               Case: 16-13336        Date Filed: 06/05/2018      Page: 1 of 13


                                                                      [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-13336
                               ________________________

                          D.C. Docket No. 1:14-cv-24371-RNS



HAROLD MAX POMPEE,

                                                                        Petitioner-Appellant,

                                            versus

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
                                                                    Respondents-Appellees.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                        (June 5, 2018)

Before ED CARNES, Chief Judge, MARCUS, and EBEL, * Circuit Judges.

PER CURIAM:

       *
         Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
               Case: 16-13336   Date Filed: 06/05/2018   Page: 2 of 13


      Harold Max Pompee appeals the district court’s denial of his 28 U.S.C.

§ 2254 petition. Pompee, who is mentally ill, alleges that his trial counsel was

ineffective for failing to ask for another competency hearing before he entered his

guilty plea.

                  I.    FACTS AND PROCEDURAL HISTORY

      Pompee committed two armed robberies in Miami, Florida, in September

2010. He was arrested and charged with both armed robbery and unlawfully

discharging a firearm in public in two separate cases. After the State filed those

charges, the public defender’s office referred Pompee for a psychological

evaluation. A doctor diagnosed him with schizoaffective disorder, which is a

cyclical psychotic illness. The doctor recommended that Pompee receive treatment

and medication to manage his hallucinations and depressive symptoms. He was

later placed on medication, which changed over the course of his psychological

treatment.

      Between September 2011 and March 2013, Pompee underwent ten court-

ordered competency evaluations by five different doctors. He underwent the first

two evaluations in September 2011 and the doctors found him incompetent. The

court entered an order in October 2011 adjudicating him incompetent to stand trial

and requiring that he receive further treatment. Pompee was admitted to a

treatment center, where a doctor examined him on October 27, 2011, and noted


                                          2
              Case: 16-13336    Date Filed: 06/05/2018      Page: 3 of 13


that he could be malingering because he denied knowing the meaning of simple

words and exaggerated his memory loss.

      Pompee underwent three more evaluations between November 2011 and

January 2012 and the doctors found him competent in all three; in February 2012

the court entered an order to that effect. In June 2012, the court ordered another

evaluation and the doctor found him incompetent, which led to the court

adjudicating him incompetent to stand trial at that time.

      In September 2012, Pompee underwent three more evaluations and in each

of them the doctors found him competent to stand trial. At a hearing in October

2012, after all three of those doctors testified that he was malingering and

competent to proceed, the court adjudicated him competent to stand trial. In

February 2013, the court set a final competency hearing for March 11 and

scheduled trials for both cases on that same day.

      Pompee underwent his final competency evaluation on March 7, 2013, just

four days before his scheduled trial date. After reviewing his background, prior

psychological treatment, and current medication, the doctor determined that he

appeared “well medicated, stabilized, and cognizant” of the charges he faced. The

doctor also concluded that his responses appeared “to be consistent with an attempt

to appear severely cognitively impaired due to the severity of his charges and in an

attempt to avoid the potential repercussions of his behavior.” The doctor found


                                          3
              Case: 16-13336     Date Filed: 06/05/2018    Page: 4 of 13


that he was competent to stand trial, and her competency evaluation report was

filed in open court on March 11, 2013.

      Pompee faced a mandatory minimum sentence of 20 years and a maximum

of life imprisonment on the armed robbery charges in each case. He chose instead

to plead guilty in return for ten-year terms of imprisonment in each case. Right

after the plea hearing began, Pompee questioned the court about his potential

sentence, attempted to negotiate a lower sentence, asked if he could receive two

years on probation, and inquired about his anticipated release date.

      After responding to Pompee’s questions, the court asked whether he had

taken any medications that day. He denied taking any, but when questioned further

stated that he had taken medication at the hospital. Pompee also said that he did

not understand what was happening, but after the court made clear that Pompee

could either take the plea or go to trial, he affirmed several times that he

understood his charges and the conditions of his guilty plea. After consulting with

his attorney, he confirmed again that he understood the conditions of his plea and

the rights he was giving up. He reiterated that he wanted to plead guilty.

      The court found that Pompee had entered into a knowing and voluntary plea

and understood the nature and consequences of the plea. It found him guilty in

both cases and sentenced him to concurrent ten-year sentences.




