## F I L E D United States Court of Appeals Tenth Circuit 

### December 5, 2005

Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-2002 MELVIN CLYDE COLLINS II,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CR-02-663)

Jill M. Wichlens, Assistant Federal Public Defender(Raymond P. Moore, Federal Public Defender, with her on the brief), Denver, Co lorado, for DefendantAppellant. Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the briefs), Albuquerque, NewMexico, for PlaintiffAppellee.

Before TACHA , Chief Circuit Judge, EBEL , andMcCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.

Melvin Clyde Collins II appeals his conviction on t he ground that he was deprived of counsel at his competency hearing. At his competency hearing, the-2-

district court was presented with two issues: a mot ion to withdraw filed by Mr. Collins’s lawyer and the issue of Mr. Collins’s competency. The district court addressed the competency issue before the withdrawa l motion. As a result, Mr. Collins’s lawyer, believing that there had been a b reakdown in the attorney-client relationship, did not comment on Mr. Collins’s comp etency and did not introduce available evidence that may have affected the compe tency determination. Mr. Collins claims that this conduct constituted a cons tructive denial of counsel. Mr. Collins also appeals his sentence under United States v. Booker , 125 S. Ct. 738 (2005). Because Mr. Collins was not represented bycounsel at his competency hearing, we VACATE the conviction and REMAND for a new trial consistent with Mr. Collins’s constitutional rights.
I. On April 23, 2002, Mr. Collins was charged with two counts of sexually abusing a minor under age sixteen and one count of sexually abusing a minor under age twelve, in violation of 18 U.S.C. §§ 2241 (c), 2246(2)(A), 2246(2)(B), and 1152. The court appointed Mr. William L’Espera nce to represent Mr. Collins. After his indictment, Mr. Collins filed, and the court granted, a motion requesting a psychological examination to determine whether he was competent to stand trial. Mr. Collins was evaluated by Bureau o f Prisons psychologist, Dr. Jim Womack. After interviewing Mr. Collins, administer ing three personality tests,-3-

and interviewing Mr. Collins’s wife, Dr. Womack dia gnosed Mr. Collins with paranoid personality disorder. Dr. Womack did not diagnose Mr. Collins with schizophrenia or delusional disorder, despite Mr. C ollins’s statement that he was diagnosed with these disorders in childhood. Dr. W omack found Mr. Collins competent to stand trial. In his report, Dr. Womac k wrote: The defendant currently does not suffer from a ment al disease or defect which would render him unable to understand the nature and consequences of the proceedings against him or to assist properl y in his own defense. He evidenced a good command of court room personnel an d procedures. He most likely will be a difficult client with whom to work; however, potential conflicts can be attributable to the client’s perso nality disorder and not a psychotic process or cognitive deficiencies. After the evaluation was completed, the court sched uled a competency hearing for December 2, 2002. Before the competency hearing, Mr. Collins submitte d a letter to the court requesting that his current counsel, Mr. William L’ Esperance, be replaced. In this letter, Mr. Collins claimed that Mr. L’Esperance wa s lying to him, insulting both him and his wife, and colluding with the prosecutio n and the FBI. Mr. Collins also sent a letter to the New Mexico State Bar Asso ciation Disciplinary Board attempting to discredit Mr. L’Esperance. In respon se to this letter, Mr. L’Esperance filed a motion to withdraw, claiming th at he questioned his ability to adequately communicate with Mr. Collins and noting that the lack of communication between himself and Mr. Collins hampe red the investigation. Mr.-4-

L’Esperance filed his motion to withdraw on Decembe r 2, 2002—the date of Mr. Collins’s competency hearing. At the hearing, the court considered the issue of M r. Collins’s competency before addressing Mr. L’Esperance’s pending motion to withdraw. The district court began the competency hearing by inquiring whe ther there was any issue as to competency in light of the competency evaluation submitted by Dr. Womack that found Mr. Collins competent to stand trial. M r. L’Esperance responded by stating: Your Honor, I will not comment on that. I have had new materials disclosed, including the defendant’s DD-214 of the military records, site reports, and other matters that were not available to the reviewing staff. And under the circumstances that we are about this morning and the [withdrawal] motion I have filed, I will not commen t on that. R. Vol. IV, p. 3.) The court then questioned the g overnment on its perspective regarding competency. Government counsel informed the court that if the court were to grant Mr. L’Esperance’s motion to withdraw, the issue of competency should be the “first item of business to be taken up by any new counsel” that would be appointed. The government also stated th at, while it thought the competency evaluation “speaks for itself,” the gove rnment found military records that “may be relevant to the new counsel to reconsi der the competency issue.” The court then asked the government to submit an or der finding Mr. Collins-5-

