                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      August 17, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 05-8080
 v.
                                                   (D.C. No. 03-CR-159-D)
                                                          (D . W yo.)
 O SCAR ME DIN A ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Oscar M edina appeals his sentence of 25 years’ imprisonment imposed

following his guilty pleas for W itness Tampering in violation of 18 U.S.C.

§ 1512(b)(3), W itness Retaliation in violation of 18 U .S.C. § 1512(b)(2), and Use

of Fire to Commit a Felony in violation of 18 U.S.C. § 844(h)(1). He argues that

the district court violated his right to due process by accepting these pleas without

first holding a competency hearing. He also claims that, because his public




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
defender failed to file a motion for a competency hearing, he was denied his Sixth

Amendment right to effective assistance of counsel. M edina’s counsel moves for

leave to withdraw in a brief filed pursuant to Anders v. California, 386 U.S. 738

(1967). Because M edina has not presented facts that “establish that a reasonable

judge should have had a bona fide doubt as to his competence at the time of trial,”

M cGregor v. Gibson, 248 F.3d 946, 954 (10th Cir. 2001) (en banc), and because

ineffective assistance of counsel claims are not normally considered on direct

appeal, we AFFIRM M edina’s sentence, DISM ISS the appeal, and GRANT

counsel’s motion to w ithdraw .

      On Halloween night, 2001, M edina set fire to the home of Rolando Davila,

Jr. The arson was in claimed retaliation against D avila for his cooperation with

law enforcement officials which led to the arrest of M edina’s close friend,

Francisco Valasquez. From this single incident, M edina was charged with the

Use of a Destructive Device During and in Relation to a Crime of Violence in

violation of 18 U.S.C. § 924(c), in addition to the crimes to which he pled guilty.

      After initially entering a plea of not guilty, M edina decided to change his

plea following the first day of the government’s case in chief. On June 2, 2005 he

signed a written plea agreement in which the government dismissed the 18 U.S.C.

§ 924(c) charge and he pled guilty to the remaining counts against him, agreeing

to a sentence recommendation of 25 years’ imprisonment. At the change of plea

hearing held later that day, M edina, through his lawyer, informed the court that he

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was having a “mental breakdown” and asked to speak to a psychologist or a

psychiatrist. The court noted that M edina was facing an exceedingly difficult

decision and found his reaction to be a “healthy, normal response to the

circumstances in which he finds himself.” The court informed him that he was

free to reconsider, and after a brief discussion with his lawyer, M edina chose to

go forw ard with the plea agreement.

      M edina was then placed under oath and the court conducted the required

plea colloquy. During the colloquy, the court asked M edina whether he was

under the care of a psychiatrist or had ever been treated for mental illness.

M edina responded that he was on medication for the treatment of bipolar disorder.

At each stage of the court’s thorough questioning, M edina indicated that he

understood the consequences of his actions. He then provided the court a factual

basis sufficient to support a finding of guilt on the three charges. Following this

colloquy, the court found M edina “fully competent and capable of entering an

informed plea.”

      At the sentencing hearing, held August 11, 2005, M edina once again

equivocated, claiming that he did not understand the plea agreement, and that he

did not have the mental capacity to enter into the agreement because of prior head

injuries. Unconvinced, the district court declared “I don’t believe at all that

you’re mentally incompetent, sir. I think that’s just a lot of hooey.” H owever,

after pausing to carefully review the record, the district court determined that

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M edina had not formally entered his plea at the change of plea hearing. M edina

again consulted with his lawyer and decided to proceed with his guilty plea, but

sought and obtained two modifications to the plea agreement from the

government. First, the government would leave open the possibility for a

reduction in sentence in exchange for future substantial cooperation. Second,

M edina would not waive his right to appeal. After formally entering his plea, the

court sentenced M edina to the recommended 25 years. He now appeals.

      If an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may so advise the court and request

permission to withdraw. Anders, 386 U.S. at 744. Counsel must submit a brief to

both the appellate court and the client pointing to anything in the record that

would potentially present an appealable issue. The client may then choose to

offer any argument to the court. If, upon completely examining the record, the

court determines that the appeal is in fact frivolous, it may grant the request to

withdraw and dismiss the appeal. Id. In the present case, acting pursuant to

Anders, counsel provided M edina with a copy of the appellate brief and M edina

has not filed a pro se brief raising any argument.

      Counsel’s Anders brief raises two potentially appealable issues. First, the

brief asserts a procedural competency claim. See M cGregor, 248 F.3d at 952 (“A

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

competency hearing . . . .”). In order to prevail on such claim, a defendant must

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“establish that a reasonable judge should have had a bona fide doubt as to his

competence at the time of trial.” Id. at 954. W hen a competency hearing was not

held, our review of a district court’s competency determination “is not limited by

the clearly erroneous standard.” U nited States v. Crews, 781 F.2d 826, 833 (10th

Cir. 1986). A criminal defendant is competent if he possesses “sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding – and . . . a rational as well as a factual understanding of the

proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960).

      Nothing in the record indicates that M edina was unable to consult with his

lawyer or understand the proceedings against him. To the contrary, his distress

and vacillation indicate that he fully comprehended the gravity of his guilty plea.

Even in the final stages of the sentencing hearing, despite his protests of

incompetence, M edina and his lawyer were able to bargain for additional

concessions in the plea agreement. These are not the actions of a person who

lacks understanding of the proceedings against him. Given the record before us,

we conclude that a reasonable judge would not have had a bona fide doubt as to

M edina’s competence.

      The second potentially appealable issue is M edina’s ineffective assistance

of counsel claim. In this circuit, except in rare circumstances, ineffective

assistance of counsel claims must be presented in collateral proceedings. United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). M edina’s

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claim is brought on direct appeal, making it “presumptively dismissible, and

virtually all [such claims] will be dismissed.” Id. This rule allows a district court

to develop the factual record necessary for effective review. See M assaro v.

United States, 538 U.S. 500, 505-06 (2003). The present claim does not fall into

the narrow category of cases that require no further development and are therefore

suitable for review on direct appeal. Cf. United States v. Smith, 10 F.3d 724, 728

(10th Cir. 1993) (finding the record sufficient to review an ineffective assistance

of counsel claim on direct appeal where defense counsel averred to mistakenly

omitting a jury instruction on a lesser included offense). Accordingly, if M edina

intends to pursue this claim further he must raise it in a collateral proceeding

under 28 U.S.C. § 2255.

      B ecause w e are not presented with any meritorious grounds for appeal, we

GR ANT counsel’s request to withdraw, AFFIRM the sentence, and DISM ISS

the appeal.


                                               ENTERED FOR THE COURT



                                               Carlos F. Lucero
                                               Circuit Judge




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