                                                                             FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         April 14, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                          Clerk of Court
                                   TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                              No. 07-3264
      v.                                                   District of Kansas
THEDRAL R. HARDRIDGE,                                (D.C. No. 06-CV-03220-CM)
                                                     (D.C. No. 02-CR-20003-CM)
             Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, EBEL and McCONNELL, Circuit Judges.



       Petitioner Thedral R. Hardridge, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district court’s

order denying his motion to vacate, set aside, or correct his sentence under 28 U.S.C. §

2255. See 28 U.S.C. § 2253(c)(1)(B). We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. Because we conclude that Mr. Hardridge has failed to make “a substantial showing

of the denial of a constitutional right,” we deny his request for a COA and dismiss the

appeal. 28 U.S.C. § 2253(c)(2).




       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
                                    I. BACKGROUND

       On November 11, 2002, a Kansas City, Kansas police officer stopped Thedral

Hardridge’s BMW on an outstanding warrant, saw a firearm and ammunition in the

vehicle, and arrested him. He was released on bond, but two days later he shot himself in

the mouth. Police responding to a subsequent domestic disturbance call recovered the

firearm he had used and two others. Consequently, Mr. Hardridge was charged by

indictment with three counts of being a felon in possession of a firearm in violation of 18

U.S.C. §§ 922(g) and 924(a)(2), and two counts of knowingly making a false statement

(that he had no prior felony conviction) in connection with the purchase of a firearm in

violation of 18 U.S.C. § 922(a)(6). On December 4, 2003, after a bench trial, Mr.

Hardridge was found guilty. He was sentenced to five concurrent terms of 88 months’

incarceration. We affirmed on direct appeal. United States v. Hardridge, 379 F.3d 1188,

on reh’g in part, 149 F. App’x 746 (10th Cir. 2005). Mr. Hardridge then filed a motion in

the district court under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence,

alleging that his waiver of a jury trial was invalid and that he had received ineffective

assistance of counsel. The district court denied his motion on July 18, 2007, and Mr.

Hardridge timely brought this petition and appeal.

                                     II. DISCUSSION

       On appeal, Mr. Hardridge argues (1) that his counsel was ineffective, and (2) that

the district court should not have accepted his jury trial waiver. On the issue of

ineffectiveness, he charges that (a) his counsel should have known that Mr. Hardridge

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was incompetent to make a knowing and voluntary waiver, (b) his counsel failed to

research the case adequately, to locate and interview certain witnesses, or to file pretrial

motions, (c) his counsel failed to ensure that the jury trial waiver was in writing, (d) his

counsel should not have chosen a bench trial in light of his defense theory, and (e) his

counsel failed to challenge Mr. Hardridge’s prior conviction as unconstitutional. On the

propriety of the jury trial waiver, Mr. Hardridge argues that the waiver was invalid

because (a) it was not in writing, and (b) he was not competent to stand trial or to make a

knowing and voluntary waiver of his jury trial right. He also argues that the district court

should have granted an evidentiary hearing in this § 2255 petition.

       We review the district court’s findings of fact for clear error and its conclusions of

law de novo. United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004). The claim of

ineffective assistance of counsel presents a mixed question of fact and law, which we also

review de novo. United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006). On

account of Mr. Hardridge’s pro se status, we construe his submissions liberally. See, e.g.,

de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

                                 A. Assistance of Counsel

       To succeed on a claim of ineffectiveness of counsel, a petitioner must show both

“that counsel’s representation fell below an objective standard of reasonableness” when

compared to “prevailing professional norms,” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

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       First, Mr. Hardridge argues that his counsel was ineffective for failing to raise the

issue whether he was competent to make a jury trial waiver knowingly and voluntarily.

Mr. Hardridge urges that the incident in which he shot himself was a suicide attempt

“indicative of some sort of deep mental and emotional disturbance,” R., Vol. I, Doc. 109,

at [6, ] 16, and that his resulting physical disfigurement “only exacerbated the[se] mental

and emotional problems.” Id. at 17. He admits that he has “no long history of . . . mental

problems,” but writes that “this case began with his failed attempt at suicide from a

gunshot wound through the mouth and up through his head. What further proof does one

need to convince him/her that the defendant is suffering some sort of mental affliction?”

Id. at 27. He also argues that the fact that three defense attorneys sought to withdraw

from representing him demonstrates that he was not capable of rationally communicating

with them.

       A defendant is competent to waive his right to a jury trial if he has “‘sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding’ and has ‘a rational as well as factual understanding of the proceedings

against him.’” Maynard v. Boone, 468 F.3d 665, 676 (10th Cir. 2006) (quoting Godinez

v. Moran, 509 U.S. 389, 398 (1993)); accord United States v. Mackovich, 209 F.3d 1227,

1232 (10th Cir. 2000). For purposes of argument, we accept the self-inflicted shooting as

a suicide attempt. However, there is nothing to indicate that a lone suicide attempt, taking

place two days after being arrested with an illegally possessed firearm and a year before

trial, could establish a defendant’s incompetency. “[A] suicide attempt need not always

                                             -4-
signal ‘an inability to perceive reality accurately, to reason logically and to make plans

and carry them out in an organized fashion.’” Drope v. Missouri, 420 U.S. 162, 181 n.16

(1975) (quoting David F. Greenberg, Involuntary Psychiatric Commitments to Prevent

Suicide, 49 N.Y.U. L. Rev. 227, 236 (1974)). Nothing in the record suggests such an

inability, or that Mr. Hardridge lacked a rational and factual understanding of the

proceedings against him.

