                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        APR 28 1997
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MICHAEL EDWARD WEBB,

               Petitioner-Appellant,

    v.                                                 No. 96-6257
                                                   (D.C. No. 95-CV-882
    EDWARD L. EVANS; ATTORNEY             )
    GENERAL OF THE STATE OF                            (W.D. Okla.)
    OKLAHOMA,

               Respondents-Appellees.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and LUCERO, Circuit Judges.



         Michael Edward Webb, an Oklahoma state prisoner proceeding pro se and

in forma pauperis, appeals an order denying his 28 U.S.C. § 2254 petition for a

writ of habeas corpus. We issue a certificate of appealability, see 28 U.S.C.



*
       This case is unanimously ordered submitted without oral argument pursuant
to the applicable rules. This order and judgment is not binding precedent, except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.
§ 2253(c), 1 reverse the order of the district court, and remand for further

proceedings.

      Mr. Webb’s habeas petition alleges that the state trial court violated his

right to due process by accepting his guilty pleas without ordering an evidentiary

hearing on his mental competency. 2 Based solely on the record, the district court

denied relief on the ground that Mr. Webb’s failure to comply with Oklahoma

procedural prerequisites for a direct appeal procedurally barred his claim.

      We conduct an independent review of the court’s factual findings made

from that court’s review of the state court record, see Cunningham v. Diesslin, 92

F.3d 1054, 1062 n.6 (10th Cir. 1996), and review the court’s legal conclusions de

novo, see Davis v. Executive Dir. of Dep’t of Corrections, 100 F.3d 750, 756

(10th Cir. 1996), petition for cert. filed, (U.S. Mar. 7, 1997) (No. 96-8134). We

construe a pro se litigant’s pleadings liberally. See Haines v. Kerner, 404 U.S.

519, 520 (1972).

      It is undisputed that Mr. Webb failed to file a timely direct appeal and that

the state district court and court of criminal appeals denied his requests for

1
      A habeas petitioner is entitled to a certificate of appealability upon a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Mr. Webb has met this standard.
2
       Mr. Webb pled guilty to trafficking in illegal drugs, possession of a
sawed-off shotgun, possession of a controlled dangerous substance with intent to
distribute, possession of a firearm while committing a felony, and possession of a
firearm after a former felony conviction.

                                          -2-
post-conviction relief on the ground that his claims were procedurally barred

under Oklahoma law. See Hale v. State, 807 P.2d 264, 266-67 (Okla. Crim. App.

1991) (holding Okla. Stat. Ann. tit. 22, § 1086 and the doctrine of res judicata bar

assertion in postconviction proceedings of alleged errors “which could have been

raised on direct appeal, but were not”). Generally, a federal habeas court does not

“address issues that have been defaulted in state court on an independent and

adequate state procedural ground unless cause and prejudice or a fundamental

miscarriage of justice is shown.” Steele v. Young, 11 F.3d 1518, 1521 (10th Cir.

1993).

         Here, however, we need not undertake an analysis of cause and prejudice.

As we recently held in Sena v. New Mexico State Prison, 1997 WL 111255, at *2-

*3 (10th Cir. Mar. 13, 1997) (to be published at 109 F.3d 652), procedural default

does not apply to a claim that the petitioner lacked competence to enter a guilty

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

the guilty plea. Because the substantive nature of Mr. Webb’s claim excuses it

from the procedural bar rule, the district court erred in determining that the claim

was procedurally barred.

         We cannot affirm on the grounds relied upon by the district court.

Moreover, the insufficiency of the record on appeal precludes a reasoned review

of Mr. Webb’s claim on the merits. We therefore reverse and remand for further


                                           -3-
proceedings. 3 To aid the district court on remand, we summarize the applicable

law and point out pertinent record deficiencies.

      The legal principles underlying Mr. Webb’s claim are well-settled. 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, 1997 WL 111255, at *3. “[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,

1997 WL 111255, at *3 (citation omitted).

      There are “no fixed or immutable signs which invariably indicate the need

for further inquiry to determine fitness to proceed. . . .” Drope v. Missouri,

420 U.S. 162, 180 (1975). Factors to be considered are a defendant’s demeanor

and behavior in court, prior medical opinions on competence to stand trial, see


3
       Mr. Webb has also argued that he received ineffective assistance of counsel
because counsel abandoned him during the ten-day period in which he could have
withdrawn his guilty plea, and because counsel failed to object to the validity of
his prior convictions. In light of our resolution of the competency claim, we do
not reach these additional claims.

                                         -4-
id., and the attorney’s representations concerning the defendant’s competence, see

Coleman v. Saffle, 912 F.2d 1217, 1226 (10th Cir. 1990). A recent, prior

adjudication of incompetence, without a judicial determination of a change in the

defendant’s mental condition, may produce the necessary doubt. See Sena, 1997

WL 111255, at *3. As a matter of law, the prior adjudication of incompetence

gives rise to a rebuttable presumption of continued incompetence. See id. at *4.

