                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     August 22, 2016
                      UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                    TENTH CIRCUIT                     Clerk of Court



 ROBERT W. WINKEL,

          Petitioner - Appellant,
                                                        No. 16-3177
 v.
                                               (D.C. No. 5:14-CV-03214-JTM)
                                                          (D. Kan.)
 JAMES HEIMGARTNER,

          Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.


      Robert Winkel, a Kansas state prisoner, filed a pro se habeas petition

seeking relief from his conviction on various charges. After the district court

dismissed the petition as procedurally defaulted, this court reversed. Winkel v.

Heimgartner, No. 15-3290, 2016 WL 1534062 (10th Cir. Apr. 15, 2016). On

remand, the district court reviewed and dismissed Mr. Winkel’s petition on the

merits and denied his application for a certificate of appealability (COA). Mr.

Winkel now renews before us his request for a COA and also requests a release

on personal recognizance pending review. Fed. R. App. P. 23(b)(3).


      *
        This order is not binding precedent except under the doctrines of law of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.
      To obtain a COA, Mr. Winkel must make “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires him to

establish “that reasonable jurists could debate whether . . . the petition should

have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further,” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (internal quotation marks omitted).

       Even construing Mr. Winkel’s pro se filings liberally, Van Deelen v.

Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we do not see how he can

make such a showing here. He raises before us two potential grounds for a COA:

his right to counsel and his right to a speedy trial. Specifically, he claims his

attorney acted contrary to his interests by requesting competency proceedings,

and the resulting declaration that he was incompetent to stand trial caused him

undue delay. But neither of these claims constitutes a substantial showing of the

denial of a constitutional right.

      This court has declared that “a lawyer with a 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.” United

States v. Boigegrain, 155 F.3d 1181, 1190 (10th Cir. 1998). Mr. Winkel concedes

this, but argues that the attorney’s concerns were not legitimate because they

arose only out of Mr. Winkel’s silence. But the district court identified numerous

other grounds that might give Mr. Winkel’s counsel reason to pause — extensive

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history of mental illness, paranoid schizophrenia, refusal to take medication —

and Mr. Winkel responds with nothing more than unsupported accusations that his

attorney conspired with the State. Neither did the finding that Mr. Winkel was

incompetent to stand trial violate his right to a speedy trial. See Johnson v.

United States, 333 F.2d 371, 374 (10th Cir. 1964) (“Appellant can not complain

of the denial of his constitutional right to a speedy trial because of his

confinement in a State mental institution . . . for the very purpose of determining

his competency to stand trial.”). Accordingly, we deny Mr. Winkel’s application

for a COA and dismiss this appeal, and we deny his motion for release pending

review.


                                                ENTERED FOR THE COURT


                                                Neil M. Gorsuch
                                                Circuit Judge




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