     Case: 08-51050 Document: 00511408274 Page: 1 Date Filed: 03/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 11, 2011

                                       No. 08-51050                         Lyle W. Cayce
                                                                                 Clerk

TIMOTHY D. HURICKS,

                                                   Petitioner–Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent–Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:06-CV-00021


Before KING, D EMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Timothy D. Huricks appeals the denial of his federal application for a writ
of habeas corpus under 28 U.S.C. § 2254. He challenges his conviction and 55-
year sentence for aggravated sexual assault. This Court issued a certificate of
appealability (“COA”) to review the state habeas court’s determination that
Huricks’s trial counsel did not render ineffective assistance when he did not
request a competency hearing despite being on notice that the Social Security


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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Administration (“SSA”) had previously determined that Huricks has an IQ of 49
and that he suffers from paranoid schizophrenia. The respondent argues that
Huricks is not entitled to habeas relief and alternatively argues that the district
court erred in equitably tolling the limitations period because of Huricks’s
alleged mental impairments and in failing to dismiss Huricks’s § 2254
application as untimely.
      We hold that the district court did not err in denying habeas relief because
the state habeas court’s determination of the ineffective assistance of counsel
claim was not objectively unreasonable.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Huricks pleaded guilty to aggravated sexual assault of a child on May 10,
2000. The next day, he was sentenced to 55 years of imprisonment. Huricks did
not directly appeal his conviction or sentence. On July 15, 2003, Huricks filed
an application for a state writ of habeas corpus.
      In the application, Huricks argued that his due process and Sixth
Amendment rights had been violated because he was mentally incompetent at
the time of his guilty plea and because his trial counsel failed to request a
competency hearing despite having knowledge of his mental retardation and
paranoid schizophrenia. In support of his state application, Huricks attached
(1) copies of mental health records from the Austin Travis County Mental Health
Mental Retardation Center spanning from January 1998 to May 1999, indicating
that he suffered from paranoid schizophrenia and depression; and (2) a decision
from the SSA from February 23, 1999. The SSA decision granted Huricks’s
application for supplemental security income because the severity of Huricks’s
paranoid schizophrenia and mental retardation prevented him from working.
In its decision, the SSA noted that a psychiatrist and a psychologist both
diagnosed Huricks as having “acute and chronic paranoid schizophrenia, severe.”
After examining Huricks, the psychologist, Fred E. Hill, Ph.D, found that as of

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January 15, 1999, Huricks had “a verbal IQ of 56, a performance IQ of 52, and
a full scale IQ of 49.”1        Dr. Hill additionally noted that he found no
inconsistencies in Huricks’s response level in any of the eleven tests he
performed. Both mental health experts found that the claimant was not capable
of managing his own affairs, with Dr. Hill opining further that Huricks could not
“function independently and would probably need some type of custodial care.”
The SSA concluded that Huricks suffered from severe paranoid schizophrenia
and mental retardation.
      The State filed a response denying each allegation of fact and arguing that
Huricks was not entitled to relief. The State also submitted an affidavit from
Huricks’s trial counsel, David B. Fannin. Fannin acknowledged that he was
aware that Huricks had a lower-than-average IQ, had a schizophrenia diagnosis,
and was taking medication. Fannin also acknowledged that he knew that the
SSA had determined his client was disabled due to paranoid schizophrenia and
mental retardation. Fannin states that because of this knowledge, he spent
“approximately 15 to 20 hours discussing the case with him,” which included
discussions “about the charges against him, the witnesses involved, possible
defenses to the allegation, and whether he wished to go to trial.” Fannin stated
that during these discussions, Huricks was engaged, asking questions,
identifying his accusers, and discussing the possible testimony he may provide.
      Fannin also stated that because of Huricks’s mental health history, he
consulted a pharmacist and a psychologist. Fannin states that he told the
pharmacist what drugs Huricks was taking at the time, and that the pharmacist
informed him that “[t]he medications, if properly prescribed[,] would enable a
depressed and/or psychotic person to overcome such symptoms, and to act and
behave in a manner considered normal, and to have a rational understanding of


      1
       A full copy of Dr. Hill’s psychological report was also included in Huricks’s Texas
Department of Criminal Justice mental health records.

