IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20782 _____________________
JAMES BLAKE COLBURN
Petitioner - Appellant
v.
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas 499-CV-4200 _________________________________________________________________ May 9, 2002
Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.
KING, Chief Judge:*
Petitioner - Appellant James Blake Colburn was convicted and
sentenced to death in Texas state court for the capital murder of
Peggy Murphy. He now requests a certificate of appealability to
appeal the federal district court’s denial of habeas corpus
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. relief under 28 U.S.C. § 2254. For the following reasons, we
DENY Colburn’s request for a certificate of appealability.
I. Factual and Procedural History
On June 26, 1994, Colburn met Peggy Murphy while walking
across a road to visit a friend. Murphy was hitchhiking on the
road, which was near Colburn’s apartment. Colburn invited Murphy
up to his apartment for a drink of water. After unsuccessfully
attempting to force Murphy to have sexual intercourse with him,
Colburn killed Murphy in his apartment by choking her and
stabbing her in the neck with a knife. Colburn then went to a
neighbor’s apartment and asked the neighbor to call the police.
Colburn was indicted on August 10, 1995, for the offense of
capital murder.1 During his trial, the jury heard Colburn
describe his encounter with Murphy in a videotaped confession.
The jury found Colburn guilty of capital murder. Pursuant to
Article 37.071, Section 2 of the Texas Code of Criminal
Procedure, the jury was presented with two special issues at the
sentencing phase of Colburn’s trial.2 On October 10, 1995, the
1 Colburn’s attempted aggravated sexual assault of Murphy elevated her murder to a capital offense. TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1994). 2 The special issues presented to the jury were as follows: (1) Whether there is a probability that the defendant, James Blake Colburn, would commit criminal acts of violence that would constitute a continuing threat to society? (2) Whether taking into consideration all of the evidence, including the circumstances of
2 jury returned an affirmative answer to the first special issue
concerning future dangerousness and a negative answer to the
second special issue concerning whether mitigating circumstances
would warrant a life sentence. Accordingly, the trial court
sentenced Colburn to death by lethal injection, as the jury’s
findings required under Article 37.071, Section 2(g) of the Texas
Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 37.071,
§ 2(g) (Vernon Supp. 2002).
On direct appeal, the Texas Court of Criminal Appeals
affirmed Colburn’s conviction and sentence. Colburn v. State,
966 S.W.2d 511 (Tex. Crim. App. 1998). Colburn did not file a
petition for writ of certiorari to the United States Supreme
Court. On January 17, 1997, Colburn filed a state petition for
writ of habeas corpus. The trial court recommended that the writ
be denied, and on December 2, 1998, the Texas Court of Criminal
Appeals denied habeas relief to Colburn. The Court of Criminal
Appeals adopted most of the findings of fact and conclusions of
law recommended by the trial court but specifically refused to
adopt others.
the offense, the defendant’s character and background, and the personal moral culpability of the defendant, that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?
3 One year later, on December 2, 1999, Colburn filed his
federal habeas petition in federal district court. The director
of the Texas Department of Criminal Justice (“Respondent”) filed
a motion for summary judgment, and Colburn filed a cross-motion
for summary judgment. The district court granted summary
judgment in favor of Respondent, denied Colburn habeas relief,
and denied Colburn’s request for a certificate of appealability
(“COA”) on all of his claims on May 21, 2001. Colburn timely
appealed the district court’s denial of habeas relief, seeking a
COA from this court on four issues: (1) whether the district
court erred when it found Colburn’s procedural competency claim
to be defaulted and, alternatively, whether the district court
erred in denying Colburn relief on the merits of that claim; (2)
whether the district court erred in denying Colburn relief on his
claim that he was incompetent to stand trial; (3) whether the
district court erred in denying Colburn relief on his claim that
he received ineffective assistance of counsel due to his
attorneys’3 failure to request a competency hearing prior to
trial; and (4) whether the district court erred in denying
Colburn relief on his claim that he received ineffective
assistance of counsel due to his attorneys’ misuse of expert
witnesses.
3 Jerald Crow and F.M. “Rick” Stover represented Colburn at trial. We refer to Crow and Stover collectively as “Colburn’s attorneys” throughout this opinion.
4 II. Standards of Review
We review the district court’s grant of summary judgment de
novo, applying the same standards as the district court. Fisher
v. Texas, 169 F.3d 295, 299 (5th Cir. 1999). Since Colburn filed
his federal habeas application in the district court after April
24, 1996, his claims are governed by the standards established in
the Anti-Terrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”), 28 U.S.C. § 2254 (Supp. 2001). See Lindh v. Murphy,
521 U.S. 320, 336 (1997); Green v. Johnson, 116 F.3d 1115,
1119-20 (5th Cir. 1997). Under the AEDPA, before an appeal from
a denial of a § 2254 habeas petition can proceed, the petitioner
must obtain a COA, which will issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (Supp. 2001). “An applicant
makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of
reason, that another court could resolve the issues differently,
or that the issues are suitable enough to deserve encouragement
to proceed further.” Rudd v. Johnson, 256 F.3d 317, 318-19 (5th
Cir. 2001).
