### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 15, 2003 THOMAS K. KAHN CLERK

* Honorable John R. Gib son, United States Ci rcuit Judge for th

e Eigh th Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_____________________________

No. 02-11302

_____________________________ D. C. Docket No. 99-02693 CV-G-M

CAYCE COLLINS MOORE, Petitioner-Appel lant Cross-Appellee,

versus DONAL CAMPBELL, ATTORNEY GENERAL FOR THE STATE OF ALABAMA, Respondents-Appellees Cross-Appellants.

__________________ Appeals from the United States District Court for the Northern District of Alabama

___________________ (September

15, 2003) Before EDMONDSON, Chief Judge, KRAVITCH and GIB SON * , Circuit Judges.1 The district court granted a certificate of appealability (“COA”), but failed to specify the issues for appellate review. Although we coul d remand to

the district court

with instructions to specify the issues, we choose to decide ourselves which issues are worthy of COA. See Peoples v. Haley , 227 F.3d 1342, 1346 (11th Cir. 2000). To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). Upon review of the record and the districtcourt’s opinion, we conclude that Moore has made the req u isite showing for each of the claims raised in his brief. We therefore address each of these issues below. 2 PER CURIAM: Cayce Moore a

ppeals the district court’s denial of hi s petition for a wri t of habeas corpus, 28 U .S.C. § 2254. T he State of Alaba

ma (“theState”) crossappeals the district

court’s determ

inations that Moore’ s habeas petition wa s not time-barred

and that Moore’s c

laims were no

t procedurally barred. We a ffirm the district court’s denial of Moore’ s habeas petition. 1

I. BACKGROUND

After being char

ged with capital m

urder, Moore ente

red a plea of not guil

ty by reason of m

ental defect or dis ease. Before t rial, mental

health professional s examined Moore

and found him com

petent to stand trial . Moore’s tria l began on 10 August 1987. On Mond ay, 17 August 1987 , Moore’s counse l informed the court that Moore had attempted suicide by taking a drug overdose. The trial court declared a recess in the trial to allow Moore to be treated. On 24 August 1987, Dr.2 It does not appear that Dr. Nagi filed a written report, and no compe tency hearing was held. 3 Claudio Toro, the psychiatrist treating Moore, wrote a letter warning the trial court that Moore was depr

essed and a high suicide

risk. At about this same time , the district court order

ed that Moore be exa

mined to determ

ine his competen

cy to stand trial. Dr. Kamal Nagi, a psy chiatrist, examined Moore and informed the trial court that Moore wa

s competent to st

and trial. 2 The trial court gr

anted the State’ s motion to revoke Moore’s bond. O

n 27 August 1987, Moore was taken from the hospital to the St. Clair County Jail where he was placed on suici de watch. Moore’s trial resu med on 31 August 1987. On the evening of 1 Septe

mber 1987, Moor

e was taken to the ho spital, treated f or dehydration, and discharged about four-and-a-half hours later. On 4 September 1987, the jury convicted Moore of capital murder. Moore was sentenced to life imprisonment without parole. On appeal, t he Alabama Cou rt of Criminal Appeals aff irmed Moore’s conviction and s entence. Moore v. State , 546 So.2d 404 (Ala. Crim. App. 19 89). The Alabama

Supreme Cour

t denied Moore’s pe

tition for a writ of

certiorari on 4 August 1989. Ex Parte Moore , 549 So.2d 1363 (Ala. 1989). On 24 April 1997, Moo

re filed a petition f

or post-conviction re

lief in state court pursuant to Ala .R.Crim. P. 32. He alleg ed, among other

things, that (1)4

Moore was me

ntally incom

petent during a portion

of his capital m

urder trial, (2) the trial judge had

substantial evidence

before the court w

hich raised a reas onable doubt about Moore’s c

ompetency t

o stand trial and, th

erefore, should ha

ve held a hearing on its own m

otion , and (3) Moore’ s counsel rendered i neffective assistance by f

ailing to request a c ompetency h earing and by fa

iling to appeal the trial court’s fa

ilure to hold a com

petency hearin

g. On 16 Octob er 1998, th e state cou rt held an e videntia ry hearing on Moore’s Rule 32 petition. Moor

