                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 28 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


MICHAEL ANTHONY GUZMAN,

          Petitioner-Appellant,

v.
                                                       No. 98-2172
                                                  (Dist. of New Mexico)
JOE WILLIAMS, Warden, Central NM
                                                (D.C. No. CIV-97-1527-JC)
Correctional Facility; ATTORNEY
GENERAL FOR THE STATE OF
NEW MEXICO,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before TACHA, BARRETT, and MURPHY, Circuit Judges.


                                  I. INTRODUCTION

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

unanimously that oral argument would not materially assist the determination of




      *
       This order and judgment is not binding precedent, except under the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.
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 case is before the court on Michael Anthony Guzman’s application for

a certificate of appealability (“COA”). Guzman seeks a COA so that he can

appeal the district court order dismissing Guzman’s 28 U.S.C. § 2254 habeas

corpus petition.   See 28 U.S.C. 2253(c)(1)(A). Guzman has made a substantial

showing of the denial of a constitutional right as to the following three claims: (1)

that he was incompetent at the time of his trial; (2) that his counsel was

ineffective in failing to adequately contest Guzman’s competency both during the

competency hearing and the pendency of the trial; and (3) that his counsel was

ineffective in failing to proffer evidence regarding Guzman’s consumption of

medication and alcohol on the day of the crimes where such evidence could have

given rise to a diminished capacity defense. As to these three claims, we       grant a

COA, reverse the district court’s summary dismissal, and        remand the case to the

district court for further proceedings.   See id. § 2253(c)(2) (providing that a

petitioner is entitled to a COA only upon making a substantial showing of the

denial of a constitutional right). Because Guzman has failed to make the requisite

showing as to the remaining claims advanced on appeal, this court           denies a COA

and dismisses the appeal as to those claims.




                                           -2-
                                II. BACKGROUND

      In 1982, at the age of eighteen, Guzman was convicted of     first degree

murder, attempted first degree murder, criminal sexual penetration, two counts of

kidnaping, and tampering with evidence. The convictions arose out of an episode

where Guzman kidnaped two women, repeatedly stabbed one of the victims, and

raped and murdered the other. He was sentenced to death on the first degree

murder charge and varying terms of imprisonment on the remaining charges. The

death sentence was later commuted to life imprisonment by the governor of New

Mexico.

      After he was unsuccessful in obtaining post-conviction relief in state court,

Guzman brought this § 2254 federal habeas action. In his petition, Guzman

alleged that (1) the evidence was insufficient to support his convictions, (2) he

was incompetent to stand trial, and (3) he had received   ineffective assistance of

counsel at trial in several particulars.

      The district court summarily dismissed the petition. In its order, the court

pointed out that under   28 U.S.C. § 2254 (e)(1), the state court’s determination of

the facts are presumed correct. The court held that Guzman had failed to proffer

clear and convincing evidence to rebut the state court’s factual findings that the

evidence was sufficient to support the verdicts and that he was competent to stand




                                           -3-
trial. The court also held that Mr. Guzman had failed to show his counsel was

ineffective.



                                 III. ANALYSIS

      This court reviews the district court’s factual findings following the denial

of a habeas corpus petition under the clearly erroneous standard and reviews its

legal conclusions de novo . See Castro v. Oklahoma , 71 F.3d 1502, 1510 (10    th
                                                                                    Cir.

1995). The underlying state factual findings must be accepted unless they

“resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). This court must defer to a state court’s legal conclusions, unless

those conclusions are “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States.” Id. § 2254(d)(1).

      Pursuant to these standards, we begin by noting the state of the record in

this case. In response to Guzman’s § 2254 petition, the respondents filed an

Answer. The majority of the Answer is composed of a list of attached exhibits,

which exhibits represented the entirety of the record of the state court proceedings

before the district court. Although this record included the parties’ briefs on both




                                         -4-
direct appeal and post-conviction proceedings, noticeably absent from the record

are the audio recordings of Guzman’s trial.         1



      Based on this limited record, the district court summarily dismissed all

three of Guzman’s claims. As noted at more length below, this court can

reconstruct enough of what happened at trial from the limited record to resolve,

pursuant to the standards set forth above, Guzman’s sufficiency-of-the-evidence

claim and the bulk of Guzman’s ineffective-assistance claims. As to the

remainder of his claims, however, the limited record on appeal is simply

insufficient to affirm the district court’s summary dismissal.