Moreover, “the determination of whether a COA should issue
must be made by viewing the petitioner’s arguments through the
lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).”
Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). Under
5 § 2254(d), an application for a writ of habeas corpus shall not
be granted with respect to any claim that was adjudicated on the
merits in state court proceedings unless the adjudication of the
claim: “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or (2) 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); see also Wheat v. Johnson, 238 F.3d 357, 360 (5th
Cir. 2001). Additionally, a state court’s determination of
factual issues must be presumed correct, and the habeas
petitioner bears the burden of rebutting this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The
presumption of correctness is especially strong where, as here,
the trial and the state habeas proceedings occur before the same
state judge. See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.
2000).
III. Issues 1 and 2: Colburn’s Competency-Related Claims
In this federal habeas proceeding, Colburn raises two claims
related to his competency to stand trial. First, Colburn asserts
that the district court erred in denying Colburn relief on his
procedural competency claim.4 Second, Colburn asserts that the
4 This procedural competency claim is often referred to as a Pate claim. The Supreme Court’s opinion in Pate v. Robinson,
6 district court erred in denying Colburn relief on his claim that
he was incompetent to stand trial.5 We conclude that Colburn
fails to make a substantial showing of the denial of a
constitutional right with respect to each of these competency-
related claims. Accordingly, we deny his request for a COA on
these claims.
A. Standard of Review
Colburn asserts that the district court erred in reviewing
his procedural and substantive competency claims under a
deferential rather than a de novo standard. Citing Bouchillon v.
Collins, 907 F.2d 589, 592-94 (5th Cir. 1990), Colburn argues
that because he did not receive a “full and fair hearing” on his
competency claims in state habeas proceedings, the presumption of
correctness that the AEDPA accords to state court findings of
fact must be abandoned. This contention is incorrect.
Colburn requests that this court enforce a standard that is
no longer valid. Bouchillon was decided under pre-AEDPA law,
under which the presumption of correctness could be abandoned if
the petitioner was denied a “full and fair hearing” in state
383 U.S. 375 (1966), established that a court must sua sponte conduct an inquiry into a defendant’s mental capacity if the evidence before the court raises a bona fide doubt as to the defendant’s competency to stand trial. Id. at 385. 5 Colburn also asserts that the district court erred in denying Colburn relief on his claim that he received ineffective assistance of counsel due to his attorneys’ failure to request a competency hearing prior to trial. We address this claim below. See infra Part IV(B).
7 court. 907 F.2d at 593 & nn.11-12. Furthermore, when Bouchillon
was decided, there was no deferential standard of review for a
state court’s legal conclusions. The AEDPA abandoned the
standards of review used in pre-AEDPA cases like Bouchillon and
“put into place a deferential scheme, under which we must defer
to a state court adjudication on the merits.” Valdez v.
Cockrell, 274 F.3d 941, 950 (5th Cir. 2001). The AEDPA
“jettisoned all references to a ‘full and fair hearing’ from the
presumption of correctness accorded state court findings of fact”
so that “a full and fair hearing is not a prerequisite to the
application of 28 U.S.C. § 2254’s deferential scheme.” Id. at
949, 942.
B. Colburn’s Pate Claim
In his first competency-related claim, Colburn alleges that
the district court erred in denying Colburn relief on his claim
that the trial court committed a Pate violation during Colburn’s
trial. A trial court commits a Pate violation by failing to
conduct sua sponte an inquiry into a defendant’s mental capacity
to stand trial when the evidence raises a bona fide doubt as to
his competency at the time of trial. Pate, 383 U.S. at 385. The
test for competence is whether a person has (1) “sufficient
present ability to consult with the person’s lawyer with a
reasonable degree of rational understanding,” and (2) a “rational
as well as factual understanding of the proceedings against the
8 person.” TEX. CODE CRIM. PROC. ANN. art. 46.02, § 1A(a) (Vernon
Supp. 2002); see also Dusky v. United States, 362 U.S. 402, 402
(1960).
The State argues, and the district court found, that Colburn
failed to exhaust his Pate claim. We agree. “The exhaustion
requirement is satisfied when the substance of the federal habeas
claim has been fairly presented to the highest state court.”
Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). A review of
Colburn’s state habeas petition reveals that Colburn did not
present the legal or factual basis for a procedural Pate claim to
the state court. As the district court correctly recognized,
mere citation to Pate for a general legal principle is
insufficient to alert the state court to the existence of a
procedural competency claim. Colburn fails to persuade us that a
COA should issue on this point.
C. Colburn’s Substantive Incompetency Claim
In his second competency-related claim, Colburn asserts that
the district court erred in denying Colburn relief on his claim
that he was incompetent to stand trial.6 “[A] habeas petitioner
6 The district court was “disinclined to find the substantive competency claim unexhausted,” and disposed of the claim on the merits, relying on the state court’s finding that Colburn was competent to stand trial. Under § 2254(b)(2), “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). Since we find that Colburn fails to make a substantial showing of the denial of a constitutional right on his substantive competency claim, we do not address exhaustion.
