                                                                        FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                      December 22, 2005
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                        Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-6240
 v.
                                                  (D.C. No. CR-02-124-T)
                                                         (D. Okla.)
 MARIAMMA J. PHILIPOSE,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, HOLLOWAY, and LUCERO, Circuit Judges.


      Mariamma Philipose appeals the district court’s denial of her § 2255 habeas

petition. She argues that she was denied effective assistance of counsel in

connection with her decision to plead guilty to making a false statement to obtain

federal employee’s compensation. Because her counsel’s performance did not fall

below an objective standard of reasonableness, we AFFIRM the district court’s

decision denying Philipose habeas relief.




      *
        This order and judgment is not binding precedent, except under the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.
                                           I

      Philipose severely injured her back while working as a nurse at the V.A.

Hospital. On July 6, 1980, Philipose attempted to lift a patient out of bed when

she lost her balance and struck her back against a wall heater. Increasing pain

and a failed back surgery forced her to work only sporadically until 1984, when

Philipose’s doctors determined that she was no longer able to work at all.

Philipose subsequently endured three more failed surgeries, after which her

primary treating physician determined that she “could not stand, walk, or sit,

without some change in position, for more than 20 to 30 minutes at a time,” and

that Philipose “could not lift, bend or stoop.” As a result of her total disability

stemming from a personal injury incurred while performing duties as a federal

employee, Philipose collected compensation from the United States government.

      Dr. Wade McCoy, a family practitioner, began treating Philipose for her

constant pain. He became increasingly concerned with Philipose’s mental health,

as Philipose reported suffering from suicidal ideation. In response, Dr. McCoy

recommended that Philipose “try to be with family as much as possible . . . that

she be in the store, that she owns a retail shop in Bethany, if possible, that she go

to the store and, at least for part of the day, be there in the store . . . .” Philipose

and her husband owned two stores located on the same street and, in response to

Dr. McCoy’s recommendation, Philipose began spending time in these

establishments.

                                           -2-
      Suspecting that Philipose was performing some duties at her family’s stores,

the FBI and the U.S. Department of Labor Office of Inspector General launched an

undercover operation in March 1998. The record reveals that on July 7, 1998, an

undercover law enforcement officer purchased a pair of “scrub pants” from

Philipose, that a series of undercover agents posed as customers over a one-year

period, and that Philipose “had helped several agents who had come to the store.”

      On May 4, 1999, Philipose filled out Form 1032. By completing and

sending this form to the Department of Labor (“DOL”), benefits recipients comply

with federal regulations requiring them to disclose to the DOL any employment

compensation they have received. Philipose truthfully reported that she had not

received any compensation. Form 1032 also requires disclosure of any

employment, self-employment, volunteer work, and any involvement in a business

enterprise for the preceding fifteen months. Philipose indicated on Form 1032 that

she had not performed any work over the covered period of time.

      In January 2000, four federal agents appeared at one of Philipose’s stores.

Two agents took Philipose aside for questioning and the other two agents began

questioning a store employee. According to the employee’s affidavit, she felt

“very threatened” by the agents’ questioning. For example, after the employee

stated that Philipose’s husband, and not Philipose, managed the store’s accounts

and deposited money in the bank, the agents allegedly said: “You had better be

careful because Mary is in serious trouble and you don’t want to get into serious

                                        -3-
trouble by lying” and “we have been watching her for a long time and today we

watched her walk between the uniform store and the clothing store.” The

employee acknowledged that on occasion, Philipose “rang up a sale or sacked

clothes.” In response to questioning by the other two agents, Philipose admitted

that she occasionally completed sales at a cash register, drove from the store to her

house, and made bank deposits for the stores.

      Aware that she was the subject of a serious federal criminal investigation,

Philipose retained Mark Blasdel as counsel. Blasdel had extensive experience as a

state prosecutor and criminal defense attorney. He met numerous times with

Philipose and extensively reviewed her medical history and the facts surrounding

her activities at the stores. Blasdel interviewed Philipose’s husband and store

employees. After securing affidavits from the employees, he submitted them to

the U.S. Attorney’s Office in advance of several meetings that he had with

prosecutors to discuss the investigation. He also provided prosecutors with

Philipose’s medical records and letters from physicians, and on one occasion

brought one of Philipose’s treating physicians with him to meet with prosecutors.