competent to stand trial, but noted that “if the ne w attorney wants to revisit this issue, then [the court will] certainly . . . do that.” On December 5, 2002, the district court entered a w ritten order finding Mr. Collins competent to stand trial. The order did no t allude to the possibility that additional information, such as military records, w as available but not considered, and did not mention the district court’s willingnes s to revisit the competency issue with new counsel, which the court had express ed at the hearing. Mr. L’Esperance approved the order as “to form only” on behalf of Mr. Collins. On December 6, 2002, the district court entered an ord er permitting Mr. L’Esperance to withdraw as counsel. Mr. Troy Prichard was appo inted as substitute counsel for Mr. Collins. Seven months later, the grand jury returned a super seding indictment, amending the second count to allege that the victim was a Laguna Indian. At the pretrial conference, on September 9, 2003, Mr. Pric hard renewed the issue of Mr. Collins’s competency. Mr. Prichard informed the co urt that previous counsel had raised the issue of competency almost a year earlie r, that Mr. Collins had been evaluated, and that the court had concluded he was competent. Mr. Prichard then stated that he was “concerned as to [Mr. Collins’s] competence today, and specifically, his ability to meaningfully assist [M r. Prichard] during his trial.” Mr. Prichard further noted that he did “not sense agreat deal of logic in terms of-6-

[his] client’s comprehension of the issues and the consequences of this case.” Mr. Prichard suggested that the court “have this [s ic] same person that did the evaluation do just a quick review prior to trial.” The district court denied Mr. Prichard’s request for a renewed competency hearing . The court explained that Mr. Collins already had a competency hearing, that he was deemed competent to stand trial, and that the trial was scheduled for n ext week and would not be postponed. The jury convicted Mr. Collins on three counts of s exual abuse. Before the sentencing hearing, Mr. Collins filed a motion for downward departure based on his extraordinary mental and emotional conditions. The court denied the motion. The court adopted the factual findings contained in the presentence report, including a finding that the victim was in Mr. Coll ins’s custody, care and supervisory control. The court sentenced Mr. Colli ns to 292 months in prison. Mr. Collins now appeals his conviction and sentence

. II. Mr. Collins claims that Mr. L’Esperance’s lack of r epresentation at the competency hearing and the district court’s refusal to grant Mr. Prichard’s request to revisit the issue of competency before trial amo unted to a deprivation of Mr. Collins’s Sixth Amendment right to counsel. He contends that he was constructively denied counsel under United States v. Cronic , 466 U.S. 648 (1984).-7-

The government, in contrast, suggests that this iss ue is properly analyzed as a question of competence of counsel, under Strickland v. Washington , 466 U.S. 668 (1984). If so, the issue should be raised on collateral review rather than direct appeal, to permit the development of an evidentiary record that will allow a court to determine whether Mr. L’Esperance’s conduct prej udiced Mr. Collins.

A. Sixth Amendment Violation The Sixth Amendment entitles a defendant to the ass istance of counsel at every critical stage of a criminal prosecution. Kirby v. Illinois , 406 U.S. 682, 690 (1972); United States v. Gordon , 4 F.3d 1567, 1571 (10th Cir. 1993). Critical stages are those steps of a criminal proceedings th at hold significant consequences for the accused. Bell v. Cone , 535 U.S. 685, 695-96 (2002). Thus, a defendant is entitled to counsel at any proceedin g where an attorney’s assistance may avoid the substantial prejudice that could othe rwise result from the proceeding. Coleman v. Alabama , 399 U.S. 1, 9 (1970). We have not previously had opportunity to consider whether a competency he aring is a critical stage. Other circuits, however, have held that competency hearings are critical stages, and we agree. See Appel v. Horn , 250 F.3d 203, 215 (3d Cir. 2001); United States v. Klat , 156 F.3d 1258, 1262 (D.C. Cir. 1998); United States v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992); Sturgis v. Goldsmith , 796 F.2d 1103, 1109 (9th Cir.-8-

