     Case: 17-10145      Document: 00514769517         Page: 1    Date Filed: 12/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                      No. 17-10145                           FILED
                                                                     December 20, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                             Clerk

              Plaintiff - Appellee

v.

JUAN CARLOS AVILA-GONZALEZ,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CV-1035


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       Juan Carlos Avila-Gonzalez defended himself at his drug trial. While he
cannot challenge the quality of his own representation, he does claim that
lawyers he had at the early stages of the prosecution provided ineffective
assistance. We conclude that factual disputes about one of his claims requires
an evidentiary hearing, so we remand that claim.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-10145
                                             I.
      Avila was indicted in 2013 for conspiracy to traffic methamphetamine.
Originally, two public defenders represented him—Christopher Curtis and
William Hermesmeyer. Avila, who has some legal experience from his time in
Mexico, decided to represent himself instead. The district court scheduled a
Faretta hearing and appointed a third attorney, Danny Burns, to advise Avila.
See Faretta v. California, 422 U.S. 806 (1975).
      The district court conducted two days of Faretta hearings. During this
time, it warned Avila that a looming superseding indictment alleging a higher
drug quantity likely meant that going to trial would result in a conviction and
life sentence.   Eventually the court decided that Avila was knowingly
exercising his constitutional right to represent himself.       The government
obtained its promised superseding indictment that increased the sentencing
range from 5-to-40 years to 10-to-life. 21 U.S.C. § 841(b)(1)(A). The jury
convicted Avila after a one-day trial.
      Avila also represented himself at sentencing and received the life
sentence that the district court foresaw. After an unsuccessful appeal, Avila
filed this petition for postconviction relief. See 28 U.S.C. § 2255. He maintains
two claims: 1) that Hermesmeyer gave him ineffective advice about his
sentencing exposure if he pleaded guilty, and 2) that Hermesmeyer and Curtis
failed to investigate whether he was competent to waive his right to counsel
despite troubling evidence to the contrary. To support the claims, he filed
affidavits from himself and family members, and psychiatric records from
Mexico. The district court rejected the claims without an evidentiary hearing,
determining that Avila’s allegations were “specious and made of whole cloth.”
We granted a certificate of appealability.




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                                      No. 17-10145
                                             II.
       A district court’s decision to deny an evidentiary hearing is reviewed for
abuse of discretion. United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013).
But an evidentiary hearing is required “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b). A defendant must present “independent indicia of the
likely merit of [his] allegations” that do not contradict the record, are not
conclusory, and are not speculative. Reed, 719 F.3d at 373–74 (quoting United
States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008)).
       Because a defendant who elects to represent himself waives his Sixth
Amendment right to counsel, he has no counsel against which to assert an
ineffective assistance claim. See Faretta, 422 U.S. at 834 n.46. But Strickland
claims can arise before the defendant waives his right to counsel, such as when
counsel fails to investigate whether the defendant is competent to knowingly
waive the right to counsel. See Austin v. Davis, 876 F.3d 757, 784–86 (5th Cir.
2017). As with other ineffective assistance claims, this requires the defendant
to demonstrate both that counsel’s performance fell below an objective
standard of reasonableness and that the deficient performance harmed the
defendant. See Strickland v. Washington, 466 U.S. 668, 689–94 (1984). That
prejudice exists when there is a reasonable probability that the outcome would
have been different but for counsel’s errors. Id. at 694.
                                            III.
       The first issue is whether, before Avila waived counsel, Hermesmeyer
gave him erroneous advice about sentencing. Avila argues that he would have
pleaded guilty, even without a plea agreement, 1 if he had been told that the



       1 We have never held that advice about an “open” guilty plea (as opposed to a plea
deal) can be the foundation for a Strickland claim. See United States v. Garcia, 619 F. App’x
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                                       No. 17-10145
maximum exposure he faced from an immediate plea was 40 years. Avila’s
own account of his discussions with Hermesmeyer refute this claim. In his
affidavit, Avila indicates that Hermesmeyer first told him that unless he
cooperated, he was facing “40 years” in prison. Avila responded that he was
not willing to cooperate but would plead guilty.                Hermesmeyer discussed
Avila’s position—willing to plead but not cooperate—with the prosecutor.
When he returned to visit his client, Hermesmeyer explained that the
prosecutor responded negatively to Avila’s stance: the government would seek
a life sentence by filing enhanced charges if Avila did not cooperate. 2
       Accepting Avila’s testimony as true, Hermesmeyer did not provide any
erroneous sentencing advice. At first the lawyer thought, correctly based on
the original indictment, that Avila would face up to 40 years.                     But after
informing the prosecutor of Avila’s refusal to cooperate, he learned that the
government would file charges that increased the statutory exposure to life.
He also accurately explained that the Sentencing Guidelines would
recommend life. Avila presents no evidence that the government was going to
hold back on the superseding charges given his refusal to cooperate. In other
words, there was no path to plead guilty but not cooperate and reach the
outcome Avila desired. As a result, he has identified no erroneous sentencing
advice nor explained how any improper advice could have impacted his
sentence given the government’s desire to supersede with life charges absent