Blasdel presented a compelling case to the U.S. Attorney’s Office that Philipose

was functionally incapable of working at her family’s stores.

      Despite Blasdel’s efforts, prosecutors informed him that they were

contemplating filing four felony charges against Philipose. Blasdel entered plea

negotiations and secured an offer from the government that would allow Philipose

                                         -4-
to plead guilty to a single misdemeanor charge – making a false statement to

obtain federal employee’s compensation. 18 U.S.C. § 1920. After receiving the

government’s offer, Blasdel met for several hours on numerous occasions with

Philipose, her husband, and her son (a chiropractor) to discuss the possibility of

pleading guilty. They discussed the facts of the case, possible defenses, the risk of

trial, and the benefits and detriments of pleading guilty to the misdemeanor. As a

result of these conversations, Philipose decided to accept the plea offer.

      With the assistance of Blasdel, Philipose completed a Petition to Enter a

Plea of Guilty. On this form, Philipose answered that she has “been under the care

of a doctor or under treatment for a mental or emotional condition,” and elaborated

that she was being treated for “pain management.” She represented that she had

enough time to speak with Blasdel about her case and that she was satisfied with

his representation. She indicated an understanding of the rights that she was

waiving by pleading guilty and of the sentence exposure that she faced. In her

own words, she stated that she “did the act charged,” specifically representing: “I

made a statement on the Federal Workers Compensation form that I was not

working when I was.”

      During the plea colloquy before the district court, Philipose stated that she

had consulted with Blasdel to her satisfaction about the consequences of pleading

guilty. She indicated an understanding of her right to a jury trial and a right to

indictment and waived those rights. After approving the waiver of her jury trial

                                         -5-
and indictment rights, the court began to question her about the factual basis for

her plea. Philipose affirmed that the statements on her Petition to Enter a Plea of

Guilty were her own words. To further satisfy itself that there was a factual basis

for the plea, the court asked the prosecution to question Philipose under oath. In

response to the prosecution’s inquiries, Philipose affirmed that she had denied on

Form 1032 having worked in the preceding fifteen months, that she was in fact

“doing work in that 15 month period,” that her “answer was false on the form,”

that she “knew that it wasn’t true and . . . signed it knowing it wasn’t true,” and

that she did so knowingly and willfully. The court accepted her guilty plea. At

sentencing, Blasdel spoke effectively on Philipose’s behalf and requested that the

court impose the most lenient sentence available. The court agreed and sentenced

Philipose to a two-year term of probation and ordered her to make restitution to

the government.

      Although Philipose did not directly appeal her sentence, she retained new

counsel and timely filed a 28 U.S.C. § 2255 petition to vacate, modify, or set aside

her sentence, arguing that she received ineffective assistance of counsel in

connection with the entry of her plea. The government sought summary dismissal

of the petition, arguing that the plea agreement into which Philipose entered

contains an express waiver of the right to appeal or to collaterally attack the plea.

The plea agreement specifically provides: “defendant in exchange for the

promises and concessions made by the United States in this plea agreement,

                                          -6-
knowingly and voluntarily waives her right to appeal or collaterally challenge

Defendant’s guilty plea and any other aspect of her conviction, including but not

limited to any rulings on pretrial suppression motions or any other pretrial

dispositions of motions and issues.” Because Philipose attacked her plea on the

basis of ineffective assistance of counsel, the court denied the government’s

motion relying on our ruling that “a plea agreement waiver of postconviction

rights does not waive the right to bring a § 2255 petition based on ineffective

assistance of counsel claims challenging the validity of the plea or the waiver.”

United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).

      The court proceeded to consider Philipose’s claim that she was denied

effective assistance of counsel. At a hearing on the matter, Philipose presented

testimony from Dr. McCoy and from Gene Hawkins, a psychologist and pain

management specialist who treated her at the time of her plea. Dr. McCoy

testified that he had no contact with Blasdel during the time that he represented

Philipose. He further stated that at the time Philipose entered her plea, “her ability

to make a rational decision and understand the consequences of that decision were

greatly impaired.” Hawkins testified that McCoy referred Philipose to him for

treatment in February 2002, three months before Philipose agreed to plead guilty.

