                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                               Nos. 08-4754 and 09-1381
                                    ____________

                           UNITED STATES OF AMERICA

                                             v.

                                     ANN McHUGH,

                                             Appellant
                                      ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. No. 2-07-cr-00176-001)
                      District Judge: Honorable Anita B. Brody
                                    ____________

                              Argued June 23, 2010
             Before: SMITH, FISHER and GREENBERG, Circuit Judges.

                                   (Filed: July 22, 2010)

Del Atwell (Argued)
39 5th Street
East Hampton, NY 11937
       Counsel for Appellant

Louis D. Lappen (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       In May 2007, after undergoing psychological treatment at a federal prison medical

facility, Ann McHugh pled guilty to two counts of threatening to assault and murder an

official of the United States, in violation of 18 U.S.C. § 115(a)(1)(B). Stemming from

this conviction, McHugh appeals the sentence imposed upon revocation of her supervised

release (No. 08-4754), and the District Court’s denial of her habeas petition to set aside

her plea agreement and vacate her conviction (No. 09-1381). Having consolidated the

cases, we will dismiss McHugh’s appeal of her sentence as moot and affirm the District

Court’s denial of McHugh’s habeas petition.

                                             I.

       On or about August 22, 2006, McHugh made several telephone calls to, and left

voice mail messages for, Carol Messick and Dennis Carroll, two employees of the

Centers for Medicare and Medicaid Services, a division of the United States Department

of Health and Human Services, threatening to assault and murder them out of frustration

over McHugh’s inability to fill prescriptions needed to treat her mental illness. Based on

these allegations, a Magistrate Judge of the United States District Court for the Eastern

District of Pennsylvania issued an arrest warrant and, shortly thereafter, ordered that

McHugh be temporarily detailed in a federal prison medical facility to allow for her

                                             2
competency to be evaluated. McHugh was then sent to the Federal Medical Center,

Carswell, in Fort Worth, Texas (Carswell) for evaluation.

       On December 22, 2006, Carswell psychologists issued the first of two forensic

evaluations of McHugh, finding that her severe mental illness “currently renders her

unable to assist properly in her defense” but that “there is a substantial probability Ms.

McHugh will become competent following psychiatric treatment.” (S.A. at 7.) After

further treatment, Carswell issued a second report on March 5, 2007. The evaluation

stated in its body – a section entitled “CASE FORMULATION” – that McHugh was

able to assist in making a plea agreement, but unable at that point to assist at trial:

       “[Ms. McHugh’s] ability to assist her attorney appropriately in her defense
       is dependent on what she will be called upon to do. Ms. McHugh is able to
       comprehend and provide input into a plea agreement despite her rather
       fragile mental state. However, if the case were to proceed to a trial, Ms.
       McHugh would be unready for such demands at this point. Hence, as long
       as her case is able to be resolved through a plea agreement as is currently
       contemplated, Ms. McHugh is mentally competent to assist in her defense.”

(Id. at 14.) The evaluation then concluded in broader terms,

       “OPINION ON COMPETENCY TO STAND TRIAL: Based on
       observation and interviews, it is our professional opinion Ms. McHugh has
       now recovered from symptoms of a mental disease to the extent she is able
       to understand the nature and consequences of the proceedings against her
       and assist properly in her defense.”

(Id. at 15.) Accordingly, on March 29, 2007, the Magistrate Judge found McHugh

competent for further court proceedings.




                                               3
       On March 30, 2007, McHugh was charged with two counts of threatening to

assault and murder an official of the United States, in violation of 18 U.S.C.

§ 115(a)(1)(B). McHugh pled guilty to both counts before the District Court, waiving her

right to appeal or collaterally attack her conviction or sentence. The District Court

sentenced McHugh to imprisonment of time served, three years of supervised release, and

a special assessment of $200.

                                A. Sentence (No. 08-4754)

       On July 9, 2008, the Probation Office filed a petition alleging that McHugh had

violated the terms of her supervised release by failing to comply with a court-ordered

treatment plan that required McHugh to reside at the Community Residential

Rehabilitation Center and receive treatment from Fellowship Health Resources. More

specifically, the petition alleged that McHugh refused to take her prescribed medication

and engaged in disruptive behavior causing her removal from the facility.

