Bradberry v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 98-11330
Summary Calendar
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WILLIAM GARY BRADBERRY,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CV-2510)
_________________________
April 6, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
William Bradberry pleaded guilty to
molesting a child and received a life sentence.
On this appeal of the denial of habeas corpus
relief, he argues that the state trial court erred
in failing sua sponte to order a formal hearing
to determine his competency to enter a guilty
plea and that his counsel ineffectively
represented him in failing to request such a
hearing. Finding no reversible error, we
affirm.
* 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determined that this opinion should not be
published and is not precedent except under the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.

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2
I.
Bradberry filed two state applications for
writs of habeas corpus. The first was filed in
Van Zandt County and challenged the validity
of a burglary conviction that had been used to
enhance his sentence. No findings of fact were
apparently made, and the Court of Criminal
Appeals denied the application without a
hearing. The second challenged various
aspects of his sexual assault plea and the
validity of the enhancement charge, including
a challenge to his competency to stand trial.
The trial court made findings of fact and
conclusions of law without a hearing,
recommending denial of the application. With
respect to competency, the court stated that
“[a]pplicant’s testimony during the course of
Applicant’s trial . . . clearly shows that
Applicant was competent to stand trial.” The
Court of Criminal Appeals denied the
application without written order.
Bradberry filed his first federal habeas
petition pursuant to 28 U.S.C. § 2254, raising
the claims set forth in his first state application.
He then filed a second § 2254 petition, raising
essentially the same claims as those set forth in
the second state application. The magistrate
judge ordered consolidation of the cases, then
recommended dismissal, rejecting most of
Bradberry’s claims on the merits and finding
one claim procedurally barred.
Bradberry filed objections. The district
court conducted de novo review of the record,
adopted the findings of the magistrate judge,
and dismissed the petitions. Bradberry filed a
timely notice of appeal and a motion for leave
to proceed in forma pauperis (“IFP”). He
then moved for a certificate of probable cause
(“CPC”). The district court granted IFP status
and denied a certificate of appealability
(“COA”). This court granted a COA on the
following issues:
(1) whether the trial court was required
sua sponte to conduct a competency
hearing upon the elicitation of evidence
that Bradberry had attempted suicide
several times in the year before the
hearing; and
(2) whether Bradberry’s attorney was
ineffective for failing to move for a
competency hearing upon learning this
information.
II.
Bradberry’s petition is subject to review
under the Antiterrorism and Effect Death
Penalty Act of 1996 (the “AEDPA”), because
it was filed after April 24, 1996.1 See
28 U.S.C. § 2254.
AEDPA provides that a state prisoner may
not obtain relief 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.
1 Williams v. Cain, 125 F.3d 269, 274 (5th Cir.
1997), cert. denied, 119 S.Ct. 144 (1998) (holding
that AEDPA applies to a petition filed by state
prisoner after April 24, 1996).

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3
28 U.S.C. § 2254(d). Section 2254(d)(1)
provides the standard of review for questions
of law and mixed questions of law and fact,
whereas § 2254(d)(2) provides the standard of
review for questions of fact. Drinkard v.
Johnson, 97 F.3d 751, 767 (5th Cir. 1996).
Moreover, “a determination of a factual issue
made by a State court shall be presumed to be
correct,” and the petitioner “shall have the
burden of rebutting the presumption by clear
and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).2 We review the federal district
court’s findings of fact for clear error, but
questions of law are decided de novo.3
III.
Bradberry asserts that the trial court erred
by failing to order sua sponte a competency
hearing before accepting his guilty plea. He
suggests that “[e]xtensive evidence” was
presented to the trial court regarding his
incompetency, including the records of Dr.
R e a g a n A n d r e w s , t h e V e t e r a n ’ s
Administration psychiatrist who had seen
Bradberry for years; and of recent suicide
attempts. Bradberry asserts that because the
trial court did not ask him whether he
understood t he nature of the proceedings or
their impact or whether Bradberry was on
medication, the evidence “strongly suggests”
that he was not competent to enter a guilty
plea.
