NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0284n.06

No. 11-6544

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCISCO MARTIN,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

BEFORE: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. At his initial appearance following 

his indictment on three related charges involving child pornography, defendant Francisco Martin 

invoked his right to self-representation, waived his right to an attorney, and was appointed 

standby counsel. At the same time, the magistrate judge gave instructions that standby counsel 

could only answer Martin’s questions and file pleadings that Martin drafted. In light of Martin’s 

largely incomprehensible pleadings and his report of disturbances in his mental health, the 

government moved for a competency hearing. The district court granted the motion and ordered 

a psychiatric examination. Based on the resulting report finding Martin competent to stand trial 

and on Martin’s verbal assurance to the court that he considered himself to be competent, the 

magistrate judge found him competent to stand trial. Martin subsequently represented himself at 

trial and was convicted of all the charges against him. He now contends that the magistrate 
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judge’s instructions to standby counsel unconstitutionally deprived him of counsel during his 

competency hearing. In response, the government argues that the case should be remanded for 

an evidentiary hearing to determine whether standby counsel’s non-participation during Martin’s 

competency hearing was in compliance with the limitations placed on counsel’s role or was the 

result of an independent, strategic decision by standby counsel not to contest competency. 

Because there is nothing in the record to suggest that counsel represented Martin at the hearing 

or participated in any way in the determination of Martin’s competency, we conclude that the 

convictions must be set aside and the case remanded to the district court for a valid competency 

hearing and, if justified, a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Following the return of the three-count indictment charging receipt, possession, and 

distribution of child pornography, Martin made his initial appearance before the magistrate judge 

and waived his right to counsel, despite repeated urging by the court that he accept the 

appointment of counsel. Martin did, however, agree to the appointment of standby counsel. In 

appointing standby counsel, the magistrate judge instructed Martin that his decision to represent 

himself barred standby counsel from doing anything more than answering legal questions Martin 

had and typing and filing pleadings written by Martin: 

[Y]ou need to understand, Mr. Martin, stand-by counsel, you cannot be halfway 

represented by an attorney and halfway represented by yourself. It’s all or 

nothing. Stand-by counsel, if appointed for you, Mr. Martin, will [sit] behind 

you; and if you have a question about an evidentiary matter or rule of procedure 

or something like that, you can turn around and ask your lawyer advice, your 

stand-by lawyer advice; and then based upon that advice, which you may or may 

not take, you can proceed accordingly; but the lawyer, stand-by lawyer, will not 

participate actively to any extent in a trial of the case or any pretrial proceeding.
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The magistrate judge emphasized that standby counsel could not take an active role in 

representing Martin: “[S]tandby counsel,” the court informed Martin, “can’t do anything except 

talk to you, that’s about the bottom line, give you advice. You are representing yourself; so 

whatever happens in this case, Mr. Martin, will be you. Your lawyer will not do anything on 

your behalf. He cannot do anything on your behalf.” 

When asked to enter his plea during his initial appearance, Martin referred to the Uniform 

Commercial Code’s section 1-207. This action, as well as Martin’s indication to a probation 

officer that he had recently suffered suicidal ideation and anxiety, spurred the government to 

move for a competency hearing. The district court granted the motion and ordered the Bureau of 

Prisons to conduct a mental health assessment of Martin’s condition in preparation for the 

hearing. The mental health evaluation, completed by a clinician at the Lexington, Kentucky 

Federal Medical Center, concluded that Martin was not suffering from any mental disease or 

defect that would render him mentally incompetent to stand trial. The magistrate judge ordered 

the hand-delivery of the evaluation to Martin “since he [was] representing himself.” 

The entire discussion of Martin’s competency at the competency hearing before the 

magistrate judge consisted of the following exchange: 

THE COURT: Alright. We’re here today because the District Judge ordered that 

Mr. Martin undergo a forensic examination to determine his competency to stand 

trial. That examination has taken place, and the Court has received the report of 

FMC Lexington, and Mr. Martin, you need to confirm for me, please, Sir, that you 

got a copy of that? 

