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, Colorado, for DefendantAppellant.

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States

Attorney, with her on the briefs), Albuquerque, New Mexico, for PlaintiffAppellee.

Before TACHA, Chief Circuit Judge, EBEL, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Melvin Clyde Collins II appeals his conviction on the ground that he was

deprived of counsel at his competency hearing. At his competency hearing, the
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district court was presented with two issues: a motion 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 withdrawal motion. As a result, Mr.

Collins’s lawyer, believing that there had been a breakdown in the attorney-client

relationship, did not comment on Mr. Collins’s competency and did not introduce

available evidence that may have affected the competency determination. Mr.

Collins claims that this conduct constituted a constructive 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 by counsel 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’Esperance 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 of Prisons psychologist, Dr. Jim

Womack. After interviewing Mr. Collins, administering three personality tests,
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and interviewing Mr. Collins’s wife, Dr. Womack diagnosed Mr. Collins with

paranoid personality disorder. Dr. Womack did not diagnose Mr. Collins with

schizophrenia or delusional disorder, despite Mr. Collins’s statement that he was

diagnosed with these disorders in childhood. Dr. Womack found Mr. Collins

competent to stand trial. In his report, Dr. Womack wrote:

The defendant currently does not suffer from a mental disease or defect

which would render him unable to understand the nature and consequences

of the proceedings against him or to assist properly in his own defense. He

evidenced a good command of court room personnel and procedures. He

most likely will be a difficult client with whom to work; however, potential

conflicts can be attributable to the client’s personality disorder and not a

psychotic process or cognitive deficiencies.

After the evaluation was completed, the court scheduled a competency hearing for

December 2, 2002. 

Before the competency hearing, Mr. Collins submitted 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 was lying to him, insulting both

him and his wife, and colluding with the prosecution and the FBI. Mr. Collins

also sent a letter to the New Mexico State Bar Association Disciplinary Board

attempting to discredit Mr. L’Esperance. In response to this letter, Mr.

L’Esperance filed a motion to withdraw, claiming that he questioned his ability to

adequately communicate with Mr. Collins and noting that the lack of

communication between himself and Mr. Collins hampered the investigation. Mr.
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L’Esperance filed his motion to withdraw on December 2, 2002—the date of Mr.

Collins’s competency hearing.

At the hearing, the court considered the issue of Mr. Collins’s competency

before addressing Mr. L’Esperance’s pending motion to withdraw. The district

court began the competency hearing by inquiring whether 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. Mr. 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 comment on that.

R. Vol. IV, p. 3.) The court then questioned the government 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 that, while it thought the

competency evaluation “speaks for itself,” the government found military records

that “may be relevant to the new counsel to reconsider the competency issue.” 

The court then asked the government to submit an order finding Mr. Collins
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competent to stand trial, but noted that “if the new attorney wants to revisit this

issue, then [the court will] certainly . . . do that.” 

On December 5, 2002, the district court entered a written order finding Mr.

Collins competent to stand trial. The order did not allude to the possibility that

additional information, such as military records, was available but not considered,

and did not mention the district court’s willingness to revisit the competency

issue with new counsel, which the court had expressed 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 order permitting Mr. L’Esperance

to withdraw as counsel. Mr. Troy Prichard was appointed as substitute counsel

for Mr. Collins. 

Seven months later, the grand jury returned a superseding indictment,

amending the second count to allege that the victim was a Laguna Indian. At the

pretrial conference, on September 9, 2003, Mr. Prichard renewed the issue of Mr.

Collins’s competency. Mr. Prichard informed the court that previous counsel had

raised the issue of competency almost a year earlier, 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 [Mr. Prichard] during his trial.” 

Mr. Prichard further noted that he did “not sense a great deal of logic in terms of
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[his] client’s comprehension of the issues and the consequences of this case.” 

Mr. Prichard suggested that the court “have this [sic] 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 next week and would not be

postponed. 

The jury convicted Mr. Collins on three counts of sexual 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. Collins’s custody, care and

supervisory control. The court sentenced Mr. Collins to 292 months in prison. 

Mr. Collins now appeals his conviction and sentence. 

