                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           DEC 20 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 MICHAEL EDWARD WEBB,

                Petitioner - Appellant,                   No. 99-6224
           v.                                           (W.D. Oklahoma)
 EDWARD L. EVANS,                                   (D.C. No. CV-95-882-L)

                Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Michael Edward Webb, an Oklahoma state prisoner, pleaded guilty to

trafficking in illegal drugs, possession of a sawed-off shotgun, possession of a


       This order and judgment is not binding precedent, except under the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

doctrines of law of the case, res judicata, and collateral estoppel. The 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.
firearm while committing a felony, and possession of a firearm after a former

felony conviction. In this pro se petition for federal habeas corpus relief under 28

U.S.C. § 2254, Webb alleges that he was deprived of due process when the state

trial court accepted his guilty plea without having held a proper competency

hearing after a prior determination of incompetency. In order to challenge the

district court’s denial of his petition, Webb has filed a motion seeking a

certificate of appealability pursuant to 28 U.S.C. § 2253(c), which we construe as

an application for a certificate of probable cause (CPC).   1
                                                                He has also filed a

notification of typographical error and a motion to replace certain language in his

pleadings before us. We grant Webb’s uncontested motion to modify and correct

his pleading. We grant his application for a CPC, and we affirm.



                                    BACKGROUND

       This is Webb’s second attempt to appeal the district court’s denial of his

§ 2254 petition. In his first appeal, Webb disputed the district court’s conclusion


       1
        Webb’s habeas petition was filed on June 14, 1995. Therefore, the
certificate of appealability provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), do
not apply. Instead, we apply pre-AEDPA requirements, construing Webb’s
motion as an application for a certificate of probable cause (CPC). United States
v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (overruling prior circuit
precedent). In order to obtain a CPC, Webb must make “a substantial showing of
the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893 (1983)
(internal quotations omitted).

                                            -2-
that his claim was procedurally barred because of his failure to take a direct

appeal in Oklahoma state courts. In an unpublished opinion, we held that this

procedural bar does not apply to substantive due process claims of mental

incompetency, “at least when the petitioner is unrepresented by counsel following

entry of the guilty plea.”   Webb v. Evans , No. 96-6257, 1997 WL 207514, at *1

(10th Cir. Apr. 28, 1997) ( Webb I). We therefore reversed and remanded to the

district court, directing it to ascertain “the course of proceedings in the state trial

court,” id. , at *3, including any adjudications of Webb’s competency.       Id. We

specifically directed the district court to “apply[] the proper presumptions to

decide if the trial court should have entertained reasonable doubt as to Mr.

Webb’s competency at the time of the plea hearing,” and, we further noted that, if

the district court found evidence that created such a reasonable doubt, the plea

entry “colloquy between Mr. Webb and the court was insufficient to support a

competency determination.”     2
                                   See Webb I , 1997 WL 207514, at *3.

       On remand, the district court referred the matter to a magistrate judge who

directed the respondent to file a supplemental response as required by our

opinion. R. Vol. II, Doc. 34. The respondent then submitted a supplemental brief

with several exhibits from the state court record, and Webb filed a reply.      See id. ,



       Although our instructions to the district court employed both procedural
       2

and substantive due process standards, our general reversal did not separately
address or distinguish Webb’s claims of procedural due process violations.

                                            -3-
Doc. 36. The supplemented record reveals the following state court proceedings

and related events.

       On December 31, 1991, Webb was arrested for state drug and firearm

violations. Webb’s counsel filed applications for a determination of competency,

citing, inter alia , Webb’s confused and deranged behavior while incarcerated and

Webb’s previous history of and treatment for mental illness.             3
                                                                             See id. , Ex. A. On

April 3, 1992, the court held a hearing on that application.             See id. , Ex. C. On the

same day, a conformed order was filed that directed the sheriff to transport Webb

to a Department of Mental Health facility for evaluation.            4
                                                                         The order stated the

court’s “doubt as to the present competency of . . . Michael Edward Webb, by

reason of personal observation of the defendant by this Court; and testimony

regarding the defendant’s ability to understand the proceedings against [him] and

[his] capability of aiding the attorney in preparation for trial.”            Id.