9 may collaterally attack his state conviction by directly alleging
incompetence at the time of trial, thereby claiming a violation
of the substantive right not to be tried and convicted while
incompetent . . . .” Carter v. Johnson, 131 F.3d 452, 459 n.10
(5th Cir. 1997). However, the petitioner’s burden to demonstrate
incompetency at the time of trial “is extremely heavy.” Johnson
v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983). This burden
requires the petitioner to “present facts sufficient to
positively, unequivocally, and clearly generate a real,
substantial and legitimate doubt” as to his competency. Id.
Pursuant to § 2254(e)(1), we presume the correctness of the
state habeas court’s fact finding that:
Based on the credible affidavits of trial counsel, and [the state judge’s] personal recollection, [Colburn] fully understood the nature of the proceedings against him and was able to communicate with and otherwise assist trial counsel in his defense.
In other words, the state habeas court found that Colburn
satisfied both requirements for competency: (1) “sufficient
present ability to consult with [his] lawyer with a reasonable
degree of rational understanding,” and (2) a “rational as well as
factual understanding of the proceedings against [him].” TEX.
CODE CRIM. PROC. ANN. art. 46.02, § 1A(a); see also Dusky, 362 U.S.
at 402. The district court concluded that “[t]he evidence of
record is insufficient to raise a real and substantial doubt
concerning Colburn’s competency at the time of his trial.” We
10 agree. Colburn fails to adduce clear and convincing evidence of
his incompetency sufficient to overcome the presumption of
correctness that attaches to the state habeas court’s
determination that he was competent at the time of trial.7
i. The Evidence Supporting Colburn’s Competency
Substantial evidence supports the state habeas court’s
finding that Colburn was competent to stand trial. At Colburn’s
request, the state trial court appointed Dr. Walter Quijano to
determine Colburn’s competency. Dr. Quijano examined Colburn
approximately ten months prior to his trial. After interviewing
Colburn and reviewing his medical history, Dr. Quijano concluded
that Colburn “had a factual understanding of the proceedings
against him.” Dr. Quijano also reported that Colburn “appeared
to have a rational understanding of the proceedings against him”
because he “knew the events leading to arrest and related them to
the charge, the wrongfulness of the conduct charged, the
consequences of a guilty verdict, and the proceedings in court.”
Furthermore, Quijano concluded that Colburn had “substantial
ability to communicate and assist counsel in his own defense”
because he “knew his counsel, had sufficient interpersonal
rapport with them, could communicate the facts of the case to
them, and could and did participate in his defense strategy.”
7 Competency to stand trial is a fact determination entitled to a presumption of correctness. Miller v. Fenton, 474 U.S. 104, 113 (1985).
11 For these reasons, Quijano opined that the “defendant appeared to
be competent to stand trial.”8
Colburn’s attorneys also retained Dr. Carmen Petzold, a
specialist in sexual crimes, to conduct a mental evaluation of
Colburn. Dr. Petzold examined Colburn three weeks prior to jury
selection. Dr. Petzold reported that “[d]espite [Colburn’s]
chronic mental illness, he does appear to be able to form a
logical and rational understanding of the charges against him, he
has an adequate understanding of the legal process as it relates
to him, he is able to adequately consult with his attorney in
order to prepare an adequate defense, and he appears to be
therefore, competent to stand trial.” The competency evaluations
of Drs. Quijano and Petzold provide valuable insight into
Colburn’s mental state at the time of trial. See Martin v.
Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) (“Medical evidence,
such as expert testimony from psychiatrists who have examined the
defendant near the time of trial or testimony based upon hospital
records reflecting defendant’s mental history, generally provide
sound material for reconstruction of defendant’s mental state.”).
Additionally, during state habeas proceedings, Colburn’s
attorneys opined that Colburn “was able to communicate with us
8 In an affidavit first submitted to the federal district court in conjunction with Colburn’s federal habeas petition, Dr. Quijano contradicted his original evaluation and stated that Colburn was actually incompetent at the time of trial. We discuss this additional evidence below. See infra Part III(C)(ii).
12 throughout our representation” and that Colburn “had excellent
recall of the circumstances surrounding [his offense] and was
able to relate the facts to us.” Because Colburn’s relationship
with his attorneys is central to the question of his competence
to stand trial, his attorneys are in the best position to
determine that he was competent. See Medina v. California, 505
U.S. 437, 450 (1992) (stating that “defense counsel will often
have the best-informed view of the defendant’s ability to
participate in his defense”); see also Bryson v. Ward, 187 F.3d
1193, 1201 (10th Cir. 1999) (“Defense counsel is often in the
best position to determine whether a defendant’s competency is
questionable.”); Watts v. Singletary, 87 F.3d 1282, 1288 (11th
Cir. 1996) (same).
