                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                       PUBLISH
                                                                               AUG 21 1998
                    UNITED STATES COURT OF APPEALS
                                                                           PATRICK FISHER
                                                                                    Clerk
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 96-1548

 WALTER SCOT BOIGEGRAIN,

               Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                        (D. Ct. No. 96-CR-233-N)


Submitted on the briefs: *

Richard Byron Peddie and Catherine A. Hance, Frascona, Joiner & Goodman,
P.C., Boulder, Colorado, for Defendant-Appellant.

Henry L. Solano, United States Attorney, and Charlotte J. Mapes, Assistant
United States Attorney, District of Colorado, Denver, Colorado, for Plaintiff-
Appellee.


Before PORFILIO, HOLLOWAY, and TACHA, Circuit Judges.



      *
        After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
TACHA, Circuit Judge.


      This appeal invites us to resolve two constitutional questions regarding the

relationship between an attorney and a potentially incompetent client in a criminal

case. First, we must determine whether a client who may be incompetent to stand

trial has a constitutional right to waive his counsel before a hearing on his

competency. The second issue presented is whether counsel who moves for an

evaluation of the defendant’s competency against the defendant’s wishes thereby

renders ineffective assistance of counsel. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we answer both questions in the negative.

                                          I.

        The defendant was charged with two counts of threatening a federal law

enforcement officer and his family, in violation of 18 U.S.C. § 115(a)(1)(B). His

arraignment was scheduled for June 7, 1996, and from that point the parties have

taken a somewhat tortuous course to this appeal.

      The arraignment was continued until June 14, 1996, to allow David Conner,

the public defender representing the defendant, to familiarize himself with the

case. At that time, the defendant pleaded not guilty and advised the court that if

he could retain private counsel, he would like to replace Mr. Conner. The

Magistrate assured the defendant that he had that option open to him.


                                        -2-
       On June 20, the day of a scheduled discovery conference, the defendant

filed a “Notice of Dismissal of U.S. Federal Public Defender Mr. David Conner

and Notice of Stay of Proceedings Pending Procurement of Other Counsel.” The

presiding Magistrate agreed to delay the discovery conference for one week, until

June 28, 1996, to allow the defendant to retain counsel. The Magistrate, however,

did not release the public defender from the case.

       The record does not reflect whether the conference scheduled for June 28

ever occurred. Regardless, the defendant did not procure private counsel but

continued, throughout the proceedings, to file motions on his own behalf rather

than through his lawyer. On July 8, Mr. Conner moved for a determination of the

defendant’s competency to stand trial. 1 On the basis of that unopposed motion,



       1
        Determining whether an accused is competent to stand trial is a three step process.
See generally Deters v. United States, 143 F.3d 577, 579-80 (10th Cir. 1998) (reviewing
the process). First, if there is “reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect rendering him mentally
incompetent,” the court may order a psychiatric or psychological examination of the
defendant. 18 U.S.C. § 4241(a). At the second stage, the court uses the psychological
report and conducts a hearing to determine whether the defendant is competent. If the
defendant is not found to be competent, the court must order the defendant hospitalized
for up to four months to determine whether the defendant will become competent in the
foreseeable future. The court may order additional hospitalization if it finds there is a
substantial probability that within the additional time, the defendant will become
competent. See id. § 4241(d). At the third stage, after the specified period of
confinement has expired, the court determines whether the defendant is competent and
thus ready to stand trial. If still found not to be competent, the defendant must be
released unless the court finds that he presents a substantial risk of harm to others. See id.
§§ 4241(d), 4246; United States v. Steil, 916 F.2d 485, 486-87 (8th Cir. 1990).

                                             -3-
the court appointed a psychiatrist to examine the defendant and scheduled a

hearing on the defendant’s competency for October 18. The defendant missed his

appointment with the court-appointed psychiatrist, which triggered a motion by

the government to have the defendant committed for the purpose of conducting

the preliminary evaluation. See 18 U.S.C. § 4247(b) (stating that for the purpose

of conducting an examination pursuant to § 4241(b), “the court may commit the

person to be examined for a reasonable period”). The court granted the

government’s motion. The defendant was confined until the psychiatric

evaluation was completed.

      The district court rescheduled the hearing on the defendant’s competency

for November 8, 1996, but the defendant did not appear. After the defendant was

arrested and his bond revoked, the competency hearing finally took place on

December 6, 1996. There, the district court explained why he had not yet ruled

on the defendant’s motion to excuse Mr. Connor:

             I have not ruled on that motion deliberately . . . I am
      aware, of course, that under applicable precedent of the United
      States Supreme Court, a defendant in a criminal case has the
      right to waive his Sixth Amendment right to counsel and
      proceed to represent himself. However, in order for that to
      happen, the Court must find a knowing, intelligent, voluntary
      waiver of the right to counsel.
             . . . I have not ruled on the motion because I do not
      think that one can determine whether a person is competent to
      waive counsel until you can make a determination as to
      whether Mr. Boigegrain is competent to stand trial.


