                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 06-1478
                                 ________________

William Eugene Langley,                    *
                                           *
             Appellant,                    *
                                           *       Appeal from the United States
      v.                                   *       District Court for the
                                           *       Eastern District of Arkansas.
Larry Norris, Director, Arkansas           *
Department of Correction,                  *               [PUBLISHED]
                                           *
             Appellee.                     *

                                 ________________

                                 Submitted: September 26, 2006
                                     Filed: October 19, 2006
                                 ________________

Before MURPHY, HANSEN and RILEY, Circuit Judges.
                       ________________

HANSEN, Circuit Judge.

      William Eugene Langley appeals the denial of his petition for habeas corpus.
See Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. We
dismiss the appeal.

       On April 14, 1997, an Arkansas state jury convicted Langley of kidnapping,
first-degree battery, and first-degree terroristic threatening, for which he is currently
serving 30 years of imprisonment. The state court of appeals affirmed Langley's
convictions and sentences on direct appeal, Langley v. State, No. CACR 97-786, 1998
WL 170172 (Ark. App. 1998), and the trial court denied his petition for
postconviction relief, see Ark. R. Crim. P. 37, without a hearing. The Supreme Court
of Arkansas reversed and remanded the Rule 37 proceedings, directing the trial court
to conduct a hearing. Langley v. State, No. CR 98-1477, 2000 WL 246265 (Ark.
2000). Following a hearing, the trial court again denied relief. Applying Strickland
v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court of Arkansas affirmed
the denial of postconviction relief, concluding that counsel was not ineffective in
failing to develop a diminished capacity defense and rejecting Langley's claim that he
was deprived of an impartial jury. See Langley v. State, No. CR 00-1275, 2002 WL
31207455 (Ark. 2002).

       On October 2, 2003, after exhausting his state court remedies, Langley filed this
federal habeas petition pursuant to 28 U.S.C. § 2254. He argued that his trial counsel
provided ineffective assistance by failing to request a mental competency hearing
prior to trial, failing to investigate and procure witnesses to support a diminished
capacity defense, and failing to raise a jury instruction question in his state court
appeal. The district court denied habeas relief, concluding that Langley had defaulted
the jury instruction claim and that the state court did not unreasonably apply
Strickland to deny his claim that counsel was ineffective for failing to develop a
diminished capacity defense. The court noted that Langley may have defaulted his
ineffective assistance claim based upon counsel's failure to request a competency
hearing prior to trial, but addressing the merits of the claim, the district court
concluded that the objective medical data did not reveal evidence of a mental disorder
and that there was no other evidence of impaired capacity; thus, the failure to request
a competency hearing was not objectively unreasonable under Strickland.

      Langley now appeals the denial of his § 2254 petition. The district court
granted a certificate of appealability on a wholly new issue–whether the Sixth
Amendment requires a trial court to conduct a competency hearing sua sponte when
the evidence is in dispute regarding the defendant's mental competency. Langley

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admits that this question was never presented to the state courts or even to the federal
district court, and he requests that this court enlarge the certificate of appealability
issued by the district court to include his ineffective assistance claim based upon
counsel's failure to pursue a mental disease or defect defense or request a competency
hearing, issues which were presented below. Respondent Larry Norris argues that the
district court abused its discretion by certifying a question on an issue that was neither
raised in the habeas petition nor considered by any court thus far.

      This appeal must be dismissed under the review established in Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000), which articulates what a habeas applicant
must show in order to be granted a certificate of appealability under AEDPA. We
have distilled the following three rules from Slack to guide our consideration of
whether a certificate of appealability was properly issued:

       1) if the claim is clearly procedurally defaulted, the certificate should not
       be issued; 2) even if the procedural default is not clear, if there is no
       merit to the substantive constitutional claims, the certificate should not
       be issued; but, 3) if the procedural default is not clear and the substantive
       constitutional claims are debatable among jurists of reason, the
       certificate should be granted.

Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002) (construing and citing Slack, 529
U.S. at 484-85, and revoking a certificate of appealability as improvidently granted
on the basis of the second rule articulated above).

       In this case, the first rule applies to the claim on which the district court granted
a certificate of appealability. Langley never raised in state court the issue of whether
the trial court should have conducted a competency hearing sua sponte. In fact, as
noted, he did not even raise the claim in his federal habeas petition. There is no
question that the issue upon which the district court granted a certificate of
appealability was procedurally defaulted. Furthermore, Langley does not argue that


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there is cause and prejudice to excuse his procedural default. See Bousley v. United
States, 523 U.S. 614, 622 (1998) (holding a procedurally defaulted claim can be raised
in habeas only if the defendant can first demonstrate cause and actual prejudice for the
failure to raise it on direct review, or that he is actually innocent). No appeal is
warranted in such a case. See Slack, 529 U.S. at 484 (stating where a plain procedural
bar is present, no appeal is warranted). This court is not in the business of rendering
advisory opinions on legal issues never raised in the antecedent proceedings.

       Langley requests that we expand the certificate of appealability to include the
ineffective assistance of counsel claim that he pleaded and that the state and federal
courts addressed on the merits; that is, that his counsel was ineffective in failing to
investigate and develop a defense based upon a diminished capacity due to mental
defect or disease or request a competency hearing. The second rule articulated in
Khaimov applies to this claim because a certificate of appealability should not be
issued where there is no merit to the substantive constitutional claim. The undisputed
record demonstrates that when Langley's trial counsel learned of a possible cognitive
deficit, as indicated in the first evaluation, counsel took appropriate steps to have
Langley's mental capacity evaluated more thoroughly. The second evaluation did not
produce a diagnosis of a mental disease or defect. Also, the second evaluation
reported that the only basis of possible cognitive defects as noted by the first
psychologist were Langley's own subjective reports of memory problems. Thus,
absent any objective basis on which to pursue a diminished capacity defense or seek
a competency hearing, any failure to do so could not have prejudiced the defense.

       Accordingly, we revoke the certificate of appealability issued by the district
court as having been improvidently granted, deny Langley's request to expand that
certificate of appealability, and dismiss this appeal.
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