Prisons to conduct a mental health assessment of Martin’s condition in preparation for the

hearing. The mental health evaluation, completed by a clinician at the Lexington, Kentucky

Federal Medical Center, concluded that Martin was not suffering from any mental disease or

defect that would render him mentally incompetent to stand trial. The magistrate judge ordered

the hand-delivery of the evaluation to Martin “since he [was] representing himself.”


       The entire discussion of Martin’s competency at the competency hearing before the

magistrate judge consisted of the following exchange:

       THE COURT: Alright. We’re here today because the District Judge ordered that
       Mr. Martin undergo a forensic examination to determine his competency to stand
       trial. That examination has taken place, and the Court has received the report of
       FMC Lexington, and Mr. Martin, you need to confirm for me, please, Sir, that you
       got a copy of that?

       MR. MARTIN: That’s correct, Your Honor.

       THE COURT: Alright. Well, okay. And Mr. Martin, as I am sure you are aware,
       the bottom line of that report is that you are quite competent to look after your
       own interest, know what you’re doing and so forth and so on. Do you disagree
       with that conclusion?


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       MR. MARTIN: I agree that I am competent, Your Honor.

       THE COURT: I’m sorry?

       MR. MARTIN: I agree that I am competent.

       THE COURT: Okay. Well, under the circumstances, Mr. Martin, I would ask if
       there’s any more evidence regarding your competency to be placed in the record,
       but since you agree with the conclusions of FMC Lexington, there’s not a whole
       to do. Do you?

       MR. MARTIN: I would like to give a standing objection to the Plaintiff’s use of
       the jurisdiction of this Court.

       THE COURT: Well, okay. That’s noted, and you don’t need to broach that
       subject every time, ‘cause your, your objection is noted. But as far as your
       competency, Mr. Martin, do you have anything else you wish to say? I don’t
       know what it would be since you agree with the report, but do you, bottom line,
       do you agree that you are competent?

       MR. MARTIN: Yes, Your Honor.

       Standby counsel, though present during the hearing, was not addressed, questioned, or

acknowledged at any point during this discussion. The parties devoted the remainder of the

hearing to admitting Martin’s mental health evaluation into evidence, scheduling the trial, and

hearing Martin’s argument that the charges against him had to be dismissed for lack of

jurisdiction. Based on the mental health evaluation—the only piece of evidence presented to the

court on Martin’s competence—and Martin’s agreement with the evaluation’s conclusion that he

was competent, the court found Martin competent to proceed to trial.


       As previously noted, Martin unsuccessfully represented himself at trial—the jury found

him guilty on all of the counts against him. The district court sentenced him to 156 months’

imprisonment.




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        After Martin timely appealed his conviction and sentence, standby counsel moved to

withdraw on the grounds that Martin’s appeal presented no legally non-frivolous questions. We

denied the motion, however, and directed counsel to brief whether, under the Sixth Circuit’s

decision in United States v. Ross, 703 F.3d 856 (6th Cir. 2012), Martin was unconstitutionally

denied counsel during his competency hearing. The present appeal was filed in compliance with

that order.


                                         DISCUSSION


Legal Standard


        The Ross panel did not establish the appropriate standard of review for claims based on

the denial of counsel at a competency hearing.       See generally Ross, 703 F.3d at 868-873

(establishing that deprivation of counsel at competency hearing may run afoul of the Sixth

Amendment right to counsel). Though neither party here proposes the standard of review that

should generally be applied to cases of this nature, the government contends that the appropriate

standard of review in this case must be de novo because Ross was decided subsequent to

Martin’s competency hearing and, thus, the parties and the district court did not develop a record

on the Ross issue. Given that we normally review questions of law in constitutional challenges

to criminal convictions de novo, see United States v. Watkins, 509 F.3d 277, 280 (6th Cir. 2007),

and that Martin has presented no argument for why this level of review is inappropriate here, we

will review Martin’s Ross claim de novo.




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Deprivation of Counsel


          The Sixth Amendment secures to criminal defendants both the right to trial counsel and

the right to proceed without counsel. Faretta v. California, 422 U.S. 806, 834 (1975). The right

to represent oneself is not absolute, however; the Constitution requires that “any waiver of the

right to counsel be knowing, voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 87-88

(2004).