                                       -4-
R.O.A. vol. 11 at 2-3. The court found Mr. Boigegrain incompetent to stand

trial and ordered him committed for a period not to exceed four months,

pursuant to 18 U.S.C. § 4241(d).

             The defendant filed his appeal from that order on December 19, 1996.

Counsel for the defendant moved to withdraw the appeal on the basis that this

court had no jurisdiction because there was no final order issued. The en banc

court found that we have jurisdiction over appeals from section 4241(d)

commitment orders. See United States v. Boigegrain, 122 F.3d 1345, 1349

(10th Cir. 1997) (en banc) (per curiam) (overruling United States v. Cheama,

730 F.2d 1383 (10th Cir. 1984)). The court then ordered briefing on the merits,

which are before this panel now.

             After the parties submitted briefs on the merits, at the defendant’s

request we granted a limited remand so that the district court could make new

findings on the defendant’s competency, and if appropriate enter a plea

agreement. 2 The district court found the defendant competent and accepted the

defendant’s guilty plea. The government then filed a motion to dismiss this

appeal for mootness. We took that motion under advisement and address it

first.




       Defendant spent approximately four months at the federal medical center and then
         2

was released after experts determined that he had been restored to competence.

                                              -5-
                                       II.

      The government argues that the case is now moot because Mr.

Boigegrain has pleaded guilty to the charge. We disagree. Mr. Boigegrain is

appealing the district court’s order, pursuant to 18 U.S.C. § 4241(d), which

found him incompetent to stand trial and ordered him committed to the custody

of the Attorney General for a period not to exceed four months. In the

defendant’s first appeal of that order, we addressed the mootness question:

     Although the defendant’s commitment has concluded, there is
     no question that a justiciable case or controversy is presented
     that will not be mooted by his release. Because commitments
     ordered pursuant to § 4241(d) will often be concluded before
     the appellate process is complete, the issue presented here is
     “‘capable of repetition, yet evading review.’”

Boigegrain, 122 F.3d at 1347 n.1 (quoting United States v. Gunderson, 978

F.2d 580, 581 n.1 (10th Cir. 1992)). Because the defendant is appealing his

commitment pursuant to section 4241(d), it is his release from that

commitment, if anything, that would moot this appeal. The fact that he entered

into a plea agreement has no impact on the completely separate commitment

issue. Cf. Boigegrain, 122 F.3d at 1349 (finding a commitment order under

section 4241(d) to be “completely separate from the merits of the action”). We

are governed by the law of the case as stated in the previous opinion. Mr.

Boigegrain’s appeal is not moot.

                                       III.

                                       -6-
                                        A.

      The defendant raises three issues on appeal. First, he contends that the

proceedings in this case violated his right to waive his counsel and to represent

himself. We review the district court’s finding of historical facts for clear

error. See, e.g., United States v. Robertson, 45 F.3d 1423, 1430 (10th Cir.

1995). We review de novo, however, the ultimate question of whether a

constitutional violation took place. See United States v. Taylor, 113 F.3d 1136,

1140 (10th Cir. 1997).

      Criminal defendants have a constitutional right, rooted in the Sixth

Amendment, to conduct their own defense. See Faretta v. California, 422 U.S.

806 (1975). Thus, a lawyer cannot be forced upon a defendant who wishes to

act as his own representative, even if self-representation would be detrimental

to the defendant. See id. at 834. In this case, the defendant moved to dismiss

the public defender in June of 1996. The district court did not rule on the

motion for over five months, during which time the public defender raised the

competency issue and did not argue, as the defendant apparently wished him to,

that the defendant was competent to stand trial. The defendant argues that the

delayed resolution of his motion and his lawyer’s taking a position contrary to

his own denied him the right to waive counsel and represent himself.

      An accused who forgoes the assistance of counsel surrenders substantial


                                        -7-
benefits. Therefore, “in order to represent himself, the accused must

‘knowingly and intelligently’ forgo those relinquished benefits.” Id. at 835

(quoting Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)); see also United

States v. Baker, 84 F.3d 1263, 1264 (10th Cir. 1996). The defendant’s decision

to waive counsel must be knowing, voluntary, and competent before it can be

recognized. See Faretta, 422 U.S. at 835; Godinez v. Moran, 509 U.S. 389,

399-400 (1993) (“[A] defendant choosing self-representation must do so

‘competently and intelligently’ . . . .”) (quoting Faretta, 422 U.S. at 835). The

district court had a duty to ensure that the defendant was choosing self-

representation in an informed manner before allowing him to proceed on his

own.