A. Sufficiency of the Evidence

      Guzman first alleges that there was insufficient evidence adduced at trial to

prove that he committed the crimes. In particular, Guzman asserts that the only

evidence adduced at trial in support of his conviction was his confession and the

eyewitness identification of Colleen Bush, the surviving victim. As to the

confession, Guzman asserts that it should have been suppressed because he was

“incompetent” at the time of the confession.            2
                                                            With regard to Bush’s

identification, Guzman asserts that it is unreliable. According to Guzman, “Bush

      1
       It is clear from the record that Guzman’s trial was audio taped rather than
transcribed.
      2
       As noted below, Guzman’s trial counsel apparently never sought to have
the confession suppressed. Nevertheless, Guzman asserts that his counsel was
ineffective in failing to so move.

                                              -5-
was unable to identify petitioner but identified another person as the possible

suspect. It was only after she was shown photos on several occasions that she

identified petitioner.” The district court rejected Guzman’s contentions as

completely conclusory and insufficient to overcome the presumption of

correctness afforded the state court’s determination that the evidence was

sufficient.

       Before this court begins its analysis, we note a serious question about

whether Guzman is procedurally barred from raising these claims. This court has

conducted a close review of each of Guzman’s opening and reply briefs before the

New Mexico Supreme Court on direct appeal of his conviction, Guzman’s state

petition for post-conviction relief, and Guzman’s petition for a writ of certiorari

to the New Mexico Supreme Court seeking review of the denial of his state

petition for post-conviction relief. With regard to Guzman’s briefs on direct

appeal, it is absolutely clear that Guzman never raised a sufficiency-of-the-

evidence claim.   While Guzman did generally allege his actual innocence and

raise a generalized evidence-sufficiency claim in his state post-conviction

pleadings, he never raised the specific claims as to his confession and Bush’s

eyewitness identification.   3
                                 Unfortunately, the respondents did not argue the



       In response to Guzman’s general and conclusory allegations, the state
       3

court concluded, as the entirety of its analysis of the issue, as follows:
             In the present case[,] the affidavit by one of the prosecutors

                                             -6-
procedural bar before the district court. Although this court has the power to

raise the state procedural bar defense          sua sponte , Hardiman v. Reynolds , 971

F.2d 500, 505 (10   th
                         Cir. 1992),   4
                                           we conclude such a course is unnecessary here

because Guzman’s claims can be easily resolved on the merits.            5




       On appeal to this court, Guzman reasserts the claims he made before the

district court and argues that the district court erred in summarily dismissing the

petition without first obtaining a copy of and reviewing the trial transcript. We



       states that the defendant gave a confession to the police, was
       positively identified by the surviving victim, and took police to the
       scene of the crime and the location where he threw away the murder
       weapon. The Petitioner merely makes an unsubstantiated allegation
       that the evidence presented during the trial was insufficient to sustain
       the guilty verdicts.

       When a court raises the procedural bar sua sponte, the petitioner must be
       4

given an opportunity to respond to the defense. See United States v. Warner, 23
F.3d 287, 291 (10 th Cir. 1994).
       5
        Technically, Guzman’s failure to raise the specifics of his insufficiency
claim before the state courts would mean that the claim is not exhausted. In such
a situation, Guzman’s federal habeas petition would generally be dismissed
without prejudice to provide an opportunity to return to state court to pursue those
remedies. See Demarest v. Price, 130 F.3d 922, 939 (10 th Cir. 1997). Dismissal
without prejudice is not appropriate, however, if the state court would now find
the claims procedurally barred on independent and adequate state procedural
grounds. See Coleman v. Thompson, 501 U.S. 722, 735 & n.1 (1991). Guzman’s
failure to raise these specific claims either on direct appeal or in his state petition
for post-conviction relief would be considered a waiver of those claims by New
Mexico courts. See Faulkner v. State, 526 P.2d 1308, 1308-09 (N.M. Ct. App.
1974); Jackson v. Shanks, 143 F.3d 1313, 1318 (10 th Cir. 1998).

