                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ALFORD LAMONT WEST,

                Petitioner-Appellant,

    v.                                                    No. 00-7034
                                                    (D.C. No. 95-CV-178-S)
    RON WARD; ATTORNEY                                    (E.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL, KELLY, and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioner Alford West, a state inmate appearing pro se, seeks a certificate

of appealability (COA) in order to challenge the district court’s dismissal of his

28 U.S.C. § 2254 habeas petition.   See 28 U.S.C. § 2253(c)(1)(A) (providing that

no appeal may be taken from the denial of a § 2254 petition unless the petitioner

first obtains a COA). Because West filed his § 2254 petition in the federal

district court in April 1995, the Antiterrorism and Effective Death Penalty Act

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, does not apply to the merits of

his claims. Lindh v. Murphy , 521 U.S. 320, 326 (1997). AEDPA’s provisions

regarding the necessity of obtaining a COA as a predicate for appellate review do

apply, however, to cases such as this one in which the notice of appeal was filed

after AEDPA’s April 24, 1996 effective date.    Slack v. McDaniel , 120 S. Ct.

1595, 1603 (2000); Romero v. Furlong , 215 F.3d 1107, 1111 n.2 (10th Cir.),

cert. denied , 121 S. Ct. 434 (2000). We deny his application for COA and

dismiss this appeal.


                                          I.

      West was charged in 1990 with one count of assault with intent to kill and

one count of robbery. He was initially declared incompetent to stand trial in

October 1990, but with a finding that he was capable of achieving competency

with treatment. West was committed to a state hospital for treatment. There, he

was given psychiatric medication. At a second competency hearing in December

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1990, West was found competent to stand trial. He pled guilty in May 1991.

He did not file a direct appeal, but did file several unsuccessful applications for

post-conviction relief in state court.

      West filed his § 2254 petition on April 18, 1995. With the district court’s

consent, he amended his petition on February 23, 1998, asserting that, in light of

Cooper v. Oklahoma , 517 U.S. 348 (1996), the trial court had applied an

unconstitutional burden of proof when it found him competent to stand trial.

In Cooper , the Supreme Court held that Oklahoma’s standard of determining

a defendant’s competency to stand trial by clear and convincing evidence was

unconstitutional, and that a defendant should be required to prove his

incompetence by only a preponderance of the evidence.      Id. at 369.

      The district court dismissed West’s petition on the ground that all claims

were procedurally barred from habeas review. We reversed on West’s       Cooper

claim, and remanded to the district court for consideration on the merits of

whether the state trial court had found West competent using an unconstitutional

burden of proof.   West v. Gibson , No. 98-7151, 1999 WL 339702 (10th Cir.

May 28, 1999) (unpublished).   1




1
       West raised his Cooper claim in an application for post-conviction relief
before the Oklahoma Court of Criminal Appeals. That court denied his
application, stating the issue could have been raised on direct appeal. On appeal
to this court, we concluded this was not an adequate state ground sufficient to bar
                                                                       (continued...)

                                         -3-
      On remand, the magistrate judge recommended that the petition be denied

on the merits. The magistrate judge presumed that the state court utilized the

unconstitutional “clear and convincing” burden of proof during the second

competency hearing.       See Walker v. Gibson , 228 F.3d 1217, 1226 (10th Cir.

2000). It found, however, that West failed to present    any evidence at the second

competency hearing that he was incompetent. Thus, even though the hearing was

conducted under the unconstitutional burden of proof, the magistrate judge

concluded that West failed to show that there would have been any doubt as to his

competency had the court utilized the correct preponderance of the evidence

standard. The district court adopted the magistrate judge’s recommendations,

and denied West’s petition.


                                            II.

      On appeal, West first contends that the district court erred in not

conducting a hearing on remand, which he asserts this court ordered. Contrary

to West’s contention, we did not order the district court to conduct a hearing, but

more generally to consider West’s claim on the merits, rather than dismissing it

as procedurally barred.     West , 1999 WL 339702, at **3.