       Here, the court waited to rule on the defendant’s motion to dismiss the

public defender until the issue of the defendant’s competency to stand trial had

been resolved. That was the most appropriate course because “[l]ogically, the

trial court cannot simultaneously question a defendant’s mental competence to

stand trial and at one and the same time be convinced that the defendant has

knowingly and intelligently waived his right to counsel.” United States v.

Purnett, 910 F.2d 51, 55 (2d Cir. 1990). Although that common sense

statement almost resolves this matter on its own, a more recent case from the

Supreme Court, Godinez v. Moran, 509 U.S. 389 (1993), clarifies it completely.


                                        -8-
In Godinez, the Court held that the degree of competence necessary to waive

the right to counsel is identical to the degree of competence necessary to stand

trial. See id. at 399-400. Therefore, it was impossible for the district court to

allow the defendant to waive counsel before determining whether he was

competent to stand trial. Before resolving the first question, the court had to

resolve the second.

      Furthermore, even if a six-month delay in disposing of a defendant’s

motion would effectively deny the defendant the right to waive counsel—a

question that we need not, and do not, resolve here—the delay in this case was

not attributable to the district court. The district court originally scheduled the

competency hearing for October. The time-consuming complications were the

defendant’s failure to attend his meeting with the psychiatrist and his failure to

appear at the rescheduled competency hearing in November.

                                         B.

      The defendant also argues that he received ineffective assistance of

counsel from the public defender, David Conner. The defendant argues that

Mr. Conner abandoned his role as the defendant’s advocate and therefore

rendered ineffective assistance of counsel by raising the competency issue

against the defendant’s wishes.

      “Ineffective assistance of counsel claims should be brought in collateral


                                         -9-
proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir. 1995) (en banc). We are reluctant to hear claims of ineffective

assistance advanced for the first time in this court because we work at a distinct

disadvantage when we operate without the factual development and judicial

reasoning afforded by lower court proceedings. See id. (discussing Beaulieu v.

United States, 930 F.2d 805, 806-07 (10th Cir. 1991) (overruled on other

grounds by Galloway, 56 F.3d at 1241)). Therefore, only in the very rare

instance that a claim of ineffective assistance is fully developed in the record

will we hear it for the first time on appeal. See Galloway, 56 F.3d at 1242.

      Normally, we require criminal defendants alleging ineffective assistance

of counsel to obtain a ruling by a district court on their argument by way of a

motion pursuant to 28 U.S.C. § 2255. See, e.g., id.; United States v. Yates, 22

F.3d 981, 985-86 (10th Cir. 1994). An individual in Mr. Boigegrain’s position,

however, cannot file such a motion. Section 2255 allows “[a] prisoner in

custody under sentence” to argue that his sentence was imposed in violation of

the Constitution. See 28 U.S.C. § 2255. A defendant temporarily committed

pursuant to section 4241(d) is neither a prisoner nor under sentence; after being

found incompetent to stand trial, he is held in the custody of the attorney

general as an accused rather than a criminal offender.

      Persons being held because they have been found mentally incompetent


                                        - 10 -
can file petitions for writs of habeas corpus instead of motions under section

2255. See 3 C HARLES A LAN W RIGHT , F EDERAL P RACTICE AND P ROCEDURE

§ 591 (2d ed. 1982); O’Beirne v. Overholser, 287 F.2d 133, 136 (D.C. Cir.

1960); Hill v. United States, 206 F.2d 204, 207 (6th Cir. 1953). If that course

were open to the defendant, we would await a lower court ruling on a habeas

petition before reaching the merits. In this case, however, the defendant cannot

file a habeas corpus action. A writ of habeas corpus cannot be issued unless

the person requesting it is under “restraint,” see 28 U.S.C. § 2241(a), and Mr.

Boigegrain has long since been released from his commitment.

         The defendant, therefore, has no means by which to attack the

commitment order collaterally, making it impossible for us to apply our rule

that “claims of constitutionally ineffective counsel should be brought on

collateral review.” Galloway, 56 F.3d at 1242. The unusual circumstances of

this case, as well as the fact that the record is adequate to decide the matter,

lead us to reach the merits of the defendant’s ineffective assistance of counsel

claim.

         In order to prove that the public defender rendered ineffective assistance

of counsel, the defendant must show (1) that the counsel’s performance was so

deficient that it “fell below an objective standard of reasonableness,” and (2)

that the deficient performance prejudiced the defendant. Strickland v.


                                         - 11 -
Washington, 466 U.S. 668, 687-88 (1984).

