                                                                                 F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  NOV 12 1998
                                     TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                       Clerk

 MONTY P. SENA,

           Plaintiff-Appellant,
 v.
                                                                No. 98-2016
                                                      (D.C. No. CIV-92-188-JC/DJS)
 STATE OF NEW MEXICO PRISON,
                                                         (District of New Mexico)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO

           Defendants-Appellees.


                                  ORDER AND JUDGMENT*


Before PORFILIO, EBEL, and KELLY, Circuit Judges.




       This matter is before us for the second time following our remand in Sena v. New

Mexico State Prison, 109 F.3d 652 (10th Cir. 1997) (Sena I). Because we set forth the

essential facts of the case in that opinion, they will not be repeated here.

       Following our mandate, the district court ordered an evidentiary hearing before a

magistrate judge to determine whether Mr. Sena was legally competent at the time he



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
entered his plea of guilty in state court. After two separate hearings, the magistrate judge

made proposed findings of fact and recommended Mr. Sena’s 28 U.S.C. § 2254 petition

be denied. The district court adopted the findings and dismissed the petition. A

certificate of probable cause was denied, and Mr. Sena appealed.

       We have already held in Sena I that the AEDPA does not apply to this case. 109

F.3d at 653. We therefore grant the certificate of probable cause.

       The issue presented to us by Mr. Sena is whether the facts established at the

evidentiary hearing demonstrated it was feasible for the district court to make a reliable

determination of his competence nineteen years after entry of his plea. Posturing the

appellate issue in this fashion diverts attention from the reason behind our mandate,

however.

       In Sena I, we were concerned whether the state allowed Mr. Sena to enter a guilty

plea without first establishing his return to competence. We therefore remanded the

matter for the district court to make inquiry into the validity of that concern. Thus, the

question to be answered in the district court’s proceeding was whether there was evidence

Mr. Sena had been returned to competence before the state court accepted his guilty plea.

Although this mandate subsumes an initial determination that evidence on the issue was

available, we did not require the district court to make that specific finding.




                                             -2-
       At this juncture, then, we presume the genuine issue is whether the district court

erred in finding the fact of competence and then denying habeas corpus. With our task so

circumscribed, we conclude the district court did not err and we affirm its judgment.

       We begin with a consideration of the standard by which we should review this

case. Mr. Sena argues we should make a de novo determination of whether a factual

inquiry into events that occurred nineteen years in the past was feasible. Assuming that is

the logical first question to be resolved, we nonetheless find a paucity of evidence in the

record to assist in the making of that determination.

       Witnesses were produced who participated in the events surrounding the guilty

plea, and they were able to testify about their recollections. A psychiatric report was

presented which contained the contemporaneous findings of the medical staff which

attended Mr. Sena, together with the testimony of the doctor who prepared that report.

Obviously, the magistrate judge was able to make findings based upon this evidence.

Those circumstances, in and of themselves, attest to the feasibility of the hearing. Indeed,

there is nothing in the record to suggest to the contrary, save Mr. Sena’s argument that the

testimony was without credibility.

       Mr. Sena would have us hold because much time has passed and the recollections

of the witnesses were less than perfect, the hearing was not feasible as a matter of law.

We are unpersuaded.




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       The argument is counterintuitive because the hearing was actually held, and a

reviewable record was produced. The real question, then, is whether the findings are

supported by the evidence. Indeed, that is the precise point at which Mr. Sena’s

feasibility argument is driving. What his feasibility contention devolves to is that the

evidence is simply incredible; therefore, a constitutionally valid hearing was not made

available to him.

       The flaw in this argument is witness credibility is not a matter for appellate review.

United States v. Torres, 53 F.3d 1129, 1134 (10th Cir. 1995). The magistrate judge, as

finder of fact, heard the testimony and judged the witnesses. His assessment of their

credibility is not subject to subsequent conjecture.

       Although it can be argued the testimony of the witnesses was weak because they

were not able to recall all events involved in this case, all of them were able to offer

specific testimony of Mr. Sena’s credibility. The only evidence to the contrary was Mr.