1986). Indeed, the government does not contest that the competency hearing is a critical stage, at which the defendant is constitut ionally entitled to representation by counsel. Cf. 18 U.S.C. § 4247(d) (creating a statutory right to counsel at competency hearings). The contested issue is whether Mr. Collins was cons tructively denied counsel at his competency hearing or whether his cl aim is properly cognizable as a claim for ineffective assistance of counsel. If Mr. Collins was constructively denied counsel at his competency hearing, then he n eed not show prejudice to establish a Sixth Amendment violation. Cronic , 466 U.S. at 659; Turrentine v. Mullin , 390 F.3d 1181, 1207-08 (10th Cir. 2004). “The Constitution’s guarantee of assistance of coun sel cannot be satisfied by mere formal appointment.” Cronic , 466 U.S. at 654-55. The importance of the Sixth Amendment right to counsel derives from t he adversarial nature of our justice system, which is premised on the “well-test ed principle that truth--as well as fairness--is best discovered by powerful stateme nts on both sides of the question.” Penson v. Ohio , 488 U.S. 75, 84 (1988) (internal quotation marks omitted). Because it is unlikely that a criminal d efendant will adequately be able to test the government’s case without representatio n, id. , the adversarial process requires that a defendant “have ‘counsel acting in the role of an advocate.’”
Cronic , 466 U.S. at 656 (quoting Anders v. California , 386 U.S. 738, 743 (1967)).-9-

The right to counsel, therefore, is the “right of t he accused to require the prosecution’s case to survive the crucible of meani ngful adversarial testing.” Id. Accordingly, “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself pres umptively unreliable.” Id. at 659. This Circuit has been reluctant to find const ructive denials of counsel, and has found a “complete absence of meaningful adversa rial testing only where the evidence ‘overwhelmingly established that [the] att orney abandoned the required duty of loyalty to his client,’ and where counsel ‘ acted with reckless disregard for his client’s best interests and, at times, apparent ly with the intention to weaken his client’s case.’” Turrentine , 390 F.3d at 1208 (quoting Osborn v. Shillinger , 861 F.2d 612, 624 (10th Cir. 1988)). In this case, where counsel sought to withdraw and attempted to fulfill his ethical oblig ation in the meantime by preserving but not arguing his client’s position, the language of “reckless disregard for his client’s interest” is inapt. We have no criticism of Mr. L’Esperance for his professional performance in thi s case. Even without a breach of loyalty, however, where there has been a “comple te absence of adversarial testing,” a Sixth Amendment violation is establishe d under Cronic without the showing of prejudice that is otherwise required und er Strickland

. See Cronic , 466 U.S. at 654; Strickland, 466 U.S. at 692.-10-

At his competency hearing, Mr. L’Esperance sought t o withdraw from representation and apparently took the position that the lawyer-client relationship had already effectively broken down. Because the d istrict court chose to address the withdrawal motion after the competency hearing, however, Mr. L’Esperance was still serving as Mr. Collins’s counsel, at leas t formally. As the Supreme Court explained in Cronic , however, formal representation alone is not enoug h to satisfy the Sixth Amendment. Cronic , 466 U.S. at 654-55. The question is whether the government’s case for competency was su bject to meaningful adversarial testing. If Mr. L’Esperance failed to test the prosecution’s case, then Mr. Collins was constructively denied counsel under Cronic

. Review of the record provides no doubt that Mr. Collins was constructively denied counsel at his competency hearing. Before the competency hearing, Mr. L’Esperance file d a motion to withdraw explaining that he could not adequately co mmunicate with Mr. Collins and that this lack of communication impaired his ab ility to investigate the case. Although this may establish a breakdown in the atto rney-client relationship, the relatively common factual underpinning of Mr. L’Esp erance’s motion to withdraw does not alone establish a deprivation of counsel. Rather, it is Mr. L’Esperance’s statements at the hearing, coupled with the distric t court’s decision to enter an-11-

order finding Mr. Collins competent, that constitut ed a constructive denial of counsel. At the competency hearing, Mr. L’Esperance stated t hat he would “not comment” when the district court inquired whether t here were any outstanding issues relating to Mr. Collins’s competency in light of the competency evaluation submitted by Dr. Womack. Mr. L’Esperance informed the district court that there was additional information, such as military record s and site reports, that were previously unavailable to Dr. Womack, but stated th at he would “not comment” on them because of his pending motion to withdraw. Mr. L’Esperance did not introduce the newly discovered military records and site reports into evidence. Even the prosecution conceded that the new informat ion “may be relevant to the new counsel” and that the issue of competency shoul d be the “first item of business to be taken up by any new counsel.” Notwi thstanding the prosecution’s recommendation, the district court entered an orderfinding Mr. Collins competent, without having opportunity to review the new records cited by both Mr. L’Esperance and the prosecution as relevant. At no point during the competency hearing did Mr. L ’Esperance subject the prosecution’s competency case to “meaningful advers arial testing.” Instead, Mr. L’Esperance did just the opposite—he remained silen t because of his pending motion to withdraw. After recognizing and informin g the court of a breakdown in-12-