MR. MARTIN: That’s correct, Your Honor. 

THE COURT: Alright. Well, okay. And Mr. Martin, as I am sure you are aware, 

the bottom line of that report is that you are quite competent to look after your 

own interest, know what you’re doing and so forth and so on. Do you disagree 

with that conclusion?
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MR. MARTIN: I agree that I am competent, Your Honor.

THE COURT: I’m sorry? 

MR. MARTIN: I agree that I am competent.

THE COURT: Okay. Well, under the circumstances, Mr. Martin, I would ask if 

there’s any more evidence regarding your competency to be placed in the record, 

but since you agree with the conclusions of FMC Lexington, there’s not a whole 

to do. Do you?

MR. MARTIN: I would like to give a standing objection to the Plaintiff’s use of 

the jurisdiction of this Court.

THE COURT: Well, okay. That’s noted, and you don’t need to broach that 

subject every time, ‘cause your, your objection is noted. But as far as your 

competency, Mr. Martin, do you have anything else you wish to say? I don’t 

know what it would be since you agree with the report, but do you, bottom line, 

do you agree that you are competent? 

MR. MARTIN: Yes, Your Honor. 

Standby counsel, though present during the hearing, was not addressed, questioned, or 

acknowledged at any point during this discussion. The parties devoted the remainder of the 

hearing to admitting Martin’s mental health evaluation into evidence, scheduling the trial, and 

hearing Martin’s argument that the charges against him had to be dismissed for lack of 

jurisdiction. Based on the mental health evaluation—the only piece of evidence presented to the 

court on Martin’s competence—and Martin’s agreement with the evaluation’s conclusion that he 

was competent, the court found Martin competent to proceed to trial.

As previously noted, Martin unsuccessfully represented himself at trial—the jury found 

him guilty on all of the counts against him. The district court sentenced him to 156 months’

imprisonment. 
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After Martin timely appealed his conviction and sentence, standby counsel moved to 

withdraw on the grounds that Martin’s appeal presented no legally non-frivolous questions. We 

denied the motion, however, and directed counsel to brief whether, under the Sixth Circuit’s 

decision in United States v. Ross, 703 F.3d 856 (6th Cir. 2012), Martin was unconstitutionally 

denied counsel during his competency hearing. The present appeal was filed in compliance with 

that order. 

DISCUSSION

Legal Standard

The Ross panel did not establish the appropriate standard of review for claims based on 

the denial of counsel at a competency hearing. See generally Ross, 703 F.3d at 868-873 

(establishing that deprivation of counsel at competency hearing may run afoul of the Sixth 

Amendment right to counsel). Though neither party here proposes the standard of review that 

should generally be applied to cases of this nature, the government contends that the appropriate 

standard of review in this case must be de novo because Ross was decided subsequent to 

Martin’s competency hearing and, thus, the parties and the district court did not develop a record 

on the Ross issue. Given that we normally review questions of law in constitutional challenges 

to criminal convictions de novo, see United States v. Watkins, 509 F.3d 277, 280 (6th Cir. 2007), 

and that Martin has presented no argument for why this level of review is inappropriate here, we 

will review Martin’s Ross claim de novo. 
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Deprivation of Counsel

The Sixth Amendment secures to criminal defendants both the right to trial counsel and 

the right to proceed without counsel. Faretta v. California, 422 U.S. 806, 834 (1975). The right 

to represent oneself is not absolute, however; the Constitution requires that “any waiver of the 

right to counsel be knowing, voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 87-88 

(2004). 

When a criminal defendant’s competency to stand trial has been challenged, the validity 

of the defendant’s waiver of counsel is suspended until the issue of his or her competency is 

resolved. We have recently recognized the “common-sense viewpoint that a defendant cannot 

represent himself at his own competency hearing, the purpose of which is to determine whether a 

defendant understands and can participate in the proceedings in the first place.” Ross, 703 F.3d 

at 869. In Ross, we determined that “the Constitution requires a defendant to be represented by 

counsel at his own competency hearing, even if he has previously made a knowing and voluntary 

waiver of counsel.” Id. at 871.