                                           4
                Case: 16-13336       Date Filed: 06/05/2018       Page: 5 of 13


      Pompee sought postconviction relief in Florida state court. Pompee v. State,

150 So. 3d 1158 (Fla. 3d DCA 2014). After that did not succeed, in November of

2014 he filed the pro se § 2254 petition involved in this appeal. Pompee’s petition

claimed that trial counsel had rendered ineffective assistance by failing to request

another competency hearing before he pleaded guilty. The district court denied his

petition on the merits. Pompee appealed, and a judge of this Court granted a

certificate of appealability on the following issue: Whether Pompee was denied

constitutionally effective assistance of counsel because of counsel’s failure to

request another competency hearing. He was appointed counsel to represent him

in this appeal.

                             II.     STANDARD OF REVIEW

      “When examining a district court’s denial of a § 2254 habeas petition, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Maharaj v. Sec’y for the Dep’t of Corr., 432 F.3d 1292,

1308 (11th Cir. 2005). “An ineffective assistance of counsel claim is a mixed

question of law and fact subject to de novo review.” Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010). Pompee did not raise his ineffective assistance claim in

state court, so we review that claim without any AEDPA deference. 1 Lawrence v.

Sec’y, Fla. Dep’t of Corr., 700 F.3d 464, 481 (11th Cir. 2012).


      1
          Pompee concedes that his ineffective assistance claim is procedurally defaulted because
                                                5
                Case: 16-13336       Date Filed: 06/05/2018        Page: 6 of 13


                                     III.   DISCUSSION

       “The Sixth Amendment secures to a defendant who faces incarceration the

right to [effective] counsel at all critical stages of the criminal process,” and a “plea

hearing qualifies as a critical stage.” Iowa v. Tovar, 541 U.S. 77, 87, 124 S. Ct.

1379, 1387 (2004) (quotation marks omitted); see also Chatom v. White, 858 F.2d

1479, 1484 (11th Cir. 1988). Pompee contends that the district court erred in

rejecting his claim because a reasonable attorney would have asked for another

competency hearing before he pleaded guilty and his attorney’s failure to do so

prejudiced him.

       “The Due Process Clause of the Fourteenth Amendment prohibits states

from trying and convicting mentally incompetent defendants.” Medina v.

Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995). The standard for competence to

plead guilty is “whether the defendant has sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding and has a rational as

well as factual understanding of the proceedings against him.” Godinez v. Moran,

509 U.S. 389, 396, 402, 113 S. Ct. 2680, 2685, 2688 (1993) (quotation marks

omitted). Pompee’s mental illness alone is not enough to establish that he was


he did not properly raise it in state court, but he argues that he can show cause and prejudice to
excuse that procedural default. Because his petition fails on the merits, we decline to address the
procedural bar issue. See DeYoung v. Schofield, 609 F.3d 1260, 1283 n.22 (11th Cir. 2010)
(“Rather than wade through [the] complexities [of the procedural bar issue], we discuss the
merits of [the] claims, as that alone resolves the case.”).

                                                 6
                Case: 16-13336      Date Filed: 06/05/2018     Page: 7 of 13


incompetent to plead guilty. See Medina, 59 F.3d at 1107 (“Not every

manifestation of mental illness demonstrates incompetence to stand trial; rather,

the evidence must indicate a present inability to assist counsel or understand the

charges.”) (quotation marks and alterations omitted); Bolius v. Wainwright, 597

F.2d 986, 990 (5th Cir. 1979) (“[T]he mere presence of mental illness or other

mental disability at the time [the defendant] entered his plea does not necessarily

mean that he was incompetent to plead . . . .”).

       Pompee does not allege that he was incompetent when he pleaded guilty.

Instead, he argues that his trial counsel was ineffective because she failed to

request another competency hearing before he pleaded guilty. See Johnston v.

