                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        January 30, 2007
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                           Clerk of Court


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

               Plaintiff-Appellee,                          No. 06-7043
          v.                                              (E.D. of Okla.)
 GARY LY NN GAINES,                                (D.C. No. CIV-05-249-JHP)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Gary Lynn Gaines pleaded guilty to a charge of sexual abuse after the

district court, based on a report from psychologist Dr. Thomas Patenaude, deemed

him competent to stand trial. One year after he was sentenced, the Bureau of

Prisons sent a letter to the district court casting doubt on the credibility of D r.

Patenaude’s work in another case. M r. Gaines now alleges in a habeas corpus

petition under 28 U.S.C. § 2255 that Dr. Patenaude’s examination of him was

flawed, and that his guilty plea was not knowing and voluntary because he was

incompetent when he entered it. Because the district court did not address this


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
issue in its order denying M r. Gaines’s habeas petition, we REM AND for an

evidentiary hearing.

                                         I.

      In August 2002, a grand jury indicted M r. Gaines for aggravated sexual

abuse of a child while in Indian country in violation of 18 U.S.C. § 2241(c).

After he was indicted, M r. Gaines asked for and received a competency

examination. Dr. Thomas Patenaude, a psychologist, performed it. After

receiving Dr. Patenaude’s report, the court held a competency hearing and then

issued an order deeming M r. Gaines competent to stand trial. On December 18,

2002, approximately one w eek after the district court deemed him competent, M r.

Gaines pleaded guilty. The district court sentenced him to 168 months in prison

and a sixty-month term of supervised release.

      On December 19, 2003— one year after M r. Gaines was sentenced— the

Federal Bureau of Prisons (“BOP”) sent a letter to the district judge informing

him that an internal investigation of Dr. Patenaude revealed “sufficient evidence

to question the credibility and accuracy of a psychological evaluation” D r.

Patenaude had prepared in another case. Appellant’s Br. 5. The letter continued:

      This internal investigation could call into question the credibility of
      other psychological evaluations conducted by this psychologist. Our
      records show that this psychologist issued a report in a case before
      your court: United States v. Gary L. Gaines, Case No. CR -02-063-P,
      concerning defendant Gary Lynn Gaines, Register Number 29031-
      177. Accordingly, we bring this information to your attention for
      any action the court may deem appropriate.

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Id. The record does not indicate whether the district court or counsel ever took

action in response to this letter.

      The BOP sent this letter after M r. Gaines filed his direct appeal, so he was

unable to argue at that time that Dr. Patenaude’s examination was flawed.

Instead, he raised this argument, and others, in a 28 U.S.C. § 2255 motion. The

district court denied M r. Gaines’s habeas petition in a nine-page order that

discussed the other issues he raised but never mentioned this claim, listed on page

three of his petition: “Bureau of Prisons Office of Internal [A]ffairs revealed that

there is sufficient evidence to question the credibility and accuracy of my doctor

in mental evaluation.” R. Doc. 1, at 3.

      M r. Gaines petitioned the district court for a COA, which the court declined

to grant. R. Doc. 10. He then applied to this Court for a COA, which we granted

on this single issue: in light of the letter from the BOP regarding Dr. Patenaude,

is M r. Gaines entitled to collateral relief on the ground that the credibility of his

mental competency evaluation has been called into question?

                                           II.

                                           A.

      Before reaching the merits of M r. Gaines’s appeal, we deal first with a

possible procedural bar to his petition— the rule that “courts generally will not

consider the merits of claims” for collateral relief “that were raised neither at trial

nor on direct appeal.” U nited States v. Harms, 371 F.3d 1208, 1211 (10th Cir.

                                           -3-
2004). That rule, however, has exceptions, one of w hich prevents the rule’s

application when a defendant “can show both cause for the default and that failure

to consider the claim would result in actual prejudice to his defense.” Id.

       W e conclude that this exception applies here. M r. Gaines has shown cause

for his failure to challenge D r. Patenaude’s examination on direct appeal. As

discussed above, he had no reason to challenge it then because he received the

BOP’s letter after he filed his appellate brief. And we have little trouble

concluding that prejudice occurs when an incompetent defendant pleads guilty.

W e therefore hold that M r. Gaines’s failure to challenge D r. Patenaude’s

examination on direct appeal does not preclude him from seeking habeas relief on

this issue.

                                          B.

       M r. Gaines’s petition presents an issue concerning his competency at the

time he pleaded guilty. If, as the BOP letter suggests, Dr. Patenaude’s

examination was flawed, M r. Gaines may have been incompetent when he pleaded

guilty; if so, his plea may have been involuntary or unknowing.

       By statute, M r. Gaines is entitled to an evidentiary hearing on this issue

“[u]nless the motion and the files and records of the case conclusively show that

[he] is entitled to no relief.” 28 U.S.C. § 2255. The government argues that M r.

Gaines is not entitled to a hearing because the district court conclusively resolved

all competency issues in its plea colloquy with M r. Gaines. It alleges that, during

                                          -4-
the colloquy, the court found that he “had the sufficient ability to consult with his

lawyer and that he had an understanding of the charges against him.” A ppellee’s

Br. 4. It also argues that “[t]he District Court made numerous observations of the

defendant and the Change of Plea Transcript clearly establishes that the defendant

was mentally competent at the time of his plea.” Id.

       These arguments miss the point. They focus on the district court findings

before the BOP letter arrived and ignore the issue we granted a CO A to resolve:

whether the letter, which arrived after M r. Gaines pleaded guilty, would have

altered the district court’s view .

       The government’s failure to cite facts relevant to this issue likely stems

from the district court’s decision not to hold an evidentiary hearing before

denying M r. G aines’s habeas petition. W e may remand for such a hearing if w e

conclude that M r. Gaines’s “allegations, if proved, would entitle him to relief, and

if so, whether the district court’s denial of an evidentiary hearing was an abuse of

discretion.” United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996).

       W e find that both these requirements are met. The Supreme Court has held

that “[a] criminal defendant . . . may not . . . plead guilty unless he does so

‘competently and intelligently.’” Godinez v. M oran, 509 U.S. 389, 396 (1993)

(quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). The BOP letter casts

doubt on the accuracy and credibility of Dr. Patenaude’s report; if it was the

primary reason the district court found that M r. Gaines was competent, the

                                           -5-
defendant would be entitled to collateral relief for a violation of his due process

rights. Accordingly, the district court abused its discretion by not holding an

evidentiary hearing to resolve this issue.

                                  C ON CLU SIO N

      W e R EM A N D for an evidentiary hearing on whether, in light of the letter

from the BOP regarding Dr. Patenaude, M r. Gaines is entitled to collateral relief

on the ground that the credibility of his mental competency evaluation has been

called into question. On all other issues, for reasons explained in our order of

November 3, 2006, M r. Gaines’s petition for a certificate of appealability is

denied. W e also deny all other pending motions.

                                                   Entered for the Court,

                                                   M ichael W . M cConnell
                                                   Circuit Judge




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