                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                               JUL 17 1997
                                        TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 CHRISTOPHER JAMES WILSON,

           Petitioner - Appellant,
 vs.                                                         No. 97-6037
                                                        (D.C. No. 96-CV-1143)
 EDWARD L. EVANS; ATTORNEY                                   (W.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

           Respondents - Appellees.


                                     ORDER AND JUDGMENT*


Before BRORBY, EBEL, and KELLY, Circuit Judges.**


       Mr. Wilson, appearing pro se, appeals from the denial of his habeas corpus

petition, 28 U.S.C. § 2254, and seeks a certificate of probable cause, now termed a

certificate of appealability, 28 U.S.C. § 2253(c). Mr. Wilson was convicted of arson and

sentenced to fifty-five years imprisonment. The magistrate judge recommended denial of


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
the petition, Mr. Wilson responded with four objections, and the district court adopted the

magistrate’s recommendation with supplementary analysis. On appeal, Mr. Wilson

contends that his counsel was ineffective at trial and on appeal for failing to investigate

and raise his competency to stand trial. See Aplts. Br. in Support of Certificate of

Probable Cause filed Mar. 3, 1997 at 3, (5)A. He also contends that counsel was

ineffective in failing to investigate prior felony convictions used to enhance his sentence.

Id. at (5)B. The latter issue has been waived due to a failure to object to the magistrate’s

report and recommendation on that issue. See Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991).

       To prevail on an ineffectiveness claim, a petitioner must prove that counsel’s

performance fell below an objective standard of reasonableness and that he was thereby

prejudiced--but for counsel’s errors, there is a reasonable probability that the outcome

would have been different. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The

district court rejected the ineffectiveness claim on both performance and prejudice

grounds. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

       Competence to stand trial requires a defendant have “sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding” and “a

rational as well as factual understanding of the proceedings against him.” Dusky v.

United States, 362 U.S. 402, 402 (1960). Trial of an incompetent defendant violates

substantive due process, while the failure to hold a competency hearing given a genuine,


                                             -2-
reasonable doubt about competency violates procedural due process. Cooper v.

Oklahoma, 116 S. Ct. 1373, 1376 (1996); United States v. Williams, 113 F.3d 1155,

1160-61 (10th Cir. 1997); Sena v. New Mexico State Prison, 109 F.3d 652, 654 (10th Cir.

1997). Factors indicating a competency hearing may be required include any irrational

behavior, unusual trial demeanor and prior medical opinion regarding competence to

stand trial. Williams, 113 F.2d at 1159.

       In support of his ineffectiveness claim, Mr. Wilson relies upon various medical

records tending to show (1) a history of psychological counseling in connection with prior

offenses, (2) two suicide attempts, one of which occurred after the crime, but prior to

trial, (3) requests for medical attention while in the county jail for chronic back pain and

depression. He also contends that at the time of the crime and prior to sentencing he was

on medication.

       We are in agreement with the independent conclusions of both the magistrate

judge and the district court that, based upon the record, there is nothing to create

reasonable doubt as to Mr. Wilson’s ability to consult with his lawyer in a rational manner

with the requisite legal and factual understanding of the proceedings. Nothing suggests

incompetency. As described in the medical records, the depression, substance abuse, and

difficulty with interpersonal relations experienced by Mr. Wilson did not impair his

cognitive abilities vis-a-vis his arson trial. We do not believe that a prescription drug

overdose prior to trial (Mr. Wilson apparently denied it was a suicide attempt at the


                                             -3-
time), either alone or in combination with other the factors alleged, create reasonable

doubt as to his competency. See Drope v. Missouri, 420 U.S. 162, 180 (1975). Mr.

Wilson has not cited any bizarre or questionable conduct on his part during trial, or

difficulty in consulting with counsel, or a prior competency determination, that might

suggest a need for counsel to investigate competency. See Williams, 113 F.3d at 1157-

59; Williamson v. Ward, 110 F.3d 1508, 1519 (10th Cir. 1997).

         We GRANT Mr. Wilson a certificate of appealability on the competency issue, 28

U.S.C. § 2253(c)(2) & (3), construe his “Motion” filed Apr. 16, 1997 as a motion to

supplement his brief on appeal and GRANT it, and AFFIRM the judgment of the district

court.



                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




                                            -4-