Singletary, 162 F.3d 630, 635 (11th Cir. 1998) (“[U]nder certain circumstances,

trial counsel’s failure to apprise the court of a client’s changing mental state —

thereby depriving the court of critical information regarding its own potential duty

to hold a Pate v. Robinson hearing — can constitute ineffective assistance.”).2

           A showing of both deficient performance and prejudice is required to

establish an ineffective assistance claim. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984). To establish deficient performance of the type

he claims, Pompee must show that his counsel failed to bring “information raising


       2
        The Supreme Court held in Pate that where “the evidence raises a bona fide doubt as to
a defendant’s competence to stand trial, the judge on his own motion must . . . conduct a
[competency hearing].” 383 U.S. 375, 385, 86 S. Ct. 836, 842 (1966) (quotation marks omitted).

                                              7
              Case: 16-13336     Date Filed: 06/05/2018   Page: 8 of 13


a bona fide doubt as to [his] competency” to the trial court’s attention when every

reasonable attorney would have done so. James v. Singletary, 957 F.2d 1562, 1570

(11th Cir. 1992). And to establish prejudice, he must show that “there was a

reasonable probability that he would have received a competency hearing and been

found incompetent had counsel requested the hearing.” Lawrence, 700 F.3d at

479. He has not, and cannot, meet either of those requirements.

                            A.    Deficient Performance

      The “defendant’s attorney is in the best position to determine whether the

defendant’s competency is suspect,” which means that the failure of Pompee’s

counsel “to raise the competency issue at [the plea hearing], while not dispositive,

is evidence that [his] competency was not really in doubt and there was no need for

a Pate hearing.” Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996).

Pompee argues that several facts should have given his attorney reason to doubt his

competence: (1) his history of mental illness, (2) his history of irrational behavior

(such as suicide attempts), and (3) his statement at the plea hearing that he did not

understand what was happening.

      That argument fails. To begin with, there is no evidence that Pompee’s

counsel deprived the court of any information related to his mental health. See

Johnston, 162 F.3d at 635 (stating that trial counsel may render ineffective

assistance where she deprives “the court of critical information regarding its own


                                          8
               Case: 16-13336       Date Filed: 06/05/2018       Page: 9 of 13


potential duty” to hold a competency hearing); see also Burt v. Uchtman, 422 F.3d

557, 568–69 (7th Cir. 2005) (“The failure by defense counsel to investigate

apparent problems with a defendant’s mental health may be deficient performance

as defined by the first prong of Strickland.”). Instead, the record shows that the

trial court was well aware of Pompee’s history of mental illness and irrational

behavior. It knew everything that trial counsel knew.

       And there was a lot to know. During the year and a half from September

2011 through March 2013, Pompee underwent ten competency evaluations from

five different doctors; all of those evaluations contained detailed information about

his mental illness, history of irrational behavior, and competence to stand trial.

The court held four competency hearings between October 2011 and October 2012

in which it reviewed the evaluations of experts and entered four separate

adjudications about whether Pompee was competent to stand trial. Not only that,

but the court also ordered that Pompee undergo one final competency evaluation

just days before his March 11, 2013 trial date. The doctor evaluated Pompee on

March 7, determined that he was competent, and her report was filed in open court

on March 11, the day Pompee pleaded guilty. 3

       3
         Pompee argues that the change in his medicine after his final competency hearing on
October 22, 2012, but before his plea on March 11, 2013, was a red flag that should have alerted
his counsel to the need for another competency hearing. But the doctor who examined him on
March 7, 2013, took his latest medication into account when assessing his competency and found
that he was competent. The “fact that [he was taking] anti-psychotic drugs [did] not per se
render him incompetent to stand trial.” See Medina, 59 F.3d at 1107.

                                               9
             Case: 16-13336     Date Filed: 06/05/2018    Page: 10 of 13


      Those facts show that the court was familiar with Pompee’s mental illness

and history of irrational behavior and that his counsel did not withhold any

information from the court. Cf. Burt, 422 F.3d at 567–68 (concluding that counsel

performed deficiently where they “were aware of several pieces of information

beyond what was available to the trial court that should have alerted them to the

need for a new competency hearing”) (emphasis added). His counsel did not

render deficient performance by failing to ask for yet another competency hearing

just four days after he was found competent to stand trial in the last evaluation that

was conducted. See Johnston, 162 F.3d at 635.