Although a criminal defendant is entitled to representation by counsel during his or her 

competency hearing, Ross does not require that counsel be full-time. “[P]articipation by standby 

counsel during a competency hearing may be sufficient to overcome a denial of counsel claim.” 

Id. But such participation is sufficient only when standby counsel conducts an adequate 

investigation of the defendant’s competency and subjects evidence of the defendant’s 

competency to meaningful adversarial testing. Id. at 866. Standby counsel need not present 

argument during the competency hearing to satisfy this standard, as long as the decision not to 

contest competency is an independent, strategic one, borne out of adequate investigation of the 
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defendant’s competency and appropriate preparation for the hearing. Id. at 873. Adequate 

investigation entails, at a minimum, reading and analyzing a mental health evaluation of the 

defendant prepared for the hearing. Id. at 874. 

Both parties agree that standby counsel’s lack of participation during Martin’s 

competency hearing may have violated Martin’s Sixth Amendment right to counsel under Ross. 

They depart on whether the record sufficiently establishes that standby counsel’s silence during 

the hearing was not the result of an independent, strategic decision to defer to the mental health 

evaluation’s conclusions. Martin argues that the record shows conclusively that he was 

completely deprived of counsel during his competency hearing; he asserts that the magistrate 

judge’s initial instructions regarding the permissible scope of standby counsel’s representation, 

which were not modified prior to the competency hearing, effectively “prohibited [standby 

counsel] from providing . . . meaningful adversarial testing” of the mental health evaluation’s 

competency findings. The government contends in response that the record cannot support such 

a conclusion because it contains no factual findings on whether counsel investigated Martin’s 

competence and made an “independent, strategic choice” not to contest the mental health 

evaluation. 

Given the record in this case, we can only conclude that Martin was deprived of counsel 

during his competency hearing. But the inquiry does not end there. Ross did not hold that

whenever the record reflects that standby counsel did not participate in the competency hearing, 

we must remand for an evidentiary hearing on whether that nonparticipation was a strategic 

decision before we can decide whether it unconstitutionally deprived a criminal defendant of 

counsel. Remand in Ross was appropriate because the record before the court revealed that 
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standby counsel had expressed doubts that the defendant was incompetent prior to the 

competency hearing, had provided documents regarding the defendant’s competence to the 

clinician who evaluated the defendant and, during the competency hearing, had declined the 

opportunity to present evidence regarding the defendant’s competence. Ross, 703 F.3d at 872-

73. Standby counsel, in fact, explicitly stated that he would defer to the mental health 

evaluation’s conclusions at the hearing. Id. at 873. Thus, the record in Ross contained ample 

evidence that standby counsel had investigated his client’s competency, found nothing 

suggesting that his client was incompetent, and, as a result, elected not to oppose a finding that 

his client was competent. Critically, the district court in Ross placed no limitations upon standby 

counsel’s scope of representation. Id. at 872. Accordingly, Ross’s standby counsel argued on 

behalf of his client on the issue of competency prior to the competency hearing and, as noted 

above, was offered the opportunity to argue and present evidence at the competency hearing. Id.

at 872, 873. 

By contrast, nothing in the record here evidences that Martin’s standby counsel ever 

expressed any position on his client’s competence; nor does the record indicate that standby 

counsel ever reviewed any documents related to Martin’s competency, including the mental 

health evaluation. In an attempt to bolster its argument that standby counsel’s nonparticipation 

in Martin’s competency hearing may have resulted from an independent investigation of 

Martin’s competency, the government notes that standby counsel was consulted by the clinician 

who evaluated Martin. The government also argues that standby counsel had reason to not 

contest Martin’s competency because Martin’s mental health evaluation offered no evidence that 

Martin was incompetent. Missing from the record, however, is any evidence that standby 

counsel actually reviewed Martin’s mental health evaluation. Notably, the district court ordered 
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delivery of Martin’s mental health evaluation to Martin because “he [was] representing himself.” 