       The district judge in this case observed Mr. Hardridge throughout the proceedings

and at trial, and found that he “was lucid at all times.” R., Vol. I, Doc. 117, at 5. Mr.

Hardridge’s testimony reflects that he understood the nature of the charges against him

and was able to participate in the case:

       Q:     Was it your intent to violate the federal firearms laws by purchasing
              firearms in October and November of 2001?
       A:     No.
       Q:     Was it your intent to violate the federal firearms laws by possessing
              firearms in 2001?
       A:     No.
                                          . . .
       Q:     If you had been told that the sale of the firearm couldn’t proceed—
       A:     Then I wouldn’t be here.

Id. (quoting Dist. Dkt. Doc. 95, at 125–26).

       Furthermore, the district court found that the attorneys’ attempts to withdraw from

representing Mr. Hardridge resulted not from an inability to communicate but “from

petitioner’s allegations of unprofessional conduct and a difference in opinion of how the

case was being, and should be, handled.” Id. Mr. Hardridge puts forward nothing to

rebut or challenge these conclusions. Notably, he has offered no affidavit to show a

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difficulty in communicating, nor does any of his filings allege such a difficulty in but the

most cursory terms.

       For these reasons, well explained at greater length by the district court, Mr.

Hardridge has not established that prejudice, “a reasonable probability that . . . the result

of the proceeding would have been different,” Strickland, 466 U.S. at 694, resulted from

his attorneys’ failure to raise the issue of his competency to make a waiver of his right to

a jury trial. See Hatch v. State of Okla., 58 F.3d 1447, 1458 (10th Cir. 1995) (no

prejudice could be shown from failure to challenge competency where petitioner

“testified before the trial that he understood the information and the nature of the charge,

and his testimony during the trial about the crime and his responsibility was lucid and

intelligible,” and where he “does not point to any evidence that would show that he fell

below” the standard of competency), overruled on other grounds by Daniels v. United

States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001). We therefore need not address the

district court’s alternative holding that these facts did not establish a constitutionally

deficient performance on the part of Mr. Hardridge’s attorneys.

       We may similarly reject the claim based on the charge that the attorneys failed to

file motions for discovery of the medical records from the hospital where Mr. Hardridge

was taken after the shooting or to subpoena and interview the hospital staff who treated

him. Mr. Hardridge asserts that “emergency medical staff at the hospital scheduled him

for appointments with the mental health care department of the hospital.” R., Vol. I, Doc.

109, att., at 30. But the mere scheduling of an appointment could not have established

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incompetency, and Mr. Hardridge has averred neither that any mental examination ever

took place, nor that its results would have tended to show his incompetency.

Accordingly, he has not established prejudice on this issue either.

       Next, Mr. Hardridge urges that his attorneys were ineffective for failing to ensure

that his waiver of the jury trial right was in writing. Again, no prejudice can be shown

from the omission, because, although Rule 23(a)(1) of the Federal Rules of Criminal

Procedure mandates that such a waiver be in writing, this requirement is a matter more of

“form” than “substance,” and we have found “no practical justification for finding a

waiver invalid simply because” of the absence of a writing. United States v. Robertson,

45 F.3d 1423, 1431 (10th Cir. 1995).

       Fourth, Mr. Hardridge asserts that his trial counsel was ineffective for waiving the

right to a jury trial in light of the proffered defense of “entrapment by estoppel.” At trial,

Mr. Hardridge’s defense established that his 1995 felony conviction was never entered

into the National Crime Information Center’s database, and that when he requested his

criminal record from the Kansas City, Kansas, Police Department, the check came back,

“no records found.” Hardridge, 379 F.3d at 1191. When employees at a gun store ran a

background check before selling firearms to Mr. Hardridge, they were instructed that the

sale could proceed. Id. So, although Mr. Hardridge admitted at trial that he had

purchased firearms—and in so doing had stated that he had never been convicted of a

felony—he argued that “the actions of several actors representing various government

entities misled him into believing that it was legal for him to purchase and possess

                                              -7-
firearms, thereby estopping the government from prosecuting him on the unlawful-

possession counts.” Id. at 1192.

       In the context of a technical defense where few facts are in dispute, electing to

argue to a judge rather than a jury is an eminently plausible defense strategy: counsel

might plausibly reason that a judge would be more willing than twelve of Mr. Hardridge’s

peers to acknowledge that he did the things alleged but acquit him nevertheless for purely

legal reasons. We therefore cannot regard counsel’s decision to waive jury trial on this

issue constitutionally deficient.