      Pompee’s statements during the plea hearing also would not have alerted a

reasonable attorney to the need for another competency hearing. He did express

confusion about his medication and state that he did not understand what was

going on, but those isolated statements do not show that he was incompetent to

stand trial. See Thompson v. Wainwright, 787 F.2d 1447, 1458 (11th Cir. 1986)

(concluding that the trial court was not required to inquire further into the

defendant’s competency because “one incorrect response” at a plea hearing “hardly

indicates that [the defendant] was incompetent,” and noting that the defendant

“correctly answered numerous questions from the judge”). The plea hearing

transcript shows that Pompee tried to negotiate a lower sentence, asked whether he

could appeal his sentence, and was satisfied with his counsel’s representation.


                                          10
             Case: 16-13336     Date Filed: 06/05/2018    Page: 11 of 13


Pompee confirmed that he understood the rights he was giving up by pleading

guilty and repeatedly confirmed that he understood the conditions and effect of his

plea. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977)

(“Solemn declarations in open court carry a strong presumption of verity.”).

      What happened during the plea hearing and the totality of Pompee’s

statements during it show that he had a rational understanding of the proceedings

against him and, as a result, counsel did not act unreasonably in failing to ask for

another competency hearing. Godinez, 509 U.S. at 396–99, 402, 113 S. Ct. at

2685–86, 2688; see also Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245,

1259 (11th Cir. 2002) (“The best evidence of [the defendant’s] mental state at the

time of trial is the evidence of his behavior around that time, especially the

evidence of how he related to and communicated with others then.”).

      Because Pompee cannot show that his counsel failed to bring to the court’s

attention “information raising a bona fide doubt as to [his] competency,” James,

957 F.2d at 1570, he cannot establish deficient performance. That failure is

enough to defeat his claim, and there is more.

                                   B.    Prejudice

      Even if Pompee could show that his counsel’s performance was deficient, he

cannot establish prejudice. He must show that “there was a reasonable probability

that he would have received a competency hearing and been found incompetent


                                          11
               Case: 16-13336        Date Filed: 06/05/2018        Page: 12 of 13


had counsel requested the hearing.”4 Lawrence, 700 F.3d at 479. He cannot make

either showing.

       There is no evidence that the court would have held a competency hearing

had Pompee’s counsel requested one. The plea hearing transcript indicates that the

court did not doubt Pompee’s competency; the court repeatedly told him that he

either had to plead guilty or go to trial, and it refused to put off the plea for another

day. The court also told Pompee that it wanted him to “drop [the] façade” of

incompetence and “[s]top the pretending,” which further shows that it would not

have been open to delaying proceedings for another competency hearing. The

competency evaluations supported the court’s belief that Pompee was pretending,

as did the conclusions of several doctors that he was feigning and exaggerating his

symptoms to avoid facing his charges. And even if the court had held another

hearing, there is no reasonable probability that Pompee would have been found

incompetent. Three different doctors found him competent in September 2012,

another doctor found him competent only four days before the plea, and there is no

evidence that his competency changed in the four-day interim between that final


       4
          The typical standard for establishing prejudice in the guilty plea context is to “show that
there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have
pleaded guilty and would have insisted on going to trial.” Diveroli v. United States, 803 F.3d
1258, 1263 (11th Cir. 2015) (quotation marks omitted). Even if that standard applies, Pompee
cannot satisfy it. He was facing a 20-year to life sentence in each case, and under the guilty plea
he received only two 10-year, concurrent sentences. There is no reason to believe that he would
have refused to plead guilty if only his counsel had requested another competency hearing.

                                                 12
               Case: 16-13336       Date Filed: 06/05/2018       Page: 13 of 13


evaluation and the plea hearing. As a result, he cannot establish that any alleged

deficient performance prejudiced him.

       Because Pompee cannot establish deficient performance or prejudice, the

district court did not err in denying his § 2254 petition.5

       AFFIRMED. 6




       5
         Pompee has also filed a “Notice of Appeal for Action,” which asks us to hear this
appeal; we DENY it as moot.
       6
         We thank the Georgetown University Law Center Appellate Litigation Program for
representing Pompee in this appeal. The clinic in its brief, and third-year law student Nicole
Pacheco at oral argument, did as good of a job as possible in an appeal about as hopeless as they
come.

                                               13