      With regard to the first question, courts must indulge a strong

presumption that counsel’s actions constitute “reasonable professional

assistance.” Id. at 689. Nonetheless, the defendant notes correctly that the

Sixth Amendment requires a lawyer to act as an advocate for his client. See

United States v. Cronic, 466 U.S. 648, 656 (1984). If counsel does not act as

an advocate for the defendant, the process “loses its character as a

confrontation between adversaries,” id. at 656-57, and our entire justice system

is premised on the belief that “debate between adversaries is often essential to

the truth-seeking function of trials,” Gardner v. Florida, 430 U.S. 349, 360

(1977) (plurality opinion), quoted in Cronic, 466 U.S. at 655 n.14. “An

effective attorney ‘must play the role of an active advocate, rather than a mere

friend of the court.’” Osborn v. Shillinger, 861 F.2d 612, 624 (10th Cir. 1988)

(quoting Evitts v. Lucey, 469 U.S. 387, 394 (1985)).

      The defendant argues that his lawyer, the public defender, abandoned his

role as the defendant’s advocate and therefore rendered ineffective assistance

of counsel in raising the competency issue against the defendant’s wishes. The

Sixth Amendment, however, did not require that the public defender adhere to

the defendant’s apparent wish to avoid the competency issue. We hold that

when a lawyer has reason to believe that her client may not be mentally


                                       - 12 -
competent to stand trial, she does not render ineffective assistance of counsel

by making her concerns known to the court.

           As with the previous issue, common sense all but disposes of the matter.

While the Sixth Amendment demands that counsel to criminal defendants act as

their advocates, the rule is not absolute in any sense. Counsel does not have to

take every position and make every argument that the client requests. See

United States v. Dawes, 874 F.2d 746, 748 (10th Cir. 1989) (per curiam)

(“There is no right to counsel who will blindly follow a defendant’s

instructions.”). Requiring a lawyer to argue at the direction of one who may be

mentally incompetent—that is, one who seems unable to comprehend the nature

of the proceedings against him—serves neither the individual client nor the

truth-seeking process. See Brennan v. Blankenship, 472 F. Supp. 149, 156

(W.D. Va. 1979) (“Under any professional standard, it is improper for counsel

to blindly rely on the statement of a criminal client whose reasoning abilities

are highly suspect.”).

           Though this is an issue of first impression in our circuit, 3 the appellate



       3
        We have found only one line of cases, in California, addressing the precise issue
before us in this case. See People v. Harris, 14 Cal. App. 4th 984, 994, 18 Cal. Rptr. 2d
92, 98 (Cal. Ct. App. 1993) (“We agree with the basic holding in Bolden that defense
counsel does not provide ineffective assistance of counsel or violate the defendant’s due
process rights by seeking to prove the defendant’s incompetence over the defendant’s
objections.”).

                                             - 13 -
opinions that have touched on it all imply that the criminal lawyer’s obligation

to advocate the positions of his client is dependent on the client being mentally

competent to stand trial. See, e.g., Alvord v. Wainwright, 725 F.2d 1282, 1289

(11th Cir. 1984) (“[G]iven [the defendant’s] competency, [the attorney] was

ethically bound to follow the client’s wishes.” (emphasis added)). In Clanton

v. Bair, 826 F.2d 1354 (4th Cir. 1987), the court found that defense counsel

who respected his client’s refusal to submit to a psychiatric evaluation had not

rendered ineffective assistance of counsel. The court said:

            When Clanton rejected his trial lawyer’s suggestion of a
     psychiatric evaluation, there was no basis for the lawyer’s
     insistence upon it. Clanton seemed lucid and rational. He
     gave no indication of any mental or emotional problem. There
     was no doubt of his competence to stand trial . . . .

Id. at 1358. The implication, of course, is that if there were doubt of the

defendant’s competence, counsel should not necessarily respect the client’s

expressed desires.

      This case highlights the fact that in addition to their duties as counselors,

attorneys are also officers of the courts. The Constitution prohibits a court

from trying defendants who are mentally incompetent. See Pate v. Robinson,

383 U.S. 375, 378 (1966). Of all the actors in a trial, defense counsel has the

most intimate association with the defendant. Therefore, the defendant’s

lawyer is not only allowed to raise the competency issue, but, because of the


                                        - 14 -
importance of the prohibition on trying those who cannot understand

proceedings against them, she has a professional duty to do so when

appropriate. See, e.g., Vogt v. United States, 88 F.3d 587, 592 (8th Cir. 1996)

(“‘The failure of trial counsel to request a competency hearing where there was

evidence raising a substantial doubt about a petitioner’s competence to stand

trial may constitute ineffective assistance of counsel.’”) (quoting Speedy v.

Wyrick, 702 F.2d 723, 726 (8th Cir. 1983)). In fact, defendants often contend

in collateral proceedings that their trial counsel rendered ineffective assistance

by failing to request a competency hearing. See, e.g., Clanton, 826 F.2d at

1357-58.

          Counsel’s actions in this case were fully consistent with the American

Bar Association Standards, which are a guide in determining reasonable

professional behavior. See Strickland, 466 U.S. at 688. The pertinent standard

states:

      Defense counsel should move for evaluation of the defendant’s
      competence to stand trial whenever the defense counsel has a
      good faith doubt as to the defendant’s competence. If the
      client objects to such a motion being made, counsel may move
      for evaluation over the client’s objection. In any event,
      counsel should make known to the court and to the prosecutor
      those facts known to counsel which raise the good faith doubt
      of competence.

