             IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                           _______________

                                             m 98-11330
                                           Summary Calendar
                                           _______________




                                   WILLIAM GARY BRADBERRY,
                                                              Petitioner-Appellant,
                                                VERSUS

                        GARY L. JOHNSON, DIRECTOR,
         TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
                                                              Respondent-Appellee.


                                    _________________________

                             Appeal from the United States District Court
                                 for the Northern District of Texas
                                          (3:97-CV-2510)
                                  _________________________
                                            April 6, 2000


Before SMITH, BARKSDALE, and                          hearing.   Finding no reversible error, we
  PARKER, Circuit Judges.                             affirm.

JERRY E. SMITH, Circuit Judge:*
    William Bradberry pleaded guilty to
molesting a child and received a life sentence.
On this appeal of the denial of habeas corpus
relief, he argues that the state trial court erred
in failing sua sponte to order a formal hearing
to determine his competency to enter a guilty
plea and that his counsel ineffectively
represented him in failing to request such a


   *
      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determined that this opinion should not be
published and is not precedent except under the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.
                       I.                                     (2) whether Bradberry’s attorney was
   Bradberry filed two state applications for                 ineffective for failing to move for a
writs of habeas corpus. The first was filed in                competency hearing upon learning this
Van Zandt County and challenged the validity                  information.
of a burglary conviction that had been used to
enhance his sentence. No findings of fact were                                  II.
apparently made, and the Court of Criminal                    Bradberry’s petition is subject to review
Appeals denied the application without a                   under the Antiterrorism and Effect Death
hearing. The second challenged various                     Penalty Act of 1996 (the “AEDPA”), because
aspects of his sexual assault plea and the                 it was filed after April 24, 1996.1 See
validity of the enhancement charge, including              28 U.S.C. § 2254.
a challenge to his competency to stand trial.
                                                              AEDPA provides that a state prisoner may
   The trial court made findings of fact and               not obtain relief with respect to any claim that
conclusions of law without a hearing,                      was adjudicated on the merits in state court
recommending denial of the application. With               proceedings unless the adjudication of the
respect to competency, the court stated that               claim
“[a]pplicant’s testimony during the course of
Applicant’s trial . . . clearly shows that                    (1) resulted in a decision that was
Applicant was competent to stand trial.” The                  contrary to, or involved an unreasonable
Court of Criminal Appeals denied the                          application of, clearly established
application without written order.                            Federal law, as determined by the
                                                              Supreme Court of the United States; or
   Bradberry filed his first federal habeas
petition pursuant to 28 U.S.C. § 2254, raising                (2)resulted in a decision that was based
the claims set forth in his first state application.          on an unreasonable determination of the
He then filed a second § 2254 petition, raising               facts in light of the evidence presented in
essentially the same claims as those set forth in             the State court proceeding.
the second state application. The magistrate
judge ordered consolidation of the cases, then
recommended dismissal, rejecting most of
Bradberry’s claims on the merits and finding
one claim procedurally barred.

   Bradberry filed objections. The district
court conducted de novo review of the record,
adopted the findings of the magistrate judge,
and dismissed the petitions. Bradberry filed a
timely notice of appeal and a motion for leave
to proceed in forma pauperis (“IFP”). He
then moved for a certificate of probable cause
(“CPC”). The district court granted IFP status
and denied a certificate of appealability
(“COA”). This court granted a COA on the
following issues:

   (1) whether the trial court was required
   sua sponte to conduct a competency
   hearing upon the elicitation of evidence                  1
                                                               Williams v. Cain, 125 F.3d 269, 274 (5th Cir.
   that Bradberry had attempted suicide                    1997), cert. denied, 119 S.Ct. 144 (1998) (holding
   several times in the year before the                    that AEDPA applies to a petition filed by state
   hearing; and                                            prisoner after April 24, 1996).