He diagnosed her as suffering from posttraumatic stress disorder, a condition

which left her with “an indifference about life and what’s going to happen to

[her].” In response to the question, “would you treat with some suspicion or

                                         -7-
skepticism her having entered a knowing, voluntary, and rational decision to enter

a plea in this case,” Hawkins answered, “I would.”

      Blasdel testified about the course of his representation of Philipose. He

stated that he had no problem communicating with her and although she often was

in pain during their meetings, “she wasn’t totally preoccupied with her pain.” In

his view, Philipose understood the risks of proceeding to trial and the costs and

benefits of pleading guilty. During their conversations “she was on little, if any,

medication, maybe minimal medication.” Although Philipose informed Blasdel

that she was being treated by a psychologist for pain management, Blasdel never

perceived her level of pain as rendering her incompetent. He emphasized several

times in his testimony that he never suspected that she was incompetent to proceed

with a guilty plea.

      On consideration of the evidence, the district court denied Philipose’s

§ 2255 petition. The court found that Blasdel diligently investigated Philipose’s

defense and “consistently offered effective assistance.” Moreover, given that

neither Philipose, her husband, nor her son ever “suggested that her pain level

affected her ability to think rationally or her competency to make decisions,” that

neither Dr. McCoy nor Hawkins “raised any question or concern on her behalf”

despite their knowledge that she was facing federal criminal charges, and that

Blasdel consistently considered Philipose’s communication and demeanor as

consistent with competence, the court found that “[t]he evidence does not support

                                         -8-
defendant’s claim that Mr. Blasdel should have contacted Dr. McCoy and Dr.

Hawkins prior to discussing the plea agreement with the defendant.” Based on

these findings, the court ruled that Blasdel provided Philipose with effective

assistance. Having rejected Philipose’s ineffective assistance of counsel claim, the

court did not rule on whether Philipose was incompetent to enter a plea of guilty.

The district court denied Philipose’s application for a certificate of appealability

(“COA”), concluding that “her claim of ineffective assistance of counsel does not

satisfy the standards and requirements of Strickland v. Washington, 466 U.S. 668

(1984); reasonable jurists could not debate that conclusion.”

      Her application for a COA having been denied below, Philipose sought a

COA from this court. We granted a COA “on the two issues . . . pertaining to

ineffective assistance of counsel,” namely whether Philipose “was denied effective

assistance of trial counsel in connection with the plea agreement both because

counsel failed to consult her doctors regarding her competency and because the

evidence in the case overwhelmingly demonstrated that she was not guilty.” These

are the sole issues before us: (1) did Blasdel render ineffective assistance by

failing to consult with Philipose’s doctors regarding her competency and (2) did

Blasdel render ineffective assistance by pressuring Philipose to plead guilty even

if overwhelming evidence demonstrated that she was not guilty? 1


      1
       Philipose’s petition was filed after April 24, 1996, the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result,

                                          -9-
                                         II

      On appeal of the denial of habeas relief, this court reviews factual findings

for clear error and legal determinations de novo. Romero v. Tansy, 46 F.3d 1024,

1028 (10th Cir. 1995). To prevail on her ineffective assistance of counsel claim,

Philipose must prove that Blasdel’s representation fell below an objective standard

of reasonableness and that his deficient representation prejudiced her defense.

Strickland v. Washington, 446 U.S. 668, 687-88 (1984). “There is a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir.

2002) (quotation omitted). Philipose argues that Blasdel rendered ineffective

assistance in two ways: by failing to contact her doctors to inquire into her mental

state and by pressuring her to plead guilty in order to “dump the case.” After

careful review of the record, we have determined that Blasdel’s representation did

not fall below an objective standard of reasonableness.

      Because Phillipose indicated on her Petition to Enter a Plea of Guilty that

she has “been under the care of a doctor or under treatment for a mental or

emotional condition,” and elaborated that she was being treated for “pain



AEDPA’s provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278,
1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
AEDPA conditions a petitioner’s right to appeal a denial of habeas relief under
§ 2255 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(B). Although Philipose
seeks to argue on appeal that her plea was invalid because she was incompetent to
enter a plea of guilty, we have not granted a COA on that issue.

