*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opinion should not be published and is not precedent except under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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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-10138

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GARY ANTHONY COLE,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

(4:96-CV-823-A)

December 23, 1997

Before JOLLY, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

Gary Anthony Cole (“Cole”) (federal prisoner #227-07-077)

seeks a certificate of appealability (COA) from the district

court’s denial of motion to vacate, set aside or correct his

sentence. 28 U.S.C. § 2255. We grant COA.
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FACTS AND PRIOR PROCEEDINGS

Cole pleaded guilty to delaying interstate commerce,

conspiring to do so, and using and carrying a firearm in relation

to a crime of violence. The district court sentenced Cole to 295

months’ imprisonment to be followed by four years’ supervised

release. Cole took no appeal and, consequently, the transcript of

rearraignment and sentencing were not produced.

Proceeding pro se, Cole filed a 28 U.S.C. § 2255 motion to

vacate, set aside or correct his sentence, which the district court

denied without a hearing. Cole appealed the denial of the motion.

This court construed Cole’s notice of appeal as a request for COA,

Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997); see Fed. R.

App. P. 22(b), and remanded the case to the district court. The

district court denied Cole a COA, finding that Cole had not raised

any grounds upon which relief could be granted, nor had he made a

substantial showing of the denial of a constitutional right. The

case is now back before this court to determine whether Cole should

be granted a COA and whether he is entitled to reversal on the

merits.

APPLICATION FOR COA

Section 102 of the AEDPA amends 28 U.S.C. § 2253 to provide:

(c)(1)Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken

to the court of appeals from . . .

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a
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substantial showing of the denial of a constitutional

right.

Prior to the AEDPA, no threshold showing was required to

appeal the denial of a § 2255 motion. However, appeal from the

denial of a § 2254 motion has long required a certificate of

probable cause (“CPC”). See 28 U.S.C. § 2253 (pre-AEDPA). We have

construed the AEDPA standard governing the issuance of a COA to

require the same showing as that for obtaining a pre-AEDPA CPC.

Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996), overruled on

other grounds, Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997).

Thus, Cole must raise constitutional issues and allege specific

facts demonstrating that the issues he raises are “debatable among

jurists of reason.” See Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983).

Cole’s allegations satisfy this requirement. Cole alleges,

inter alia, that he received ineffective assistance of counsel when

he entered the plea agreement because his attorney did not raise

the issue of competency prior to his guilty plea. The conviction

of an incompetent defendant violates constitutional due process,

see Pate v. Robinson, 383 U.S. 375, 378 (1966), and ineffective

assistance of counsel violates the Sixth Amendment. See Strickland

v. Washington, 466 U.S. 668 (1984). Thus, Cole clearly has alleged

a violation of his constitutional rights.

To support his claims, Cole directs the court’s attention to

the presentence investigation report (“PSR”) that sets out facts
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relevant to his competency claim. He had received two gun shot

wounds in the head in a drive-by shooting. One of the bullets was

surgically removed, but one was left in his head. The wound

resulted in damage to the Broca’s area of his brain, which impacts

an individual’s ability to produce language. Moreover, Cole was

borderline mentally retarded, with an IQ of 73, and was making his

fourth attempt at ninth grade work when he dropped out of high

school. He was receiving counseling and medication for “depression

and intermittent explosive disorder” as a condition of his

previously imposed parole at the time of the plea hearing. In

addition to the information in the PSR, Cole contends that he was

receiving Social Security disability payments on account of his

mental disability and that his attorney “knew [he was on

medication] and told [him] not to file nothing to the courts or say

nothing to no one.” Finally, he asserts that the attorney who

represented him at his plea hearing got state charges arising out

of the same incident dismissed on the basis of incompetency. These

allegations are sufficient to support the issuance of a COA.

COA GRANTED. 

DENIAL OF AN EVIDENTIARY HEARING

We agree with the district court that nearly all the grounds

Cole alleged to support his ineffective assistance of counsel claim

are clearly refuted by the record or are waived for failure to

raise them on direct appeal. Moreover, to the extent Cole raises

additional issues for the first time on this appeal, we shall not
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consider them. See United States v. Smith, 915 F.2d 959, 964 (5th

Cir. 1990) (per curium). Thus, we address only Cole’s claims that

defense counsel rendered ineffective assistance by failing to raise

the issue of his competency prior to his guilty plea and that

conviction of an incompetent defendant violated due process. The

sole issue Cole raises with respect to these claims is whether the

district court erred by denying habeas relief without conducting an

evidentiary hearing on his competence at the time of his guilty

plea.

Examining Cole’s allegations, the district court concluded

that “nothing in the record or in the papers attached to the

present motion raises a genuine issue as to petitioner’s competency

at the time of trial” and that “the allegations made by petitioner

simply do not support a claim that he received ineffective

assistance of counsel.” As a result, it found “no need for a

hearing on petitioner’s motion.” On the record before us, however,

we cannot agree.

Habeas petitioners claiming incompetency bear a threshold

burden of demonstrating facts that “positively, unequivocally and

clearly generate a real, substantial and legitimate doubt” as to

their mental capacity to “meaningfully participate and cooperate

with counsel during trial.” Washington v. Johnson, 90 F.2d 945,

950 (5th Cir. 1996). As noted above, Cole has alleged specific

facts sufficient to raise a question concerning his competence at
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the time he entered his guilty plea. Although the district court

suggests that the record does not support Cole’s contentions, its

factual basis for this conclusion is not clear. For instance,

Cole’s responses to questioning at his rearraignment hearing might

wholly contradict Cole’s allegations of incompetence, but the

record contains no transcript of this hearing. Similarly, Cole

alleges that he was found incompetent in state court proceedings,

but the record contains no evidence of such proceedings.

In short, the present record is insufficient to support the

district court’s conclusion that a retrospective competency hearing

was unnecessary. This is not to say, however, that the district

court on remand must conduct such a hearing. See United States v.

Drummond, 910 F.2d 284, 285 (5th Cir. 1990), cert. denied, 498 U.S.

1104 (1991). It is possible, for example, that the issues can be

developed adequately by examination of the transcript of the plea

hearing, Social Security Administration and state court documents,

or perhaps affidavits of Cole and his attorney. See United States

v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). We reverse and

remand so that the district court can develop the record and, if

necessary, hold an evidentiary hearing concerning Cole’s competence

and the related issue of ineffective counsel.

REVERSED AND REMANDED.