                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  January 26, 2011
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 RALPH WRIGHT,

              Petitioner-Appellant,
                                                         No. 10-1511
 v.                                            (D.C. No. 1:08-CV-02253-CMA)
                                                          (D. Colo.)
 WARDEN ARELLANO, A.V.C.F.,
 C.D.O.C.; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

              Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Ralph Wright, a Colorado state prisoner proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his


      *
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel 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(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Wright is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr.

Wright has also filed a motion to proceed in forma pauperis on appeal.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr.

Wright’s application for a COA and dismiss his appeal. We also deny his motion

to proceed in forma pauperis.

                                BACKGROUND

      In 1999, Mr. Wright was convicted by a Colorado state court jury of one

count of distributing a controlled substance. In a subsequent proceeding, he was

adjudicated a habitual offender based on four previous offenses. Prior to

sentencing, and in response to a request by Mr. Wright’s sentencing counsel, the

trial court ordered a competency evaluation; the evaluation concluded that Mr.

Wright was competent to proceed to sentencing. The court subsequently

sentenced him to ninety-six years’ imprisonment. On direct appeal, the Colorado

Court of Appeals affirmed Mr. Wright’s conviction and sentence. See People v.

Wright, No. 02CA805, 2003 WL 22922450 (Colo. App. Dec. 11, 2003). The

Colorado Supreme Court denied his petition for certiorari. See Wright v. People,

No. 04SC54, 2004 WL 1965759 (Colo. Sept. 7, 2004).

      In 2005, Mr. Wright filed a post-conviction motion under Colorado Rule of

Criminal Procedure 35(c), challenging his conviction and sentence on multiple

grounds—including a claim that he was not competent to stand trial due to his use

of antipsychotic medication—which the state district court summarily denied.


                                         2
The Colorado Court of Appeals affirmed the denial on appeal, holding, inter alia,

that “the trial court did not abuse its discretion by failing to hold a competency

hearing based on defendant’s use of antipsychotic medication.” People v. Wright,

No. 05CA0407, at 8 (Colo. App. July 18, 2007) (unpublished order). The

Colorado Supreme Court denied certiorari review. See Wright v. People, No.

07SC933, 2008 WL 171063 (Colo. Jan. 22, 2008).

      In April 2009, Mr. Wright filed an application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of

Colorado. The application asserted three claims: (1) that his Sixth Amendment

right to a jury trial was violated because the state trial court “did not allow the

jury to hear [his] pleadings of incompetency during . . . trial”; (2) that he received

ineffective assistance of counsel because his trial attorney failed to seek a

competency hearing during the trial phase of the proceedings; and (3) that his due

process rights were violated because he was “mentally incompetent during [his]

trial” but the trial court failed to sua sponte hold a competency hearing. R. at

241–50 (Second Amended Application for Writ of Habeas Corpus, filed Apr. 9,

2009). Mr. Wright’s third claim (i.e., his due process claim) was based primarily

on statements that he made to the state trial judge during his Curtis advisement. 2

      2
            In People v. Curtis, the Colorado Supreme Court held that a
defendant’s waiver of his constitutional right to testify must be “voluntary,
knowing and intentional.” 681 P.2d 504, 514 (Colo. 1984). Under Curtis, if a
defendant wishes to waive his right to testify, a trial court must—on the record
                                                                       (continued...)

                                          3
Specifically, during that advisement, in response to the trial court’s inquiry as to

whether he had any questions regarding his right to testify, Mr. Wright stated:

             I really don’t even know. At the point I’m at, I don’t know right
             from wrong anymore. I’ve been sitting in this trial; I don’t know
             what’s going on, really, Your Honor. I really don’t know. I
             don’t know if I should testify or not. I haven’t discussed it. I
             just really don’t know what point in time this is, Your Honor.
             What I’m saying is to expedite the time, we can just go on and
             move forward with this, so—[w]ithout me testifying, I guess.
             And just whatever y’all have to do, do it, you know.

Trial Tr., 1999-4-15AM, at 344–45 (dated Apr. 15, 2009). After Mr. Wright

made these statements, the trial judge asked him some additional questions and

gave him the opportunity to confer with his attorney, after which Mr. Wright

waived his right to testify.

      In a June 2009 order, the district court dismissed claims one and two of Mr.

Wright’s habeas application on the ground that he had failed to exhaust these

claims at the state level, and therefore they were procedurally barred.

Subsequently, in a very thorough order issued in September 2010, the district

court denied Mr. Wright’s habeas application, holding that he had failed to

demonstrate that he was entitled to relief on his remaining due process claim.

Wright v. Arellano, No. 08-CV-02253-CMA, 2010 WL 3894139, at *7–10 (D.

Colo. Sept. 30, 2010). In denying Mr. Wright’s application, the district court



      2
       (...continued)
and out of the presence of the jury—advise the defendant of his rights and obtain
a waiver of the right to testify. Id. at 514–15.