e presented witnes ses and submitted evidence for the st

ate court’s consider

ation. Raymond Chapman, the “head tru sty” at the co unty jail dur ing Moore ’s trial, testified that Chapman and the other inmates were assigned to watch Moore

to ensure t hat he woul d not atte mpt suicide . Chapman stat ed that, fro m Moore’s arrival on 27 August 1987 until Moore was taken to the hospital on 1 September 1987, he did not observe Moore consume food or drink. Chapman testified that when Moore’s tr

ial resumed on 31 August 1987, he had to h elp Moore bathe and dress for court. That evening, the sheriff took Moore to a local physician, Dr. Norrell. Acc ording to Dr. Nor ell’s records,

Moore had “re fused to take food or fluids for four days” and “refused [an] injection [of] B-12.”5

On 1 September 1987, Chapman agai n bathed and dresse d Moore for court. Chapma n stat ed tha t, whe n Moo re ret urned from co urt, h e was i n the s ame condition and was not ta

lking to anyone. L

ater that evening,

Moore was found lying unconscious on the floor of his ce ll. Moore was taken to th e hospital. Jean Moore, Moore’s mother, testified that at the hospital Moore was “[a]lm ost lifeless, pale

-- not really r

esponding to me.”

Jean Moore stated t

hat, when she begged Moore to accept the medical treatment, he initially ref used. Jean Moore testified tha

t, when she asked M

oore if he would dri

nk some water

, he responded “[w]e’ll just go to the Galleria [a Birm ingham shopping mall] and get some orange spic e tea.” Jean Moor e said that she eventu

ally talked Moor

e into accepting medi

cal treatme

nt. Moore was nineteen at the time of the trial. At the Rule 32 hearing, Dr. James Lewis, an Assistant Professor of Medicine at the University of Ala bama, testified that a healthy, nineteen year-old male who fails to eat or drink for sever al days will suffer some effects of dehydration or volum e depletion. Dr. Lewis stated that dehydration

can result in a pers on being listless, stupo rous, confused, a

nd disoriented. Dr. Lewis further t estified that, if a person is dehydr ated, it could also affect their abil

ity to understand t

he events taking plac e around them a nd to engage in conversati

on.3 At the Rule 32 hearing, Moore submitted the affidavit of Dr. David Langille, the emergency

room physici an who treat ed Moore on 1 September 1987. Dr. Langille averred that when the sheriff’s deputies brought Moore to the emergency ro om, Moore a ppeared listless a nd his mouth smelled of ketones. Dr. Langille dia gnosed Moore as

suffering fro

m starvation ketosi

s, treated him for dehydration by administering seve ral liters of fluids intravenously, and discharged Moore about four-and-a-half hours later. 6 Dr. Lewis stated that the emergency room physician’s description of Moore as “listless” w

ith “breath sm

elling of ketones” w

as consistent with som

eone who was dehydrate

d or volume deple

ted. 3 Dr. Lewis fur

ther testified that

, although not a positive conclusion,

if someone did not

eat or drink for fou

r days, was l

istless, had breath smel

ling of ketones, and w

as weak and disorie

nted, Dr. Lew

is would be led to a medical conclusi on that the person was dehydrated or volume depl eted. Dr. Lewis, h

owever, stated h

e would want to see

a patient before in

itiating therap y. At the Rule 3 2 hear ing, D r. Sta nley Br odsk y, a Uni versi ty of Al abama forensic psychology profe ssor, testified that -- based on his post -trial interviews with Moore and review of available information (including newspaper articles about the trial, Moo

re’s hospital re

cords, Dr. Tor

o’s psychologic al evaluation, and the expert testimony at trial) -- Moore was “ser iously and substantially impaired [in] his abilit y to unde rstand procee dings ration ally; to consul t with h is atto rneys and aid in his own defe

nse” on 31 August and 1 S eptember 1987. Dr. Brodsky testified that Moore ’s mid-tria l suicide attem

pt and later refusa

l to eat and drink4 At the Rule 32 hearing, Moore also presented the testimony of a news reporter and photographer, and submitted newspaper articles from the time of his trial which discussed