                                                  -7-
agree with Guzman that a review of the trial record is often necessary to resolve a

sufficiency-of-the-evidence claim on federal habeas review.   6
                                                                  Nevertheless, in

light of the specific nature of Guzman’s sufficiency claim and the contents of the

record before the court, we conclude that the district court did not err in

summarily dismissing Guzman’s evidence-sufficiency claim.

       On appeal, Guzman baldly asserts “[t]he only evidence that the State had

linking [him] to the incident was [his] confession and the testimony of Ms.

Colleen Bush.” Petitioner’s Supp. Opening Brief at 6. This assertion is clearly

belied by the record. During the trial, Guzman’s common-law wife, Monica

Juarez, related a series of events that corroborated Guzman’s confession and

participation in the crimes.   7




       Cf. Jones v. Wood, 114 F.2d 1002, 1013 (9 th Cir. 1997) (“[T]he district
       6

court’s duty to ascertain the sufficiency of the evidence by engaging in a thorough
review of the complete state court record is unaffected by the AEDPA. Without
such a review of the record, it is impossible to determine whether the state court
adjudication rested on an ‘unreasonable application’ of clearly established federal
law or an ‘unreasonable determination” of fact.”).
       7
        According to the uncontroverted facts set forth in New Mexico’s brief on
direct appeal to the New Mexico Supreme Court, Juarez testified to the following
series of events. Although Guzman was supposed to arrive at home around 9:00
p.m. on the night of the crimes, he did not arrive until midnight. When he did
arrive, he was covered with blood, had a knife in his hand, and was “shaking a
lot.” Although Guzman told Juarez that two men had jumped in the backseat of
his car, Juarez found women’s clothing in the car. When Guzman calmed down,
he informed Juarez that he wanted to return to the scene of the incident because
he had left his cigarettes. Guzman and Juarez arrived at the scene of the crimes at
approximately 1:15 a.m. and Guzman located his cigarettes. The day after the
crimes, Juarez and Guzman cut up the women’s clothes Juarez found in Guzman’s

                                          -8-
       In addition, Guzman’s conclusory claim that his confession should not be

considered by this court in conducting its sufficiency review because he was

“incompetent”   8
                    at the time of the confession is meritless as a matter of law. As

this court has recently reemphasized, an individual’s impaired mental status,

standing alone, is never sufficient reason to suppress a confession.          See United

States v. Erving L. , 147 F.3d 1240, 1249, 1251 (10       th
                                                               Cir. 1998); see also

Colorado v. Connelly , 479 U.S. 157, 167 (1986) (“We hold that coercive police

activity is a necessary predicate to the finding that a confession is not ‘voluntary’

within the meaning of the Due Process Clause . . . .”);          Nickel v. Hannigan , 97

F.3d 403, 410 (10     th
                           Cir. 1996) (holding that even in cases where a defendant is

mentally impaired and the officer was aware of the impairment, a confession will

be suppressed as involuntary only if the officer utilizes coercive measures to take

advantage of the impairment);        United States v. Rohrbach , 813 F.2d 142, 144 (8      th



Cir. 1987) (“ Connelly makes it clear that . . . personal characteristics of the



car and scattered the pieces of clothing around the county.

       Guzman originally filed his appellate pleadings pro se. The only ground
       8

advanced in his pro se brief for the argument that his confession should not be
considered in assessing the sufficiency of the evidence is that the statement was
given at a time when Guzman “was mental[ly] incompetent.” After Guzman filed
his appellate pleadings, he acquired counsel. Counsel’s supplemental brief is
similarly limited in its assertion that this court should not consider Guzman’s
confession. According to counsel, “[t]he available record indicates that these
statements were made at a time at which Mr. Guzman was, at a minimum,
incompetent.”

                                              -9-
defendant are constitutionally irrelevant absent proof of coercion.” (internal

quotations omitted)). Accordingly, Guzman’s bare claim that he was incompetent

at the time of the confession is of no constitutional moment.