Finally, Dr. David Axelrad, one of Colburn’s medical
experts, evaluated Colburn shortly before Colburn filed his state
habeas petition. In his report, Dr. Axelrad opined that “the
evaluation and testimony of Dr. Walter Y. Quijano was sufficient
for purposes of arriving at an opinion regarding Mr. James Blake
Colburn’s competency to stand trial.”9 Furthermore, Dr. Axelrad
agreed with Dr. Petzold’s competency determination by stating in
his report that “the patient provided responses to Dr. Petzold
9 Like Dr. Quijano, Dr. Axelrad has altered his opinion concerning Colburn’s competency at the time of trial. This “addendum report” was first presented to the federal district court in conjunction with Colburn’s federal habeas petition. We discuss this additional evidence below. See infra Part III(C)(ii).
13 that suggested he was competent to stand trial. The
contemporaneous conclusions of Drs. Quijano and Petzold, which
were found adequate by Dr. Axelrad, and the opinions of Colburn’s
attorneys, strongly support the state trial court’s finding of
Colburn’s competency at the time of his trial.
ii. The Evidence Presented by Colburn to Show Incompetency
Colburn attempts to rebut the state court’s finding that he
was competent to stand trial with evidence of: (1) his history of
mental illness, (2) his demeanor at trial, (3) psychotic episodes
occurring during his pretrial incarceration, (4) Dr. Axelrad’s
“addendum report” and recent affidavit, and (5) a recent
affidavit by Dr. Quijano. We find that, viewed as a whole, this
evidence does not add up to clear and convincing evidence that
the state court’s finding of fact - that Colburn was competent to
stand trial - is incorrect.
Colburn’s evidence of incompetence based on his history of
psychiatric illness is unpersuasive. First, Drs. Quijano and
Petzold fully considered Colburn’s medical history, yet both
initially determined that Colburn was nevertheless competent to
stand trial. Second, Colburn’s attorneys likewise found Colburn
to be competent to stand trial. Third, it is clear from the
record that Colburn’s history of mental illness was factored into
the state habeas court’s finding that he was competent.
14 In McCoy v. Lynaugh, 874 F.2d 954 (5th Cir. 1989), we
confronted facts similar to the facts of this case in reviewing a
request for habeas relief. In McCoy, the state trial court
ordered an expert competency evaluation because of defendant
McCoy’s history of psychiatric problems and suicide attempts and
because of his medicated state. Id. at 960-61. Because both the
appointed expert and McCoy’s trial counsel found McCoy to be
competent, this court declined to overturn the findings of
competence by the state and federal habeas courts. Id. at 961.
As Dr. Axelrad correctly notes in his report, “the forensic test
for competency does not require that the person be free of
psychotic illness or psychiatric problems.” See Mata v. Johnson,
210 F.3d 324, 329 n.2 (noting that “the presence or absence of
mental illness or brain disorder is not dispositive” of
competency). In Colburn’s case, the experts, his attorneys, and
the trial court all found Colburn to be competent at the time of
trial despite his history of mental illness.
Colburn’s assertion that his demeanor at trial establishes
his incompetency is also unpersuasive. The trial record reflects
only one instance of Colburn’s drowsiness.10 However, Colburn
10 The following exchange occurred as Colburn fell asleep: Counsel Crow: Do any of the drugs that are used to treat paranoid schizophrenics make them sleepy? Dr. Quijano: Yes. Counsel Crow: And that sleep would be pronounced if the drug
15 argues that this was not an isolated incident and that he fell
asleep several times during his trial. We need not determine the
number of times Colburn fell asleep during trial because whether
Colburn fell asleep once or slept through most of his trial is
not dispositive of Colburn’s competence. See Watts, 87 F.3d at
1287 (stating that the fact that the defendant slept through part
of his murder trial is insufficient by itself to establish
were taken within the recent past? Dr. Quijano: Yes. These antipsychotic medications have a sedating effect. So agitated people like in jail you would inject them to give them a good night’s rest for a day or two. Counsel Crow: Judge, can I approach the bench a minute, please? The Court: Yes, Sir.
(Whereupon the following was had at the bench)
Counsel Crow: Judge, I don’t know that it matters, but I think I need a break to walk my client around the room a little bit. He’s snoring kind of loud- Counsel Stover: They apparently injected him last time night (sic) to calm him down and I appreciate it. But he’s sleeping right now. Counsel Crow: I don’t know if it’s going to matter too much, but I think it would be better if we had a minute to walk him around to wake him up.
16 incompetency). Rather, to establish incompetency, Colburn must
show that his sleepiness rendered him unable to understand the
trial proceedings or to assist his attorneys in his defense.
Woods v. Johnson, 75 F.3d 1017, 1038 n.33 (5th Cir. 1996).
Colburn has presented no evidence that his sleepiness rises to
the level of incompetency, and his attorneys’ opinions and the
state habeas court’s findings of fact suggest otherwise.