ABA S TANDARDS FOR C RIMINAL J USTICE Standard 7-4.2(c) (emphasis added).

          Based on this ABA standard as well as the other cited authorities, the

                                          - 15 -
entire panel agrees that defense counsel may move for a competency

determination against a client’s wishes without violating the Fifth or Sixth

Amendment. The dissent, however, concludes that although defense counsel

may (and probably must) raise the issue, she cannot continue to represent her

client when the client does not agree that he is incompetent. According to the

dissent, the Constitution requires that the defendant’s view must be presented,

and therefore substitute counsel be appointed to argue as the defendant wishes.

In support of its position, the dissent cites the commentary to Standard 7-4.2,

which notes that when an attorney advises the court of her client’s possible

incompetence, “[t]his may require, of course, that an attorney seek judicial

permission to withdraw as defense counsel because of a conflict of interest.”

Id. Commentary Introduction. The dissenting opinion assumes that the

“conflict” referred to here is the conflict that arises when the lawyer and his

client have contrary beliefs regarding the defendant’s competency. See

Dissenting Op. at 7 (“[C]ircumstances like those before us are just what the

drafter of the ABA Standards must have had in mind in their commentary about

the necessity of the attorney seeking leave to withdraw.”).

      The conflict referred to in the commentary, however, is not that between

the client and the lawyer. Further paragraphs in the commentary make clear

that the conflict addressed by the ABA Standard is altogether different. The


                                        - 16 -
ABA Standard recognizes that even among defendants whose competency to

stand trial is dubious, in some instances it is in the best interest of the

defendant to proceed to trial without a competency determination. For

instance, if the prosecution has a weak case or the crime is a minor one, the

defendant might prefer the small risk of conviction or relatively minor

punishment to the opprobrium and possible long-term institutionalization that

accompany a finding of incompetency. See Standard 7-4.2 Commentary

(“Because of the sometimes severe consequences traditionally attendant upon a

determination of incompetence, defense counsel may conclude that it is better

for a technically incompetent defendant to proceed to trial.”). In such a case,

the lawyer’s duty to represent the client’s best interest requires one course of

action, while the duty to maintain the integrity of the court by advising it of a

defendant’s possible incompetence requires another. See id. The standard

resolves that conflict in favor of the court.

      For the above reasons, the defendant’s disagreement with the public

defender’s evaluation of his competence did not trigger the withdrawal

procedure of Standard 7-4.2. Furthermore, considering the seriousness of the

offense with which the defendant was charged, see 18 U.S.C. § 115(b)(1)(4),

there was no conflict between the defense counsel’s duty to serve his client’s

best interest and to raise the competency issue. Both duties required him to


                                         - 17 -
raise the competency issue with the court. Thus, the conflict-of-interest

language in Standard 7-4.2 is inapposite. Nothing else in the ABA Standards

or the constitutional decisions bar defense counsel from arguing—or, as in this

case, merely presenting testimony on—the point she was required to raise. See

Hull v. Freeman , 932 F.2d 159, 169 (3d Cir. 1991) (“[W]e think it axiomatic

that the desire of a defendant whose mental faculties are in doubt to be found

competent does not absolve counsel of his or her independent professional

responsibility to put the government to its proof at a competency hearing when

the case for competency is in serious question.”),   overruling on other grounds

recognized in Caswell v. Ryan , 953 F.2d 853 (3d Cir. 1992);   Bundy v. Dugger ,

816 F.2d 564, 566 n.2 (11th Cir. 1987) (“If defense counsel suspects that the

defendant is unable to consult with him with a reasonable degree of rational

understanding, he cannot blindly accept his client’s demand that his

competency not be challenged.”) (citation and quotation marks ommited)      .

       The public defender’s actions in this case did not fall below an objective

standard of reasonableness, and therefore he did not render ineffective

assistance to the defendant.

                                           C.

       Finally, the defendant argues that the evidence does not support the

district court’s finding that the defendant was mentally incompetent to stand


                                          - 18 -
trial. Competency to stand trial is a factual determination that can be set aside

only if it is clearly erroneous. See United States v. Crews, 781 F.2d 826, 833

(10th Cir. 1986) (per curiam). In order for a defendant to be competent to

stand trial, he must have “sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding,” and also a “rational as

well as factual understanding of the proceedings against him.” Dusky v. United

States, 362 U.S. 402, 402 (1960) (per curiam). “In making a determination of

competency, the district court may rely on a number of factors, including

medical opinion and the court’s observation of the defendant’s comportment.”

United States v. Nichols, 56 F.3d 403, 411 (2d Cir. 1995).