       As a final allegation of ineffectiveness, Mr. Hardridge contends that his counsel

improperly failed to challenge the use of his prior conviction, a 1995 Kansas felony

conviction of two counts of aggravated battery for shooting two people, as a predicate for

the felon-in-possession charges in this case under 18 U.S.C. § 922(g)(1). Mr. Hardridge

claims that the 1995 conviction was invalidly obtained because he received ineffective

assistance in that case, and that counsel in his firearm case should somehow have attacked

the conviction so that he would not be considered a felon. This argument is meritless

because it is settled that the infirmity of a prior felony conviction—so long as that

conviction stands on the books—is immaterial to felon-in-possession liability under §

922(g)(1). See, e.g., United States v. Coleman, 458 F.3d 453, 456 (6th Cir. 2006); United

States v. Leuschen, 395 F.3d 155, 157 (3d Cir. 2005); United States v. Padilla, 387 F.3d

1087, 1090–91 (9th Cir. 2004); Burrell v. United States, 384 F.3d 22, 27–28 (2d Cir.

2004); United States v. Wallace, 280 F.3d 781, 784 & n.1 (7th Cir. 2002). As the

                                             -8-
Supreme Court has held, the “plain meaning” of a statute disabling a person who has been

“convicted” of a felony from owning a firearm “is that the fact of a felony conviction

imposes a firearm disability until the conviction is vacated or the felon is relieved of his

disability by some affirmative action, such as a qualifying pardon or a consent from the

Secretary of the Treasury.” Lewis v. United States, 445 U.S. 55, 60–61 (1980).

                             B. Propriety of Jury Trial Waiver

       Mr. Hardridge argues that the absence of a written waiver of his right to a trial by

jury, in violation of Rule 23(a)(1) of the Federal Rules of Criminal Procedure, makes the

waiver invalid. We agree with the district court that this claim was procedurally waived

because Mr. Hardridge neglected to object to the absence of a writing at the time and

failed to raise the issue on direct appeal. Were we to consider the claim, moreover, we

would find it without merit. See United States v. Robertson, 45 F.3d 1423, 1431 (10th

Cir. 1995).

       Mr. Hardridge further contends that the trial court “erred in accepting [his] jury

trial waiver and should not have allowed [him] to stand trial because he was incompetent

to do so.” COA Petn. 2. This raises what has been called a procedural competency

challenge: where a defendant did not challenge his competency or request a hearing on

the matter, the procedural question is whether the court should have ordered a hearing sua

sponte. To prevail, he must establish, at minimum, “‘that the . . . trial judge ignored facts

raising a ‘bona fide doubt’ regarding the petitioner’s competency to stand trial.’” Walker

v. Att’y Gen. for State of Okla., 167 F.3d 1339, 1343 (10th Cir. 1999) (quoting Medina v.

                                             -9-
Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995)) (further quotation omitted); see United

States v. Herrera, 481 F.3d 1266, 1271–72 (10th Cir. 2007). Failure to hold a hearing

despite such a doubt establishes a rebuttable presumption of the defendant’s

incompetency. Medina, 59 F.3d at 1106. We have reviewed Mr. Hardridge’s complete

trial testimony, as well as his oral waiver of his jury trial right. From the transcripts, he

comes across as intelligent, aware, and in full command of his senses. The district judge,

who observed and interacted with him at length in person, agreed. Nothing before the

trial court suggested that Mr. Hardridge lacked “‘sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding’ [or] ‘a rational as well as

factual understanding of the proceedings against him.’” Maynard v. Boone, 468 F.3d

665, 676 (10th Cir. 2006) (quoting Godinez v. Moran, 509 U.S. 389, 398 (1993)). To the

contrary, in hearings on two of his attorneys’ motions to withdraw from representing him,

Mr. Hardridge’s testimony reveals that he communicated regularly with his attorneys and

understood what they were doing and how they were trying to defend him, but was

dissatisfied with their performance and accused them of unprofessional conduct. These

facts did not establish a “bona fide doubt” whether Mr. Hardridge was competent to

waive his right to a trial by jury.

                                      C. Evidentiary Hearing

       Denial of an evidentiary hearing is reviewed for abuse of discretion. United States

v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002). Here, the district court denied the

request for an evidentiary hearing despite Mr. Hardridge’s vague, conclusory assertion

                                               -10-
that “an evidentiary hearing is needed in order for Mr. Hardridge to prove his claims and

for the court to make a fair assessment of the facts before it can render a fair decision with

regard to this [competency] issue.” R., Vol. I, Doc. 109, att., at 10. We agree with the

district court that the issues presented by Mr. Hardridge’s § 2255 motion could be

resolved on the basis of the record evidence.

                                   III. CONCLUSION

       We do not find that Mr. Hardridge “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, we DENY Mr.

Hardridge’s request for a certificate of appealability and DISMISS this appeal.

       Judge Briscoe concurs in the result of this Order.

                                                         Entered for the Court,


                                                         Michael W. McConnell
                                                         Circuit Judge




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