      Taken together, the confession and the corroborating testimony of Juarez

are more than sufficient bases upon which a rational juror could find Guzman

guilty of the crimes beyond a reasonable doubt.      See Jackson v. Virginia , 443

U.S. 307, 319 (1979) (holding that where a federal habeas corpus claimant

alleges his state conviction is unsupported by the evidence, federal courts must

determine whether, “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt”). Accordingly, this court need not address

Guzman’s equally conclusory sufficiency-of-the-evidence claim relating to the

testimony of Colleen Bush. The district court’s conclusion that the evidence

adduced at Guzman’s trial was constitutionally sufficient to support his

convictions is not reasonably debatable, subject to a different resolution on

appeal, or deserving of further proceedings.      See Barefoot v. Estelle , 463 U.S.

880, 890 & n.3 (1983). Accordingly, Guzman has not made a substantial

showing of the denial of a constitutional right with regard to this claim and is not

entitled to a COA.   See 28 U.S.C. § 2253(c)(2). Guzman’s appeal as to this claim

is therefore dismissed.


                                           -10-
B. Incompetence to Stand Trial

       Guzman next contends that the district court erred in summarily dismissing

his claim that he was incompetent at the time of his trial. This court cannot

conclude on the limited record before it that Guzman “can prove no set of facts

which would entitled him to relief.”      Knapp v. Henderson , No. 97-1188, 1998

WL 778774, at *3 n.5 (10    th
                                 Cir. Nov. 9, 1998) (unpublished disposition)

(quotations omitted). Accordingly, the district court erred in summarily

dismissing this claim.   Id.

       The limited record before the court, together with the allegations in

Guzman’s petition, reveals the following facts regarding Guzman’s competency

to stand trial. Guzman surrendered himself to authorities on April 23, 1981, and

was placed in the Bernalillo County Detention Center. The very next day,

according to Guzman, a staff psychiatrist at the detention center placed him on a

combination of anti-psychotic drugs, including Thorazine, Stelazine, and

Cogentin. Sometime thereafter, the state district court determined that Guzman

was not competent to stand trial and transferred him to the forensic unit of the

state hospital. Guzman remained at the state hospital for approximately four

months. During that time, Guzman alleges that he received no treatment with the

exception of a continued course of anti-psychotic drugs.




                                            -11-
      On March 26, 1982, the district court held a second competency hearing

and, after hearing testimony from three psychologists, found Guzman competent

to stand trial. Two of the psychologists testified that although Guzman had a

“very fragile emotional makeup,” he was competent to stand trial if he remained

on the anti-psychotic medication. The third psychologist testified that Guzman

was only marginally competent and that additional precautions, such as not

exposing him to television or still photographs during trial, needed to be taken to

maintain the competency. According to Guzman, his counsel never contested the

competency question at this second hearing and never sought medical testimony

on how the combination of anti-psychotic medicine would affect Guzman’s

ability to function in a meaningful way at trial. Based on the testimony presented

at the second hearing, the trial court concluded that Guzman was competent.

Furthermore, in line with the suggestion of one of the psychologists, the trial

court barred television cameras and still cameras from the courtroom during the

evidentiary phase of the trial.

      Despite the conclusion to the contrary by the trial court, Guzman maintains

that he was incompetent during the entirety of his trial. In particular he alleges

that the combination of anti-psychotic drugs impaired his “ability to know or




                                         -12-
understand any event that was possibly taking place” at trial.      9
                                                                        Guzman further

alleged that his counsel was well aware of his impaired status during trial.

According to Guzman, trial counsel indicated to the trial court on several

occasions that he was not able to communicate effectively with Guzman due to

the level of “mental dysfunction and severe medication.” Nevertheless, Guzman

acknowledges that counsel never requested further competency proceedings

during the trial.

       Reading Guzman’s pro se habeas petition liberally, the petition alleges

both a substantive and procedural competency claim. That is, the petition alleges

that Guzman was (1) actually incompetent at the time of his trial and (2) that the

trial court, faced with real indications during trial that Guzman was incompetent,

failed to take adequate steps to determine whether Guzman remained competent.

See Carter v. Johnson , 131 F.3d 452, 459 (5      th
                                                       Cir. 1997) (discussing difference

between substantive and procedural competency claims). The district court


       9
        In his state petition for post-conviction relief, Guzman made the following
allegations regarding his competency:
       The drug regimen and it’s effect were absolutely devastating. Mr.
       Guzman was in a zombie like state, could not effectively consult with
       counsel, did not have memory of the events, could not analyze the
       events, ate very little during trial, and in fact, at one point, fainted.
       He, in short, could not communicate with his counsel, could not
       assist his counsel, could not competently participate in the trial,
       could not act appropriately, and had little or no memory. His state of
       health was so debilitating that there is absolutely no way that he
       received a fair trial.