Moore’s hunger strike and his appearance. These witnesses testified that Moore appeared weak and “out of it.” The newspaper r

eporter stated th

at she observed M

oore’s attorney

s attempting to

communicate with Moore, but that he was unresponsive. The newspaper articles indicated that Moore was weak and at times “disoriented.” 7 were “absolu

tely consistent w

ith the character

istics of a maj or depressive episode.” Dr. Brodsky stated that it was not Moore’s depression by itself that made Moore inc ompetent, but M oore’s failure to eat or drink. Dr . Brodsky testified that he did

not believe that Moor

e’s refusal to e

at or drink was an a

ttempt to manipulate the

trial, but instead t

he result of Moore’ s depression. 4 In rebutta l, the State presented the testimon y of a St. Clair C ounty sheri ff’s deputy, the St. Clair County D istrict Attorney , and Dr. Nagi. Dr. Nagi testified that after Moore’s drug overdose he evaluated Moore at the request of the tr

ial judge. Dr. Nagi stated that Mo ore expressed conc erns about receiving a fair trial in the venue where the trial was taking place and stated that he wanted the trial moved. Dr. Nagi testified that Moore told him “ I’m very frustrated. What do you want me to do--shoot the jury to have it mistried?” Dr. Nagi testified tha

t he concluded that Moo

re was compe

tent to stand trial an

d5 The sheriff’s deputy testified that, although Moore was weak a nd was assisted by

the sheriff’s deputies, Moore was able to walk on his own. The District Attorney testified that he obse rved Moore during the tw o days in que stion and remembe

red seeing Moor

e communicate wit

h his att orneys. T he District Attorney, however, could not recall whether he had obse rved Moore speaking with his attorneys on 31 August and 1 September 1987. 8 informed the trial judge of this fact. Dr. Nagi stated that he was not aware that Moore later had re stricted his intake of food and liquid. 5 The state court fo

und and concluded that M oore was compe

tent to stand trial and was able

to aid and assist his co

unsel in his defense. The state court a lso found that Moore “

undertook a calculat

ed and concerted ef

fort to disrupt his capital murder trial.” The state court concluded that Moore’s asserted incompetence w

as similar to a

disruptive defendant

who is excluded from

the courtroom and st

ated that “[o] ne whose own action s causes him to be

absent from trial, cannot cla

im error.” The Alabam

a Court of Crim

inal Appeals affi

rmed the denial of Moore’ s Rule 32 petition in a m emorandum

opinion, concluding tha

t all of Moore’s claim

s were time-

barred and that his c

laims of substant

ive and procedural incompetency were also procedurally barred. Moore then petitioned the Alabama S

upreme Court f

or a writ of cert

iorari. While his petition for a writ of certiorari with the Alabama Suprem e Court was pending, Moore

filed a federal h

abeas petition pursua

nt to 28 U.S.C. § 22546 After filing his § 2254 petition, Moor

e moved in

district court to stay the proceedings in federal court pending the outcome of

his state Rule 32 proceedings. Moore sought the stay on the gr ounds that, once the Alabama Supreme Court ruled, he would have only one day to file his § 2254 petition and that it could take longer than one day for the notice of the Alab

ama Supreme Court ’s ruling to be received in

the mail. The State

did not object, and the district court granted the motion. The stay was lifted after the Alabama Supreme Court denied Moore’s Rule 32petition. The State in this case does not assert a failure-to-exhaust-state-remedies defense. 9 raising procedural