                                        -10-
management,” she argues that it constituted ineffective assistance for Blasdel not

to contact her psychologist to inquire into her competency to plead guilty. We

disagree. 2 Blasdel encountered a client who was well educated and demonstrated

no difficulty in communicating with him about the case or the decision to plead

guilty. He met with her, her husband, and her son numerous times and clearly

explained the process of entering a guilty plea and the details of the plea

agreement. At no point did anyone, including Philipose’s doctors or her

chiropractor son, express to Blasdel a concern over Philipose’s competence.

Philipose herself supplied the answers in the petition and indicated on several

occasions that she understood the implications of pleading guilty and desired to do

so. Philipose was on little or no pain medication during her meetings with

Blasdel, and although Blasdel perceived that she was in pain, the pain never

seemed to distract her from their conversation. Given this context, the mere fact

that Philipose informed Blasdel that she was being treated for pain management




      2
        Philipose cites to McLuckie v. Abbott, 337 F.3d 1193, 1199 (10th Cir.
2003), for the proposition that “[w]here a lawyer has actual or constructive
knowledge of the mental state of his client, he has a duty to investigate.”
Appellant’s Br. at 11. McLuckie does not stand for such a broad proposition.
Rather, McLuckie held that counsel rendered ineffective assistance in a first-
degree murder case by failing to investigate and present a mental health defense
to the crime charged where there was significant evidence that the defendant
lacked the requisite mens rea. McLuckie’s holding is irrelevant to the question
presented in this case.

                                         -11-
did not impose on him a duty to seek an expert opinion as to her competence to

plead guilty. 3

       Philipose also argues that Blasdel “had become tired of the case or had an

aversion to committing himself to the total representation of this person’s interests

and was looking to ‘dump the case.’” Appellant’s Br. at 13. She asserts that

Blasdel possibly recognized “the psychologic problems of his client and chose to

simply ignore them” because “if he discovered that she was not able to enter a plea

then his ‘dump the case’ plan would have been derailed.” Id. In sum, she argues




       3
         The record contains no evidence that at the time she pled guilty, Philipose
exhibited signs of legal incompetence such that Blasdel should have suspected
that his client lacked sufficient competency. “[T]he test of mental competency at
the time of trial or the entering of a plea in a criminal case is whether the accused
‘has sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding – and whether he has a rational as well as factual
understanding of the proceedings against him.’” Fields v. Gibson, 277 F.3d 1203,
1215 n.7 (10th Cir. 2002) (quoting Dusky v. United States, 362 U.S. 402, 402
(1960)). “The presence of some degree of mental disorder in the defendant does
not necessarily mean that he is incompetent to knowingly and voluntarily enter a
plea . . . .” Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995) (quotation
omitted). Although Dr. McCoy testified that at the time Philipose entered her
plea, “her ability to make a rational decision and understand the consequences of
that decision were greatly impaired” and Hawkins agreed with the statement that
he would “treat with some suspicion or skepticism her having entered a knowing,
voluntary, and rational decision to enter a plea in this case,” this testimony does
not demonstrate that Philipose lacked the ability to consult with Blasdel with a
reasonable degree of rational understanding or that she lacked a rational
understanding of the proceedings against her. See, e.g., Dorsey, 61 F.3d at 1474
(“Petitioner’s history of mental problems, low intelligence, psychotropic
medication, and substance abuse do not establish that he was incompetent to
plea.”).

                                         -12-
that Blasdel was not committed to representing Philipose and pressured her to

plead guilty to terminate the representation.

      The record, however, paints a very different picture. Blasdel conducted a

thorough investigation of the case, including meeting with Philipose, her family,

and store employees. Following extensive interviews with store employees, he

secured affidavits from them that he submitted to the government. He combed

through Philipose’s voluminous medical records and presented compelling

evidence to the government that Philipose was incapable of working. To

supplement this evidence, he brought one of her treating physicians with him

during one of his many meetings with the U.S. Attorney’s Office. When it became

apparent that the government would go forward with the prosecution on four

felony counts, Blasdel negotiated a plea to a one count misdemeanor charge.