      With the present record, we are unable to evaluate the evidence to

determine if it created a genuine, reasonable doubt about Mr. Webb’s competency

at the time of the plea hearing. In fact, we cannot ascertain whether Mr. Webb

was entitled to the presumption of continued incompetence that arises from a

prior adjudication of incompetence.

      On April 3, 1992, counsel filed an application for a determination of

competency to stand trial based on a psychotic episode that took place in the

county jail and Mr. Webb’s prior history of mental illness. Although the state

district court’s order denying post-conviction relief, R. Doc. 12, Ex. F(A) at 4,

relates that Mr. Webb was adjudicated incompetent on July 27, 1992, the docket

sheet of the state trial court has no entry for that date and no intelligible notation

of a determination of incompetency on any date. See id., Ex. D(B). 4 The only


4
     There is an entry for September 2, 1992, which states “determination of
competency,” and one for October 14, 1992, which states “issued order of
                                                                   (continued...)

                                           -5-
document in the record relevant to a determination of incompetency is the report

of a forensic psychologist who examined Mr. Webb on August 25, 1992. 5 In it,

the psychologist stated that Mr. Webb was unable to communicate in a rational

manner, recommended Mr. Webb be considered incompetent to stand trial, and

predicted that a course of medication could stabilize Mr. Webb’s condition within

a reasonable time. See id. at Ex. E(A).

      Subsequently, Mr. Webb was admitted to Eastern State Hospital for

evaluation and treatment. On November 30, 1992, a staff psychologist sent a

written report to the court, stating that Mr. Webb had attained competency to

stand trial, although he retained some paranoid ideation. See id. at Ex. E(C). Mr.

Webb was returned to the Oklahoma County Jail.

      Appellees assert, based on statements in the state district court order

denying post-conviction relief, that Mr. Webb was found to be competent at a

post examination competency hearing held on January 8, 1993. See id., Ex. F(A)

at 4. Mr. Webb alleges that no such hearing was held. After an independent




4
 (...continued)
commitment.” It may be reasonable to surmise that Mr. Webb was adjudicated
incompetent on September 2. However, we are unwilling to base our analysis on
this conjecture.
5
      Mr. Webb submitted the psychologist’s report to the federal district court as
a “Determination of incompetency to stand trial.” See R. Doc 12, Ex. E(A).

                                          -6-
review of the record, we note that Mr. Webb’s position is supported by the

absence of court documents and the lack of an entry on the docket sheet. 6

      On February 23, 1993, Mr. Webb participated in a plea hearing. He was

represented by counsel. 7 The court noted Mr. Webb’s history of mental illness

and questioned Mr. Webb and counsel concerning Mr. Webb’s mental

competence. See R. Doc. 8, Ex. E at 2-5. Apparently satisfied with Mr. Webb’s

monosyllabic answers, the court accepted his pleas as knowing and voluntary and

entered judgment of conviction. See id. at 1112.

      On remand, the first responsibility of the district court is to find out the

course of proceedings in the state trial court. The applicability of the

presumption of continued incompetence hinges upon Mr. Webb’s adjudicated

status. Next, the court must review the evidence, applying the proper

presumptions, to decide if the trial court should have entertained reasonable doubt

6
       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214, enacted April 24, 1996, amended the
standards for reviewing a state court’s determination of a factual issue. The prior
§ 2254(d) provided that a state court’s determination “shall be presumed correct.”
The amended § 2254(e)(1) states that the habeas petitioner “shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.”
We need not determine here which version applies to Mr. Webb’s claim. Because
the district court did not reach this issue, it did not weigh the validity of the state
court’s “finding” under either standard.
7
       On appeal, Mr. Webb draws our attention to docket sheet entries showing
that his attorney was permitted to withdraw prior to the plea hearing. However, it
appears from the transcript of the proceedings that the attorney did in fact
represent Mr. Webb at the hearing.

                                          -7-
as to Mr. Webb’s competency at the time of the plea hearing. If so, the colloquy

between Mr. Webb and the court was insufficient to support a competency

determination, and Mr. Webb was entitled to a full-blown evidentiary hearing on

the issue. See Sena, 1997 WL 111255, at *3. Resolution of these issues will

require, at a minimum, the supplementation of the record with relevant documents

from the state court proceedings. Cf. Steele, 11 F.3d at 1524 (“Where there is no

factual dispute, an evidentiary hearing is not necessary.”).

      The judgment of the United States District Court for the Western District of

Oklahoma is REVERSED, and the case is REMANDED to the district court for

further proceedings consistent with this order and judgment. The mandate shall

issue forthwith.



                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




                                         -8-