      In this case, the district court relied on the testimony of psychiatrist

Rebecca Barkhorn, who evaluated the defendant at the court’s request. Dr.

Barkhorn testified that the defendant was delusional and suffered from

“paranoid ideation,” causing him to believe that his lawyer was participating in

a conspiracy, along with the prosecutor and the judge, to incarcerate him for

reasons unrelated to the charge against him. In her opinion the substitution of

alternate counsel would not solve the problem, as the defendant would be

unable to trust or work with any attorney who did not share his beliefs.

      Dr. Barkhorn described the defendant’s delusions in some detail and

stated that they interfered substantially with his ability to understand events,


                                        - 19 -
such as the criminal proceedings against him, because he could only evaluate

those events through the prism of his delusions. According to the psychiatrist,

the defendant’s inability to think rationally about the case was evidenced by,

among other things, his belief that the Immigration and Naturalization Service

was somehow involved in the case against him and that the case also directly

related to the abortion of a child that he had conceived sometime in the past.

Dr. Barkhorn concluded that the defendant did not have “a rational

understanding of many aspects of the case.”

      In addition to Dr. Barkhorn’s testimony, the court relied on its own

observation of the defendant’s behavior, as well as the defendant’s pro se

filings in the case, which the court described as “irrational.” We do not find

the court’s description of the defendant’s pleadings clearly erroneous. Nor did

the court clearly err in finding that Dr. Barkhorn’s testimony established that

the defendant was not competent to stand trial. To the contrary, Dr. Barkhorn’s

testimony touched heavily on the two relevant questions—the defendant’s

ability to consult with an attorney, and his ability to understand the proceedings

against him.

                                        IV.

      We hold that the proceedings in this case did not violate the defendant’s

right to self-representation. Furthermore, we hold that a lawyer with a


                                       - 20 -
reasonable doubt regarding the competency of his client to stand trial does not

render ineffective assistance of counsel by raising the competency issue against

the wishes of his client. Finally, we find that the evidence supports the district

court’s finding that the defendant was incompetent to stand trial. All other

pending motions are denied.

      We AFFIRM.




                                        - 21 -
No. 96-1548, United States v. Boigegrain

HOLLOWAY, Circuit Judge, concurring in part and dissenting in part:

       I agree with much of the scholarly analysis in the majority opinion, and I concur

in the holding that the appeal is not moot. However, I am unable to fully join the

opinion or concur in the result because of my views on one basic issue. I would hold

under these circumstances that an accused is entitled to make the fundamental decision

on his position on competency, and to counsel to assist him in presenting his position

and in resisting a finding of incompetence to stand trial.

       I feel that the majority opinion essentially overlooks the defendant’s primary

argument by analyzing it only as a contention of ineffective assistance of counsel. As I

see it, his primary contention actually is that there was in effect a complete denial of

the right to counsel here. Mr. Boigegrain’s appellate counsel argue that at the hearing

on defendant’s competency to stand trial,

       there was no voice advocating Mr. Boigegrain’s position. Instead, the
       moment for his defense was displaced with the antagonistic voice of
       Defense Counsel, who argued for his commitment. Mr. Boigegrain was
       left alone in the courtroom, without friend or advocate, and without the
       opportunity to be heard effectively.

Appellant’s Opening Brief at 9 (emphasis added). Appellant’s Reply Brief at 3 states

that “the core of Defendant’s argument is that Defendant was deprived of his right to

an advocate who would argue for, as opposed to against, his liberty interests.”

       I am satisfied that the record clearly supports this description of events by

Mr. Boigegrain’s appellate counsel. At the hearing on his competency to stand trial on
December 6, 1996, 11 R. at 2-52, the Assistant Federal Public Defender appointed to

represent the defendant, Mr. Conner, and Assistant U.S. Attorney Allison presented the

bulk of the evidence on defendant’s competency, id. at 10, 30, defendant being

permitted to make brief statements. E.g., 34-43, 45-47. In fact, government counsel

and the public defender spoke with one voice – they both developed psychiatric

evidence showing only that defendant was not competent to stand trial. I agree that the

defense counsel had the right and duty to raise the issue by reporting his concerns

about defendant’s competence. However, the result here was that both counsel laid the

ground for the order that defendant be committed under § 4241(d) for up to four

months for psychiatric or psychological examination. The order of commitment

entered December 6, 1996, 1 R. doc. 54, the subject of this appeal, states that “the issue

of the defendant’s competency to proceed [was] raised initially by counsel for the

defendant and subsequently joined by the United States.” Id. at 1. The showing of

incompetency of defendant was the only position that both counsel developed in the

evidence, and this presentation was vigorously objected to by the defendant. 11 R. at

8-9.