       Webb had previously been adjudicated incompetent in 1988. He was then
       3

hospitalized at the Eastern State Hospital where he was treated with psychotropic
medication and group therapy. He improved with treatment, and in January 1989
a court found him to be competent. R. Vol. I, Doc. 12, Ex. H. (1989 Eastern State
Hospital Discharge Summary).
       4
        The magistrate judge concluded that this filed, conformed order is
“obviously in error” since it lacks an original court signature, and since it was
filed the same date as the application was filed. R. Vol. II, Doc. 48 at 6-7 n.1. In
light of the numerous omissions of dates and original signatures on documents
and entries in this record, we are unwilling to infer that this particular order’s
lack of an original signature necessarily negates the accuracy of the matters
recited.

                                              -4-
       Thereafter, a post examination competency hearing was apparently held on

July 27, 1992, during which the court heard evidence and found Webb

incompetent.   5
                   See id. , Ex. E. The court’s order of commitment noted that an

examination had already been completed at the jail,      6
                                                             and it ordered Webb to be

committed to Eastern State Hospital (the State Hospital) for treatment.        See id.

The order further directed the hospital director to notify the court immediately

“[s]hould the Defendant achieve competency.”          Id. In response to the court’s

order, on August 10, 1992, Webb was again examined in jail by a forensic

psychologist who wrote a letter addressing the following statutory questions:

       1) Is this person able to appreciate the nature of the charges against
       him?

       2) Is this person able to consult with his lawyer and rationally assist
       in the preparation of his defense?

       3) If the answer to question 1 or 2 is “no,” can the person attain
       competency within a reasonable time if provided with a course of
       treatment, therapy or training?

       4) Is this person a mentally ill person or a person requiring treatment
       according to Oklahoma Statutes Title 43A Section 3?



       Although the docket sheet contains no entry for July 27, 1992, the court’s
       5

commitment order and a psychologist’s related correspondence specify that date.
See R. Vol. I, Doc. 36, Exs. D (introductory paragraph of attached evaluation), E.

       The July 27 commitment order neither recites the results of this first jail
       6

house examination, nor its date, nor the person performing it. See R. Vol. I, Doc.
36, Ex. E. However, given the court’s finding of incompetency, we assume that
the examination supported that determination.

                                            -5-
       5) If this person were released without treatment, therapy, or training would
       he pose a significant threat to the life or safety of himself or others?

Id. , Ex. D.

       The psychologist answered “No” to questions 1, 2, and 5, and she answered

“Yes” to questions 3 and 4.    See id. According to the psychologist’s letter, Webb

was unable to organize his thinking or to maintain his concentration. His

statements were delusional and out of touch with reality, and he had a psychotic

disorder that rendered him incompetent to stand trial.       See id. However, based on

Webb’s history of having been found incompetent in 1988, and having responded

to treatment, the psychologist opined that hospitalization and supervised

medications could help stabilize Webb’s condition to the point of competency.

See id. at 2, Question 3.

       Approximately a month and a half after that letter was written, on Oct. 15,

1992, Webb was admitted to the State Hospital.      7
                                                         See R. Vol. I, Doc. 12, Ex. H.

According to Webb’s admission report, although his speech was clear, relevant

and coherent, his affect was flat, his mental state was depressed, his emotional

status was confused and unstable, and he was disoriented and confused as to time

and place. See id. (Evaluation 10-15-92). Five days later, his assessment was


       7
        The July 27 commitment order made no provision for any delay in
committing Webb, and, from this record, we cannot determine why he remained in
the jail for an additional two and a half months, instead of being immediately
transferred to the State Hospital.

                                            -6-
updated. Id. (Evaluation 10-20-92). At that time, he was still confused and did

not know his charges.    See id. On November 30, 1992, a staff psychologist wrote

the court a brief letter indicating that he had examined Webb, and that Webb had

achieved competency.      See R. Vol. II, Doc. 36, Ex. F. The psychologist answered

the five statutory questions–with“Yes” to questions 1 and 2, “Not applicable” to

question 3, and “No” to questions 4 and 5. In a short comment paragraph, the

psychologist noted that Webb “still retains some paranoid ideation, [but] he has

cleared up through the use of psychotropic medication. He is now relevant and

coherent, calm and fully able to assist his attorney in his defense.”    Id.

       On December 9, the district attorney applied for a post examination

competency hearing, and the court issued an order for a hearing to take place on

January 8, 1993.   See id. , Ex. G. On January 11, 1993, a written, signed order, as

also approved and signed by both the prosecutor and Webb’s attorney, was filed.