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the circumstances.” Fannin also “spoke with a psychologist concerning whether
Mr. Huricks’s low IQ would foreclose his ability to understand the nature of the
proceedings against him and the consequences of his plea.” After informing the
psychologist of the nature of his conversations and Huricks’s responses and the
fact that Huricks was able to recite back his understanding of the conversations,
the psychologist opined that Huricks would be able to understand the nature of
the charges, the difference between right and wrong, and the consequences of
pleading guilty.
      After his discussions with Huricks, the pharmacist, and the psychologist,
Fannin concluded that Huricks was able to understand the nature of the charges
and the consequences of going to trial or pleading guilty. Fannin stated that
after he explained the consequences of pleading guilty to Huricks, Huricks
repeated back his understanding. Although Huricks was not articulate, Huricks
indicated a correct understanding of pleading guilty. Fannin averred that if he
“had thought for one instant that Mr. Huricks was unable to understand the
proceedings against him or that he was legally incompetent, [h]e would have
filed a motion to determine competency.”
      On November 9, 2003, the state habeas court recommended denying relief.
The state court’s findings largely consisted of the assertions and averments
made by Fannin. The state court additionally found that the “attorney did not
file a motion to determine competency because he investigated the matter and
concluded that the applicant was competent to stand trial as he had a rational
understanding of the proceedings.” The state court’s conclusions of law relevant
to this case include:
      a)    The Court finds that the applicant’s assertions about his
            attorney’s conduct are not credible.
      b)    The Court finds all assertions and averments in the affidavit
            of David B. Fannin (applicant’s trial counsel) to be true.
            ...


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       d)     The applicant had a rational and factual understanding of the
              nature of the charges and proceedings, so he was not entitled
              to a mental competency hearing.
       e)     The applicant’s attorney did not render ineffective assistance
              of counsel.
       The Texas Court of Criminal Appeals denied Huricks’s application without
written order or hearing on the findings of the state court. Ex parte Huricks, No.
57, 461-02 (Tex. Crim. App. Jan. 28, 2004). On October 28, 2004, Huricks filed
a second application for a state writ of habeas corpus, which included arguments
concerning actual innocence, mental incompetence, and misconduct of an
attorney and the prosecution. On February 9, 2005, the Texas Court of Criminal
Appeals dismissed the application as a subsequent application.
       On January 5, 2006, Huricks filed his § 2254 application in federal district
court. He sought relief due to ineffective assistance of counsel, a coerced plea,
and mental incompetence at the time of the plea. The respondent argued that
Huricks’s application lacked merit.2 As to Huricks’s claims that he was mentally
incompetent at the time of the guilty plea and that his counsel rendered
ineffective assistance by not requesting a competency hearing, the magistrate
judge recommended that the district court deny the application because Huricks
had failed to meet his burden of showing that the state court’s conclusions were
unreasonable. The district court reviewed the record de novo and concluded that
the magistrate judge’s recommendation was correct.                    The district court,
therefore, denied Huricks’s § 2254 application. Huricks timely filed a notice of




       2
         In the alternative, the respondent argued that Huricks’s application for federal writ
of habeas corpus was untimely filed. The magistrate judge determined that Huricks’s § 2254
application was untimely; however, he recommended that the district court equitably toll the
limitation period because of Huricks’s mental impairments. The district court adopted this
recommendation. The respondent raises this argument again on appeal. We affirm the
district court’s decision to deny habeas because Huricks has failed to carry his burden of
proving prejudice. We do not reach the issue of timeliness and equitable tolling.

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appeal and moved for a COA before this Court. We granted a COA on the
ineffective assistance of counsel claim.
                                 II. DISCUSSION
      Huricks argues that his trial counsel, Fannin, rendered ineffective
assistance when Fannin failed to request a competency examination for Huricks
even though Fannin was aware that the SSA had found that Huricks was
mentally retarded with a full-scale IQ of 49 and suffered from paranoid
schizophrenia. The respondent argues that Huricks has (1) failed to provide
clear and convincing evidence to rebut the state court’s findings, and (2) failed
to carry his burden of proving the objective unreasonableness of the state court’s
conclusions that Fannin did not render ineffective assistance of counsel and that
the applicant had a rational and factual understanding of the nature of the
charges and the proceedings. We find that Huricks has failed to carry his
burden of proving prejudice. Accordingly, we affirm the district court’s decision
to deny federal habeas relief.
      We review the district court’s legal conclusions de novo and its factual
findings for clear error. Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir. 2002).
Because an ineffective assistance claim is a mixed question of law and fact, we
review the district court’s denial of habeas relief de novo. Id. at 357. We and the
district court review federal habeas claims through the lens imposed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).                The 1996
amendments to 28 U.S.C. § 2254 “circumscribe our consideration of [Huricks’s]
claim and require us to limit our analysis to the law as it was ‘clearly
established’ by the precedents existing at the time of the state court’s decision.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003). Under AEDPA, a federal court
cannot grant habeas relief for any claim that was adjudicated on the merits in
state court proceedings unless the adjudication of the claim either:



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       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established federal law, as
       determined by the Supreme Court of the United States; or
       (2) resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding.
28 U.S.C. § 2254(d). We review “pure questions of law under the ‘contrary to’
standard of subsection (d)(1), mixed questions of law and fact under the
‘unreasonable application’ standard of subsection (d)(1), and pure questions of
fact under the ‘unreasonable determination of facts’ standard of sub-section
(d)(2).” Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000) (citation omitted).
Under AEDPA, we must presume that the state court’s factual findings are
correct unless Huricks rebuts that presumption by clear and convincing
evidence.    28 U.S.C. § 2254(e)(1); Murphy, 205 F.3d at 813.                  Under the
“unreasonable application” clause, the state-court application of federal law
must be “objectively unreasonable.”              Wiggins, 539 U.S. at 520–21 (citing
Williams v. Taylor, 529 U.S. 362, 409 (2000)) (internal quotation marks omitted).
       To demonstrate ineffective assistance of counsel in violation of the Sixth
Amendment, Huricks must show that (1) counsel’s performance was deficient,
and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). We “need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies”; nor must we “address both components of the
inquiry if the defendant makes an insufficient showing on one.” Id. at 697.
       To demonstrate prejudice, Huricks must demonstrate a “reasonable
probability that he was incompetent, sufficient to undermine confidence in the
outcome.”3    Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990) (citing


      3
         This is a lower burden of proof than the preponderance standard. Bouchillon, 907
F.2d at 595. If Huricks were making a incompetency-in-fact claim, he would have to prove his
incompetency by a preponderance of the evidence. Bouchillon, 907 F.2d at 592.

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Strickland, 466 U.S. at 694) (internal quotation marks omitted). It is well-
established that “due process prohibits the conviction of a person who is
mentally incompetent.” Id. at 592 (citing Bishop v. United States, 350 U.S. 961
(1956)). A criminal defendant may not be tried unless he is competent. Godinez
v. Moran, 509 U.S. 389, 396 (1993). A defendant may not plead guilty unless he
does so “competently and intelligently.” Id. at 396. The test for incompetency
is also well-settled: “whether the defendant has ‘sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the proceedings
against him.’” Bouchillon, 907 F.2d at 592 (citing Dusky v. United States, 362
U.S. 402, 402 (1960)).
      We find that Huricks did not provide sufficient evidence to demonstrate
prejudice. We must presume that the state court’s findings of fact are correct
unless Huricks rebuts the presumption by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1). The state court’s findings of fact indicate that Huricks
was consulting with his lawyer with a reasonable degree of rational
understanding. Based on Fannin’s affidavit, the state court found that Huricks
engaged in discussion with his lawyers, “identified his accusers and discussed
his possible testimony.” The state court’s findings further indicate that he had
a rational and factual understanding of the proceedings. Also based on Fannin’s
affidavit, the state court found that the “applicant’s attorney made the applicant
aware of the consequences of a guilty plea,” and that “[a]fter explaining these
consequences to the applicant, the applicant’s attorney asked the applicant to
repeat back his understanding of the consequences of his plea[, and that t]he
applicant indicated a correct understanding of the consequences of the plea.”
These findings of fact indicate that Huricks was competent to enter a guilty plea.
      Huricks has failed to rebut the presumption of correctness of the state
court’s findings of fact or demonstrate a reasonable probability that he was

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mentally incompetent at the time of the guilty plea. Though Huricks provides
evidence that he suffers from paranoid schizophrenia and has a low IQ, he fails
to explain how these conditions rendered him unable to “consult with his lawyer
with a reasonable degree of rational understanding” or have “a rational as well
as factual understanding of the proceedings against him.” See Dusky, 362 U.S.
at 402. Huricks’s sole argument concerning prejudice is that pleading guilty in
exchange for a 55-year prison term—a long term of imprisonment—is “bizarre”
behavior on his part and therefore demonstrative of impaired judgment caused
by his paranoid schizophrenia. However, as the respondent points out, the State
dismissed five other counts in exchange for the guilty plea. Thus, Huricks risked
a longer prison term had he gone to trial; taking this plea bargain was not
irrational.
      Given that Huricks has failed to present clear and convincing evidence to
the contrary, we accept the state court’s findings of fact concerning Huricks’s
interactions with his trial counsel and Huricks’s rational understanding of the
proceedings as true. On these facts, the state court’s conclusion that Huricks
was competent at the time of the plea and thus that it should deny the
ineffective assistance of counsel claim was not contrary to or an unreasonable
application of Strickland. Accordingly, we affirm the district court’s denial of
the writ of habeas corpus.
      AFFIRMED.




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