                                                                         FILED
                                               United States Court of Appeals
                    UNITED STATES COURT OF APPEALS     Tenth Circuit

                                                                    March 23, 2009
                                 TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                         No. 08-7068
          v.                                       Eastern District of Oklahoma
 ARNOLD JOE ALFORD,                            (D.C. Nos. CIV-07-120-RAW-SPS and
                                                         CR-03-93-RAW)
               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, HOLLOWAY and McCONNELL, Circuit Judges.



                                          I.

      Arnold Joe Alford was charged with possession of pseudoephedrine and

possession with intent to distribute methamphetamine in violation of 21 U.S.C. §

§ 841(a)(1) and (c)(2). He pled guilty to the possession of pseudoephedrine

charge and was sentenced to 210 months in prison. He appealed the sentence, but

on direct appeal a panel of this court held that he had waived his appellate rights

by entering the plea agreement. United States v. Alford, 147 Fed. App’x. 45, 48


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
(10th Cir. 2005). Mr. Alford then filed an application for habeas relief,

contending that the district court erred in finding that he was competent and that

his counsel was not ineffective. After holding an evidentiary hearing, the

magistrate judge issued a report and recommendation stating that relief should be

denied. Twenty days after the report’s issuance, Mr. Alford filed an objection to

it. The district court denied relief. Mr. Alford now appeals, claiming his plea

was invalid because he was incompetent and his counsel provided ineffective

assistance.

                                         II.

      The government has not contended that Mr. Alford’s claims are

procedurally barred, so we proceed to the merits. Under 28 U.S.C. § 2255, we

presume that the proceedings leading to a defendant’s conviction were correct.

See generally Patton v. Mullin, 425 F.3d 788, 800 (10th Cir. 2005). For Mr.

Alford to prevail on his claims, he must rebut that presumption by showing that a

defect in the proceedings resulted in a “complete miscarriage of justice.” Davis v.

United States, 417 U.S. 333, 346 (1974).

                                  A. Competency

      “[C]ompetency claims can raise issues of both substantive and procedural

due process.” McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001) (en banc).

“A procedural competency claim is based upon a trial court’s alleged failure to

hold a competency hearing, or an adequate competency hearing,” while a

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substantive competency claim is founded on the allegation that a guilty plea was

accepted while the defendant was, in fact, incompetent. See id. Mr. Alford raises

both of these issues on appeal.

      1. Procedural Incompetency

      Mr. Alford first claims that the magistrate judge had a duty to conduct a

competency hearing. To win on this procedural incompetency claim, Mr. Alford

must demonstrate that a “bona fide doubt” existed as to his competency at the

time of the plea hearing. McGregor, 248 F.3d at 953. “In evaluating the claim,

‘we look only at the evidence available to the trial court when the plea was

entered to determine if the judge ignored evidence that objectively would have

raised doubt about the defendant’s fitness to proceed.’” United States v. Vidal,

No. 07-2026, 2009 U.S. App. LEXIS 4012, *18 (10th Cir. 2009) (quoting Allen v.

Mullin, 368 F.3d 1220, 1239 (10th Cir. 2004)).

      The facts presented at the plea hearing are critical to this analysis. Mr.

Alford stated that he attended school through the eleventh grade and could read,

write, and understand English. Aple. Br. 4. Both Mr. Alford and his counsel

testified that Mr. Alford was on a number of medications. Counsel outlined them,

indicating he thought they mostly were related to a heart condition, but also

acknowledged that Mr. Alford was taking Xanax and sleeping medication for

anxiety. Aple. Br. 5. Mr. Alford then testified that none of his medications

affected his ability to understand the proceedings. Although he stated he was

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never hospitalized for mental issues, he had received treatment for mental illness

approximately ten to twelve years previously. He stated he is supposed to see a

psychiatrist either once every two weeks or once every month for anxiety and

depression, but that those conditions would not impair his ability to assist counsel

or understand the proceedings. Finally, defense counsel stated that he reviewed

the plea agreement with Mr. Alford and a few of his relatives, and it appeared that

Mr. Alford understood the agreement. The judge accepted Mr. Alford’s plea and

sentenced him to 210 months’ imprisonment, which was the bottom end of the

applicable guideline range.

      These facts, combined with Mr. Alford’s rational and cooperative behavior

at the plea hearing, do not raise a bona fide doubt as to his competence to enter a

guilty plea. Mr. Alford assured the court that he understood what was going on,

and nothing suggested otherwise. The fact that he sees a psychiatrist and suffers

from depression and anxiety do not, without more, give rise to a doubt as to his

ability to understand the proceedings. Thus, Mr. Alford’s procedural

incompetency claim falls short.

      2. Substantive Incompetency

      Mr. Alford also claims that his plea was invalid because he was

incompetent to waive his rights. “To succeed in stating a substantive

incompetency claim, a petitioner must present evidence that creates a real,

substantial and legitimate doubt as to his competency to stand trial.” Walker v.

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Attorney General for Oklahoma, 167 F.3d 1339, 1347 (10th Cir. 1999) (internal

quotations omitted). The analysis is similar to procedural incompetency, but the

defendant has a higher burden of proof. Because we have concluded there was

insufficient evidence to justify even a hearing on incompetency, “[a] fortiori,

there [is] insufficient evidence to support a claim of substantive incompetency.”

Allen, 368 F.3d at 1240; see also Walker, 167 F.3d at 1347.