          When a criminal defendant’s competency to stand trial has been challenged, the validity

of the defendant’s waiver of counsel is suspended until the issue of his or her competency is

resolved. We have recently recognized the “common-sense viewpoint that a defendant cannot

represent himself at his own competency hearing, the purpose of which is to determine whether a

defendant understands and can participate in the proceedings in the first place.” Ross, 703 F.3d

at 869. In Ross, we determined that “the Constitution requires a defendant to be represented by

counsel at his own competency hearing, even if he has previously made a knowing and voluntary

waiver of counsel.” Id. at 871.


          Although a criminal defendant is entitled to representation by counsel during his or her

competency hearing, Ross does not require that counsel be full-time. “[P]articipation by standby

counsel during a competency hearing may be sufficient to overcome a denial of counsel claim.”

Id.   But such participation is sufficient only when standby counsel conducts an adequate

investigation of the defendant’s competency and subjects evidence of the defendant’s

competency to meaningful adversarial testing. Id. at 866. Standby counsel need not present

argument during the competency hearing to satisfy this standard, as long as the decision not to

contest competency is an independent, strategic one, borne out of adequate investigation of the

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defendant’s competency and appropriate preparation for the hearing. Id. at 873. Adequate

investigation entails, at a minimum, reading and analyzing a mental health evaluation of the

defendant prepared for the hearing. Id. at 874.


       Both parties agree that standby counsel’s lack of participation during Martin’s

competency hearing may have violated Martin’s Sixth Amendment right to counsel under Ross.

They depart on whether the record sufficiently establishes that standby counsel’s silence during

the hearing was not the result of an independent, strategic decision to defer to the mental health

evaluation’s conclusions.    Martin argues that the record shows conclusively that he was

completely deprived of counsel during his competency hearing; he asserts that the magistrate

judge’s initial instructions regarding the permissible scope of standby counsel’s representation,

which were not modified prior to the competency hearing, effectively “prohibited [standby

counsel] from providing . . . meaningful adversarial testing” of the mental health evaluation’s

competency findings. The government contends in response that the record cannot support such

a conclusion because it contains no factual findings on whether counsel investigated Martin’s

competence and made an “independent, strategic choice” not to contest the mental health

evaluation.


       Given the record in this case, we can only conclude that Martin was deprived of counsel

during his competency hearing. But the inquiry does not end there. Ross did not hold that

whenever the record reflects that standby counsel did not participate in the competency hearing,

we must remand for an evidentiary hearing on whether that nonparticipation was a strategic

decision before we can decide whether it unconstitutionally deprived a criminal defendant of

counsel. Remand in Ross was appropriate because the record before the court revealed that


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standby counsel had expressed doubts that the defendant was incompetent prior to the

competency hearing, had provided documents regarding the defendant’s competence to the

clinician who evaluated the defendant and, during the competency hearing, had declined the

opportunity to present evidence regarding the defendant’s competence. Ross, 703 F.3d at 872-

73.   Standby counsel, in fact, explicitly stated that he would defer to the mental health

evaluation’s conclusions at the hearing. Id. at 873. Thus, the record in Ross contained ample

evidence that standby counsel had investigated his client’s competency, found nothing

suggesting that his client was incompetent, and, as a result, elected not to oppose a finding that

his client was competent. Critically, the district court in Ross placed no limitations upon standby

counsel’s scope of representation. Id. at 872. Accordingly, Ross’s standby counsel argued on

behalf of his client on the issue of competency prior to the competency hearing and, as noted

above, was offered the opportunity to argue and present evidence at the competency hearing. Id.

at 872, 873.


       By contrast, nothing in the record here evidences that Martin’s standby counsel ever

expressed any position on his client’s competence; nor does the record indicate that standby

counsel ever reviewed any documents related to Martin’s competency, including the mental

health evaluation. In an attempt to bolster its argument that standby counsel’s nonparticipation

in Martin’s competency hearing may have resulted from an independent investigation of

Martin’s competency, the government notes that standby counsel was consulted by the clinician

who evaluated Martin. The government also argues that standby counsel had reason to not

contest Martin’s competency because Martin’s mental health evaluation offered no evidence that

Martin was incompetent. Missing from the record, however, is any evidence that standby

counsel actually reviewed Martin’s mental health evaluation. Notably, the district court ordered

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delivery of Martin’s mental health evaluation to Martin because “he [was] representing himself.”