The conviction of a legally incompetent
defendant violates constitutional due process.
See Pate v. Robinson, 383 U.S. 375, 378
(1966). The competency standard for pleading
guilty is the same as the competency standard
for standing trial: “whether the defendant has
‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational
understanding’ and has a ‘rational as well as
factual understanding of the proceedings
against him.’”4
[W]hen a prisoner, either state or
federal, seeking post-conviction relief,
asserts, with substantial facts to back up
his allegation, that at the time of trial he
was not mentally competent to stand
trial, and that there was no resolution of
that precise issue before he was tried,
convicted and sentenced, the protection
of the Fourteenth Amendment to the
Constitution requires that such
conviction and sentence be set aside
unless upon adequate hearing it is shown
that he was mentally competent to stand
trial.
Lee v. Alabama, 386 F.2d 97, 105 (5th Cir.
1967) (en banc) (emphasis added, footnote
omitted). The movant must present facts
sufficient “to positively, unequivocally and
clearly generate a real, substantial and
legitimate doubt as to [his] mental capacity . .
. to meaningfully participate and cooperate
with counsel.” United States v. Williams, 819
F.2d 605, 609 (5th Cir. 1987) (quotation and
citation omitted).
A habeas petitioner may obtain relief if he
can show that the state procedures were
inadequate to ensure that he was competent to
stand trial. In some instances, such an
understanding arises if the trial court failed to
conduct a competency hearing. Carter v.
Johnson, 131 F.3d 452, 459 n.10 (5th Cir.
1997), cert. denied, 523 U.S. 1099 (1998)
(pre-AEDPA case).
A state court must conduct an inquiry into
the defendant’s mental capacity sua sponte if
the evidence raises a bona fide doubt as to
competency. Carter, 131 F.3d at 459 n.10. In
determining whether there is a bona fide
doubt, the court considers (1) any history of
irrational behavior, (2) the defendant’s
demeanor at trial, and (3) any prior medical
opinion on competency. Davis v. Alabama, 2 Formerly 28 U.S.C. § 2254(d).
3 Earhart v. Johnson, 132 F.3d 1062, 1064 (5th
Cir.) (citation omitted), cert. denied, 525 U.S. 933
(1998); Clark v. Scott, 70 F.3d 386, 388 (5th Cir.
1995).
4 Godinez v. Moran, 509 U.S. 389, 396 (1993)
(quoting Dusky v. United States, 362 U.S. 402,
402 (1960)).

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4
545 F.2d 460, 464 (5th Cir. 1977). If the
court received evidence, viewed objectively,
that should have raised a reasonable doubt as
to competency, yet failed to make further
inquiry, the defendant has been denied a fair
trial. Carter, 131 F.3d at 459 n.10.
The record provides much evidence that
Bradberry was competent to plead. The state
court denied habeas relief because it found that
Bradberry’s testimony at his guilty plea and
sentencing showed he was competent to assist
counsel and understand the charges against
him. In fact, Bradberry did testify coherently
and rationally at his guilty plea hearing, which
suggests that he was competent to stand trial.
The trial court also considered, before
taking Bradberry’s plea, Andrews’s report
from his years of therapy sessions with
Bradberry (which continued until
approximately seven months before trial). It
indicated that Bradberry suffered from post-
traumatic stress disorder (“PTSD”),
depression, and “organic brain syndrome”
resulting from head injuries in Vietnam and a
1983 suicide attempt that resulted in severe
blood loss.
The doctor stated that Bradberry had many
physical problems, suffered memory deficits,
and functioned at the emotional level of a nine-
or ten-year-old. Despite these problems,
Andrews believed that Bradberry was
“competent to participate in his own defense.”5
The trial court was also aware, from
Bradberry’s medical history, that he had
attempted suicide several times and used to get
into bar fights with the hope that someone
would kill him.