See id. , Ex. H. In its prefatory paragraph, the order recites the appearance of the

parties for the competency hearing on January 8, specifically stating that

“defendant appears in person and with counsel.”         Id. The next paragraph recites

that the “parties present and represented by counsel stipulate to the findings of the

report by [the staff psychologist] dated November 30, 1992. No other evidence

was presented. Both sides rest.”      Id. The third paragraph simply incorporates the

psychologist’s answers to the statutory questions, restating those determinations


                                             -7-
as the findings of the court. The fourth paragraph concludes, “It appears to the

Court after having reviewed the record and heard the evidence that the defendant

is competent.”     Id. Finally, the last paragraph provides that criminal proceedings

“shall be resumed.”     Id.

       Although no related documents have been provided, the docket sheet,          see

id. Ex. I, indicates the following additional relevant events: The entry for January

8, 1993, notes that trial was set for February 22, 1993. On January 21, 1993,

Webb’s attorney filed a motion to withdraw. The docket entry for January 29,

1993, states counsel’s motion to withdraw was “overruled w/ exceptions

allowe[d].” On February 2, 1993, the docket notation reads: “Order allowing

withdrawal as attorney of record.”     Id. On February 22, the case was transferred

to a different judge.   See id.

       Following that transfer, on February 23, 1993, a plea hearing was

conducted. See id. , Ex. J. Notwithstanding the docket entry suggesting his

withdrawal, Webb’s counsel, Gerrard Dumas, appeared and, in response to the

court’s question, Webb stated that Dumas was his lawyer, and that Dumas had

served him well.     See id. at 2, 8. The court conducted a brief colloquy, first

asking Webb whether he was able to “appreciate and understand the nature,

purpose and consequences” of the proceeding, and whether he was able to “assist

Mr. Dumas. Id. at 3. In response, Webb answered “Yes.” Significantly, although


                                            -8-
most of Webb’s answers to the court’s questions were simple affirmatives, he

accurately corrected the court’s statement as to the date of his most recent

hospitalization.     See id. The court also asked Dumas whether he had any reason

to believe Webb was not competent to enter his plea, and Dumas answered, “No.”

Id. at 5. The court then accepted the plea and entered judgment.

       Webb made no attempt to withdraw his plea within the time required by

Oklahoma rules. Subsequently, Webb filed an application to appeal out of time,

or alternatively, for post conviction relief, alleging,       inter alia , that the trial court

failed to make a proper determination of his mental capacity, and he was denied

the right to effective assistance of counsel.         See R. Vol. I, Doc. 12, Ex. FA. at 2.

On October 18, 1994, the Oklahoma district court denied his petition. The state

court specifically considered the merits of Webb’s claim related to competency,

finding that the issue had been properly determined,          see R. Vol. I, Doc. 12, Ex.

FA. at 3-5. The court also found that Webb had failed to assert “sufficient

reasons for his failure to comply with the procedural prerequisites to appeal,” and

had failed to show any entitlement to post-conviction relief.           See id. at 3. On

January 5, 1995, the Oklahoma Court of Criminal Appeals affirmed the district

court’s order.     See id. , Ex. FB.

       After reviewing the supplemented record as directed on remand, the

magistrate judge again recommended that Webb’s petition be denied.                 Id. , Doc.


                                                -9-
48. The district court considered Webb’s objections, conducted a de novo review,

and adopted the magistrate judge’s recommendation.          Id. , Doc. 60. Webb then

initiated this appeal.   8



                                         DISCUSSION

       In habeas cases a federal court defers to the state court’s findings of

disputed issues of historical fact, absent some reason to doubt the adequacy or the

accuracy of the fact-finding proceeding.         See Davis v. Executive Dir. of Dept. of

Corrections , 100 F.3d 750, 756 (10th Cir. 1996). On appeal, we independently

review the factual findings that the district court made from its review of the state

court record, see Smallwood v. Gibson , 191 F.3d 1257, 1264 n.1 (10th Cir. 1999),

and we review the district court’s legal conclusions de novo,       see Phillips v.

Ferguson , 182 F.3d 769, 772 (10th Cir. 1999). We liberally construe a pro se

litigant’s pleadings.        See Haines v. Kerner , 404 U.S. 519, 520 (1972).

       In Webb I we held that a procedural bar does not apply to Webb’s

substantive due process claim that “petitioner lacked competence to enter a guilty

plea, at least when the petitioner is unrepresented by counsel following entry of

the guilty plea.”   Webb I , 1997 WL 207514, at *1;       see also Barnett v. Hargett ,



       8
        In the district court Webb also argued ineffectiveness of counsel based
upon counsel’s failure to object to the validity of prior convictions and upon his
alleged abandonment following his guilty plea. However, Webb has not appealed
the district court’s ruling on his ineffectiveness claims.