The order did not provide for delivery to his standby counsel. Thus, the record suggests that

standby counsel had not reviewed Martin’s mental health evaluation before the hearing.


       Even if standby counsel did investigate Martin’s competency, however, the magistrate

judge’s instructions effectively barred her from presenting any conclusions she may have drawn

from this investigation, because those instructions foreclosed any action by standby counsel on

Martin’s behalf beyond answering Martin’s legal questions and filing pleadings he drafted. The

instructions could not reasonably be understood to have permitted standby counsel to argue or

present evidence—critical components of “meaningful adversarial testing”—during his

competency hearing.      Indeed, once the gag order was in place, it is unsurprising that the

magistrate judge did not offer standby counsel the opportunity to challenge Martin’s mental

health evaluation. Instead, during a brief discussion of Martin’s competency, the judge directed

his questions to Martin alone; the presence of standby counsel was never even acknowledged on

the record. The task of challenging the mental health evaluation, then, was left to the defendant

alone, who had already shown the court that he had little comprehension of the charges against

him, let alone a sufficient understanding of why or how to subject his mental health evaluation to

“meaningful adversarial testing.” Thus, the record leaves little question that the “meaningful

adversarial testing” required by the Sixth Amendment’s right to counsel was wholly absent from

Martin’s competency hearing. Because the record makes clear that Martin was effectively

unrepresented at the hearing, a remand to supplement that record is unnecessary here.


       At least one other circuit court has found a Sixth Amendment violation of the right to

counsel when the record before it established that the district court directed all of its questions on


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the issue of the defendant’s competency to the defendant alone. See United States v. Purnett,

910 F.2d 51, 55-56 (2d Cir. 1990). The government asserts that Purnett is inapposite here

because the Second Circuit had not found that the presence of standby counsel could be

sufficient to overcome a deprivation-of-counsel claim. But that argument misunderstands the

import of Purnett to Martin’s Ross claim. Purnett did not hold that standby counsel could never

provide sufficient representation to overcome a deprivation-of-counsel claim; it held only that, if

the record revealed that standby counsel was given no opportunity to argue on behalf of the

defendant during the competency hearing, the appeals court could base its conclusion that the

defendant was unconstitutionally deprived of counsel during that hearing on the record alone. Id.

at 55-56.


                                        CONCLUSION


       It is well-established that a competency hearing is a “critical stage” of a criminal

proceeding. Ross, 703 F.3d at 874. It is also well-established that the complete deprivation of

counsel during a critical stage of the proceedings can be remedied only by reversal of the

judgment without consideration of prejudice. Id. Because Martin was completely deprived of

counsel during his competency hearing, his conviction and sentence must be vacated.


       We therefore REVERSE the judgment of the district court and REMAND the case for a

new competency hearing and, if Martin is found competent, a new trial.




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       KAREN NELSON MOORE, Circuit Judge, dissenting. I agree with the majority that

United States v. Ross, 703 F.3d 856 (6th Cir. 2012), controls this case. As in Ross, I believe that

we cannot, based on the record before us, make a conclusive determination regarding standby

counsel’s performance. The record does show, for instance, that standby counsel was contacted

by phone during Martin’s mental evaluation, and may have received a copy of this evaluation

prior to Martin’s competency hearing. The record also shows that standby counsel was present

at Martin’s competency hearing, where she promised to provide Martin with copies of some

legal documents. To be sure, the record does not otherwise speak to the extent of standby

counsel’s preparation. But that, in my view, is why an evidentiary hearing is warranted in this

case. As in Ross, I believe that such a hearing would help clarify whether standby counsel

actually provided Martin with “meaningful adversarial testing,” a question that we cannot yet

answer based on the record in front of us.


       For the foregoing reasons, instead of vacating Martin’s conviction, I would grant the

government’s motion for a limited remand for an evidentiary hearing.




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