                                           -13-
dismissed Guzman’s competency claims summarily by deferring to the state court

determination of competence pursuant to 28 U.S.C. § 2254(d) and (e). Our

review of the extremely limited record before the district court demonstrates that

it is not possible to determine whether the state court conclusion that Guzman

was competent at the time of this trial was an “unreasonable determination of the

facts in light of the evidence” or an adjudication that was “contrary to, or . . . an

unreasonable application of, clearly established” Supreme Court precedent. 28

U.S.C. § 2254(e), (d). While the AEDPA increases the level of deference federal

courts must afford a state court’s “factual findings and legal determinations,”

Houchin v. Zavaras , 107 F.3d 1465, 1470 (10     th
                                                      Cir. 1997), it does not eliminate

the need for federal courts to conduct a thorough review of an adequate record in

resolving an otherwise facially valid claim. Although this court could cobble

together a sufficient picture of Guzman’s trial to resolve his sufficiency-of-the-

evidence claim from the parties’ briefs on direct appeal, because Guzman did not

raise the competency issue until his state petition for post-conviction relief, those

direct appeal documents are simply not helpful in resolving this claim.

Furthermore, because the state court did not have the audio tapes of Guzman’s

trial before it when it denied his state petition for post-conviction relief, this

court cannot reconstruct the events at trial from the pleadings before and decision

of that court.


                                          -14-
       Because Guzman’s competency claim is deserving of further proceedings,

Barefoot , 463 U.S. at 890 & n.3, this court grants him a COA on this issue,

reverses the district court’s summary dismissal, and remands the case to the

district court to conduct further proceedings on a more appropriately developed

record.

C. Claims of Ineffective Assistance of Trial Counsel

       Guzman raised twelve claims of ineffective assistance of trial counsel

before the district court. The district court considered each claim on the merits

under the performance/prejudice paradigm established by the Supreme Court in

Strickland v. Washington , 466 U.S. 668 (1984), and summarily dismissed each of

the twelve. Guzman seeks a COA so that he can raise the following six claims on

appeal: (1) counsel was ineffective for failing to seek suppression of Guzman’s

confessions on the ground that Guzman was “incompetent”; (2) counsel failed to

adequately contest Guzman’s competence both prior to and during trial; (3)

counsel failed to object to the admission of other bad-acts testimony at trial; (4)

counsel failed to object to the admission of a knife at trial; (5) counsel failed to

adequately investigate the physical evidence found at the crime scene; and (6)

counsel failed to adequately present a diminished capacity defense to the jury.   10




        In his pro se brief before this court, Guzman makes only a generalized
       10

claim of ineffective assistance and notes that he hopes to “supplement[] this brief,
hopefully with the assistance of counsel.” Although noting that Guzman raised

                                           -15-
       We conclude that Guzman has not made a substantial showing of the denial

of a constitutional right with regard to his first, third, fourth, and fifth claims of

ineffective assistance.   See 28 U.S.C. § 2253(c)(2). As to those claims, it is

clear, even with the limited record available to us, that the district court’s

summary denial of those claims is not reasonably debatable, subject to a different

outcome on appeal, or deserving of further proceedings.      See Barefoot , 463 U.S.

at 890 & n.3. As for Guzman’s claim relating to counsel’s failure to seek

suppression of his confessions, we note that the argument is meritless for the

reasons set out above in rejecting his sufficiency-of-the-evidence claim. As to

his third, fourth, and fifth claims, we note that each challenges trial counsel’s

decision to utilize an insanity defense at trial, rather than to mount a vigorous

assertion of factual innocence. Despite Guzman’s protestations to the contrary,

the record before this court clearly and unequivocally demonstrates that the case

Guzman actually committed the murders was overwhelming. On the other hand,

Guzman’s history of abuse, alcoholism, and family and personal mental illness,

made him a strong candidate for an insanity defense. Against such a backdrop,

this court will not utilize the lens of hindsight to second-guess trial counsel’s



twelve claims of ineffective assistance below, in his supplemental opening brief,
counsel only raises six of the claims rejected by the district court. Accordingly,
Guzman has waived those claims of ineffective assistance raised below but not
reasserted on appeal. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984
n.7 (10 th Cir. 1994).