the attorney client relationship, Mr. L’Esperance d id not attempt to represent Mr. Collins, but rather abstained from providing the co urt with information relevant to the issue of competency. Several courts have held that a defendant is denied his Sixth Amendment right to counsel where his attorney fails to test t he prosecution’s case because counsel slept through portions of the trial. See, e.g. , Burdine v. Johnson , 262 F.3d 336, 349 (5th Cir. 2001) (en banc); Tippins v. Walker , 77 F.3d 682, 687 (2d Cir. 1996); Javor v. United States , 724 F.2d 831, 833 (9th Cir. 1984). In those cases, prejudice is presumed because sleeping couns el could not confer with the client, object to testimony, or perform adequate cr oss-examinations. Tippins , 77 F.3d at 686. Although Mr. L’Esperance was consciou s and awake during Mr. Collins’s competency hearing, his conduct is akin t o the conduct of counsel who sleeps through portions of trial. Mr. L’Esperance declined to present mitigating evidence, which he acknowledged was relevant to his client’s competency, because of his pending motion to withdraw. Unable to communicate with his client and awaiting a decision on his motion to wit hdraw, Mr. L’Esperance was not in a position to serve as Mr. Collins’s counsel . As a result, Mr. L’Esperance did not engage his legal skills in advocating Mr. C ollins’s position at his competency hearing.-13-

Mr. L’Esperance’s failure to serve as Mr. Collins’s advocate is manifested in his repeated declarations that he would “not com ment” on his client’s competency and in his refusal to present military r ecords and other information that, by both his own and the prosecution’s admissi ons, were relevant to Mr. Collins’s competency. Because Mr. L’Esperance stoo d silent, citing his motion to withdraw, and did not subject the prosecution’s cas e to adversarial testing, we hold that Mr. Collins was constructively denied cou nsel when the district court entered an order finding Mr. Collins competent with out allowing new counsel to revisit the competency issue. Accordingly, Mr. Col lins has established a Sixth Amendment violation under Cronic , and he need not demonstrate prejudice from Mr. L’Esperance’s conduct.

B. Remedy Because we find that Mr. Collins was constructivelydenied counsel at his competency hearing, we must determine the proper re medy for this constitutional violation. Mr. Collins contends that he is entitle d to automatic reversal because violation of his Sixth Amendment rights constitutedstructural error. A Sixth Amendment violation requires automatic reversal onl y when the constitutional-14-

violation pervades the entire criminal proceeding. Satterwhite v. Texas , 486 U.S. 249, 257-58 (1988). In those circumstances, the co nstitutional violation affects the “framework within which the trial proceeds, rat her than simply [causing] an error in the trial process itself.” Arizona v. Fulminante , 499 U.S. 279, 310 (1991). Here, deprivation of the right to counsel at Mr. Collins’s competency hearing affected the framework within which the tri al proceeded only if it resulted in Mr. Collins standing trial while incompetent. Thus, the pertinent question is whether the deprivation of Mr. Collins’s Sixth Amendment right to counsel resulted in the di strict court erroneously finding him competent to stand trial. That questio n is not easily answered. Competency hearings address a defendant’s psycholog ical state of mind at a specific point in time. A defendant may be compete nt to stand trial today, even though incompetent to assist in his defense six months ago. For that reason, the Supreme Court has disfavored retrospective competen cy hearings, see Drope v.
Missouri , 420 U.S. 162, 183 (1975), and this Circuit has pe rmitted them only in limited circumstances, see McGregor v. Gibson , 248 F.3d 946, 962-63 (10th Cir. 2001) (en banc). Four factors are considered in as sessing whether a meaningful retrospective competency determination can be made consistent with a defendant’s due process rights: (1) [T]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and pri or competency-15-