       I would hold that at the critical hearing Mr. Boigegrain was entitled to

assistance of counsel to function in accord with the constitutional requirement that

“counsel acts in the role of an advocate in behalf of his client, as opposed to that of

amicus curiae.” Anders v. California, 386 U.S. 738, 744 (1967). Here that critical


                                            -2-
element was missing – there was no assistance by counsel to defendant to present his

opposition to the commitment order.

         There can be no serious doubt that the hearing on competency to stand trial is a

critical stage of the prosecution at which the accused has the right to assistance of

counsel, which is specifically mandated by statute. 18 U.S.C. §§ 4241(c), 4247(d).

The latter statute further mandates that the defendant whose competency is the subject

of the hearing shall be afforded the opportunity to testify, to present evidence, to

subpoena witnesses on his behalf, and to confront and cross-examine witnesses. Id.

The issue on which I part company with the majority is the acceptance of defense

counsel’s right here to elect conclusively defendant’s position on the commitment

order and evidence to be presented at the competency hearing, with the result that

defendant had no assistance of counsel to present his position opposing a commitment

order.

         It is clear that “the accused has the ultimate authority to make certain

fundamental decisions regarding the case, as to whether to plead guilty, waive a jury,

testify in his or her own behalf, or take an appeal.” See Jones v. Barnes, 463 U.S. 745,

751 (1983). Additionally, “with some limitations, a defendant may elect to act as his or

her own advocate,” id. (citing Faretta v. California, 422 U.S. 806 (1975)), although

Barnes recognized that there is no constitutional duty resting on counsel assigned to

prosecute a criminal appeal to raise every nonfrivolous issue requested by a defendant,


                                              -3-
id at 754. Although most other decisions are the responsibility of counsel, after

consultation with the client where appropriate and feasible, Standard 4-5.2(b), ABA

Standards for Criminal Justice Prosecution Function and Defense Function (3d ed.

1993), the Court has never held that the fundamental decisions reserved to the client

are limited to those noted above. Indeed, the courts of appeals, including this court,

have recognized other critical decisions as reserved for the client.

       For example, in Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990), we reversed a

criminal conviction because the defendant had not personally waived the right to be

present during instruction of the jury, closing arguments and the rendering of the

verdict, nor had defendant waived his right to be present by remaining silent when

defense counsel purportedly waived the right. In Carter v. Sowders, 5 F.3d 975, 980-

82 (6th Cir. 1993), the court held that counsel could not, without the accused’s consent,

waive the right to be present at a videotaped deposition which was to be used at trial.

It has also been held that an accused must personally waive trial of the case to a jury of

less than twelve. United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir. 1971).

Several courts have held that a competent defendant may choose to forgo a defense of

insanity. E.g., United States v. Marble, 940 F.2d 1543, 1547 (D.C. Cir. 1991); Foster

v. Strickland, 707 F.2d 1339, 1343 (11th Cir. 1983); Frendak v. United States, 408

A.2d 364, 381 & n.31 (D.C. Ct. App. 1979); see also Dean v. Superintendent, Clinton

Correctional Facility, 93 F.3d 58, 61 & n.1 (2d Cir. 1996) (citing cases). The Frendak


                                            -4-
court reasoned that the philosophy of North Carolina v. Alford , 400 U.S. 25 (1970),

and Faretta mandated that an accused “be permitted to make fundamental decisions

about the course of the proceedings,” 408 A.2d at 376, which were held to include

whether to raise the defense of insanity at the time of the offense.

       At this point, it is helpful to recall the reasons that led the en banc court to hold

that this appeal could proceed in the first instance. In United States v. Boigegrain, 122

F.3d 1345 (10th Cir. 1997) (en banc) (Boigegrain I), nine judges of this court joined a

per curiam opinion stating that a “defendant must not be left without recourse to

appellate review where there is an immediate and significant loss of personal liberty.”

122 F.3d at 1349. I would add that here defendant’s immediate and significant loss of

personal liberty was not the only substantial interest at stake for the defendant at the

hearing where the determination was made whether a commitment order under

§ 4241(d) should be entered like that on appeal. There are several reasons, any or all of

which may be of importance to an accused in a given case and any or all of which may

have been regarded as important by Mr. Boigegrain in this case, for wishing to avoid a

finding of incompetence to stand trial:

       An involuntary commitment for treatment to restore competence may
       extend well beyond the maximum sentence imposable for a relatively
       minor offense. A defendant could view the stigma flowing from a
       finding of mental illness as more opprobrious than that generated by a
       criminal conviction. An evaluation may force a defendant to reveal to a
       court-appointed expert information the defendant would prefer to keep
       secret. . . . A defendant might even prefer to be punished through
       imprisonment than to experience commitment to a mental hospital for

                                             -5-
          treatment, given the marginal conditions in many public mental
          institutions.

ABA Criminal Justice Mental Health Standards, Standard 7-4.2, commentary at 179-80

(1989).