1
 (...continued)
federal habeas review because it was not firmly established and regularly
followed at the time of West’s purported default. West , 1999 WL 339702, at **3.

                                            -4-
      West next contends the district court erred in ruling there was no bona fide

doubt as to his competence at the time of his trial. Because the state trial court

presumably held Mr. West to an unconstitutional burden of proof, we afford no

presumption of correctness to its finding of competency.    See Wallace v. Ward ,

191 F.3d 1235, 1242 (10th Cir. 1999),    cert. denied , 120 S. Ct. 2222 (2000).

“Rather, this court must review his competency claim as if there had been

no competency hearing at all.”    McGregor v. Gibson , 219 F.3d 1245, 1250

(10th Cir. 2000).

      A competency claim based upon procedural due process involves
      a defendant’s constitutional right, once a bona fide doubt has been
      raised as to competency, to an adequate state procedure to insure that
      he is in fact competent to stand trial. A defendant is competent to
      stand trial if he has sufficient present ability to consult with his
      lawyer with a reasonable degree of rational understanding and if he
      has a rational as well as factual understanding of the proceedings
      against him.

Walker , 228 F.3d at 1227 (quotations omitted).

      “In order to prevail on a procedural due process competency claim,

a petitioner must establish that the trial judge ignored facts, viewed objectively,

raising a bona fide doubt regarding the petitioner’s competency to stand trial.”

Id; see also McGregor , 219 F.3d at 1251 (“The issue presented, therefore, is

whether a bona fide doubt exists as to [petitioner’s] competence at the time of his

trial.”). “We review this claim in light of the evidence available to the trial

court.” Id. We agree with the district court that West has not made this showing.

                                           -5-
      “Evidence of irrational behavior, demeanor at trial, and prior medical

opinion regarding competence are relevant to a bona fide doubt inquiry.”

Wallace , 191 F.3d at 1243. “Other relevant factors include evidence of mental

illness and any representations of defense counsel about the defendant’s

incompetence.”   Walker , 228 F.3d at 1227.

      West was evaluated by Dr. Russell, a psychiatrist at Eastern State Hospital.

Dr. Russell filed a report, introduced at the second competency hearing, stating

that West understood that nature of the charges against him, was capable of

assisting his counsel with his defense, and was therefore competent to stand trial.

West did not rebut this evidence, present any evidence of his own to suggest that

he was incompetent, or indeed even contest his competency. From our reading of

the record, there is no evidence that West behaved bizarrely or irrationally in any

way during either the second competency hearing or the subsequent plea hearing,

and it appears that West was able to consult with his attorney. He answered the

trial court’s questions rationally, coherently and responsively, and appeared at all

times to understand the nature of the proceedings.

      West contends that the district court failed to consider the fact he was

taking medications. Neither the state nor West made any mention during the

competency hearing of whether he was on any medication during that proceeding.

During the guilty plea proceedings, West did disclose to the state trial court that


                                         -6-
he had been taking anti-psychotic and anti-depressant medications, and that he

was on these medications at the time of his guilty plea. Upon questioning by the

judge, West denied that these medications prevented him in any way from

understanding the nature of the proceedings. West’s attorney represented to the

state trial court that he had no reason to believe West was not mentally competent

to appreciate and understand the nature, purposes and consequences of the guilty

plea proceedings or to assist in his defense.

       Treatment with psychotropic medication, even with a history of mental

illness, is insufficient to establish incompetence to stand trial.    McGregor ,

219 F.3d at 1251. We agree with the magistrate judge that the record reveals no

bona fide doubt as to West’s competency at the time of his guilty plea. West

has not demonstrated that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.”         Slack , 120 S. Ct.

at 1604. Thus, we find that West has not made the requisite “substantial showing




                                              -7-
of the denial of a constitutional right,” as required under 28 U.S.C. § 2253(c)(2)

to obtain a COA. We GRANT West’s motion seeking to proceed         in forma

pauperis , DENY COA and DISMISS this appeal. The mandate shall issue

forthwith.


                                               Entered for the Court



                                               David M. Ebel
                                               Circuit Judge




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