                                                       2
28 U.S.C. § 2254(d). Section 2254(d)(1)                    against him.’”4
provides the standard of review for questions
of law and mixed questions of law and fact,                   [W]hen a prisoner, either state or
whereas § 2254(d)(2) provides the standard of                 federal, seeking post-conviction relief,
review for questions of fact. Drinkard v.                     asserts, with substantial facts to back up
Johnson, 97 F.3d 751, 767 (5th Cir. 1996).                    his allegation, that at the time of trial he
Moreover, “a determination of a factual issue                 was not mentally competent to stand
made by a State court shall be presumed to be                 trial, and that there was no resolution of
correct,” and the petitioner “shall have the                  that precise issue before he was tried,
burden of rebutting the presumption by clear                  convicted and sentenced, the protection
and convincing evidence.”         28 U.S.C.                   of the Fourteenth Amendment to the
§ 2254(e)(1).2 We review the federal district                 Constitution requires that such
court’s findings of fact for clear error, but                 conviction and sentence be set aside
questions of law are decided de novo.3                        unless upon adequate hearing it is shown
                                                              that he was mentally competent to stand
                      III.                                    trial.
    Bradberry asserts that the trial court erred
by failing to order sua sponte a competency                Lee v. Alabama, 386 F.2d 97, 105 (5th Cir.
hearing before accepting his guilty plea. He               1967) (en banc) (emphasis added, footnote
suggests that “[e]xtensive evidence” was                   omitted). The movant must present facts
presented to the trial court regarding his                 sufficient “to positively, unequivocally and
incompetency, including the records of Dr.                 clearly generate a real, substantial and
Reagan Andrews, the Veteran’s                              legitimate doubt as to [his] mental capacity . .
Administration psychiatrist who had seen                   . to meaningfully participate and cooperate
Bradberry for years; and of recent suicide                 with counsel.” United States v. Williams, 819
attempts. Bradberry asserts that because the               F.2d 605, 609 (5th Cir. 1987) (quotation and
trial court did not ask him whether he                     citation omitted).
understood t he nature of the proceedings or
their impact or whether Bradberry was on                      A habeas petitioner may obtain relief if he
medication, the evidence “strongly suggests”               can show that the state procedures were
that he was not competent to enter a guilty                inadequate to ensure that he was competent to
plea.                                                      stand trial. In some instances, such an
                                                           understanding arises if the trial court failed to
   The conviction of a legally incompetent                 conduct a competency hearing. Carter v.
defendant violates constitutional due process.             Johnson, 131 F.3d 452, 459 n.10 (5th Cir.
See Pate v. Robinson, 383 U.S. 375, 378                    1997), cert. denied, 523 U.S. 1099 (1998)
(1966). The competency standard for pleading               (pre-AEDPA case).
guilty is the same as the competency standard
for standing trial: “whether the defendant has                 A state court must conduct an inquiry into
‘sufficient present ability to consult with his            the defendant’s mental capacity sua sponte if
lawyer with a reasonable degree of rational                the evidence raises a bona fide doubt as to
understanding’ and has a ‘rational as well as              competency. Carter, 131 F.3d at 459 n.10. In
factual understanding of the proceedings                   determining whether there is a bona fide
                                                           doubt, the court considers (1) any history of
                                                           irrational behavior, (2) the defendant’s
                                                           demeanor at trial, and (3) any prior medical
   2
       Formerly 28 U.S.C. § 2254(d).                       opinion on competency. Davis v. Alabama,
  3
    Earhart v. Johnson, 132 F.3d 1062, 1064 (5th
                                                             4
Cir.) (citation omitted), cert. denied, 525 U.S. 933           Godinez v. Moran, 509 U.S. 389, 396 (1993)
(1998); Clark v. Scott, 70 F.3d 386, 388 (5th Cir.         (quoting Dusky v. United States, 362 U.S. 402,
1995).                                                     402 (1960)).