The order did not provide for delivery to his standby counsel. Thus, the record suggests that 

standby counsel had not reviewed Martin’s mental health evaluation before the hearing. 

Even if standby counsel did investigate Martin’s competency, however, the magistrate 

judge’s instructions effectively barred her from presenting any conclusions she may have drawn 

from this investigation, because those instructions foreclosed any action by standby counsel on 

Martin’s behalf beyond answering Martin’s legal questions and filing pleadings he drafted. The 

instructions could not reasonably be understood to have permitted standby counsel to argue or 

present evidence—critical components of “meaningful adversarial testing”—during his 

competency hearing. Indeed, once the gag order was in place, it is unsurprising that the 

magistrate judge did not offer standby counsel the opportunity to challenge Martin’s mental 

health evaluation. Instead, during a brief discussion of Martin’s competency, the judge directed 

his questions to Martin alone; the presence of standby counsel was never even acknowledged on 

the record. The task of challenging the mental health evaluation, then, was left to the defendant 

alone, who had already shown the court that he had little comprehension of the charges against 

him, let alone a sufficient understanding of why or how to subject his mental health evaluation to 

“meaningful adversarial testing.” Thus, the record leaves little question that the “meaningful 

adversarial testing” required by the Sixth Amendment’s right to counsel was wholly absent from 

Martin’s competency hearing. Because the record makes clear that Martin was effectively

unrepresented at the hearing, a remand to supplement that record is unnecessary here. 

At least one other circuit court has found a Sixth Amendment violation of the right to 

counsel when the record before it established that the district court directed all of its questions on 
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the issue of the defendant’s competency to the defendant alone. See United States v. Purnett, 

910 F.2d 51, 55-56 (2d Cir. 1990). The government asserts that Purnett is inapposite here 

because the Second Circuit had not found that the presence of standby counsel could be 

sufficient to overcome a deprivation-of-counsel claim. But that argument misunderstands the 

import of Purnett to Martin’s Ross claim. Purnett did not hold that standby counsel could never

provide sufficient representation to overcome a deprivation-of-counsel claim; it held only that, if 

the record revealed that standby counsel was given no opportunity to argue on behalf of the 

defendant during the competency hearing, the appeals court could base its conclusion that the 

defendant was unconstitutionally deprived of counsel during that hearing on the record alone. Id.

at 55-56.

CONCLUSION

It is well-established that a competency hearing is a “critical stage” of a criminal 

proceeding. Ross, 703 F.3d at 874. It is also well-established that the complete deprivation of 

counsel during a critical stage of the proceedings can be remedied only by reversal of the 

judgment without consideration of prejudice. Id. Because Martin was completely deprived of 

counsel during his competency hearing, his conviction and sentence must be vacated.

We therefore REVERSE the judgment of the district court and REMAND the case for a 

new competency hearing and, if Martin is found competent, a new trial.
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KAREN NELSON MOORE, Circuit Judge, dissenting. I agree with the majority that 

United States v. Ross, 703 F.3d 856 (6th Cir. 2012), controls this case. As in Ross, I believe that 

we cannot, based on the record before us, make a conclusive determination regarding standby 

counsel’s performance. The record does show, for instance, that standby counsel was contacted 

by phone during Martin’s mental evaluation, and may have received a copy of this evaluation 

prior to Martin’s competency hearing. The record also shows that standby counsel was present 

at Martin’s competency hearing, where she promised to provide Martin with copies of some 

legal documents. To be sure, the record does not otherwise speak to the extent of standby 

counsel’s preparation. But that, in my view, is why an evidentiary hearing is warranted in this 

case. As in Ross, I believe that such a hearing would help clarify whether standby counsel 

actually provided Martin with “meaningful adversarial testing,” a question that we cannot yet 

answer based on the record in front of us.

For the foregoing reasons, instead of vacating Martin’s conviction, I would grant the

government’s motion for a limited remand for an evidentiary hearing.