                                          4
analyzed his competency claim both procedurally and substantively.

      As to Mr. Wright’s procedural competency claim, the district court

concluded that “he ha[d] failed to ‘establish that a reasonable judge should have

had a bona fide doubt as to his competence at the time of trial.’” Id. at *9

(quoting Gilbert v. Mullin, 302 F.3d 1166, 1180 (10th Cir. 2002)). The district

court likewise concluded that his substantive competency claim lacked merit.

Accordingly, the court held that Mr. Wright was “not entitled to habeas relief”

because the state court adjudication “did not result in a decision that was contrary

to, or involved an unreasonable application of, clearly established federal law, or

a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings.” Id. The district court also

refused to grant a COA because Mr. Wright “ha[d] not made a substantial

showing of the denial of a constitutional right.” Id. at *10.

                            STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336

(2003)). We will issue a COA only if the applicant “makes a ‘substantial showing

of the denial of a constitutional right.’” Clark, 468 F.3d at 713 (quoting 28

U.S.C. § 2253(c)(2)). Under this standard, “the applicant must show ‘that

reasonable jurists could debate whether (or, for that matter, agree that) the


                                          5
petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.’” United

States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). Put differently, “the applicant must show

that the district court’s resolution of the constitutional claim was either ‘debatable

or wrong.’” Id. (quoting Slack, 529 U.S. at 484). Our “inquiry does not require

full consideration of the factual or legal bases adduced in support of the claims,”

but rather “an overview of the claims” and “a general assessment of their merits.”

Miller-El, 537 U.S. at 336.

      Because the Colorado Court of Appeals decided Mr. Wright’s claim on the

merits, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

applies, and we must incorporate the Act’s “deferential treatment of state court

decisions . . . into our consideration of [Mr. Wright’s] request for [a] COA.”

Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, Mr.

Wright is entitled to federal habeas relief only if he can show that the state

court’s adjudication of the claim:

             (1) resulted in a decision that was contrary to, or involved an
             unreasonable application of, clearly established Federal law, as
             determined by the Supreme Court of the United States; or

             (2) resulted in a decision that was based on an unreasonable
             determination of the facts in light of the evidence presented in
             the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2); accord Phillips v. Workman, 604 F.3d 1202, 1209


                                           6
(10th Cir. 2010). When making our determination, “[w]e presume the factual

findings of the state court are correct unless the petitioner rebuts that presumption

by ‘clear and convincing evidence.’” Welch v. Workman, 607 F.3d 674, 684 (10th

Cir. 2010) (quoting 28 U.S.C. § 2254(e)(1)).

                                   DISCUSSION

      Before this court, Mr. Wright seeks a COA on his “procedural competency

claim” that his “[d]ue [p]rocess rights were violated because the trial court failed

to [sua sponte] hold a competency hearing” during trial. Aplt. Combined

Opening Br. and Application for COA at 2–3. 3 He argues that his statements of

confusion during his Curtis advisement created a doubt as to his competency to

stand trial, which in turn triggered the trial court’s duty to conduct a competency

hearing before proceeding further. In support of his argument, Mr. Wright cites

Miranda v. Arizona, 348 U.S. 436 (1996), for the proposition that his statements

of confusion “invoked” his due process rights and triggered the court’s duty to

stop the hearing immediately to evaluate his competency. See Aplt. Combined

Opening Br. and Application for COA at 3 (“Once his rights have been asserted

[through his statements during the Curtis advisement,] the proceedings should

have stopped to evaluate the Appellant’s competency at that time. The same

      3
             In other words, even though the district court evaluated Mr. Wright’s
due process claim procedurally and substantively, as well as in terms of the trial
phase and the sentencing phase, Mr. Wright only seeks a COA on the issue of
whether the trial court procedurally erred by failing to hold a competency hearing
during the trial phase.

                                          7
principle would apply as if he was invoking his Miranda rights or any other

right.”).

       Under Supreme Court case law, “[i]t is well established that the Due

Process Clause of the Fourteenth Amendment prohibits the criminal prosecution

of a defendant who is not competent to stand trial.” Medina v. California, 505

U.S. 437, 439 (1992) (citing Drope v. Missouri, 420 U.S. 162 (1975); Pate v.

Robinson, 383 U.S. 375 (1966)). In fact, “the right not to stand trial while

incompetent is sufficiently important to merit protection even if the defendant has

failed to make a timely request for a competency determination.” Cooper v.

Oklahoma, 517 U.S. 348, 354 n.4 (1996).

       In terms of procedural due process, the Supreme Court has “held that the

failure to observe procedures adequate to protect a defendant’s right not to be

tried or convicted while incompetent to stand trial deprives him of his due process

right to a fair trial.” Drope, 420 U.S. at 172 (citing Pate, 383 U.S. 375).