       The District Court held a hearing on the violation petition on July 14, 2008.

Instead of ruling on the petition, the Court modified the conditions of McHugh’s

supervised release to commit her to the Bureau of Prisons for additional psychiatric

evaluation and treatment, to be followed by further proceedings on the violation petition.

Thereafter, at the continuation of the hearing on November 25, 2008, the Court found that

McHugh had violated the terms of her supervised released. In an order dated

December 2, 2008, the Court revoked McHugh’s supervised release and sentenced



                                             4
McHugh to 30 days of imprisonment “with no period of supervised release to follow the

period of incarceration.” (McHugh Br. No. 08 at A4.) McHugh filed a timely notice of

appeal.1

                             B. Habeas Petition (No. 09-1381)

       On August 4, 2008, in between her revocations hearings, McHugh filed a habeas

petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence.

McHugh argued that her trial counsel was ineffective for failing to argue (1) that McHugh

was incompetent to plead guilty; (2) that there was no evidence of a direct threat against

Carroll; (3) that McHugh’s statements lack sufficient specificity to establish that she

formed a firm intent to assault or kill Messick; and (4) that the alleged targets of

McHugh’s threats were not “official persons” as contemplated by 18 U.S.C.

§ 115(a)(1)(B). On October 16, 2008, after briefing by the parties, the District Court

denied the first claim on the merits and dismissed the latter three claims as waived in the

plea agreement. The Court also declined to issue a certificate of appealability, finding

that McHugh had not made a substantial showing of the denial of a constitutional right.

McHugh filed a timely notice of appeal, followed by a motion for a certificate of

appealability, which we granted.2



       1
        The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We
have jurisdiction over the District Court’s final decision pursuant to 28 U.S.C. § 1291.
       2
        The District Court had jurisdiction pursuant to 28 U.S.C. § 2255, and we have
jurisdiction under 28 U.S.C. § 1291.

                                              5
                                              II.

       Our standard of review is distinct for each appeal. Following Booker, we review a

sentence imposed upon the revocation of supervised release for reasonableness with

regard to the factors set forth in 18 U.S.C. § 3553(a). United States v. Bungar, 478 F.3d

540, 542 (3d Cir. 2007); see also Gall v. United States, 552 U.S. 38, 46 (2007). In

contrast, when the District Court rules on a petition for a writ of habeas corpus without

conducting an evidentiary hearing, our review is plenary. McMullen v. Tennis, 562 F.3d

231, 235-36 (3d Cir. 2009).

                                             III.

                                A. Sentence (No. 08-4754)

       On direct appeal, McHugh argues that her sentence imposed upon revocation of

supervised release was substantively unreasonable because a condition of that sentence

was that McHugh “comply with medication recommendations of the Bureau of Prisons,”

(McHugh Br. No. 08 at 8), even though the previously prescribed antipsychotic drugs

caused her side effects, even allegedly “physically debilitating side effects” in the case of

Risperdal, (id. at 8-9.) We must dismiss this claim as moot.

       Article III, § 2 of the Constitution requires that a live case or controversy exist

through all stages of litigation, including appellate review. United States v. Kissinger,

309 F.3d 179, 180 (3d Cir. 2002). “[O]nce a litigant is unconditionally released from

criminal confinement, the litigant must prove that he or she suffers a continuing injury



                                              6
from the collateral consequences attaching to the challenged act.” Id. at 181. Although

the Supreme Court has created an exception for litigants challenging their criminal

convictions, see Sibron v. New York, 392 U.S. 40, 55 (1968) (“[T]he obvious fact of life

[is] that most criminal convictions do in fact entail adverse collateral legal

consequences.”), we have declined to extend the presumption to probation revocations,

see Kissinger, 309 F.3d at 181; see also Spencer v. Kemna, 523 U.S. 1, 14 (1998)

(declining to extend the presumption to attacks on parole revocations).

       In the present case, it is undisputed that McHugh has completed her period of

incarceration and is no longer on supervised release. Since McHugh’s counsel has not

alleged, either in the briefs or at oral argument, that McHugh “suffers a continuing injury

from the collateral consequences attaching to the challenged act,” Kissinger, 309 F.3d at

181, we must dismiss this appeal as moot.3

                             B. Habeas Petition (No. 09-1381)

       In appealing the denial of her habeas petition, McHugh argues that she was denied

effective assistance of counsel when her trial counsel failed to argue that she was




       3
       We do not mean to suggest that McHugh’s appeal otherwise would have had
merit. Looking at the record and counsel’s arguments, it is doubtful whether the District
Court actually imposed the condition that McHugh alleges is unreasonable.