Although Blasdel had amassed significant evidence to defend his client at trial,

there was a real possibility that Philipose would be convicted based on the

evidence yielded by the government’s undercover operation and its interviews with

Philipose and store employees. Under the circumstances, it was not unreasonable

for Blasdel to explore a plea agreement with his client. See Strickland, 466 U.S.

at 689 (“Strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable”).

      He met extensively with Philipose and her family to discuss the plea

agreement, and Philipose repeatedly stated under oath – both in written form and

                                         -13-
orally – that she understood the implications of pleading guilty, that she

committed the crime charged, and that she was satisfied with Blasdel’s

representation of her. At sentencing Blasdel gave an impassioned defense of his

client and helped secure a sentence of probation. The record clearly demonstrates

that Blasdel’s representation did not fall below an objective standard of

reasonableness. Id. at 687.

       In reaching this conclusion, we do not implicate the government’s decision

to target Philipose for investigation or its decision to prosecute her. We merely

hold that in not gambling with a four count felony indictment, and in obtaining for

his client an agreement from the government to accept a plea to a single

misdemeanor charge and no incarceration, Philipose’s attorney did not render

ineffective assistance.

                                         III

      Because Philipose has failed to show that Blasdel’s representation fell below

an objective standard of reasonableness, we conclude that she did not receive

ineffective assistance of counsel in connection with her plea of guilty. We

AFFIRM the decision of the court below denying Philipose’s § 2255 motion and

DISMISS this appeal.


                                       ENTERED FOR THE COURT

                                       Carlos F. Lucero
                                       Circuit Judge

                                         -14-
No. 04-6240, United States v. Philipose
HOLLOWAY, Circuit Judge, dissenting:

      I respectfully dissent. The Order and Judgment of the majority thoroughly

discusses the evidence and authorities pertaining to the ruling on appeal, the denial

of Defendant Philipose’s motion under 28 U.S.C. § 2255 to set aside her plea and

sentence. The basic issue raised by this appeal from that ruling is whether the

Defendant was denied the constitutionally guaranteed effective assistance of

counsel. I must disagree with the majority’s conclusion that Defendant received

effective assistance of counsel.

      The longstanding test for determining the validity of a guilty plea is

“whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the Defendant.” 1 North Carolina v. Alford,

400 U.S. 25, 31 (1970); see Boykin v. Alabama, 395 U.S. 238, 242 (1969);

Machibroda v. United States, 368 U.S. 487, 493 (1962). The Defendant asserts

that her guilty plea was not a voluntary and intelligent choice because she lacked

the competency to make the rational decision necessary to enter into the plea.

Defendant’s counsel failed to investigate her mental health status despite his

knowledge of seriously disturbing circumstances about Defendant’s mental health.


      1
         Although this court has not granted a Certificate of Appealability (COA)
on the issue of whether Defendant’s plea was invalid because she was
incompetent, Defendant’s competency is directly relevant to the issue on which
we have granted a COA: whether she received ineffective assistance of counsel.
This is because even if counsel’s performance fell below an objective standard of
reasonableness, Defendant would not be prejudiced unless she indeed lacked
competency at the time she entered into the plea.
I am convinced that Defendant demonstrates that she received ineffective

assistance of counsel due to counsel’s failure to properly investigate her mental

status before conferring with her as to the advisability of entering a guilty plea.

      It is uncontroverted that Defendant’s then counsel, Mr. Blasdel, knew that

Defendant was under the care of a psychologist at the time Defendant entered into

the plea agreement. Defendant’s psychologist, Doctor Hawkins’s, name was

written in the change of plea petition. See Transcript of April 29, 2004

proceedings at 51. In response to Question 5 in the form which asks “Have you

ever been under the care of a doctor or under treatment for a mental or emotional

condition?,” the answer “yes” was marked. Id. Counsel also knew that Defendant

had been under the care of Doctor McCoy, Defendant’s then treating general

physician. Counsel admitted on cross examination that he was aware of the

existence of Doctor McCoy and a document from the Oklahoma Diagnostic

Imaging Company, which was reviewed by counsel, shows Doctor McCoy’s name

as the referring physician. Id. at 58. Doctor McCoy had referred Defendant to

Doctor Hawkins because of concern about Defendant’s suicidal tendencies.