Colburn’s evidence relating to psychotic episodes is
likewise insufficient to overcome the state habeas court’s
finding of Colburn’s competency. Colburn demonstrates that there
were gaps in his psychological treatment while he was
incarcerated, which Colburn asserts led to “florid psychotic
episodes, suicidal ideation, and enuresis during pretrial
detention.” First, we note that anecdotal evidence of
psychiatric problems is insufficient to overcome the presumption
of correctness that attaches to the state habeas court’s
determination of competency. Carter, 131 F.3d at 461. Mental
illness is not equivalent to incompetency. Mata, 210 F.3d at 329
n.2. Colburn presents no evidence that his alleged psychotic
episodes rendered him incompetent to stand trial. Second, two
months before his trial, Colburn’s psychological treatment
resumed on August 4, 1995, and remained uninterrupted thereafter.
There is no evidence of psychotic episodes after that date.11 On
11 The jail record describes Colburn as complaining of “anxiety and chest wall pain” on September 30, 1995, but there is
17 August 16 and August 21, 1995, Dr. Petzold evaluated Colburn and
unequivocally found him competent to stand trial. After
Colburn’s treatment resumed, Colburn’s attorneys also voiced the
opinion that Colburn was competent. Thus, the fact that Colburn
may have experienced an occasional psychotic episode while
incarcerated does not establish his incompetency to stand trial,
especially when Dr. Petzold’s and Colburn’s attorneys’ competency
evaluations occurred after all such episodes had ceased.
Additionally, Dr. Axelrad’s “addendum report” and recent
affidavit are insufficient to overcome the state habeas court’s
finding of Colburn’s competency. Dr. Axelrad did not evaluate
Colburn before his trial and was not present at the trial.
Rather, Dr. Axelrad first evaluated Colburn in January 1997, over
a year after the conclusion of the trial, and his resulting
report was presented to the state habeas court in conjunction
with Colburn’s state habeas petition. In that original report,
Dr. Axelrad concluded that the competency determinations of Drs.
Quijano and Petzold were adequate but did not independently
analyze Colburn’s competency. After “reviewing additional
records,” Dr. Axelrad created an addendum report in December
1999, which was first presented to the federal district court in
conjunction with Colburn’s federal habeas petition. In the
addendum report, Dr. Axelrad states that the additional records
no evidence that this complaint was part of a psychotic episode.
18 he reviewed raise “serious questions and concerns regarding
[Colburn’s] competency to stand trial” at the time of the trial.
Dr. Axelrad presented an affidavit to the district court
declaring that “[b]ased on my review of information available to
the trial court, it is my forensic psychiatric opinion that
evidence that Mr. Colburn was actually incompetent during trial
is clear and convincing.” More specifically, Dr. Axelrad’s
current opinion is that, although Colburn appeared competent at
the time of Dr. Quijano’s evaluation, sedating medication
administered to Colburn during trial rendered him incompetent.
In Dunn v. Johnson, 162 F.3d 302, 306-07 (5th Cir. 1998), we
questioned the persuasiveness of retrospective psychiatric
opinions because of “the difficulty of conducting a retrospective
evaluation spanning several years.” See also Walker v. Gibson,
228 F.3d 1217, 1229-30 (10th Cir. 2000) (noting that
“post-conviction affidavits, prepared over seven years after
trial, . . . are of little assistance” in determining
competency), overruled on other grounds by Neill v. Gibson, 278
F.3d 1044 (10th Cir. 2001). In the instant case, the state
court’s finding of competency is based on two contemporaneous
competency evaluations, the credible opinions of Colburn’s
attorneys, and the state court’s first-hand recollections of
Colburn at trial. Dr. Axelrad’s retrospective addendum report
and affidavit, prepared more than four years after Colburn’s
19 conviction, cannot overcome this strong evidence of Colburn’s
competency.
Like Dr. Axelrad’s affidavit, Dr. Quijano’s recent affidavit
is unpersuasive. Dr. Quijano presented an affidavit to the
district court declaring that “it is my forensic psychological
opinion that it is not reasonably probable that during trial Mr.
Colburn was legally competent to stand trial.” In support of
this statement, Dr. Quijano cites to the portion of Colburn’s
medical records indicating that Colburn was injected with the
sedating drug Haldol and to the portion of the trial record
indicating that Colburn fell asleep during trial.12 Dr.
Quijano’s recent affidavit is suspect for two reasons. First,
although Dr. Quijano testified at Colburn’s trial and had the
opportunity to directly observe Colburn’s demeanor at trial, Dr.
Quijano’s recent opinion of incompetency is based only on the
trial record and medical records. Dr. Quijano never mentions any
personal observations to support his new opinion of Colburn’s
incompetency. Second, Dr. Quijano’s opinion is based only on
Colburn’s injection with Haldol and the one instance of
sleepiness found in the record. Dr. Quijano uses these facts to
tentatively speculate that it is “not reasonably probable” that
Colburn was competent during his trial. Dr. Quijano’s
speculative affidavit does not demonstrate incompetency and is
12 See supra note 10 for the text of that portion of the record that indicates Colburn’s sleepiness during trial.
20 insufficient to overcome the state habeas court’s finding of
Colburn’s competency.