                                              7
incompetent to plead guilty.4 In support of this assertion, McHugh relies exclusively on

an alleged inconsistency in the body of her forensic evaluation, which states,

       “[Ms. McHugh’s] ability to assist her attorney appropriately in her defense
       is dependent on what she will be called upon to do. Ms. McHugh is able to
       comprehend and provide input into a plea agreement despite her rather
       fragile mental state. However, if the case were to proceed to a trial, Ms.
       McHugh would be unready for such demands at this point.”

(S.A. at 14.) McHugh contends that this variance contravenes Godinez v. Moran, 509

U.S. 389 (1993), in which the Supreme Court held that the same competence standard

applies for defendants who plead guilty as for those who proceed to trial. See id. at 398

(“[W]e reject the notion that competence to plead guilty . . . must be measured by a

standard that is higher than (or even different from) the [trial] standard.”). According to

McHugh, “It was not within the province of the reporting psychiatrist to offer a dual

diagnostic opinion depending on what legal course of action would be taken. It was even

more improper for defense counsel to accept such an opinion. . . . [T]his double edged

diagnosis contravenes the accepted standard of Godinez and its progeny.” (McHugh Br.

No. 09 at 6.)

       Even without delving into the merits of such an argument, McHugh’s ineffective

assistance of counsel claim fails. To prevail on such a claim, McHugh must establish

(1) that her trial counsel’s performance was deficient, and (2) that the deficient


       4
        McHugh has not appealed the remaining three ineffective assistance of counsel
claims. Accordingly, we need not address whether the District Court erred in dismissing
those claims as waived in the plea agreement.

                                              8
performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). McHugh has not met the first prong.

       To establish deficient performance, a defendant must show that “counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. Here, it is

clear that trial counsel was reasonable to rely on the forensic evaluation’s conclusion that

“[McHugh] is able to understand the nature and consequences of the proceedings against

her and assist properly in her defense.” (S.A. at 15.) Counsel’s decision was buttressed

by the fact that McHugh showed the utmost competency at the plea hearing – asking and

answering questions in a thoughtful and intelligent manner – which we note to be in stark

contrast to the erratic behavior she demonstrated at subsequent probation revocation

hearings, before which time McHugh had long since ceased taking proper medication for

her psychiatric problems. Furthermore, it is puzzling how McHugh’s trial counsel’s

performance could be considered unreasonable when it effected a sentence of time served

and McHugh’s immediate release from custody, whereas a finding of incompetency

would have required McHugh to undergo further medical treatment at a federal prison

medical facility. At oral argument, McHugh’s counsel offered no explanation as to why




                                             9
McHugh’s trial counsel was deficient under these circumstances. 5 Therefore, we will

affirm.6

                                             IV.

       For the foregoing reasons, we will dismiss McHugh’s appeal of her sentence as

moot and affirm the District Court’s order denying in part and dismissing in part the

petition for a writ of habeas corpus.




       5
        Still, we thank appointed counsel for his representation given the challenging
posture of this case.
       6
         Even if McHugh had shown deficient performance, McHugh still failed to meet
the second Strickland prong. To establish prejudice, a defendant must demonstrate that
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. To do so, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. Here, a finding of incompetency
would have delayed the proceedings against McHugh until she became competent, which
the initial evaluation stated would likely occur with continued treatment. See 18 U.S.C.
§ 4241(d) (mandating commitment until mental condition is improved if there is a
substantial probability that competency will be obtained). McHugh would then have had
to, once again, either plead guilty or proceed to trial. On appeal, McHugh does not allege
that she would have received a more favorable plea agreement had the proceedings been
delayed, nor that she had any viable defenses that may have succeeded at trial. On the
contrary, McHugh was not prejudiced by, but rather benefitted from, counsel’s
performance – receiving a sentence of time served and an immediate release from custody
instead of facing re-commitment. Judge Smith does not join in this alternate rationale.

                                             10