                                                       3
545 F.2d 460, 464 (5th Cir. 1977). If the                      That the court had all of this information,
court received evidence, viewed objectively,               and that it carefully reviewed Bradberry’s
that should have raised a reasonable doubt as              psychiatric and medical evaluations before
to competency, yet failed to make further                  allowing him to testify, require a conclusion
inquiry, the defendant has been denied a fair              that Bradberry suffered no violation of due
trial. Carter, 131 F.3d at 459 n.10.                       process rights under Davis. Although he
                                                           obviously had a history of irrational and
   The record provides much evidence that                  troubled behavior, he handled himself
Bradberry was competent to plead. The state                coherently at trial.
court denied habeas relief because it found that
Bradberry’s testimony at his guilty plea and                  Moreover, Andrews was aware of this
sentencing showed he was competent to assist               history and felt that Bradberry was capable of
counsel and understand the charges against                 assisting in his defense. Although Bradberry
him. In fact, Bradberry did testify coherently             asserts that Andrews was not judging
and rationally at his guilty plea hearing, which           “competence” under a legal standard,
suggests that he was competent to stand trial.             Andrews’s notes reveal that Bradberry had
                                                           made a specific appointment for a formal
   The trial court also considered, before                 evaluation at his attorney’s request and was
taking Bradberry’s plea, Andrews’s report                  “able to discuss his options and possible plans
from his years of therapy sessions with                    coherently.”
Bradberry (which continued until
approximately seven months before trial). It                   All of this tended to show that Bradberry
indicated that Bradberry suffered from post-               was able to consult rationally with his lawyer
traumatic stress disorder (“PTSD”),                        and understood the proceedings against him.
depression, and “organic brain syndrome”                   See Godinez, 509 U.S. at 396. Moreover, the
resulting from head injuries in Vietnam and a              trial court viewed Bradberry’s behavior
1983 suicide attempt that resulted in severe               throughout the proceedingsSSalways aware of
blood loss.                                                his background and his propensity for strange
                                                           behaviorSSand found nothing to make him
   The doctor stated that Bradberry had many               question his original determination that
physical problems, suffered memory deficits,               Bradberry was competent.
and functioned at the emotional level of a nine-
or ten-year-old. Despite these problems,                      The trial court was, withal, justified in
Andrews believed that Bradberry was                        relying on the submitted psychiatric
“competent to participate in his own defense.”5            evaluations and on its own in-court
The trial court was also aware, from                       observat ions. The only piece of psychiatric
Bradberry’s medical history, that he had                   evidence presented to the court that had not
attempted suicide several times and used to get            been available to Bradberry’s therapist in their
into bar fights with the hope that someone                 extensive consultations was Bradberry’s wife’s
would kill him.                                            testimony during the plea proceedings that her
                                                           husband had tried to commit suicide “several
                                                           times” within the past year, although she did
      5
                                                           not specify dates. (Bradberry confirmed that
         Bradberry makes much of the fact that             he had attempted suicide in early 1994 and
Andrews discussed with him the benefits of being           also apparently tried to kill himself in early
appointed a “guardian.” In context, Andrews was            1995.) Andrews’s evaluations noted no
stating that Bradberry had had difficulty managing
his financial affairs since his divorce and the            suicide attempts after 1983 and does not
suggestion was made that his sister be appointed           reveal knowledge of a more recent attempt.
his “guardian” for his financial dealings only. This
statement does not lend much support for                      This new suicide-attempt information
Bradberry’s assertion that he was incompetent to           provides Bradberry’s only argument that his
stand trial.                                               constitutional rights were somehow violated.