and substantive com

petency claim

s and ineffective a

ssistance of counsel claims. 6 The State responded that Moore’s habeas petition was time-barred and that Moore’s claim

s were procedura

lly defaulted be

cause they we

re raised outside R

ule 32’s two-year statute of limitations. The State further argued that Moore w as entitled to no relief

because he had fai

led to establish that he

was incompete

nt and, regardless, any

incompetence w

as self-induced. A magistrate

judge issued a repo

rt and recomm

endation. The m

agistrate judge first deter

mined that Moore ’s federal habe as petition was tim

ely. The magistrate judge next concluded that Moore’s claims were not procedurally barred despite Moore’s f

ailure to raise his c

laims in state court within the two- year statute of limitations set out in Ala.R.Crim.P. 32.2(c). The magistrate judge determined that, because the jurisdictional nat ure of Rule 32.2(c

) -- where the st

ate had not affirmative

ly plead the tim

eliness defense --

was not “firm

ly established a

nd regularly followed” at the time of Moore’s Rule 32 proceeding, the claim s were10

not procedurally barred under this rule. The magistrate concluded, however, that because Moore failed to raise his procedural claim (no competency hearing) at trial or on direct appeal, this claim was procedurally defaulted under Ala.R.Crim.P. 32.2(a)(3) and (5) unl ess Moore showed caus e and prejudice. The magistra

te judge then conside

red whether Moore

was able to establi sh that counsel’s failure to raise the procedural incompetency claim on appeal established sufficient cause and prejudice to allow Moore to avoid the procedural bar. The magistrate judge noted that, if the Rule 32 court’s determ ination that Moore was com

petent was corre

ct, then trial and a

ppellate counsel coul

d not have been ineffective for fai ling to raise the is sue. The magistrate judge concluded that the state court’s determination that Moore was com

petent throughout his tr

ial was an unreason

able determin

ation of the facts in the light

of the evidence pre sented at the state c ourt proceedings. B

ut the magistrate judge also determined that, because Moore’s incom petency was self-imposed, he forfeited his right to be competent during his trial and, therefore, neither trial nor a

ppellate counsel wa

s ineffective for

failing to raise the

issue. The magistrate judge also concluded that Moore’s procedural claim -- that the trial court erred by failing to hold a competency hearing on its own motion -- was deficient because

the evidence did not r

eflect that the tr

ial court ignored fa

cts11

raising a “bona fide doubt” about Moor e’s compete

ncy to stand tria

l. The magistrate judge recommended that Mo ore’s habeas petition be denied. The district court

adopted the magi strate judge’s report and recom

mendation and denied Moore’ s habeas petition. M oore appeals. Th

e State cross-app eals the district court’s determinations that Moore’s habeas petition was timely and that Moore’s claim

s were not procedur

ally defaulted

.

II. DISCUSSION

A. Time Bar

In its cross-appeal , the State argue s that the district co urt erred by r

efusing to dismiss Moore’s petition as untimely filed. The State asserts that this Court has consistently stat

ed that the one-y

ear grace period

for filing federa

l habeas petitions expired on 23 April 199 7. The State cont ends that the district

court erred by applying Fed.R

.Civ.P. 6(a) t

o determine the

ending date of the “

grace period” because Rule 6(a) , by its own ter ms, does not appl

y to the court-c

reated fixed date for filing petitions f

ollowing the passage o f Anti-Terror ism and Effec

tive Death Penalty Act (“AEDPA”).12

We review de novo the district court’s determination that Moore’s federal petition for habeas corpus relief was not t ime barred. Bridges v. Johnson , 284 F.3d 1201, 1202 (11th Cir. 2002). AEDPA imposed a one-year limitation peri od for filing a § 225 4 petition. 28 U.S.C. § 2244(

d). This Court con

cluded that prisoner

s whose convictions became final

before the enactm

ent of the AEDPA

had to be given a “

reasonable time” to file their habeas p etitions. Wilcox v. Florid a Dep’t of Corr