Despite his knowledge that Defendant was being treated by Doctors McCoy and

Hawkins, counsel did not make any effort to contact these health care

professionals or to receive any medical information from them.




                                          -2-
      In representing Defendant in the underlying case, counsel contacted and

reviewed medical evidence from some of Defendant’s physicians. 2 However, he

did not contact or review medical evidence from Doctors McCoy and Hawkins.

We, therefore, must decide whether it was reasonable for counsel to fail to contact

these health care professionals before conferring with the Defendant on the

advisability of entering a plea of guilty.

      As the majority notes, there is a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance. Romano v.

Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002). However, the presumption is not

an absolute bar to a finding of ineffective assistance of counsel. A Defendant can

sustain a claim of ineffective assistance of counsel if she is able to prove: (1) that

counsel’s representation fell below an objective standard of reasonableness, and

(2) that counsel’s deficient representation prejudiced her defense. See Strickland

v. Washington, 466 U.S. 668, 687-88 (1984). At the same time, “counsel has a

duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Id. at 691.         In Strickland, the

Supreme Court considered a similar claim as the one here. Defendant claimed



      2
         The record shows that counsel reviewed medical evidence from Doctors
Brent Tipton and Nathan Bradley who apparently at different times had treated
Defendant. Id. at 43. Counsel also reviewed medical evidence from Doctor Jeff
Pardee, the federal workers compensation doctor that reviewed Ms. Philipose’s
condition. Id.

                                             -3-
ineffective assistance of counsel because counsel did not seek more character or

psychological evidence than was already before the trial court. The Court rejected

Defendant’s claim because it found that “counsel made a strategic choice to argue

for the extreme emotional distress mitigating circumstance and to rely as fully as

possible on [Defendant’s] acceptance of responsibility for his crimes.” Id. at 699.

The Court held that trial counsel could reasonably surmise from his conversations

with Defendant that character and psychological evidence would be of little help.

Id. “Restricting testimony on [Defendant’s] character to what had come in at the

plea colloquy ensured that contrary character and psychological evidence and

[Defendant’s] criminal history, which counsel had successfully moved to exclude,

would not come in.” Id. As a result, the Court concluded that trial counsel’s

defense was the result of reasonable professional judgment.

      In the present case, it would be reasonable for counsel not to contact

Doctors McCoy and Hawkins if it was not necessary to contact them or the

decision not to do so was the result of a strategic choice. There is, however, no

evidence in the record to show that it was either unnecessary for counsel to contact

these health care professionals or that counsel made a strategic choice not to do so.

      Doctor McCoy advised Defendant to spend some time in the family store

because of his concern about Defendant’s suicidal ideation. See Transcript of

April 29, 2004 proceedings at 26. Since Defendant was charged because of her

alleged work in the family store, it would seem necessary for counsel to have

                                         -4-
contacted Doctor McCoy to understand the basis for his advice to Defendant.

Similarly, nothing in the record suggests that it was not necessary for counsel to

contact Doctor Hawkins after he knew that Defendant was being treated by Doctor

Hawkins for a mental health condition. On the contrary, it appears that counsel

did not pay attention to the implication of his client being treated by a

psychologist for a mental health condition. 3 By the time of the underlying plea

proceedings in this case, Defendant’s condition had progressed beyond mere

physical illness and pain to psychological and mental problems. 4 Had counsel

contacted Doctor McCoy or Doctor Hawkins he would have discovered this fact

casting doubt on Defendant’s competency to enter into a plea.

      In addition, counsel’s failure to contact these health care professionals did

not result from a strategic choice. Nothing suggests that evidence from Doctor


      3
         Although Defendant provided information to counsel that she was being
treated by Doctor Hawkins for a mental health condition, counsel did not seek to
know more about Defendant’s mental health status from Defendant. On direct
examination during the § 2255 evidentiary hearing, counsel, Blasdel, stated that
he did not feel that Defendant’s pain management could affect Defendant’s
competence even after he knew that Defendant was being treated for a mental
health condition. Transcript at 51. This suggests that Blasdel’s failure to contact
Doctor Hawkins did not result from due consideration of the importance of this
fact.
      4
          The majority opinion misses this point and concentrates on counsel’s
initial conduct in reviewing the medical evidence from some of Defendant’s
doctors. The opinion fails to articulate why counsel’s knowledge that Defendant
was being treated for a mental health condition at the time of the plea proceedings
should not have raised counsel’s curiosity and interest to investigate Defendant’s
mental health status.