          Given the importance of the interests at stake, one must conclude that the

decision on the defendant’s position to oppose or acquiesce in a commitment under

§ 4241(d) qualifies as one of those fundamental decisions to be made by the client. I

am convinced it is not permissible to wrest from the accused the authority to make the

fundamental decision about his position at the competency hearing before he has been

determined to be incompetent. Fifth and Sixth Amendment protections do not permit

this result. Otherwise, the accused is deprived of the right to elect to defend his

competence at a hearing with the assistance of counsel.

          At the December 6, 1996, hearing in question here, where the judge granted the

order of commitment, Mr. Boigegrain had not yet been found incompetent. Counsel,

his good intentions notwithstanding, did not have the expertise to determine on his

ipse dixit, his client’s competence.1 Certainly counsel was in a position, perhaps

uniquely, to observe his client and to communicate with him. In the course of his

representation, counsel became concerned about his client’s competency and filed the


      1
        Thus, I disagree with one proposed approach to this issue which would leave the
matter to the informed discretion of defense counsel. Rodney J. Uphoff, The Role of the
Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous
Advocate or Officer of the Court?, 1988 Wisc. L. Rev. 65.

                                              -6-
initial motion for a determination of defendant’s competency. I agree with the majority

that in such circumstances counsel must be permitted, and may be duty bound, to raise

the issue as he did. But I cannot agree that this step by counsel must control the

position to be taken in the proceedings to follow.

       Where, as is the case here, defense counsel has doubts of his client’s

competence and expresses his doubts to the court, I would hold that the defendant then

has the right to decide if he will agree to a commitment order or wishes it to be

opposed. If he elects to oppose commitment, as defendant did here, new counsel

should be appointed. The majority opinion cites Standard 7-4.2 of the ABA Criminal

Justice Mental Health Standards for the holding that defense counsel may move for a

competency evaluation over his client’s objection. The commentary to this provision

notes, however, that when counsel does raise the issue over his client’s objection,

“[t]his may require, of course, that an attorney seek judicial permission to withdraw as

defense counsel because of a conflict of interest.” Id., commentary at 177 (emphasis

added). I conclude that the circumstances like those before us are just what the drafters

of the ABA Standards must have had in mind in their commentary about the necessity

of the attorney seeking leave to withdraw.

       Other courts confronted with similar problems in the context of deciding

whether to permit a defendant to forgo an insanity defense have resorted to the

appointment of amicus counsel when necessary to ensure that arguments both for and


                                             -7-
against the defendant’s desired course of action are presented. See Marble, 940 F.2d at

1544; Frendak, 408 A.2d at 368-69, 380. The practice in the Ninth Circuit appears to

be that any time a substantial conflict develops between counsel and a defendant, the

trial court inquires into the matter to ensure that the attorney can still effectively

represent the client. See, e.g., Brown v. Craven, 424 F.2d 1166, 1169-70 (9th Cir.

1970). Where proper representation requires, substitute or “conflict counsel” should be

appointed to present defendant’s position. United States v. Gonzalez, 113 F.3d 1026,

1028-29 (9th Cir. 1997); Mason ex rel. Marson v. Vasquez, 5 F.3d 1220, 1223-24 (9th

Cir. 1993); United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir. 1987);

United States v. Kaczynski, No. CR-S-259, 1998 WL 15049, at *3 (E.D. Cal.

January 9, 1998). Based on a parallel rationale, I would hold that because of the

important interests at stake in the competency determination, where it is apparent that

the defendant desires to resist a finding of incompetency, the district judge should

appoint new counsel to assist the defendant in presenting his position.

       In sum, I would not affirm the commitment order as the majority opinion does,

but vacate it as constitutionally flawed. I would hold that it was a denial of due process

to accept as conclusive, on defendant’s position, defense counsel’s decision to raise his

client’s incompetency. When the defendant elected to defend his competence and

oppose a commitment order, his attorney should have sought, and should have been

permitted, to withdraw. The Court has rejected as impermissible a procedure in which


                                              -8-
“counsel is not an assistant, but a master.” Faretta, 422 U.S. at 820. When the

defendant elected to defend his competence and oppose the commitment order,

defendant was entitled to the assistance of counsel in presenting his position. New

counsel, like the substitute or conflict counsel discussed above, should be appointed so

that the defendant would have the assistance of counsel to present his position.

       Leaving the defendant alone with only an attorney suggesting, contrary to the

position defendant elected to take, that he was incompetent denied him due process

under the Fifth Amendment and assistance of counsel under the Sixth Amendment.

Because defendant was completely without assistance of counsel at the crucial stage of

the competency hearing, I would hold that the error is structural and reversible per se.

See Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993) (deprivation of the right of

counsel cited as example of structural error requiring “automatic reversal”).

Accordingly, I respectfully dissent in part and concur in part.




                                            -9-