ections , 158 F.3d 1209, 1211 (11th C

ir. 1998). We said that a reasonab le period was until 2 3 April 1997: one year after t he enactment of the AEDPA. See id. ; see also Goodman v. United States , 151 F.3d 1335, 133 7 (11th Cir. 1998) (2 8 U.S.C. § 2255). In these decisions and the decisions that followed, no case, however, turned on the precise beginning or ending of the one-year limitation period; and it was unnecessary for us to consider whether Fed.R.Civ.P. 6(a) applied to the “one y ear from the date of the enactment” standard. Never have we held that a petition filed on 24 April 1997 in a ca

se was barred as t

oo late. Nor do our

precedents actual

ly make a choice

between 23 April o

r 24 April as a dead

line. Thus, our st

atements that a reasonable gr

ace period was unti

l 23 April 1997 are dic

ta if the statem

ents are viewed as set

ting a hard-edged deadline; they do not control our decision13

under Fed.R.Civ.P. 6(a) tod ay. See generally United States ex rel. Southeastern Mun. Supply Co. v. Nat’l Union Fire Ins. Co. of Pittsburg , 876 F.2d 92, 93 (11t h Cir.1989) (stating that a case is authority only for what it actually decides). The general rule for computing time limitations in federal courts is Federal Rule of Civil Proce

dure 6(a) which pr

ovides that “[i] n computing any period of time prescrib ed or allowed by these rules, by

the local rules of a

ny district cour

t, by order of cour

t, or by any

applicable statute,

the day of the a

ct, event, or def

ault from which the designated period of time begins to run shall not be in cluded.” Fed.R.Civ.P. 6(a). We have determined that, for petitioners whose convictions became final afterthe enactment of the AEDPA, Rule 6(a) applies to the calculation of the oneyear statute of limitations

. Washington v. United States , 243 F.3d 1299, 1301 (11th Cir. 2001). Although the one-y ear grace period

pertinent in the pre sent case is a judicially

created extension o f the effective da te of the AEDPA

, we agree wit

h the other circuits t

hat have considered this issue. We c onclude that Rule 6(a ) also applies to the effect ive date of the AEDPA. See United States v. H urst , 322 F.3d 1256, 1261 & n. 4 (10th C ir. 2003); Newell v. Hank s , 283 F.3d 827, 833 (7th Cir. 2002); Hernandez v. Ca

ldwell , 225 F.3d 435, 438-3 9 (4th Cir. 2000); Patterson v. Stewart , 251 F.3d 1243, 1246 ( 9th Cir. 2001); Rogers v. United States , 180 F.3d7 We observe that the Third Circuit has st

ated that the gr

ace period inclu

des 23 April

1997; it, however, has done s o wit hout purporting to make the choice about whether a petition filed on 24 April1997 would

be timely. See, e.g. , Burns v. Morton , 134 F.3d 109, 111 (3d Cir. 1998) (“habeas petitions filed on or befor e April 2 3, 1 997 , ma y n ot be dismissed for failure to comply with § 2244(d)(1)’s time limit.”). 14 349, 355 & n. 13 (1st Cir. 1999); Moore v. United States , 173 F.3d 1131, 1133- 35 (8th Cir. 1999); Flanagan v. Johnson , 154 F.3d 196, 200-02 (5th Cir. 1998); Mickens v. United States , 148 F.3d 145, 148 (2 d Cir. 1998); see also Payton v. Brigano , 256 F.3d 405, 408 (6 th Cir. 2001), cert. denied , 122 S.Ct. 1081 (2 002) (holding that the lim

itations period expir

ed on April 24, 1997); United States v. Cicero , 214 F.3d 199, 202 (D.C. Cir. 2000) (same). See generally Public Health Trust of Dade Cty., Fla. v. Lake Airc raft, Inc. , 992 F.2d 291, 295 n. 4 (11th Cir. 1993) (“We do not create intercircuit splits lightly”). 7 Accordingly, the district court d id not err by con cludin g that M oore’s h abeas p etitio n was ti mely.

