                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   July 10, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-70031


BOBBY WILCHER,

                                            Petitioner-Appellant,
versus

JAMES V ANDERSON, Superintendent, Mississippi State
Penitentiary,

                                            Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                         (3:98-CV-236WS)
                      --------------------

Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Against his client’s wishes, Counsel for Petitioner-Appellant

Bobby Glen Wilcher applied for a certificate of appealability

(“COA”) to appeal the district court’s Order Dismissing Petition

for Writ of Habeas Corpus.    That Order was issued after the court

conducted a hearing on Wilcher’s pro se filing styled “Motion To

Drop All Remaining Appeals And To Allow The State To Immediately

Proceed With Petitioner’s Execution.”

     At the hearing, Wilcher explained that he had not terminated

Counsel’s representation because he (Wilcher) understood that doing

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
so would prolong the appellate proceedings that he desired to end.

Counsel for Wilcher is before us to appeal the district court’s

finding that Wilcher is mentally competent to voluntarily dismiss

his habeas petition and submit to being executed.

      While this application was pending before us, counsel for

Wilcher filed a pleading —— after hours on Friday, July 7, 2006 ——

styled Petitioner’s Motion To Reinstate Appeals and Stay Execution,

and   accompanied   by    Wilcher’s   bare-bones   affidavit   signed   and

notarized the same day.       This latest filing begins “Petitioner-

Appellant Bobby Wilcher hereby withdraws his pro se motion to

terminate all appeals ....”       Yet, Counsel has filed no motion for

Wilcher in this court for authority to “withdraw” Wilcher’s pro se

motion that was filed in and granted by the district court, and has

cited no authority for this court to allow withdrawal of the motion

(or vacatur of the Order granting it, which is before us on

application   for   COA   filed   against   Petitioner’s   earlier-stated

wishes). This sudden about-face strikes us as nothing more than an

Eleventh-hour death row plea for mercy finally elicited from

Wilcher by Counsel; the accompanying affidavit states only a

conclusional flip-flop by Wilcher, who had cogently and voluntarily

testified at length in the district court hearing only weeks

earlier that enough was enough, and that he wished to abandon all

appeals and submit to execution forthwith.

      Having carefully reviewed counsel’s application and supporting

documents, the State’s response, the transcript of the hearing in

                                      2
the district court, and the district court’s Order, we conclude

that the district court committed no error, and that reasonable

jurists would not disagree with the propriety of that court’s

Order.    We therefore deny the application for COA.

     The long-established legal standard concerning the competency

of a death row inmate to abandon further appeals of his sentence is

“whether he has capacity to appreciate his position and make a

rational choice with respect to continuing or abandoning further

litigation or on the other hand whether he is suffering from a

mental disease, disorder, or defect which may substantially affect

his capacity in the premises.”2       We have held that “a habeas court

must conduct an inquiry into the defendant’s mental capacity ... if

the evidence raises a bona fide doubt as to his competency,” noting

that “the extent and severity of the petitioner’s history of mental

health problems which have been brought to the court’s attention

influence     the   breadth   and   depth   of   the   competency   inquiry

required.”3

     The district court entered its finding of Wilcher’s mental

competency under the Rees standard after extensively questioning

him in person in open court, observing his demeanor, and reviewing


     2
         Rees v. Peyton, 384 U.S. 312, 314 (1966).
     3
       Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000). In
Streetman v. Lynaugh, 835 F.2d 1521, 1525 (5th Cir. 1988), we
observed that a district court is required to order a psychiatric
examination “only once a certain threshold showing [of a lack of
competency] has been made ....”

                                      3
past mental examinations.      We are satisfied that the inquiry

conducted by the district court was constitutionally sufficient, as

the evidence presented to the court did not raise a bona fide doubt

as to Wilcher’s competency.4   There was not, for example, evidence

of a long history of uncontrolled mental health problems,5 and

Wilcher was physically present at the hearing and was personally

examined in depth by the district court.6

     That able and persuasive Counsel was finally successful in

convincing Wilcher to do an about-face scant days before his

requested execution is not surprising —— but is without authority

under applicable law and is to no avail.7



     4
       See Mata, 210 F.3d at 329-30 (setting forth as factors to
be considered in determining whether there is a “bona fide doubt”
as to competency: (1) any history of irrational behavior, (2)
defendant’s demeanor at trial, and (3) any prior medical opinion
on competency) (citing Davis v. Alabama, 545 F.2d 460, 464 (5th
Cir. 1977)).
     5
       Although Wilcher has been prescribed Tegretol as treatment
for bipolar disorder, the district court implicitly found that
his condition is stabilized and under control.
     6
       In Mata, we reversed the district court’s order dismissing
the petition for habeas corpus because the evidence presented to
the court included thirty years of documented mental health
problems, repeated suicide attempts, numerous hunger strikes, and
the district court neither ordered an expert psychological
examination nor conducted its own examination. 210 F.3d at 331.
     7
       We note that Counsel did not present Wilcher’s change of
heart as, for example, a successive application for a writ of
habeas corpus; but even that would fail to meet the applicable
standard. See 28 U.S.C. § 2244(b)(2) (claim that was not
previously presented shall be dismissed unless it relies on a new
rule of constitutional law or is predicated on newly-discovered
facts demonstrating actual innocence).

                                 4
     We therefore DENY Petitioner’s motions for stay of execution,

DISMISS   his   request   to   reinstate   his   appeals,   and   DENY   his

application for COA to appeal the district court’s Order dismissing

his petition for a writ of habeas corpus.




                                    5
