                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       July 20, 2005

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-70053
                        _______________________


                             THEODORE GOYNES,

                                                    Petitioner-Appellant,

                                  versus

               DOUG DRETKE, Director, Texas Department
             of Criminal Justice, Institutions Division,

                                                     Respondent-Appellee.



                 Appeal from the U.S. District Court
                      Southern District of Texas
                             No. H-02-2665


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM*:

           Petitioner Theodore Goynes (“Goynes”) has already been

granted federal habeas relief on an Penry claim.           In this appeal,

he seeks a Certificate of Appealability (“COA”) from this court on

two issues relating to his conviction: (1) whether he was denied

due process of law, in violation of the Fifth and Fourteenth

Amendments, because he was mentally incompetent to stand trial; and

(2) whether he was denied due process of law, in violation of the

Fifth and Fourteenth Amendments, as a result of the trial court’s


     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
failure    to   sua   sponte   hold   a       hearing   to   determine   Goynes’s

competency to stand trial.        Finding neither issue debatable, we

affirm the district court and deny COA.

                                 BACKGROUND

            There is no dispute about the facts of this case, the

account of which we borrow heavily from the Texas Court of Criminal

Appeals’s (“CCA”) unpublished decision, Goynes v. State, No. 71,387

(Tex. Crim. App., Dec. 14, 1994).             On October 6, 1990, Linda Marie

Tucker (“Tucker”) left her workplace in northeast Houston, Texas,

and stopped at a grocery store.               As she exited the store, Goynes

followed her.     When Tucker opened her car door, Goynes shoved her

into the car, pushed the front seat forward, and forced himself

into the back seat.       She briefly struggled, but was subdued once

Goynes brandished a weapon.           Goynes then held her with one arm,

pointed the gun at Tucker’s head with his other arm, and ordered

her to drive away.

            Tucker’s family, who were waiting to surprise her at home

for her birthday, learned that she had been abducted and began

searching for her with police.         Around 1:00 a.m. the next morning,

a wrecker reported finding Tucker’s car in an abandoned apartment

complex.    The police shortly thereafter discovered her body lying

on a staircase with a single gunshot wound to the head.

            Witnesses to the abduction identified Goynes as the man

lingering outside the store and attacking Tucker.               Other witnesses



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confirmed that a man wearing a jacket bearing the name, “Forest

Brook” was the attacker.            Police obtained an arrest warrant for

Goynes. When they arrived at Goynes’s apartment, they did not find

him, but did find a jacket matching the witnesses’ description and

a blood-stained rug.         A more detailed search resulted in discovery

of a box containing a pair of gloves, a revolver with six live

rounds of ammunition, and a six-round “bullet holder” with five

live rounds in the living room.                 The bullet taken from Tucker’s

head matched the weapon discovered at Goynes’s home.

           On    October      9,   1990,    police     inadvertently      discovered

Goynes while responding to an unrelated disturbance call.                       After

his arrest, Goynes confessed to the abduction and murder of Tucker.

           Goynes was convicted of capital murder and sentenced to

death for the kidnaping and murder of Tucker. He directly appealed

his   conviction      and    sentence      to    the   CCA,   which    affirmed   the

conviction      and    sentence      in     an     unpublished        opinion   filed

December 14, 1994.          The Supreme Court of the United States denied

Goynes’s petition for certiorari on June 26, 1995.                         Goynes v.

Texas, 515 U.S. 1165, 115 S. Ct. 2625 (1995).                 Goynes then filed a

state application for writ of habeas corpus in the trial court on

October 24, 1997. The trial court subsequently entered findings of

fact and conclusions of law recommending Goynes be denied relief.

The CCA adopted the trial court’s findings and conclusions, and

denied relief on June 26, 2002.                Ex parte Goynes, No. 52,487-01.



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              On July 15, 2002, Goynes filed a skeletal habeas petition

in the district court with that court’s permission.                 Goynes then

filed     a   supplemental   habeas   petition   on    July   31,   2003.     On

November 30, 2004, the district court granted Goynes’s petition

based on a Penry claim and denied his petition and his COA request

with regard to all other claims.             The result of the district

court’s partial      grant   of   relief,   which     the   Director   has   not

appealed, is that Goynes must be resentenced.1                However, Goynes

persists in his challenge to the underlying conviction itself.

Thus, we must address whether a COA should issue, and an appeal on

the merits be heard, on Goynes’s two claims relating to his

competence to stand trial.