determinations, (3) any statements by the defendantin the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a positio n to interact with defendant before and during trial. Id. Here, as in McGregor , the factors weigh against conducting a retrospect ive competency hearing. See id. at 963 (four factor test not satisfied where eleve n years passed since the date of the competency heari ng, only one psychiatrist testified for the state at the defendant’s initial competency hearing, and defense counsel raised significant questions as to the defe ndant’s competency). A modest amount of time, three years, has passed since Mr. C ollins’s competency evaluation and hearing. Mr. Collins made few remar ks during his proceedings, but at his sentencing hearing he expressed his stro ng belief that his lawyers were conspiring with the government to prosecute him andthat the “government’s been after [him] for years.” Mr. Collins’s substitute d efense counsel, Mr. Prichard, questioned Mr. Collins’s competency immediately bef ore trial, stating that he was “concerned as to [Mr. Collins’s] competence today, and specifically, his ability to meaningfully assist [Mr. Prichard] during his trial ,” and explaining that he did “not sense a great deal of logic in terms of [his] client’s comprehension of the issues and the consequences of this case.” Finally , and most importantly, there is insufficient contemporaneous medical evidence to pe rmit a retrospective competency determination. There was no medical tes timony presented at Mr.-16-

Collins’s competency hearing, and Mr. Collins did n ot have the opportunity to cross-examine Dr. Womack, the only evaluating psych ologist, as to his finding of competency. This lack of contemporaneous medical e vidence regarding Mr. Collins’s competency at his competency hearing thre e years ago, coupled with Mr. Prichard’s serious and detailed questions regarding Mr. Collins’s competency immediately before trial and the paucity of record evidence on the subject, lead us to conclude that a new hearing on the limited issue of competency will not ensure that Mr. Collins was indeed competent to stand tria l in 2003. Another possible remedy would be to order a limitedremand of the case to determine whether counsel could have made certain d ecisions or arguments that might have changed the result of the competency hea ring. This was the approach taken by the D.C. Circuit in United States v. Klat, 156 F.3d 1258, 1264 (D.C. Cir. 1998). In Klat , a defendant appeared without counsel at her compe tency hearing because the district court permitted counsel to wit hdraw at her arraignment and did not appoint new counsel after the defendant had filed a request to proceed pro

se . Id. at 1261-62. The court found that the defendant co uld not knowingly and voluntarily waive her right to counsel until the is sue of competency was resolved. Id. 1262-63. Accordingly, the defendant in Klatwas entitled to counsel at her competency hearing and the district court’s failure to appoint counsel for that hearing constituted a Sixth Amendment violation. Id. Rather than reversing the-17-

defendant’s conviction, however, the D.C. Circuit r emanded the case to the district court for a determination of whether couns el could have made tactical decisions or arguments that might have changed the outcome of the competency hearing. Id. at 1264. The D.C. Circuit held that if “the distr ict court determines that the competency hearing could have come out dif ferently absent the Sixth Amendment violation, reversal is required because t he violation . . . would serve to contaminate the entire criminal proceeding.” Id. We need not decide whether the remedy proposed in Klatis the appropriate remedy for this type of constitutional violation be cause the record available in this case enables us to answer the question the D.C . Circuit remanded to the district court. Mr. L’Esperance’s statement to the district court at the competency hearing, while limited, did mention military record s and site reports that related to the issue of competency. Even the prosecution admi tted that the undisclosed information “may be relevant” to the competency iss ue. Thus, the transcript from the original competency hearing reveals an investig ation, tactical decisions, and possible arguments that could have been made by cou nsel on behalf of Mr. Collins. Where, as here, the record reveals argume nts that could have been made by counsel at the competency hearing, reversal is appropriate. Because evidence could have been introduced and arg uments made that likely could have affected the outcome of Mr. Colli ns’s competency hearings, it is1 Mr. Collins also challenges his sentence under United States v. Booker ,

125 S. Ct. 738 (2005). Because we reverse his conv iction and order a new trial, we need not address this issue here. -18- impossible to say that the violation of his Sixth A mendment rights did not pervade his entire trial. Accordingly, we must rev erse Mr. Collins’s conviction and order a new trial. If a question as to Mr. Col lins’s competency again arises, the district court should order a psychological eva luation of Mr. Collins’s current mental state and conduct a new competency hearing, at which Mr. Collins is represented by counsel. 1
CONCLUSION For the reasons set forth above, we VACATE Mr. Collins’s conviction and
REMAND for a new trial consistent with this opinion.