B. Procedural Bar

The State arg ues that th e district court erred by refusing to dismiss M oore’s claims as proc edurally barr ed. The State c ontends that, although the State failed t o raise the statute of limitations defense before the Rule 32 court, the Alabama Court of Cri minal A ppeal s’s di smiss al of M oore’ s clai ms as ti me barr ed qu alifi ed as “a15

firmly es tablished and regular

ly followed” r

ule to preclude substa

ntive review of Moore’s claims. We review de novo the district court’ s determinatio n that Moore was not procedurally barred from raisin g his claims in federal cou rt. Wright v. Hopper , 169 F.3d 695, 701 (11th Cir. 1999). A state court’s rejection of a federal constitutional claim on procedural grounds will only p

reclude federal

review if the sta

te procedural ruli

ng rests upon an “independent and ade quate” state groun d. See Coleman v. T hompson , 111 S. Ct. 2546 (1991). O

nly rules that ar

e “firml y established and

regularly foll

owed” qualify as adequate state grounds for precluding substantive review of federal claims. Ford v. Georgia

, 111 S.Ct. 850, 857 (1991); Cochran v. Herr ing , 43 F.3d 1404, 1408 (11th Cir. 1995). This Court in Siebert v. Cam pbell , 334 F.3d 1018 (11th Cir. 2003), concluded that, bef

ore the Alabam

a Supreme Cou

rt’s decision in Williams v. State , 783 So.2d 135, 137 ( Ala.Crim. App. 2000), the j urisdictional chara cter of Alabama Rule

of Criminal P

rocedure 32(c) w

as not firmly

established and not regularly foll

owed. Because t

he jurisdictional r

ule in Willi ams was rendered we ll after the Alabam

a courts ruled on Moor

e’s Rule 32 petitio

n in 1998 and 1999, the16

district court prope

rly concluded tha

t Moore’s claim

s were not procedur

ally barred.

C. Competency to Stand Trial

Moore argues that th

e unrebutted evidenc e presented at the R ule 32 hearing demonstrated th

at he was incom

petent to stand trial . Moore’s incom petency claim contains several pr

ocedural and substant

ive components: F irst, Moore conten ds that the state violat

ed his right to due proc ess under the Fourteenth Amendm ent by trying him w

hile incompeten

t. Second, Moore

argues that, beca

use bona fide doubt existed about Moor e’s compete

nce to stand trial,

the trial court shoul

d have held a competency hearing. Third, Moore contends that counsel rendered ineffective assis

tance by failin

g to move for a c ompetency h earing during the tri

al. We review the district court’s grant or denial of habeas corpus relief de

novo . Byrd v. Hasty

, 142 F.3d 1395, 1396 (11th Cir. 1998). Under § 2254(d) a federal habeas c ourt can grant reli ef for a claim

adjudicated on the merits in state court only where the adjudication in state court “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determ

ined by the Supre

me Court of the

United States; or (2) resulted in a8 We realize that the Alabama Court of Criminal Appeals affirmed the judgment of the Rule 32 court on different grounds. But the Alabama C ourt of Criminal App

eals did not decide

that the Rule 32 court’s adjudication on the merits was an i

naccurate view

of the merits. We therefore give the decisionof the Rule 32 court deference under 28 U.S.C. § 2254(d). Neither party ha s directly argued the question of whether the Alabama Court of Criminal Appeals’s decision on different grounds deprives the Rule 32 court’s decision of deference by fe deral courts per section 2254(d). 17 decision that was ba

sed on an unreasonable

determination of the facts in light o f the evidence prese

nted in the State cou

rt proceeding.” 28

U.S.C. § 2254(

d); see Williams v. Taylor , 120 S.Ct. 1495, 1519 (2000)



