                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 30, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 12-6156
       v.                                             (W.D. Oklahoma)
 UNDRAY LYNELL PERRY,                          (D.C. Nos. 5:11-CV-01210-F
                                                 and 5:10-CR-00114-F-1)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      Defendant Undray Lynell Perry, proceeding pro se, filed a motion for relief

under 28 U.S.C. § 2255 in the United States District Court for the Western

District of Oklahoma. The district court denied the motion. Defendant now seeks

a certificate of appealability (COA) from this court so that he may appeal the

district court’s decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

denial of § 2255 relief). We deny the application for a COA and dismiss the

appeal because the district court’s decision is not debatable or wrong.

      Defendant pleaded guilty on April 12, 2010, to possession with intent to

distribute cocaine base. See 21 U.S.C. § 841(a)(1). In part because of a delay

caused by the passage of the Fair Sentencing Act and the need for revised

sentencing guidelines, he was not sentenced until March 10, 2011, when he
received a sentence of 150 months’ imprisonment and five years’ supervised

release. Defendant’s § 2255 motion, filed on October 24, 2011, asserts that his

due-process rights were violated because he was mentally incompetent and was

not provided a competency hearing, and that his counsel was ineffective for

failing to request a competency hearing and for improperly causing him to plead

guilty by misinforming him about his potential sentence.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      As the district court correctly recognized:

      “Competency claims can raise issues of both substantive and
      procedural due process.” “A procedural competency claim is based
      upon a trial court’s alleged failure to hold a competency hearing,”
      while a substantive competency claim is founded on the allegation
      that a guilty plea was accepted while the defendant[] was, in fact,
      incompetent.




                                         -2-
Order at 5, United States v. Perry, Nos. CR-10-114-F and CIV-11-1210-F (W.D.

Okla. June 4, 2012) (citation and brackets omitted) (quoting McGregor v. Gibson,

248 F.3d 946, 952 (10th Cir. 2001) (Order). “[T]o prevail on a procedural due

process competency claim a petitioner must raise a bona fide doubt regarding his

competency to stand trial at the time of conviction.” McGregor, 248 F.3d at 953

(footnote omitted). As the district court recognized, Defendant has raised no such

doubt: He was rational and cooperative at the plea hearing, he was not on

medication, he and his attorney both stated that they had no doubt about his

ability to understand the proceedings, and his statement that he read only “‘a little

bit’” does not equate to legal incompetence. Order at 7. He stated at his plea

hearing that he had been treated for a mental problem about five months earlier

and added, “I get it from my dad, mental disability.” Id. at 6. But he could not

recall what his mental illness was; and the presentence investigation report said

that he received a social security check based on his father’s mental illness and

that the mental-health facility identified by Defendant had no available records

and reported that he was not a client. We agree with the district court that the

mere fact that “defendant was purportedly seen five months prior to the plea

hearing for an unknown mental problem [did] not, without more, give rise to a

bona fide doubt as to defendant’s ability to understand the proceedings or consult

with his lawyer.” Id. at 7. Defendant’s substantive-incompetency claim similarly

fails because the minimal evidence presented—low language and reading scores

                                         -3-
and a nonspecific allegation of a mental problem unsupported by further

corroboration or elaboration—does not create a “real, substantial and legitimate

doubt” about his competency. Allen v. Mullin, 368 F.3d 1220, 1240 (10th Cir.

2004) (internal quotation marks omitted).

      Defendant’s ineffective-assistance-of-counsel claims are likewise

unavailing. To succeed on an ineffective-assistance claim, a defendant must show

“that counsel’s performance was deficient . . . [and] that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,

687 (1984). The district court correctly ruled that Defendant could not show

prejudice from failure to raise a competency issue because, for the reasons

discussed above, he did not show a reasonable possibility that he was incompetent

and that a court would have found him so. Regarding Defendant’s allegation that

his attorney provided misleading statements about how his sentence would be

calculated, the district court correctly recognized that Defendant had failed to

establish prejudice because he was correctly informed about the potential

sentence in the plea agreement, in the plea petition, and at the plea hearing itself.

      No reasonable jurist would dispute the district court’s decision. We DENY




                                          -4-
the request for a COA and DISMISS the appeal. We GRANT the motion to

proceed in forma pauperis.

                                  ENTERED FOR THE COURT


                                  Harris L Hartz
                                  Circuit Judge




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