                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 27, 2010
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 09-2024
                                              (D.C. No. 1:03-CR-00477-MV-1)
    ERIC LAMONT JOHNSON,                                 (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


         Eric Lamont Johnson entered a guilty plea on October 21, 2004, to

possession of a firearm during or in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A). Prior to sentencing, he filed a pro se

motion to withdraw his plea, which the district court denied. In 2006, he



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
requested a mental competency evaluation, which was completed in 2008.

Following a hearing, the district court determined that Mr. Johnson was

competent at the time he entered his guilty plea in 2004, as well as at the time of

the hearing. Accordingly, the court proceeded with sentencing, and imposed a

sentence of 180 months in prison. Mr. Johnson challenges his conviction,

asserting that the district court erred in denying his motion to withdraw his guilty

plea and finding him mentally competent. Taking jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.

                                    Background

      On March 11, 2003, Mr. Johnson was charged with being a felon in

possession of a firearm, possession with intent to distribute less than 50 kilograms

of marijuana, and possession of a firearm during or in relation to a drug

trafficking crime. Counsel was appointed to represent Mr. Johnson. Over the

course of the proceedings in the district court, Mr. Johnson requested, and was

granted, different counsel numerous times. As a result, his trial date was

rescheduled several times. Prior to an October 25, 2004, trial date, Mr. Johnson

sought permission to proceed pro se. The district court agreed to allow him to

proceed pro se, but directed his then-attorney to act as standby counsel. The

parties and the court then completed pretrial motions and jury selection. Four

days before the trial was set to begin, Mr. Johnson entered a guilty plea to the

charge of possession of a firearm during or in relation to a drug trafficking crime,

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and the remaining charges were dismissed. On November 16, 2004, prior to

sentencing, Mr. Johnson filed a pro se motion to withdraw his plea, which the

district court denied on July 22, 2005. Various circumstances intervened to delay

sentencing. On March 22, 2006, the attorney then representing Mr. Johnson filed

a stipulated motion to evaluate his competency, both at the time he entered his

guilty plea in 2004 and at the time of the motion in order to proceed with

sentencing. Further delays ensued. Eventually, William Foote, Ph.D., a clinical

psychologist, was engaged to evaluate Mr. Johnson’s competency. He prepared a

report based on interviews with various people and review of numerous

documents. He interviewed Mr. Johnson in July of 2008.

      A competency hearing was held on December 17, 2008, at which Dr. Foote

testified. At the conclusion of the hearing, the district court ruled that

Mr. Johnson was competent to enter the guilty plea in 2004 and to proceed with

sentencing.

      Proceeding through new counsel, Mr. Johnson asserts on appeal that the

district court erred in denying his motion to withdraw his plea. He also contends

he was effectively denied the assistance of counsel at his competency hearing,

thus warranting reversal of his conviction and a new competency hearing.

                           Motion to Withdraw Guilty Plea

      “We review the district court’s denial of a motion to withdraw a guilty plea

for an abuse of discretion.” United States v. Yazzie, 407 F.3d 1139, 1142

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(10th Cir. 2005 (en banc) (quotation omitted). “[U]nless it is shown that the trial

court acted unjustly or unfairly, there is no abuse of discretion.” United States v.

Siedlik, 231 F.3d 744, 748 (10th Cir. 2000) (quotation omitted). Rule 11(d)(2)(B)

of the Federal Rules of Criminal Procedure provides that a defendant may

withdraw a guilty plea “after the court accepts the plea, but before it imposes

sentence if: . . . the defendant can show a fair and just reason for requesting the

withdrawal.” This court has articulated seven factors for a district court to

consider when entertaining a motion to withdraw a guilty plea. Yazzie, 407 F.3d

at 1142. 1 There is no dispute that the district court addressed these factors, and

our review of the record has confirmed that the court did so in a thorough and

comprehensive order.

      Mr. Johnson argues that in denying his motion to withdraw his guilty plea

the district court “failed to consider his mental illness.” Aplt. Opening Br. at 13.