276, 277 (5th Cir. 2015) (Jolly, J., concurring). But we need not decide that issue in light of
our conclusion that counsel did not provide erroneous advice.
       2 Avila’s affidavit says that Hermesmeyer told him the enhancement was going to

come from the filing of a criminal information based on prior drug convictions. See 18 U.S.C.
§ 851. But Avila did not have any such priors. Examining the prosecutor’s remarks during
the Faretta hearing and the superseding indictment filed after the hearing, the enhanced
charges discussed must have related to drug quantity rather than criminal history. Even if
Hermesmeyer did make a mistake about the source of the enhanced penalties, it would not
impact this claim because Avila was correctly told that failure to cooperate would result in
new charges carrying a possible sentence of life in prison.
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                                  No. 17-10145
cooperation. No evidentiary hearing was required on this claim. For the same
reason, the district court did not err in rejecting it on the merits.
                                        IV.
      Avila’s other claim is not so readily dismissed. He alleges that he told
his lawyers after his arrest that he had previously attempted suicide and that
he was suffering from paranoia and schizophrenia.              In the past, these
conditions had forced him to spend time in a Mexican mental hospital. Twice
before being charged in this case, his mental condition led him to attempt
suicide, not including a suspicious fall from a second story that left his skull
cracked.   Avila also attempted suicide in the courthouse—with counsel
present—after his preliminary hearing. The prison put him on suicide watch,
and Avila says he asked Hermesmeyer to notify the court. According to Avila,
his counsel knew about all this and failed to investigate.
      If true, this failure could amount to deficient performance. An effective
attorney investigates after receiving information that a client may be
incompetent. See Profitt v. Waldron, 831 F.2d 1245, 1248–49 (5th Cir. 1987);
Bouchillon v. Collins, 907 F.2d 589, 595–97 (5th Cir. 1990).            Bouchillon
resembles this case: trial counsel unreasonably ignored Bouchillon’s
statements that he had mental problems, had been institutionalized, and was
on medication. 907 F.2d at 596; cf. Theriot v. Whitley, 18 F.3d 311, 314 (5th
Cir. 1994) (finding no ineffective assistance when the record neither supports
nor refutes that counsel was aware of the defendant’s suicide attempt in jail).
      Given the statutory mandate that requires a hearing unless the record
“conclusively” rejects the habeas claim, 28 U.S.C. § 2255(b), district courts
cannot disbelieve specific, corroborated allegations like Avila’s without an
evidentiary hearing.    See Reed, 719 F.3d at 374.          Nothing in the record
contradicts the allegations—defense counsel did not submit any statements—
and they are based on the defendant’s own experiences, not speculation. See
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                                        No. 17-10145
id. 3 In similar cases, an evidentiary hearing was necessary to determine
whether counsel was alerted to investigate competency but did not do so
adequately. See Profitt, 831 F.2d at 1247; Bouchillon, 907 F.2d at 596. Such
a hearing would allow the district court to evaluate credibility and determine
if Avila actually informed his counsel in the way he has claimed or if counsel
did adequately investigate Avila’s competence.
       Avila must also demonstrate a reasonable probability that the court
would have found him incompetent. Otherwise, there is no prejudice. See
Harrington v. Richter, 562 U.S. 86, 104 (2011). The standard for competency
to waive counsel is the same as it is to stand trial. See Godinez v. Moran, 509
U.S. 389, 399–400 (1993). The defendant must have “sufficient present ability
to consult with his lawyers with a reasonable degree of rational understanding”
and have “a rational as well as factual understanding of the proceedings
against him.” Id. at 396 (quoting Dusky v. United States, 362 U.S. 402, 402
(1960)). In light of Avila’s testimony, corroborated by records from Hospital de
Jesús showing that he was hospitalized three times over a period of several
years (from 1993 up to 2009) for schizophrenia, paranoia, and delusions, it
cannot be “conclusively show[n]” without a hearing that no prejudice exists. 28
U.S.C. § 2255(b).
       Avila still has a long way to go to demonstrate that he was incompetent
at the time he waived counsel. He lacks a contemporaneous medical report
and even those suffering from serious mental conditions can be competent to
stand trial. Mays v. Stephens, 757 F.3d 211, 216 (5th Cir. 2014) (noting that a
“defendant can be both mentally ill and competent to stand trial”). But his



       3 One reason the district court rejected the allegation that counsel failed to investigate
was the court’s personal experience with these attorneys. But we have explained that trust
in prior experience lays a faulty foundation for rejecting such claims. See Reed, 719 F.3d at
374.
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                                 No. 17-10145
corroborated testimony is enough to warrant a hearing and factfinding related
to this claim.
                                     ***
      The decision of the district court is AFFIRMED IN PART and VACATED
and REMANDED IN PART for an evidentiary hearing to address the
ineffective assistance claim relating to counsel’s alleged failure to investigate
Avila’s competency to waive counsel.




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