That the court had all of this information,
and that it carefully reviewed Bradberry’s
psychiatric and medical evaluations before
allowing him to testify, require a conclusion
that Bradberry suffered no violation of due
process rights under Davis. Although he
obviously had a history of irrational and
troubled behavior, he handled himself
coherently at trial.
Moreover, Andrews was aware of this
history and felt that Bradberry was capable of
assisting in his defense. Although Bradberry
asserts that Andrews was not judging
“competence” under a legal standard,
Andrews’s notes reveal that Bradberry had
made a specific appointment for a formal
evaluation at his attorney’s request and was
“able to discuss his options and possible plans
coherently.”
All of this tended to show that Bradberry
was able to consult rationally with his lawyer
and understood the proceedings against him.
See Godinez, 509 U.S. at 396. Moreover, the
trial court viewed Bradberry’s behavior
throughout the proceedingsSSalways aware of
his background and his propensity for strange
behaviorSSand found nothing to make him
question his original determination that
Bradberry was competent.
The trial court was, withal, justified in
relying on the submitted psychiatric
evaluations and on its own in-court
observat ions. The only piece of psychiatric
evidence presented to the court that had not
been available to Bradberry’s therapist in their
extensive consultations was Bradberry’s wife’s
testimony during the plea proceedings that her
husband had tried to commit suicide “several
times” within the past year, although she did
not specify dates. (Bradberry confirmed that
he had attempted suicide in early 1994 and
also apparently tried to kill himself in early
1995.) Andrews’s evaluations noted no
suicide attempts after 1983 and does not
reveal knowledge of a more recent attempt.
This new suicide-attempt information
provides Bradberry’s only argument that his
constitutional rights were somehow violated.
5 Bradberry makes much of the fact that
Andrews discussed with him the benefits of being
appointed a “guardian.” In context, Andrews was
stating that Bradberry had had difficulty managing
his financial affairs since his divorce and the
suggestion was made that his sister be appointed
his “guardian” for his financial dealings only. This
statement does not lend much support for
Bradberry’s assertion that he was incompetent to
stand trial.

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5
In Drope v. Missouri, 420 U.S. 162 (1975),
counsel had filed a pretrial motion stating that
his client might be incompetent and included a
psychiatric report revealing problems but
generally suggesting that Drope was
competent. Id. at 175. The Court did not
hold that the trial court had erred in failing to
examine the competency issue further before
the trial based on that evidence. Id. at 177-78.
During the course of his trial, however,
Drope attempted suicide, choked his wife, and
acted irrationally in other ways. Id. at 179-80.
His suicide attempt removed Drope from the
courtroom for a portion of his trial. Because
those irrational events did not occur “in a
vacuum,” the Court held that the suicide
attempt raised sufficient doubt and required
further inquiry by the court into competency.
Id.
As Drope indicates, and this circuit has
explicated, a suicide attempt by itself is not
necessarily sufficient to create “reasonable
cause” for a competency hearing. See United
States v. Davis, 61 F.3d 291, 304 (5th Cir.
1995). Instead, that evidence must be weighed
in conjunction with all the testimony and
evidence presented with respect to mental
stability and competence. Id.
The facts here do not reach the seriousness
of those revealed in Drope. Bradberry’s
suicide attempts, however multiple, occurred
in the months before the sentencing, not during
the period surrounding his plea and
proceedings. The court here was able to
monitor and evaluate Bradberry’s behavior
throughout the proceedings; he was never
absent. Most importantly, the psychiatric
evaluations employed by the court to
determine Bradberry’s competency to stand
trial already accounted for the fact of his
suicide attempt and suicidal tendencies.