                                  DISCUSSION

              Goynes’s § 2254 habeas petition, filed on July 15, 2002,

is subject to the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA).      See Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct.

1910, 1918 (2001).     Under AEDPA, Goynes must obtain a COA before he

can appeal the district court’s denial of habeas relief. 28 U.S.C.

§ 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.

Ct. 1595, 1600 (2000).         “[U]ntil a COA has been issued federal

courts of appeals lack jurisdiction to rule on the merits of




      1
            We granted the Director’s unopposed motion to dismiss its appeal on
the sentencing issue on February 3, 2005. Goynes v. Dretke, No. 05-70001 (5th
Cir. Feb. 3, 2005).

                                       4
appeals from habeas petitioners.”             Miller-El v. Cockrell, 537 U.S.

322, 336, 123 S. Ct. 1029, 1039 (2003).

            To obtain a COA, Goynes must make “a substantial showing

of the denial of a constitutional right.”                28 U.S.C. § 2253(c)(2)

(2000); Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039; Slack, 529

U.S. at 483, 120 S. Ct. at 1603.              To make such a showing, he must

demonstrate that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.”               Miller-El, 537 U.S. at

336, 123 S. Ct. at 1039 (quoting Slack, 529 U.S. at 484, 120 S. Ct.

at 1603-04).

            In Miller-El, the Supreme Court instructed, as it had

previously held in Slack, that federal courts entertaining a COA

application    should   “limit      [their]     examination      to    a   threshold

inquiry into the underlying merit of [the petitioner’s] claims.”

Miller-El, 537 U.S. at 327, 123 S. Ct. at 1034.              The Court observed

that “a COA ruling is not the occasion for a ruling on the merit of

petitioner’s    claim   .   .   .    .”       Id.   at   1036.        Instead,   our

determination must be based on “an overview of the claims in the

habeas petition and a general assessment of their merits.”                    Id. at

1039.    “This threshold inquiry does not require full consideration

of the factual or legal bases adduced in support of the claims.”

Id.     We do not have jurisdiction to justify the denial of a COA

based on an adjudication of the actual merits of the claims.                     Id.

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Accordingly, we cannot deny an “application for a COA merely

because   [we   believe]     the   applicant     will    not   demonstrate   an

entitlement to relief.”        Id.     “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been

granted   and   the   case   has     received    full    consideration,   that

petitioner will not prevail.” Id.

           Because the district court denied relief on the merits of

the claims for which Goynes seeks a COA, he “must demonstrate that

reasonable jurists would find the district court’s assessment of

the   constitutional    claims     debatable     or     wrong.”    Barraza   v.

Cockrell, 330 F.3d 349, 351 (5th Cir. 2003) (quoting Miller-El, 537

U.S. at 338, 123 S. Ct. at 1040).

           Goynes first seeks a COA on whether he was denied due

process of law because he was mentally incompetent to stand trial.

The Constitution prohibits trial and conviction of a defendant who

is mentally incompetent to stand trial.               See Cooper v. Oklahoma,

517 U.S. 348, 354, 116 S. Ct. 1373, 1376 (1996); Pate v. Robinson,

383 U.S. 375, 378, 86 S. Ct. 836, 839 (1966).             There is a two part

standard for ascertaining competence to stand trial: (1) whether

the defendant has the “sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding” and

(2) “whether he has a rational as well as factual understanding of

the proceedings against him.”          Dusky v. United States, 362 U.S.

402, 402, 80 S. Ct. 788, 789 (1960).            On habeas, a petitioner may

collaterally attack his conviction by initially showing that “the

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facts are sufficient to positively, unequivocally and clearly

generate a real, substantial and legitimate doubt as to his mental

competency at the time of trial.”               Dunn v. Johnson, 162 F.3d 302,

306 (5th Cir. 1998) (internal quotations omitted); Carter v.

Johnson, 131 F.3d 452, 460 (5th Cir. 1997).                  This threshold burden

is “extremely heavy.”           Johnson v. Estelle, 704 F.2d 232, 238 (5th

Cir. 1983). Once the petitioner presents enough probative evidence

to raise a substantial doubt as to his competency at the time of

trial, he must then prove that incompetency by a preponderance of

the evidence.     Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998).

            The district court’s dismissal of this claim is not

debatable.       Despite    a    history       of   mental   health     problems    and

borderline intelligence, Goynes fails to make any initial showing

that his competency was in doubt at the time of his trial.                           A

psychiatric examination carried out at Vernon State Hospital found

Goynes competent to stand trial.                Goynes understood the charges

against him, the facts underlying those charges, that he was on

trial, and that he faced the death penalty.                  Goynes never sought a

competency hearing at his trial.                    Additionally, four different

experts evaluated Goynes’s competency between his arrest and the

trial, and all of them determined he was competent to stand trial.