In light of the substantial evidence supporting Colburn’s
competency, we find that Colburn fails to provide the clear and
convincing evidence required to overcome the presumption of
correctness that attaches to the state habeas court’s fact
finding that he was competent to stand trial. Accordingly,
Colburn fails to make a substantial showing of the denial of a
constitutional right with respect to this issue, and we deny his
request for a COA.
IV. Issues 3 and 4: Colburn’s Ineffective Assistance of Counsel Claims
In addition to his competency-related claims, Colburn raises
two ineffective assistance of counsel claims. First, Colburn
asserts the district court erred in denying Colburn relief on his
claim that he received ineffective assistance of counsel due to
his attorneys’ failure to request a competency hearing prior to
trial. Second, Colburn argues that the district court erred in
denying Colburn relief on his claim that he received ineffective
witnesses.13 We conclude that Colburn fails to make a
13 Colburn also argues that the district court erred in denying Colburn’s request for an evidentiary hearing to resolve factual conflicts surrounding his ineffective assistance claims. We review the district court’s denial of an evidentiary hearing for abuse of discretion. McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998). A habeas petitioner is only entitled to a hearing “[w]hen there is a ‘factual dispute, [that,] if resolved
21 substantial showing of the denial of a constitutional right with
respect to both of these ineffective assistance of counsel
claims. Accordingly, we deny his request for a COA on these
claims.
Colburn argues that the district court erred in reviewing
his ineffective assistance of counsel claims under a deferential
rather than a de novo standard. Colburn asserts that de novo
review is proper because the Texas Court of Criminal Appeals
(“TCCA”) failed to adjudicate his ineffective assistance claims
on the merits. See Valdez, 274 F.3d at 946 (stating that the
AEDPA’s deferential scheme “operates when the state court has
adjudicated the petitioner’s claim on the merits”). Colburn
points to the unconventional facts surrounding the TCCA’s denial
of relief to support his argument.
After state habeas proceedings, the state court recommended
that the TCCA adopt the following conclusion of law:
Trial counsel rendered effective assistance of counsel. Hernandez v. State, 726 S.W.2d
in the petitioner’s favor, would entitle [him] to relief.’” Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)). We find that Colburn’s case does not present any factual disputes that require development at an evidentiary hearing in order to properly adjudicate the claims. Because the district court had sufficient facts to make an informed decision regarding the merits of Colburn’s claims, the court did not abuse its discretion by refusing to grant Colburn’s request for an evidentiary hearing. Murphy v. Johnson, 205 F.3d 809, 816-17 (5th Cir. 2000).
22 53, 57 (Tex. Crim. App. 1986); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The TCCA denied Colburn relief and adopted most of the trial
court’s findings of fact and conclusions of law. Without any
explanation, however, the TCCA specifically refused to adopt
several findings and conclusions, including the conclusion
concerning Colburn’s effective assistance of counsel. Because of
this action, the state habeas record contains no conclusions of
law regarding Colburn’s ineffective assistance claims and only
one finding of fact indirectly related to those claims.14
Although the TCCA’s denial of relief suggests an
adjudication on the merits, that court’s refusal to adopt the
conclusion of law concerning Colburn’s effective assistance of
counsel is puzzling. Fortunately, we need not determine whether
Colburn’s ineffective assistance claims were adjudicated on the
merits in state habeas proceedings because we conclude that
Colburn fails to make a substantial showing of the denial of a
constitutional right with respect these claims under de novo
review. See Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997)
(declining to determine whether the state habeas court
sufficiently adjudicated the petitioner’s claim on the merits
because the petitioner’s claim fails “even applying the pre-AEDPA
de novo standard of review”).
14 See infra note 20 for this finding of fact.
23 B. The Failure to Request a Competency Hearing
In his first ineffective assistance claim, Colburn argues
that the district court erred in denying Colburn relief on his
claim that he received ineffective assistance of counsel due to
his attorneys’ failure to request a competency hearing prior to
trial. Colburn contends that his history of mental illness
combined with his drowsiness at trial should have alerted his
attorneys to his incompetency. Quoting McCoy, 874 F.2d at 964,
the district court found that “‘[t]here can be no deficiency in
failing to request a competency hearing where there is no
evidence of incompetency.’” We agree.
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court established the federal constitutional standard for
effectiveness of counsel. To obtain federal habeas relief on
grounds of ineffective assistance of counsel, a petitioner must
show “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Id. at 687. To
prove a deficient performance, a petitioner must demonstrate that
a counsel’s errors were so serious as to “render[] the result of
the trial unreliable or the proceeding fundamentally unfair.”