Sena’s statements that he had been on medication and had virtually no memory of the

events of his plea. Despite this credibility assault on the state’s evidence, applying the

clearly erroneous standard of review, we believe it supports the magistrate judge’s

findings. See United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998).

       We distinguish between a de novo review of the standard upon which competence

is measured, Lafferty v. Cook, 949 F.2d 1546, 1550 (10th Cir. 1991), and the findings of

fact which have been applied to the standard. Here, there is no contest over the propriety


                                             -4-
of the standard for judging competence followed in New Mexico and applied by the

federal district court. The only dispute is whether the evidence supports the district

court’s conclusion the standard was met in this case.

       During the hearings before the magistrate judge, the state judge who presided over

Mr. Sena’s case was asked if he had “an independent recollection” of the events

surrounding the plea. He responded he knew “that every issue that was pending was

discussed.” He amplified that competency was one of those issues, and he recalled the

contents of the report of Dr. Rapoport, the director of the state’s forensic hospital, and

testified about his recollection, indicating he relied upon the report for his determination

Mr. Sena was competent.

       The judge also related his recollection of the taking of the plea, during which he

engaged in a colloquy with Mr. Sena. The judge observed Mr. Sena explained “in

sufficient detail” the “facts of the incident” which gave rise to the guilty plea, admitting

“he had done it.” The judge added during the entire time Mr. Sena “seemed cooperative

at all times” and “didn’t give me any red flags that there might be anything that he didn’t

understand with the procedure.”

       The judge explained although no separate formal hearing was conducted to

determine Mr. Sena’s return to competence, that question was an important part of the

agreed change of plea procedure. He also added, relying on Dr. Rapoport’s report, he




                                             -5-
made an implicit finding of competence, although he admittedly did not use precise

language to make that ruling.1

       Dr. Rapoport, whose testimony was presented by cross-examination, stated the

forensic hospital used a team approach to its patients; therefore, the report he authored

was a compilation of the professional conclusions of the entire team, including

psychiatrists and psychologists. In Mr. Sena’s case, he could recall no person who

dissented from the conclusion expressed in the report. He stated the criteria for

determining competence was “whether or not the person understands what they have been

charged with, whether they understand what that means;” that the person “needs to be

able to understand what their choices are, what are the possible pleas, penalties and

dispositions;” and the person “need[s] to understand the functions of all of the individuals

who are involved in the court.” In addition, he explained, “[t]he individual needs to be

able to cooperate with counsel in a rational and factual manner so as to structure a

reasonable and factual defense.”2




       1
        From the testimony of the judge, prosecutor, and defense counsel, it appears the
entire change of plea process had been bargained for by both sides and agreed upon by
the court in camera, and what occurred in court was a summary proceeding to effect the
bargain. In this context, then, it is understandable that the state judge’s rulings were less
formal than they would have been if the issue of competence had been challenged.

       Mr. Sena does not challenge this definition of the constitutional standard of
       2

competence, and it comports with our understanding of the subject. Lafferty v. Cook, 949
F.2d 1546, 1550 (10th Cir. 1991) (citing Dusky v. United States, 362 U.S. 402 (1960)).

                                             -6-
       With that background, Dr. Rapoport stated the report relied upon by the state judge

was a clinical conclusion that Mr. Sena was competent before he entered his plea. He

further explained that portion of the report this court characterized in Sena I as having

“hedged” the conclusion. He noted Mr. Sena had been responding positively to treatment

of his mental illness, and “what we had in mind here was an extended period of

treatment” that would further benefit Mr. Sena’s underlying psychiatric problems.

Moreover, Dr. Rapoport stated those problems were not inexorably tied to Mr. Sena’s

legal competence.

       We believe these facts meaningfully establish Mr. Sena was indeed competent

when he entered his plea. See Moran v. Godinez, 40 F.3d 1567, 1572-73 (9th Cir. 1994).

Our prior reservations have been assuaged, and we conclude the judgment of the district

court should be AFFIRMED.



                                          ENTERED FOR THE COURT


                                          John C. Porfilio
                                          Circuit Judge




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