As noted above, the question of
competency to plead is one of whether the
defendant can rationally understand his plea
and participate with his lawyer in undertaking
the plea. Suicide indicates depression and
other disorders, but, as the Drope Court
recognized, does not necessarily have much
weight in determining whether a defendant is
rationally “available” for proceedings. See
Drope, 420 U.S. at 181 n.16. That Bradberry
had again attempted suicide after the end of his
extensive psychiatric evaluation, but at a time
remote from the actual plea and sentencing
proceedings, may be slightly probative of a
changed rationality with regard to entering a
plea, but nothing in our precedent suggests
that this requires a trial court to hold a new
competency hearing rather than relying on a
recently completed evaluation. This is true
especially given that the evaluation included
recordation of a past suicide attempt and a
diagnosis of continuing suicidal tendencies,
and had found that they did not represent a
negation of Bradberry’s legal competency.
IV.
The duty of an attorney to a defendant who
desires to enter a plea of guilty is to ascertain
whether the plea is voluntarily and knowingly
made.6 In Hill v. Lockhart, 474 U.S. 52
(1985), the Court held that the two-prong test
enunciated in Strickland v. Washington,
466 U.S. 668 (1984), applies to guilty pleas.
Under Washington, a defendant must show
that counsel’s performance was deficient and
that the deficient performance prejudiced the
defense. Id. at 687. This circuit has textured
the Washington test for cases in which the
question is whether the defendant was
competent to stand trial or enter a plea:
[A] claim of incompetence is difficult to
analyze under the ‘outcome’ test of
[Washington], because whether the
defendant was guilty or innocent is
irrelevant if he was convicted while
incompetent. [The defendant] can
succeed in establishing that he was
prejudiced by his attorney’s failure to
investigate only if he can demonstrate a
reasonable probability that he was
incompetent to plead guilty.
6 United States v. Diaz, 733 F.2d 371 (5th Cir.
1984); Moya v. Estelle, 697 F.2d 329 (5th Cir.
1983).

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6
Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir.
1994).
The burden of proof in a habeas proceeding
attacking the effectiveness of trial counsel is
on the petitioner, who must demonstrate that
ineffectiveness by a preponderance of the
evidence. Martin v. Maggio, 711 F.2d 1273
(5th Cir. 1983). In determining the merits of
an alleged Sixth Amendment violation, courts
“must be highly deferential” to counsel's
conduct. Washington, 466 U.S. at 687. In
fact, “a conscious and informed decision on
trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of
counsel unless it is so ill chosen that it
permeates the entire trial with obvious
unfairness.”7 Finally, counsel is not required
to engage in the filing of futile motions and
should not be required to raise futile defenses.
See Murray v. Maggio, 736 F.2d 279, 283
(5th Cir. 1984).
Bradberry’s counsel did not render deficient
performance by failing to move for a
competency hearing. In fact, the failure to
raise the issue of competency at trial is
persuasive evidence that no Pate violation
occurred. Reese v. Wainwright, 600 F.2d
1085, 1092 (5th Cir. 1979). Given
Bradberry’s testimony and demeanor during
the hearing, the medical records from Andrews
stating that Bradberry was competent despite
his various diagnoses, and the complete
absence of any lay testimony suggesting that
Bradberry was incompetent or that he could
not understand the nature of the criminal
proceedings against him, it was not
unreasonable for counsel to fail to move for a
competency hearing.
The court did not err in deciding from the
relevant evidence that Bradberry was
competent. Given this understanding, it would
be difficult indeed to find that counsel, aware
that the court knew much about Bradberry’s
mental and emotional history and had taken
that history into consideration, rendered
ineffective assistance by failing to insist that
the court hold an unnecessary formal hearing
on the matter.
AFFIRMED.
7 See Garland v. Maggio, 717 F.2d 199, 206
(5th Cir. 1983) (citing Fitzgerald v. Estelle,
505 F.2d 1334 (5th Cir. 1975); Daniels v. Maggio,
669 F.2d 1075 (5th Cir. 1982)).

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