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Although an
attorney has a duty to make reasonable investigations on behalf
of clients, there is a strong presumption that an attorney’s
performance is reasonable. See Strickland, 466 U.S. at 690-91
(stating that “strategic choices made after thorough
24 investigation of the law and facts relevant to plausible options
are virtually unchallengable”).
At the time of Colburn’s trial, abundant evidence pointed to
his competency.15 Two experts, one appointed by the court
pursuant to Colburn’s request and the other hired by Colburn’s
attorneys, found no evidence of incompetency. Furthermore, his
attorneys’ observations convinced them that Colburn “was able to
communicate with us throughout our representation” and that
Colburn “had excellent recall of the circumstances surrounding
[his offense] and was able to relate the facts to us.” Colburn’s
attorneys’ affidavits stated that, based on the expert opinions
of Drs. Quijano and Petzold as well as their own observations,
they “did not request a competency hearing because [they] had no
evidence to support such a request.” Such action is reasonable
and not deficient. McCoy, 874 F.2d at 963-64. Colburn’s
attorneys had no duty to hire a third expert in the hopes of
producing an opinion suggesting that Colburn was incompetent.
See Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000)
(holding that “trial counsel was not deficient by not canvassing
the field to find a more favorable defense expert”). In fact,
Colburn’s attorneys “had no reason to believe that another
psychiatrist might reach a [different] conclusion” where the
initial expert evaluations were “consistent with [the attorneys’]
15 See discussion supra Part III(C)(i).
25 own perception and observation of [Colburn].” Clark v. Collins,
19 F.3d 959, 964 (5th Cir. 1994). Thus, Colburn fails to
establish that his attorneys were deficient and rendered
ineffective assistance by failing to seek a competency hearing.16
Accordingly, Colburn fails to make a substantial showing of the
denial of a constitutional right with respect to this issue, and
we deny his request for a COA.
C. The Use of Expert Witnesses
In his second ineffective assistance claim, Colburn argues
that the district court erred in denying Colburn relief on his
claim that he received ineffective assistance of counsel due to
his attorneys’ misuse of expert witnesses. More specifically,
Colburn asserts two distinct claims: (1) that the district court
erred when it found that Colburn’s attorneys’ failure to retain a
psychiatrist, rather than a psychologist, to testify at trial did
not amount to ineffective assistance; and (2) that the district
court erred when it found that Colburn’s attorneys’ reliance, to
the exclusion of other experts, on Dr. Quijano’s testimony was
not deficient. In analyzing these claims, we apply the two-
pronged Strickland standard. See supra Part IV(B).
16 Because Colburn fails to demonstrate that his attorneys were deficient, we need not consider whether he has established actual prejudice. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995) (stating that “a court need not address both prongs of the conjunctive Strickland standard, but may dispose of such a claim based solely on a petitioner’s failure to meet either prong of the test”).
26 i. The Failure to Retain a Psychiatrist
Colburn argues that he received ineffective assistance
because his attorneys hired Dr. Petzold, a psychologist, rather
than a psychiatrist, as an expert. Colburn explains that his
“psychiatric history and the circumstances of the crime
demonstrate that a competent counsel would have retained a
psychiatrically trained expert who could explain the
pharmacological and medical evidence to the jury.”17 We
disagree.
Due to the sexual nature of the murder, Colburn’s attorneys
retained the services of Dr. Petzold, a psychologist specializing
in sex crimes. After reviewing Colburn’s medical history and
interviewing Colburn for two days, Dr. Petzold reported on
Colburn’s competency to stand trial as well as his sanity at the
time of the offense.18 As previously discussed, Dr. Petzold
concluded that Colburn was competent to stand trial. See supra
17 It is important to note that Colburn is not asserting an Ake violation before this court. In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court held that a criminal defendant has a constitutional right to the assistance of a psychiatrist in certain situations. Id. at 83. The state habeas court denied Colburn relief under Ake and entered a conclusion of law stating that Colburn “received all the expert assistance to which he was entitled.” Colburn does not challenge this conclusion. 18 Under Texas law, insanity “is an affirmative defense to prosecution” if the actor can show by a preponderance of the evidence that “at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” TEX. PENAL CODE ANN. § 8.01(a) (Vernon 1994).
27 Part III(C)(i). With respect to Colburn’s sanity, Dr. Petzold
concluded that Colburn “knew the difference between right and
wrong at the time of the alleged offense, was capable of
conforming his behavior to the law, and would therefore, not meet
the criteria for the insanity defense.” Given these conclusions,
Colburn’s attorneys decided not to use Dr. Petzold as a defense
witness at trial.19
The hiring of expert witnesses and the presentation of their
testimony is a matter of trial strategy. Yohey v. Collins, 985
F.2d 222, 228 (5th Cir. 1993). Where a previous mental health
examination appears to be very thorough, where counsel has no
reason to suspect that another expert might reach a different
conclusion, and where the original expert conclusion comports
with counsel’s own perceptions and observations of the defendant,
counsel is not deficient in not seeking another expert. See
Clark, 19 F.3d at 964. First, Colburn presents no evidence that
establishes that Dr. Petzold’s evaluation was not thorough or
careful.20 Second, Colburn’s attorneys had no reason to suspect
19 Instead, Colburn’s attorneys relied exclusively on Dr. Quijano’s testimony at trial. 20 The state habeas court entered a finding of fact stating: This Court has reviewed the report prepared prior to trial by Dr. Petzold, and finds that Dr. Petzold conducted a thorough and careful evaluation of Applicant with regard to the possible relevant issues in Applicant’s case, including his sanity and future dangerousness.