                                               -10-
174 F.3d 1128, 1134 (10th Cir. 1999) (refusing to apply Oklahoma’s procedural

bar in non-capital habeas case where petitioner’s direct appeal predated      Cooper v.

Oklahoma , 517 U.S. 348 (1996)). As our previous opinion indicated, we

interpreted Webb’s petition to state a substantive due process claim that he was

incompetent at the time he entered his plea and, without distinguishing or

addressing Webb’s claims of procedural due process violations, we reversed.       9



See Webb I , 1997 WL 207514, at *1. On remand, the magistrate judge separately

considered Webb’s procedural and substantive arguments as within the scope of

our instructions, and we, too, address both in this appeal.

       “A petitioner may make a procedural competency claim by alleging that the

trial court failed to hold a competency hearing after the defendant’s mental

competency was put in issue.”     Walker v. Attorney Gen. for State of Oklahoma       ,

167 F.3d 1339, 1343 (10th Cir. 1999) (quoting       Medina v. Singletary , 59 F.3d

1095, 1106 (11th Cir. 1995)). To establish a procedural due process violation, a




       9
        We have generally held that procedural due process claims are subject to
waiver and procedural bar, while substantive claims are not. See Walker v.
Attorney Gen. for State of Oklahoma, 167 F.3d 1339, 1344 (10th Cir. 1999). But
see Barnett v. Hargett, 174 F.3d 1128, 1134 (10th Cir. 1999) (refusing to apply
Oklahoma’s procedural bar to claims in non-capital habeas case where
petitioner’s direct appeal predated Cooper v. Oklahoma, 517 U.S. 348 (1996)); cf
United States v. Williams, 113 F.3d 1155, 1160 (10th Cir. 1997) (holding in
direct appeal that neither substantive nor procedural due process competency
rights can be waived).

                                           -11-
petitioner must show that the state trial judge ignored facts raising a “bona fide

doubt” regarding his competency to stand trial.    Id.

      By contrast, to establish a substantive due process claim, a petitioner must

show that he was, in fact, incompetent when he was tried.   See id. As set out in

Webb I :

      The standard for determining competence to enter a guilty plea is the
      same as that required to determine competence to stand trial:
      whether the defendant can understand the proceedings and assist
      counsel in preparing a defense.   See Godinez v. Moran , 509 U. S.
      389, 396-99 (1993). Due process requires a trial court to hold a
      competency hearing whenever the evidence before it raises a
      reasonable doubt as to the defendant’s mental competence.     See Pate
      v. Robinson , 383 U.S. 375, 385 (1966); see also Sena , 109 F.3d at
      655. “[O]nce doubt is raised, the court cannot dispel it simply by
      relying on contrary evidence. The protections of an adversary
      proceeding must be afforded the defendant.”     Sena , 109 F.3d at 655.
      (citation omitted).

Webb I , 1997 WL 207514, at *2.



      A. The January 8, 1993, Adjudication and Resumption of Proceedings        .

      On January 11, 1993, a written order was filed. That order sets forth the

court’s adjudication of Webb’s competency on January 8, 1993, and it directs the

proceedings to be resumed. Webb denies having been before any judge on that

date. Alternatively, he argues, even if his memory is faulty, and he was

physically present, there was no full and fair hearing which applied the

appropriate standard required by   Cooper , 517 U.S. at 366-69 (rejecting

                                           -12-
Oklahoma’s requirement that a defendant prove incompetence by clear and

convincing evidence).   10
                             Thus, Webb asserts the court failed to conduct a colloquy

with him, and it neglected to consider other information and documents which

would have cast doubt on his competency.      11
                                                   This claim is properly characterized

as a procedural due process claim that would generally be subject to procedural

bar. See Walker , 167 F.3d at 1343. However, even if the claim were not barred,

see , e.g., Barnett , 174 F.3d at 1134, we conclude it fails on the merits.