                                          -5-
McCoy or Doctor Hawkins could have been harmful to Defendant’s underlying

case. Indeed, as mentioned above, counsel did not know the evidence they had

and whether the evidence could have assisted or prejudiced Defendant’s case.

Moreover, neither Defendant nor her relatives suggested to counsel that it was

unnecessary to contact these health care professionals. 5 In short, despite his


      5
        Counsel’s conduct may be reasonably influenced by the actions or
statements of a client. In Strickland, the Supreme Court noted:

          The reasonableness of counsel's actions may be determined or
          substantially influenced by the defendant's own statements or actions.
          Counsel's actions are usually based, quite properly, on informed
          strategic choices made by the defendant and on information supplied
          by the defendant. In particular, what investigation decisions are
          reasonable depends critically on such information. For example,
          when the facts that support a certain potential line of defense are
          generally known to counsel because of what the defendant has said,
          the need for further investigation may be considerably diminished or
          eliminated altogether. And when a defendant has given counsel
          reason to believe that pursuing certain investigations would be
          fruitless or even harmful, counsel's failure to pursue those
          investigations may not later be challenged as unreasonable. In short,
          inquiry into counsel's conversations with the defendant may be
          critical to a proper assessment of
          counsel's investigation decisions, just as it may be critical to a proper
          assessment of counsel's other litigation decisions.

Strickland at 691 (internal citations omitted). In the present case, nothing
suggests that Defendant led counsel to believe that it was unnecessary to contact
Doctor McCoy or Doctor Hawkins. Nor is there any evidence to suggest that
Defendant gave counsel reason to believe that it would be fruitless to contact the
doctors or that information from them would be detrimental to her case.
       The majority asserts that counsel thoroughly investigated Defendant’s case.
However, this is not supported by the record. Although counsel reviewed the
records of some of Defendant’s physicians, he did not contact Doctors McCoy
and Hawkins who were at the time treating Defendant for both pain and mental

                                             -6-
knowledge of these medical professionals, counsel unreasonably failed to contact

them.

        The majority concludes that Defendant did not receive ineffective assistance

of counsel because counsel’s performance did not fall below an objective standard

of reasonableness. However, the majority provides no explanation why counsel’s

duty to investigate in this case was unnecessary or the result of a strategic choice.

Instead, the majority asserts that Defendant failed to apprise counsel of the details

of her mental status, notwithstanding that counsel was aware that Defendant was

being treated for a mental health condition. According to the majority:

        Blasdel encountered a client who was well educated and demonstrated
        no difficulty in communicating with him about the case or the decision
        to plead guilty. He met with her, her husband, and her son numerous
        times and clearly explained the process of entering a guilty plea and the
        details of the plea agreement. At no point did anyone, including
        Philipose’s doctors or her chiropractor son, express to Blasdel a concern
        over Philipose’s competence.

See Order and Judgment at 11. The majority therefore implies that a Defendant

has the duty to inform counsel of the details of Defendant’s mental status, even

though such information could easily be gathered from Defendant’s mental health

professional.




health problems. More importantly, his omission of contact with Doctor McCoy
ignored the fact that Doctor McCoy was the doctor that advised Defendant to
spend some time in the family store, the reason for which she was charged. An
assertion of thoroughness should require review of the records from Doctors
McCoy and Hawkins since counsel knew about them.

                                           -7-
      In view of the fact that counsel here was aware that Defendant was being

treated for a mental health condition, the “education” or the ability of Defendant to

“communicate” should not be relevant to counsel’s decision to investigate

Defendant’s mental status. In many cases of incompetency, Defendant will be

well educated and can communicate and that fact should not obviate counsel’s

duty to investigate, especially after counsel knows that his client is being treated

for a mental health condition. A criminal defense lawyer should know that when a

client is being treated for a mental health condition, the client may not be the

source of authority for the client’s condition or basis of treatment.

      Similarly, the failure of Defendant’s son and doctors to express concern

about Defendant’s competency should not be of any significance in this case.