                                          -16-
obviously tactical decision to focus on an insanity defense, rather than challenge

the admission of evidence bearing only on whether Guzman did, in fact, commit

the crimes. See Strickland , 466 U.S. at 689. Accordingly, we deny Guzman a

COA on his first, third, fourth, and fifth claims and dismiss the appeal as to those

claims.

       As to Guzman’s second claim, that his counsel failed to adequately contest

his competency both before and during trial, this court concludes that the claim is

deserving of further proceedings for substantially those reasons set forth above

with regard to Guzman’s underlying competency claim. The ineffectiveness

claim is not severable from the underlying competency claim and the current

record is simply insufficient to undertake the analysis necessary to determine

whether the state court’s adjudication of this issue satisfies the review standards

set out in § 2254(d) and (e). Because Guzman has demonstrated that this claim is

deserving of further proceedings, he has made a substantial showing of the denial

of a constitutional right.   See Barefoot , 463 U.S. at 890 & n.3; 28 U.S.C.

§ 2253(c)(2). Accordingly, we grant a COA as to this claim, reverse the district

court’s summary dismissal, and remand to the district court for further

proceedings consistent with this opinion.

       We reach a similar conclusion with regard to Guzman’s claim that his

counsel was ineffective in failing to adequately present a diminished capacity, as


                                           -17-
opposed to insanity, defense to the jury. At trial, counsel called an expert

witness to testify as to the hypothetical effect of a combination of certain

prescribed pain medication and alcohol that Guzman had purportedly consumed

in large quantities over a period prior to the crimes in question. Because,

however, counsel failed to provide foundation for the testimony that Guzman had

actually consumed the drugs on the night of the crimes, the trial court refused to

allow the expert to testify as to the particular effect of the drugs and alcohol on

Guzman. Guzman asserts that Debbie Martinez would have provided the

necessary foundation by testifying that she witnessed Guzman consuming the

prescribed pain medication and consuming alcohol on the night of the crimes.

       The district court summarily dismissed this claim, concluding that Guzman

had failed “to show that there is a reasonable probability that but for counsel’s

failure to call [Martinez] the result of the trial would have been different.”

Unfortunately, this court’s review of the limited record reveals nothing that

would bear on whether Guzman was prejudiced by counsel’s failure to call

Martinez. Because summary dismissal is only appropriate where a petitioner “can

prove no set of facts which would entitled him to relief,”   Knapp , 1998 WL

778774, at *3 n.5 , and because the limited record does not allow for an adequate

evaluation of either   Strickland ’s performance or prejudice prongs, we conclude

the district court erred in summarily dismissing this claim. Accordingly, this


                                           -18-
court grants Guzman a COA as to this claim, reverses the district court’s

summary dismissal, and remands to the district court for further review in light of

an adequate record. In so doing, we note that it does not appear that Guzman

raised this specific claim of ineffective assistance on direct appeal        or in his state

petition for post conviction relief. Although the respondents did not raise the

issue of procedural bar, this court has the power to raise the bar         sua sponte , as

long as the petitioner is given an opportunity to respond.           See United States v.

Warner , 23 F.3d 287, 291 (10     th
                                       Cir. 1994). On remand, the parties are

specifically instructed to brief whether this particular claim of ineffective

assistance is procedurally barred.



                                  IV. CONCLUSION

       Because Guzman has not made a substantial showing of the denial of a

constitutional right with regard to his sufficiency-of-the-evidence claim and the

majority of his ineffective-assistance claims, we deny COA and dismiss the

appeal as to those claims as set out above. This court grants Guzman a COA as

to both his underlying and ineffective-assistance claims relating to his

competency to stand trial, as well as his ineffective-assistance claim relating to

counsel’s failure to adequately mount a diminished capacity defense. As to these




                                              -19-
claims, we reverse the district court’s summary dismissal and remand for further

proceedings as set forth above.

                                              ENTERED FOR THE COURT:



                                              Michael R. Murphy
                                              Circuit Judge




                                       -20-