### . 8

1. Substantive Due Pr ocess Claim

Moore asserts that, once the district court concluded that Moore was incompetent on 31 August and 1 Septem ber 1987, it should have

granted his habeas petition. Mo ore also contends tha t no evidence shows tha

t he induced his own incompetenc

y and that the rig

ht to be competen

t at trial cannot be waived. The Due Process

Clause of the Fourt

eenth Amendm

ent prohibits states f

rom trying and convictin g defendants who are mental ly incompetent. See Medina v. Singletary , 59 F.3d 1095, 1106 (11th Cir. 1995). The standard for mental competency

to stand trial is “

whether [a defe

ndant] has suffic

ient present ability

to consult with his lawy

er with a reasona

ble degree of rati

onal understanding-- and18

whether he has a r

ational as well as f

actual understanding

of the proceedings against him.” See Dusky v. United States , 80 S.Ct. 788, 789 (1960). We will assume -- without deciding -- that the state court’s finding that Moore was competent, in fact, on 31 August and 1 September 1987 was an unreasonable determination of the facts in the light of the evidence presented at the State Rule 32 proceeding. For background, see 28 U.S.C. § 2254(d). Even assuming, howe

ver, that Moore w

as incompetent,

in fact, for thes e two days of his trial, he is entitl

ed to no habeas relie f. The state cou rt’s additional de

termination that Moore, by his hunger strike (which contributed to his incompetency), forfeited his right to be competent at trial is neither contrary to nor an unreasonable applic ation of the pertinen t federal law in t

he light of the state court’s reasonable determination of facts supported by the evidence presented at the state proceedin gs. We first conside

r whether the stat

e court’s deter

mination that a d

efendant can forfeit his ri

ght to be compete

nt at trial was cont

rary to or an unr

easonable application of clea rly established Supreme Court law. The requirement that a defendant be mentally com petent to stand trial “has deep roots in our common-law heritage.” Medina v. Califor nia , 112 S.Ct. 2572, 2577 (1992). This pr

ohibition seeks to prote

ct defendants who,

due to their19

condition, are unab le to participate in their defense. See Coop er v. Ok laho ma , 116 S.Ct. 1373, 1381-82 (1996). Thus, the requirement that a defendant have a rational as well as factual understanding of the proceedings against him and have a sufficient present

ability to consult

with his lawye

r essentially a

ssures that the defendant is mentally, as well as physically, present in the co urtroom. The Supreme Court has determined that, in some ca ses, a defendant may forfeit his consti tutional right to be physically present at his own trial. See Illinois v. Allen , 90 S. Ct. 1057,

1062 (1970) (trial co

urt’s remova

l of defendant from courtroom after defendant continued to disrupt proceedings not unconstitutional);

see also Taylor v. United States , 94 S. Ct. 194, 1 96 (1973) (affirm ing conviction where judge conducted tri al without defendan

t, pursuant to Fed. R.Crim.P. 43, where defendant f

ailed to appear for

the remainder

of his trial after

attending its beginning); accord United States v. E dwards , 303 F.3d 606, 627 (5th Cir. 2002), cert. denied , 123 S.Ct. 1272 (2 003) (concluding that d efendant was volunta

rily absent under Fed.R.Crim.P. 43 where defendant delaye d necessary medical treatment unti

l trial comm

enced); United States v. Crites , 176 F.3d 1096, 1097- 98 (8th Cir. 1999) (concluding that trial court did not clearly err in finding that defendant was volunt

arily absent af

ter suicide attem

pt left him uncons cious and hospitalized); State v. Rice , 757 P.2d 889, 909-1 0 (Wash. 1988), receded from on20

other grounds , State v. Gentry , 888 P.2d 1105 (Wash. 1995) (concluding that capital defendant w

ho attempted suic

ide was voluntarily

absent and waived du

e process right to be pr

esent at the return

of the verdict) . In a similar way, a state court can determine -- not unreasonably, we believe -- that the idea of forfeiture applies to defendants

who, in effect,

intentionally abs ent themselves from their trial by self-inducing their incompetence. We know that the S

upreme Court i

n Pate v. Robinson

stated that “it

is contradictory t

o argue that a defe

ndant may be

incompetent, and yet knowingly or intelligently ‘ waive’ his right to have the court dete rmine his capa

city to stand trial.” 86 S.Ct.