But he does not assert that he placed his mental competency at issue at any time

before March 2006, eight months after the district court denied the motion to

withdraw the guilty plea. In addition, he does not argue that the district court

should have raised the issue sua sponte. We decline to find that the district court

1
      The seven factors are: “(1) whether the defendant has asserted his
innocence; (2) whether withdrawal would prejudice the government; (3) whether
the defendant delayed in filing his motion, and if so, the reason for the delay;
(4) whether withdrawal would substantially inconvenience the court; (5) whether
close assistance of counsel was available to the defendant; (6) whether the plea
was knowing and voluntary; and (7) whether the withdrawal would waste judicial
resources.” Yazzie, 407 F.3d at 1142 (quotation omitted).

                                          -4-
abused its discretion in denying the motion to withdraw the guilty plea where the

issue of Mr. Johnson’s mental competency was not raised to the district court

until well after the motion was denied.

                     Denial of Counsel at Competency Hearing

      Although Mr. Johnson was represented by attorney Frederick D. Jones, Jr.

at the competency hearing held on December 17, 2008, he contends that Mr. Jones

did not “test the government’s case in any meaningful way,” id. at 17. Therefore,

he argues that he was effectively denied counsel in violation of the Sixth

Amendment.

      A defendant has a right to counsel at every critical state of the proceedings;

a competency hearing is a critical stage. United States v. Collins, 430 F.3d 1260,

1264 (10th Cir. 2005). “The right to the effective assistance of counsel is . . . the

right of the accused to require the prosecution’s case to survive the crucible of

meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656

(1984). Consequently, “if counsel entirely fails to subject the prosecution’s case

to meaningful adversarial testing, then there has been a denial of Sixth

Amendment rights that makes the adversary process itself presumptively

unreliable.” Id. at 659.

      This Circuit has been reluctant to find constructive denials of
      counsel, and has found a “complete absence of meaningful
      adversarial testing only where the evidence ‘overwhelmingly
      established that [the] attorney abandoned the required duty of loyalty
      to his client,’ and where counsel ‘acted with reckless disregard for

                                          -5-
      his client’s best interests and, at times, apparently with the intention
      to weaken his client’s case.’” Turrentine [v. Mullin, 390 F.3d 1181,
      1208 (10th Cir. 2004)] (quoting Osborn v. Shillinger, 861 F.2d 612,
      624 (10th Cir. 1988)).

Collins, 430 F.3d at 1265.

      Mr. Johnson asserts that his attorney “hoped to stipulate that Mr. Johnson

was competent,” Aplt. Opening Br. at 10, thus demonstrating that he was

unprepared to proceed with the hearing. In addition, he argues that his attorney

could have asked Dr. Foote various questions to demonstrate that Mr. Johnson

was not competent at the time he entered a guilty plea.

      At the competency hearing, Mr. Johnson’s counsel did explain that he and

Mr. Johnson had discussed a stipulation as to Dr. Foote’s report, but did not reach

an agreement. The hearing proceeded, during which counsel cross-examined

Dr. Foote, often referring to Dr. Foote’s report to question his conclusions of

competency. For example, counsel elicited Dr. Foote’s opinions that Mr. Johnson

was not malingering or exaggerating his symptoms and that Mr. Johnson could be

competent one day and not competent the next. R. Vol. 4 at 53-55. In addition,

counsel questioned Dr. Foote on Mr. Johnson’s past psychotic behaviors, such as

suicide attempts and delusions, to suggest that Mr. Johnson was not competent.

In response, Dr. Foote conceded that although he believed Mr. Johnson was

competent as of his interview in July of 2008, he could not say either way as of

the hearing date. Finally, counsel made a closing argument in which he discussed


                                         -6-
the evidence and argued that Mr. Johnson was not competent to enter a guilty plea

or to proceed to sentencing.

      Based on our review of the hearing transcript, we conclude that there was

not a complete absence of meaningful adversarial testing, and that Mr. Johnson’s

counsel neither abandoned his duty of loyalty to his client nor acted with reckless

disregard for his client’s best interests. Accordingly, we reject Mr. Johnson’s

claim that he was denied the assistance of counsel at his competency hearing. We

express no opinion on whether his counsel provided constitutionally effective

assistance under Strickland v. Washington, 466 U.S. 668 (1984).

                                    Conclusion

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Wade Brorby
                                                    Senior Circuit Judge




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