II.

Mr. Collins claims that Mr. L’Esperance’s lack of representation at the

competency hearing and the district court’s refusal to grant Mr. Prichard’s request

to revisit the issue of competency before trial amounted 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). 
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The government, in contrast, suggests that this issue 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 prejudiced Mr. Collins.

A. Sixth Amendment Violation 

The Sixth Amendment entitles a defendant to the assistance 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 that 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 proceeding where an attorney’s assistance

may avoid the substantial prejudice that could otherwise result from the

proceeding. Coleman v. Alabama, 399 U.S. 1, 9 (1970). We have not previously

had opportunity to consider whether a competency hearing 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.
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1986). Indeed, the government does not contest that the competency hearing is a

critical stage, at which the defendant is constitutionally 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 constructively denied

counsel at his competency hearing or whether his claim is properly cognizable as

a claim for ineffective assistance of counsel. If Mr. Collins was constructively

denied counsel at his competency hearing, then he need 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 counsel 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 the adversarial nature of our

justice system, which is premised on the “well-tested principle that truth--as well

as fairness--is best discovered by powerful statements 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 defendant will adequately be able

to test the government’s case without representation, 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)).
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The right to counsel, therefore, is the “right of the accused to require the

prosecution’s case to survive the crucible of meaningful 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 presumptively unreliable.” Id. at

659. This Circuit has been reluctant to find constructive denials of counsel, and

has found a “complete absence of meaningful adversarial testing only where the

evidence ‘overwhelmingly established that [the] attorney 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, apparently 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 obligation 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 this case. Even without a breach

of loyalty, however, where there has been a “complete absence of adversarial

testing,” a Sixth Amendment violation is established under Cronic without the

showing of prejudice that is otherwise required under Strickland. See Cronic, 466

U.S. at 654; Strickland, 466 U.S. at 692. 
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At his competency hearing, Mr. L’Esperance sought to withdraw from

representation and apparently took the position that the lawyer-client relationship

had already effectively broken down. Because the district court chose to address

the withdrawal motion after the competency hearing, however, Mr. L’Esperance

was still serving as Mr. Collins’s counsel, at least formally. As the Supreme

Court explained in Cronic, however, formal representation alone is not enough to

satisfy the Sixth Amendment. Cronic, 466 U.S. at 654-55. The question is

whether the government’s case for competency was subject 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 filed a motion to

withdraw explaining that he could not adequately communicate with Mr. Collins

and that this lack of communication impaired his ability to investigate the case.

Although this may establish a breakdown in the attorney-client relationship, the

relatively common factual underpinning of Mr. L’Esperance’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 district court’s decision to enter an
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order finding Mr. Collins competent, that constituted a constructive denial of

counsel.

At the competency hearing, Mr. L’Esperance stated that he would “not

comment” when the district court inquired whether there 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 records and site reports, that were

previously unavailable to Dr. Womack, but stated that 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 information “may be relevant to the

new counsel” and that the issue of competency should be the “first item of

business to be taken up by any new counsel.” Notwithstanding the prosecution’s

recommendation, the district court entered an order finding 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 adversarial testing.” Instead, Mr.

L’Esperance did just the opposite—he remained silent because of his pending

motion to withdraw. After recognizing and informing the court of a breakdown in
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the attorney client relationship, Mr. L’Esperance did not attempt to represent Mr.

Collins, but rather abstained from providing the court 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 the 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 counsel could not confer with the

client, object to testimony, or perform adequate cross-examinations. Tippins, 77

F.3d at 686. Although Mr. L’Esperance was conscious and awake during Mr.

Collins’s competency hearing, his conduct is akin to 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 withdraw, 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. Collins’s position at his

competency hearing. 
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Mr. L’Esperance’s failure to serve as Mr. Collins’s advocate is manifested

in his repeated declarations that he would “not comment” on his client’s

competency and in his refusal to present military records and other information

that, by both his own and the prosecution’s admissions, were relevant to Mr.