      Though we can look at more evidence than what was before the judge at the

plea hearing when evaluating a substantive incompetency claim, the evidence

from the sentencing hearing and the evidentiary hearing on habeas do not

sufficiently aid Mr. Alford’s argument. At sentencing, defense counsel

introduced a psychological report on Mr. Alford authored by Dr. Minor Gordon, a

psychologist who evaluated Mr. Alford eleven days before he entered his guilty

plea. The purpose of the evaluation was to determine whether Mr. Alford was

competent when he waived his Miranda rights. He concluded in his report that

Mr. Alford was not. In reaching this conclusion, Dr. Gordon interviewed Mr.

Gordon’s ex-wife and administered several psychological tests. Mr. Alford had

an IQ of 83, evidenced short-term memory impairment, and “had a longstanding

desire to please others.” Aple. Br. 12. However, Dr. Gordon’s report also noted

that Mr. Alford had likely been under the influence of alcohol at the time of his

arrest and when he waived his Miranda rights.




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      At the evidentiary hearing before the magistrate judge on habeas, Dr.

Gordon testified about the evaluation discussed above. He also stated that Mr.

Alford did not have the psychological resources available to deal with any of his

problems, and that two of his medications would have a sedative effect. Defense

counsel introduced medical records showing that Mr. Alford was diagnosed with

Major Depressive Disorder and Generalized Anxiety Disorder. Mr. Alford’s ex-

wife, to whom he was married for more than 20 years, also testified. She was still

in frequent contact with Mr. Alford and was present during the legal discussions

with defense counsel. She claims defense counsel said that entering a guilty plea

was the only option for Mr. Alford. She also testified that Mr. Alford’s poor

mental state and inability to make decisions was one of the reasons why she

accompanied him to defense counsel’s office. Mr. Alford’s brother also was

present for some of the conversations with defense counsel. He testified that it

takes more than brief questions and answers for his brother to understand what is

going on around him.

      This evidence is not severe enough to establish a real doubt about Mr.

Alford’s competence to enter a guilty plea. Indeed, Mr. Alford indicated that he

suffered from depression and anxiety during the plea hearing but was still able to

assist counsel and understand the proceedings. Mr. Gordon’s report addressed

Mr. Alford’s incompetence when he was arrested, at a time when Mr. Alford was

under the influence of alcohol. This evidence does not raise a real doubt about

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his competency to enter a guilty plea nearly a year later. Indeed, Mr. Gordon’s

report did not raise a bona fide doubt as to Mr. Alford’s competency to be

sentenced, nor did it persuade the court to grant a downward departure for

diminished capacity.

      Because Mr. Alford has failed to establish a real, substantial, and legitimate

doubt as to Mr. Alford’s competency to enter the guilty plea, his substantive

competency claim also fails.

                               B. Ineffective Assistance

      The magistrate judge found that defense counsel knew of Dr. Gordon’s

report at the time of the plea hearing, but failed to bring it to the court’s attention

at that time. The magistrate judge held that defense counsel’s performance was

probably deficient in this regard, but that no prejudice resulted. Mr. Alford

appeals, claiming he was provided ineffective assistance, warranting reversal.

      Under Strickland v. Washington, defense counsel’s assistance is ineffective

when (1) his performance falls below an objective standard of reasonableness, and

(2) the deficient performance prejudices the defense. 466 U.S. 668, 687-92

(1984). There is “a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 690. It is quite possible that

defense counsel made the strategic decision not to introduce Dr. Gordon’s report,

                                           -7-
believing it cast little, if any, doubt on Mr. Alford’s competence to enter the

guilty plea, and would lead to needless delay. Indeed, the magistrate judge

recognized defense counsel’s excellent reputation and the possibility of valid

strategic reasons for not introducing the report. Mag. Rep. 12–13. Still, the

magistrate judge found that defense counsel’s performance fell below an objective

standard of reasonableness. Though we entertain doubt that Mr. Alford’s counsel

was deficient under these circumstances, we need not address the issue as we

agree with the district court that no prejudice resulted.

      As to prejudice, Mr. Alford first argues that the magistrate judge

incorrectly stated that the inquiry was whether the psychological evaluation

“would have persuaded the Court to order a competency hearing . . . if it had been

presented at the plea allocution.” Mag. Rep. 15. The correct question is not

whether the Court would have actually ordered a competency hearing, but rather

whether there was a reasonable probability that the court would have ordered

such a hearing. Strickland, 466 U.S. at 694. However, no harm resulted from this

misstatement of the rule. The magistrate judge immediately went on to apply the

proper standard. In his analysis, he quoted the “reasonable probability” standard

laid out in Strickland and then concluded there was “no reasonable probability

that a competency hearing would have been ordered.” Mag. Rep. 15–16.

      We have carefully reviewed the record, the magistrate judge’s report, and

the arguments on appeal, and conclude that the district court did not commit

                                          -8-
reversible error in concluding there was no prejudice. As discussed above, when

Dr. Gordon’s report was submitted at sentencing, the court did not note any

concerns about Mr. Alford’s competency to proceed, nor did it grant a downward

departure for diminished capacity. This strongly suggests that the report also

would not have had any effect if presented at the plea hearing. Although Mr.

Alford was diagnosed with depression and anxiety, he was under treatment,

including medication, for those difficulties. We agree with the court below that

indications that Mr. Alford had a desire to “please” others are not sufficient, on

this record, to show that he was not competent to stand trial. He therefore did not

suffer prejudice for his counsel’s failure to bring the competence issue to the

attention of the trial court.

                                        III.

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

Oklahoma is AFFIRMED.

                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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