28 that another expert might reach a different conclusion regarding
either Colburn’s sanity or his competency since Drs. Petzold and
Quijano agreed that Colburn was both competent to stand trial and
sane at the time of the offense.21 Third, the opinions of Drs.
Petzold and Quijano are consistent with the observations
expressed by Colburn’s attorneys in their affidavits. For these
reasons, Colburn’s attorneys’ reliance on psychologists rather
than psychiatrists was not deficient and, therefore, did not
constitute ineffective assistance. Clark, 19 F.3d at 964.
Accordingly, Colburn fails to make a substantial showing of the
denial of a constitutional right with respect to this issue, and
ii. The Use of Dr. Quijano
Colburn asserts that he received ineffective assistance
because his attorneys relied, to the exclusion of other experts,
on Dr. Quijano’s testimony at trial.22 Colburn suggests that his
attorneys should not have called Dr. Quijano as a witness or, in
the alternative, should have called Dr. Petzold to rebut certain
Because we are conducting a de novo review of this issue, however, we decline to defer to this finding of fact. 21 This is especially true given Dr. Quijano’s extensive psychiatric experience as the former director of psychiatric services for the Texas Department of Corrections. Colburn’s attorneys had no reason to believe that a psychiatrist would reach a different conclusion that Dr. Quijano. 22 Colburn’s assertion covers his attorneys’ reliance on Dr. Quijano during the guilt/innocence phase and the sentencing phase of his trial.
29 parts of Dr. Quijano’s testimony. In support of his argument,
Colburn asserts that Dr. Quijano’s unrebutted testimony impaired
the viability of his insanity defense at trial. These assertions
lack merit.
We begin by noting that “strategic choices made after
thorough investigation of the law and facts relevant to plausible
options are virtually unchallengable.” Strickland, 466 U.S. at
690. The decision to present or not to present certain evidence
is a matter of trial strategy, as is the use of expert witnesses.
Smith v. Black, 904 F.2d 950, 977 (5th Cir. 1990); Yohey, 985
F.2d at 228. In their affidavits, Colburn’s attorneys stated
that they relied on Dr. Quijano’s testimony because they “were of
the opinion that Dr. Quijano’s report provided . . . enough
information that [they] could possibly raise a sanity issue for
submission to the jury in spite of Dr. Quijano’s conclusion that
Mr. Colburn was sane at the time of the commission of the
offense.” This strategy was reasonable.
During direct examination by Colburn’s attorneys, Dr.
Quijano suggested that Colburn was responding to a “command
hallucination” at the time of his offense and stated that it is
“very possible that he did not know” his conduct was wrong. This
testimony supported Colburn’s insanity defense. Furthermore,
through Dr. Quijano’s testimony, Colburn’s attorneys were able to
introduce Colburn’s extensive history of mental illness. Dr.
Quijano opined that Colburn suffered from chronic, intractable
30 paranoid schizophrenia that is “difficult to manage and difficult
to treat.” Thus, calling Dr. Quijano as a defense witness was a
reasonable strategy that was beneficial to Colburn.
Colburn also claims that his attorneys should have called
Dr. Petzold to rebut certain parts of Dr. Quijano’s testimony.
Dr. Petzold’s report, however, is no more favorable to Colburn’s
defense than Dr. Quijano’s report. While both experts allowed
for the possibility that Colburn was insane at the time of the
offense, both ultimately concluded that he was sane. Colburn’s
attorneys reviewed both reports and decided that Dr. Quijano’s
testimony at trial was more likely to be favorable than Dr.
Petzold’s. Such a strategic decision, especially when it yielded
favorable testimony, is reasonable. We reject Colburn’s
assertion that his attorneys were unreasonable for not retaining
a third expert to supplement or rebut Dr. Quijano’s testimony.
See Dowthitt, 230 F.3d at 748 (holding that “trial counsel was
not deficient by not canvassing the field to find a more
favorable defense expert”). Colburn’s attorneys’ reliance on Dr.
Quijano’s testimony was not deficient and, therefore, did not
constitute ineffective assistance. Accordingly, Colburn fails to
make a substantial showing of the denial of a constitutional
right with respect to this issue, and we deny his request for a
COA.
V. Conclusion
31 We find that Colburn fails to make a “substantial showing of
the denial of a constitutional right” under § 2253(c).
Accordingly, we DENY Colburn’s request for a certificate of
appealability.