Counsel knew here that Defendant was being treated for a mental health condition.

A Defendant provides the names of her treating physicians and mental health

professionals to a lawyer so that the lawyer can evaluate the information from the

professionals and make the judgment on case strategy. As Strickland makes clear,

counsel has the duty to investigate. Strickland at 691 (“counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary”). Defendant’s doctors have no such duty and indeed

may not provide any information to counsel or the court, without the permission of

the client, in light of the physician-patient privilege.




                                           -8-
      Even though counsel knew that Defendant was being treated for a mental

health condition, he failed to contact Defendant’s treating mental health

professional before advising Defendant to enter into a plea. Counsel did not

carefully evaluate the importance of the fact that Defendant was receiving mental

health treatment. It was not unnecessary for counsel to contact Doctor Hawkins

and counsel should not have relied on his untrained, non-medical judgment to

conclude that Defendant’s pain management could not affect her competency.

Counsel’s failure to investigate Defendant’s mental health status did not result

from a strategic choice or out of consideration that evidence from Doctor Hawkins

would be harmful to Defendant’s case. Accordingly, it was unreasonable for

counsel not to investigate Defendant’s mental health status before conferring with

her on the advisability of entering into a plea.

      During the evidentiary hearing, Doctor McCoy and Doctor Hawkins

presented the picture of a disturbed, traumatized and incompetent patient who

could not reasonably evaluate the consequences of entering into a plea. Doctor

Hawkins testified that Defendant suffered from post traumatic stress disorder. See

Transcript of April 29, 2004 proceedings at 5. According to Doctor Hawkins, this

made Defendant indifferent about life, Id. at 6, and disinterested in the

consequences of things. Id. at 7. Doctor Hawkins testified that Defendant was

self-destructive. Id. at 10. He testified that Defendant was suicidal. Id. He

testified that Defendant was on Demerol periodically, even though she could not

                                           -9-
use it consistently due to tolerance problems with the medication. Doctor Hawkins

testified that he would be skeptical of Defendant having made a knowing,

voluntary and rational decision to enter a plea of guilty in this case. Id at 11.

      Doctor McCoy testified that Defendant’s ability to make a rational decision

and understand the consequences of that decision were greatly impaired. Id. at 23.

Doctor McCoy described Defendant as living with an unrelenting, nagging at times

very severe overwhelming pain on one hand and with medication which caused

extreme nausea and intractable vomiting on the other. Id. at 23-24. Doctor

McCoy stated that he was concerned about the Defendant’s suicidal ideation, and

that he did not remember another patient in his practice over the course of seven

years with whom he was as concerned. Id. at 25. Doctor McCoy testified that the

short acting narcotics the Defendant was prescribed would impair or affect in a

negative manner the cognitive function of the Defendant. Id. at 31.

      The conclusions of these professionals about Defendant’s mental and

physical health at the time she entered into the plea were neither refuted nor

challenged by the Government. Therefore, Defendant lacked the competency to

enter into the plea based on the opinion of the doctors.

      As the Supreme Court has stated, in order to prove that a counsel’s action or

omission were prejudicial to a Defendant’s case, “defendant must show that there

is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.” Strickland at 694. Here, had

                                          -10-
counsel contacted Doctor Hawkins before Defendant entered into the plea, he

would have likely questioned Defendant’s competency to enter into the plea. Had

counsel contacted Doctor McCoy, he would have more properly understood why

Defendant was in the store and even known that Doctor McCoy considered

Defendant’s presence in the store therapeutic. 6 Thus, there is a reasonable

probability that the outcome would have been different in this case both on the

merits of the charge and Defendant’s competency to enter into the plea.

      Accordingly, I would vacate the district court's judgment and remand. Upon

remand, I would direct that the district court set aside Defendant's plea of guilty

and her sentence and I would direct that the district court determine Defendant's

present competency. If Defendant is then found to be presently competent, the

Government may consider whether further proceedings against the Defendant

should be undertaken or whether the criminal proceedings should be dismissed.




      6
        During the evidentiary hearing, Doctor McCoy testified that he thought
Defendant being in the store, and even greeting customers, could be therapeutic.
Transcript at 32.

                                         -11-