Goynes’s    strongest      piece    of   evidence       is   that   a   psychologist

retained by his trial lawyers, who reviewed only his medical

history    and   never   personally        interviewed       Goynes,    stated     that

Goynes, “while competent to stand trial for a simple offense, may

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not be competent to stand trial for a complicated offense.”                     8 RR 4

(emphasis added). Counsel for Goynes presented this information to

the trial court, but even further qualified it by saying that he

was unsure whether the defense could offer any substantive evidence

of Goynes’s incompetence.           Thus, despite repeated opportunities to

raise   this     issue   at   trial,     to   present       evidence      as   to    his

competency, or to request further examination or a hearing, Goynes,

through    his   counsel,     failed    to    pursue    a    claim     that    he    was

incompetent      to   stand   trial.     Goynes    bolsters         his    claim    with

numerous post-conviction affidavits, reports, and data, all of

which indicate Goynes’s difficulty in verbalizing and processing

information.      None of his information, however, contains a single

expert opinion stating he is (or was) incompetent to stand trial.

Contrary to Goynes’s assumption, the presence of a mental defect

does not demonstrate mental incompetence to stand trial. Cf. Bruce

v. Estelle, 536 F.2d 1051, 1059 (5th Cir. 1976).                Moreover, almost

all of this new information is inapposite: Goynes’s trial counsel,

for example, did not submit any information about trouble working

with Goynes or concerns over his ability to communicate with them

during trial until six years after the fact.                  The proper inquiry

for an incompetency claim is the petitioner’s mental state at or

near the time of trial.          See, e.g., Martin v. Estelle, 583 F.2d

1373, 1374 (5th Cir. 1978).          The evidence put forward by Goynes was

properly   rejected      by   the    district   court       under    the    standards

supplied by AEDPA, and jurists of reason could not find dismissal

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of the incompetence claim debatable.             Whether viewed in terms of

the reasonableness of the state court’s application of federal

constitutional standards of competency or in terms of the adequacy

and reasonableness of the state courts’ factfinding, the rejection

of Goynes’s contention is not debatable.

            Goynes also requests a COA on his claim that the trial

court should have sua sponte granted him a competency hearing. The

trial court is required to cease proceedings and hold a competency

hearing, sua sponte if necessary, when a question arises at trial

about the defendant’s competency.          Robinson, 383 U.S. at 385, 86 S.

Ct. at 842.     A procedural violation occurs if the trial court

failed to conduct an inquiry into the defendant’s mental competency

when the evidence raised a bona fide doubt as to his competency at

the time of trial.      Id.; Carter v. Johnson, 131 F.3d 452, 459 n.10

(5th Cir. 1997).   The legal question a reviewing court must ask is

whether the trial judge received “information which, objectively

considered,    should    reasonably       have   raised      a    doubt     about   a

defendant’s competency and alerted him to the possibility that the

defendant could neither understand the proceedings or appreciate

their   significance,     nor   rationally       aid   his       attorney    in   his

defense.”     Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir. 1980)

(internal citations omitted).

            Goynes points to no record evidence that would make the

district court’s dismissal of this claim debatable to a reasonable

jurist.     Trial testimony offered as to whether Goynes had the

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ability to understand and waive his Miranda warnings did not relate

to his competency to stand trial.                  Additionally, some of the

Miranda testimony       would    have    pointed       the    trial   court    in    the

opposite direction.      Dr. Brown, for example, testified that Goynes

had a mental illness and limited intellectual abilities, but he

also stated that at a police interrogation, Goynes did not reveal

the presence of any mental illness or impairment.                           Dr. Brown

further testified that Goynes had the capacity to understand what

was happening during the murder trial.             Moreover, Goynes exhibited

no erratic behavior during trial that would have indicated to the

trial judge any change in his mental ability to continue to be

tried.    Goynes points to evidence of his mental problems, but, as

previously    stated,    the    presence      of   a   mental    defect     does     not

demonstrate    incompetence      at     the   time      of    trial   nor     does   it

necessarily manifest such overt symptoms as to demand the trial

court’s convening of a hearing sua sponte.                   Goynes is thus unable

to show that jurists of reason would find debatable the district

court’s denial of this claim.

           For the foregoing reasons, the application for COA is

DENIED.




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