Although the Supreme Court has not “prescribe[d] a general standard with respect

to the nature or quantum of evidence necessary to require resort to an adequate

procedure,” id., it has held that a hearing is required where the evidence before

the trial judge raises a “bona fide doubt” as to a defendant’s competence. Pate,

383 U.S. at 385 (“Where the evidence raises a ‘bona fide doubt’ as to a

defendant’s competence to stand trial, the judge on his own motion must impanel

a jury and conduct a sanity hearing pursuant to [the Illinois competency statute at


                                          8
issue].”). See also Porter v. McKaskle, 466 U.S. 984, 985–86 (1984) (Marshall,

J., dissenting) (“It is settled that, if evidence available to a trial judge raises a

bona fide doubt regarding a defendant’s ability to understand and participate in

the proceedings against him, the judge has an obligation to order an examination

to assess his competency, even if the defendant does not request such an exam.”

(citing Drope and Pate); Drope, 420 U.S. at 172–73 (stating that the Pate Court

“noted that under the Illinois statute a hearing was required where the evidence

raised a ‘bona fide doubt’ as to a defendant’s competence”); United States v.

Newman, 733 F.2d 1395, 1400 (10th Cir. 1984) (“A trial court must order a

hearing to determine the defendant’s competency if information comes to the trial

court’s attention that raises a bona fide doubt about the defendant’s competency

to stand trial.” (citing Pate, 383 U.S. at 385)). The Supreme Court—providing

some guidance on the issue—has indicated that

              evidence of a defendant’s irrational behavior, his demeanor at
              trial, and any prior medical opinion on competence to stand trial
              are all relevant in determining whether further inquiry is
              required, but that even one of these factors standing alone may,
              in some circumstances, be sufficient. There are, of course, no
              fixed or immutable signs which invariably indicate the need for
              further inquiry to determine fitness to proceed; the question is
              often a difficult one in which a wide range of manifestations and
              subtle nuances are implicated.

Drope, 420 U.S. at 180.

       Regarding Mr. Wright’s competency to stand trial, the Colorado Court of

Appeals held that “the trial court did not abuse its discretion by failing to hold a


                                             9
competency hearing.” Wright, No. 05CA0407, at 8. In reviewing the state

appellate court’s decision, the federal district court concluded that, “[a]lthough

the record here demonstrates that Applicant indicated some confusion to the trial

court regarding the proceedings and his right to testify, . . . this isolated incident

is not sufficient to ‘establish that a reasonable judge should have had a bona fide

doubt as to [Mr. Wright’s] competence at the time of trial.’” Wright, 2010 WL

3894139, at *8 (quoting Gilbert, 302 F.3d at 1180). Accordingly, the district

court denied Mr. Wright’s § 2254 application, holding that the state court’s

refusal to conduct a competency hearing “did not result in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal

law, or a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings.” Id. at *9. We

agree. In particular, we are not aware of any relevant Supreme Court precedent

that would suggest that a contrary outcome is appropriate, and Mr. Wright has not

identified any such precedent.

      Mr. Wright’s sole argument before this court—based on Miranda v.

Arizona—is unavailing. As stated above, Mr. Wright argues that his statements

during the Curtis advisement “invoked” his due process rights, thereby triggering

the district court’s duty to “stop[] [the trial] to evaluate the Appellant’s

competency at that time.” Aplt. Combined Opening Br. and Application for COA

at 3. He claims that the district court’s failure to conduct a hearing in this case


                                           10
constitutes a “well established due process violation” under Miranda. Id.

Contrary to Mr. Wright’s suggestion, however, the Supreme Court has not

extended its holding in Miranda to apply, in any sense, to a trial court’s failure or

refusal to conduct a competency hearing. Thus, the principle of federal law that

Mr. Wright advances is not “clearly established” federal law with regard to his

due process challenge. See 28 U.S.C. § 2254(d)(1). As we have explained:

             [C]learly established law consists of Supreme Court holdings in
             cases where the facts are at least closely-related or similar to the
             case sub judice. Although the legal rule at issue need not have
             had its genesis in the closely-related or similar factual context,
             the Supreme Court must have expressly extended the legal rule
             to that context.

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (alteration in original).

“The absence of clearly established federal law is dispositive under

§ 2254(d)(1).” Id. at 1018. Accordingly, Mr. Wright has not “show[n] that the

district court’s resolution of [his] constitutional claim was either ‘debatable or

wrong.’” Taylor, 454 F.3d at 1078 (quoting Slack, 529 U.S. at 484).

                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. Wright’s application for a COA

and DISMISS his appeal. We also DENY his motion to proceed in forma

pauperis, as he has not demonstrated “the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.” Watkins

v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole



                                          11
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)) (internal quotation marks omitted).




                                     ENTERED FOR THE COURT


                                     Jerome A. Holmes
                                     Circuit Judge




                                       12