                                                       4
In Drope v. Missouri, 420 U.S. 162 (1975),              recognized, does not necessarily have much
counsel had filed a pretrial motion stating that        weight in determining whether a defendant is
his client might be incompetent and included a          rationally “available” for proceedings. See
psychiatric report revealing problems but               Drope, 420 U.S. at 181 n.16. That Bradberry
generally suggesting that Drope was                     had again attempted suicide after the end of his
competent. Id. at 175. The Court did not                extensive psychiatric evaluation, but at a time
hold that the trial court had erred in failing to       remote from the actual plea and sentencing
examine the competency issue further before             proceedings, may be slightly probative of a
the trial based on that evidence. Id. at 177-78.        changed rationality with regard to entering a
                                                        plea, but nothing in our precedent suggests
                                                        that this requires a trial court to hold a new
    During the course of his trial, however,            competency hearing rather than relying on a
Drope attempted suicide, choked his wife, and           recently completed evaluation. This is true
acted irrationally in other ways. Id. at 179-80.        especially given that the evaluation included
His suicide attempt removed Drope from the              recordation of a past suicide attempt and a
courtroom for a portion of his trial. Because           diagnosis of continuing suicidal tendencies,
those irrational events did not occur “in a             and had found that they did not represent a
vacuum,” the Court held that the suicide                negation of Bradberry’s legal competency.
attempt raised sufficient doubt and required
further inquiry by the court into competency.                                 IV.
Id.                                                        The duty of an attorney to a defendant who
                                                        desires to enter a plea of guilty is to ascertain
   As Drope indicates, and this circuit has             whether the plea is voluntarily and knowingly
explicated, a suicide attempt by itself is not          made.6 In Hill v. Lockhart, 474 U.S. 52
necessarily sufficient to create “reasonable            (1985), the Court held that the two-prong test
cause” for a competency hearing. See United             enunciated in Strickland v. Washington,
States v. Davis, 61 F.3d 291, 304 (5th Cir.             466 U.S. 668 (1984), applies to guilty pleas.
1995). Instead, that evidence must be weighed           Under Washington, a defendant must show
in conjunction with all the testimony and               that counsel’s performance was deficient and
evidence presented with respect to mental               that the deficient performance prejudiced the
stability and competence. Id.                           defense. Id. at 687. This circuit has textured
                                                        the Washington test for cases in which the
    The facts here do not reach the seriousness         question is whether the defendant was
of those revealed in Drope. Bradberry’s                 competent to stand trial or enter a plea:
suicide attempts, however multiple, occurred
in the months before the sentencing, not during            [A] claim of incompetence is difficult to
the period surrounding his plea and                        analyze under the ‘outcome’ test of
proceedings. The court here was able to                    [Washington], because whether the
monitor and evaluate Bradberry’s behavior                  defendant was guilty or innocent is
throughout the proceedings; he was never                   irrelevant if he was convicted while
absent. Most importantly, the psychiatric                  incompetent. [The defendant] can
evaluations employed by the court to                       succeed in establishing that he was
determine Bradberry’s competency to stand                  prejudiced by his attorney’s failure to
trial already accounted for the fact of his                investigate only if he can demonstrate a
suicide attempt and suicidal tendencies.                   reasonable probability that he was
                                                           incompetent to plead guilty.
   As noted above, the question of
competency to plead is one of whether the
defendant can rationally understand his plea
and participate with his lawyer in undertaking             6
                                                            United States v. Diaz, 733 F.2d 371 (5th Cir.
the plea. Suicide indicates depression and              1984); Moya v. Estelle, 697 F.2d 329 (5th Cir.
other disorders, but, as the Drope Court                1983).

                                                    5
Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir.           mental and emotional history and had taken
1994).                                                   that history into consideration, rendered
                                                         ineffective assistance by failing to insist that
    The burden of proof in a habeas proceeding           the court hold an unnecessary formal hearing
attacking the effectiveness of trial counsel is          on the matter.
on the petitioner, who must demonstrate that
ineffectiveness by a preponderance of the                   AFFIRMED.
evidence. Martin v. Maggio, 711 F.2d 1273
(5th Cir. 1983). In determining the merits of
an alleged Sixth Amendment violation, courts
“must be highly deferential” to counsel's
conduct. Washington, 466 U.S. at 687. In
fact, “a conscious and informed decision on
trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of
counsel unless it is so ill chosen that it
permeates the entire trial with obvious
unfairness.”7 Finally, counsel is not required
to engage in the filing of futile motions and
should not be required to raise futile defenses.
See Murray v. Maggio, 736 F.2d 279, 283
(5th Cir. 1984).

   Bradberry’s counsel did not render deficient
performance by failing to move for a
competency hearing. In fact, the failure to
raise the issue of competency at trial is
persuasive evidence that no Pate violation
occurred. Reese v. Wainwright, 600 F.2d
1085, 1092 (5th Cir. 1979).             Given
Bradberry’s testimony and demeanor during
the hearing, the medical records from Andrews
stating that Bradberry was competent despite
his various diagnoses, and the complete
absence of any lay testimony suggesting that
Bradberry was incompetent or that he could
not understand the nature of the criminal
proceedings against him, it was not
unreasonable for counsel to fail to move for a
competency hearing.

   The court did not err in deciding from the
relevant evidence that Bradberry was
competent. Given this understanding, it would
be difficult indeed to find that counsel, aware
that the court knew much about Bradberry’s

   7
     See Garland v. Maggio, 717 F.2d 199, 206
(5th Cir. 1983) (citing Fitzgerald v. Estelle,
505 F.2d 1334 (5th Cir. 1975); Daniels v. Maggio,
669 F.2d 1075 (5th Cir. 1982)).

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