Collins’s competency. Because Mr. L’Esperance stood silent, citing his motion to

withdraw, and did not subject the prosecution’s case to adversarial testing, we

hold that Mr. Collins was constructively denied counsel when the district court

entered an order finding Mr. Collins competent without allowing new counsel to

revisit the competency issue. Accordingly, Mr. Collins 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 constructively denied counsel at his

competency hearing, we must determine the proper remedy for this constitutional

violation. Mr. Collins contends that he is entitled to automatic reversal because

violation of his Sixth Amendment rights constituted structural error. A Sixth

Amendment violation requires automatic reversal only when the constitutional
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violation pervades the entire criminal proceeding. Satterwhite v. Texas, 486 U.S.

249, 257-58 (1988). In those circumstances, the constitutional violation affects

the “framework within which the trial proceeds, rather 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 trial 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 district court erroneously

finding him competent to stand trial. That question is not easily answered. 

Competency hearings address a defendant’s psychological state of mind at a

specific point in time. A defendant may be competent to stand trial today, even

though incompetent to assist in his defense six months ago. For that reason, the

Supreme Court has disfavored retrospective competency hearings, see Drope v.

Missouri, 420 U.S. 162, 183 (1975), and this Circuit has permitted 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 assessing 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 prior competency
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determinations, (3) any statements by the defendant in the trial

record, and (4) the availability of individuals and trial witnesses,

both experts and non-experts, who were in a position to interact with

defendant before and during trial.

Id. 

Here, as in McGregor, the factors weigh against conducting a retrospective

competency hearing. See id. at 963 (four factor test not satisfied where eleven

years passed since the date of the competency hearing, only one psychiatrist

testified for the state at the defendant’s initial competency hearing, and defense

counsel raised significant questions as to the defendant’s competency). A modest

amount of time, three years, has passed since Mr. Collins’s competency

evaluation and hearing. Mr. Collins made few remarks during his proceedings,

but at his sentencing hearing he expressed his strong belief that his lawyers were

conspiring with the government to prosecute him and that the “government’s been

after [him] for years.” Mr. Collins’s substitute defense counsel, Mr. Prichard,

questioned Mr. Collins’s competency immediately before 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 permit a retrospective

competency determination. There was no medical testimony presented at Mr.
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Collins’s competency hearing, and Mr. Collins did not have the opportunity to

cross-examine Dr. Womack, the only evaluating psychologist, as to his finding of

competency. This lack of contemporaneous medical evidence regarding Mr.

Collins’s competency at his competency hearing three 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 trial in 2003. 

Another possible remedy would be to order a limited remand of the case to

determine whether counsel could have made certain decisions or arguments that

might have changed the result of the competency hearing. 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 competency hearing

because the district court permitted counsel to withdraw 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 could not knowingly and

voluntarily waive her right to counsel until the issue of competency was resolved. 

Id. 1262-63. Accordingly, the defendant in Klat was 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
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defendant’s conviction, however, the D.C. Circuit remanded the case to the

district court for a determination of whether counsel 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 district court determines

that the competency hearing could have come out differently absent the Sixth

Amendment violation, reversal is required because the violation . . . would serve

to contaminate the entire criminal proceeding.” Id.

We need not decide whether the remedy proposed in Klat is the appropriate

remedy for this type of constitutional violation because 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 records and site reports that related to

the issue of competency. Even the prosecution admitted that the undisclosed

information “may be relevant” to the competency issue. Thus, the transcript from

the original competency hearing reveals an investigation, tactical decisions, and

possible arguments that could have been made by counsel on behalf of Mr.

Collins. Where, as here, the record reveals arguments that could have been made

by counsel at the competency hearing, reversal is appropriate. 

Because evidence could have been introduced and arguments made that

likely could have affected the outcome of Mr. Collins’s competency hearings, it is
1

 Mr. Collins also challenges his sentence under United States v. Booker,

125 S. Ct. 738 (2005). Because we reverse his conviction and order a new trial,

we need not address this issue here.

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impossible to say that the violation of his Sixth Amendment rights did not

pervade his entire trial. Accordingly, we must reverse Mr. Collins’s conviction

and order a new trial. If a question as to Mr. Collins’s competency again arises,

the district court should order a psychological evaluation 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.