      The trial judge must determine competency according to constitutional

standards. See Barnett , 174 F.3d at 1135. As we stated in       Webb I , when


      10
         Webb did not cite Cooper until his latest appellate documents, and,
although Webb I addressed constitutional standards related to competency
determinations, it also omitted any direct reference to Cooper. However, in both
state and federal court proceedings, Webb has argued that the state court did not
apply constitutional standards when it made its competency determination. In
light of Webb’s pro se status, we have specifically considered Cooper’s
significance to this case. See note 14 infra.
      11
         Specifically, Webb disputes the reliability of the November 30 letter’s
indication that his improvement related to medication, since he had been on
medication prior to his transfer to the State Hospital. He also points to a
December 29, 1993, written report prepared by the State Hospital treating staff
containing the notation “Question of Competency” under the heading for
“Unresolved And/Or New Identified Problems,” R. Vol. I, Doc. 12, Ex. H. at 2,
and he argues the target dates for reassessment indicate a continued question
regarding his competency. However, Webb’s argument ignores the December
report’s express reference to the November letter, and its incorporation of the
letter’s competency finding. See id. at 2, 5. Moreover, the fact that Webb had
been receiving medication prior to his hospitalization does not belie the
medication’s improved efficacy when adjusted and delivered with extensive
counseling in a clinically supervised environment.

                                           -13-
determining whether a defendant is competent to proceed, the court needs to

consider “a defendant’s demeanor and behavior in court, prior medical opinions

on competence to stand trial, and the attorney’s representations concerning the

defendant’s competence.”          Id. , 1997 WL 207514, at *2. Moreover, a state court’s

finding of underlying historical facts and factual conclusions drawn therefrom are

entitled to the presumption of correctness “where those findings are evidenced by

a written record and arrived at following a ‘full, fair and adequate hearing.’”

Sena v. New Mexico State Prison         , 109 F.3d 652, 655 (10th Cir. 1997) (citing

former 28 U.S.C. § 2254(d) and (d)(6)),        12
                                                    overruled in part by , United States v.

Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).

       On its face, the January 8 order indicates that the court made its finding of

competency only after noting Webb’s presence, and fully reviewing the record,

including the November 30, 1992, letter and Webb’s counsel’s stipulation to the

letter’s findings.    13
                           A “presumption of regularity” attaches to the order’s

recitations.   14
                    Johnson v. Zerbst , 304 U.S. 458, 468 (1938);      see also Parke v.


        The cited portions of 28 U.S.C. § 2254 were amended by the AEDPA, but
       12

those amendments do not apply to this petition filed before the AEDPA’s
effective date.

        Notably, Webb has never asserted ineffectiveness of counsel related to
       13

counsel’s failure to raise evidence contradicting the conclusions of the November
30 letter.
       14
            Significantly, this case differs from Barnett, 174 F.3d at 1135-36, where
                                                                           (continued...)

                                              -14-
Raley , 506 U.S. 20, 29-30 (1992). Accordingly, Webb has failed to demonstrate

that he was not afforded a full, fair hearing on the issue of his competency.   15




       B. The February 23, 1993, Plea Hearing       .

       As we noted in Webb I , the adequacy of the plea hearing on February 23

depended upon Webb’s adjudicated status. In this case, the intervening

competency adjudication removed any presumption of continued incompetency.

Moreover, while Webb points to jail records that document his complaint of

hearing voices on February 18, the record also indicates that his medications were

adjusted in response to that episode,    see R. Vol. I, Doc. 12, Ex. G (Physician’s

Orders 2-18-93), and there are no further indications of any continued problems.




       14
         (...continued)
no written order existed, and the petitioner was “effectively unrepresented during
a critical stage” related to the competency hearing. Rather, in this case, there is
no question regarding Webb’s representation at the January 8 hearing, and
Webb’s attorney did not dispute his client’s competency either at that time, or at
any later critical stage. Thus, there is simply no evidence (viewed under any
standard) which creates any bona fide doubt as to Webb’s competency at the time
of the January 8 hearing. Accordingly, a Cooper analysis, with its focus on
procedural due process and Oklahoma’s use of an unconstitutional standard for
determining competency, is not pertinent to this case. See Cooper, 517 U.S. at
365-67.

        Webb also complains that the January 8 hearing failed to comply with
       15

Oklahoma procedural requirements. “[F]ederal habeas corpus relief does not lie
for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting
Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).

                                            -15-
Accordingly, there is no evidence which should have caused the court to entertain

reasonable doubt as to Webb’s competence.



                                  CONCLUSION

      In Webb I , we interpreted Webb’s arguments relating to the plea hearing to

state a substantive due process claim, and we determined the claim could not be

resolved without supplementing the record. After reviewing the supplemented

record, we find no error in the district court’s conclusion that Webb’s claims

respecting his competency do not merit federal habeas relief.

      Accordingly, for the reasons stated, we GRANT Webb’s motion to correct

his petition. We GRANT the application for a CPC, and we AFFIRM the

judgment of the district court.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -16-