836, 841 (1966). But,

in Pate , no allegation was made that the defendant induced his own incompet ency. Instea

d, the state argue

d in Pate that the defendant had fa

iled to request prope

rly a compe

tency hearing. Here, the Stat e argues that Moore’s intentional, affirmative act -- his refusal to eat and to drink -- induced his alleged incompetence at trial. Furthermore, as discussed below, it was reasonable for the

state court to find th

at Moore did so with th

e “calculate

d” intent of disrupting hi s trial. Cf. Drope v. Missouri , 95 S.Ct. 896, 9 09 (1975) (conclud ing that a n insuffi cient inq uiry had been made into pet itioner’s competence to stand trial in the light of petitioner’s suicide attempt by a self-21

inflicted gunshot wound and other conduct. But noting that a suicide attempt need not always signal incompetency to stand trial). Moore asserts that,

because he was be

ing tried for a capi

tal crime, h

is presence at trial

is non-waivable. The argument that a capital defe ndant cannot waive his right to be present at trial essentially comes from three Suprem e Court

cases: Diaz v. United States , 32 S.Ct. 250 (191 2); Lewis v. United States , 13 S.Ct. 136 (1892); Hopt v. Utah , 4 S.Ct. 202 (1884). In Hopt and Lewis , case s whic h inv olve d capi tal de fenda nts, t he Sup reme Court suggested that a nonwaivable right of presence exists generally in a criminal case. Over time, however, the rule announced in these cases has been eroded to an extent that it is no longer clear that the y are good law at all. In Diaz , a non-capital ca

se, the Suprem

e Court rejecte

d the “broad dic

ta” of Hopt and Lewis ; and the Court concluded that, if an offense was not a capital offense, a defe

ndant’s voluntary

absence could opera

te as a waiver of

his right to be present. 32 S. Ct. at 255. Later, in Snyder v. Mass achusetts , a capital case, the Supreme Court

again noted that the st

atements in Hopt

and Lewis about the presence of a def

endant were “

dictum, and no m

ore” and wrote tha

t the privilege of presence “

may be lost b

y consent or at ti

mes even by

misconduct.” 54 S.Ct. 330, 332 & 336 n.2 (1 934), overruled on other gr ounds , Malloy v. Hogan , 84 S.Ct.9 This Court , citing Diaz and Hopt , has written that the Supreme Court had sai d that capita l defendants

could not waive their right to be present at trial. See Proffitt v. Wainwr ight , 685 F.2d 1227, 1257-58 (11th Cir. 1982), modified , 706 F.2d 311 (1983); see also Hall v. Wainwright , 733 F.2d 766, 775-76 (11th Cir. 1984) (readi ng Proffitt as prohibiting a capital defendant from waiving his right to be present, but remanding for further development of reco rd regarding waiver of right to be present). 22 1489 (1964). In Allen , the Supreme Court stated that “ [t]he broad dicta in Hopt

. . . and Lewis . . . that a tria l can never continue

in the defendant’ s absence have been expressly rejected.” Allen , 90 S.Ct. at 1060 . Finally, in Drope , the S upreme Court specifically

reserved the questi

on of whether a ca

pital defendant coul

d waive his right to be

present stating that “[o]ur resolu tion of the first is sue . . . makes it unnecessary to decide whether, as [the defendant] contends, it was constitutionally impermissible to conduct the remainder of his trial on a capital offense in his enfor

ced absence . . .

.” 95 S.Ct. at 909 (citing Diaz , 32 S.Ct. at 251). Given the hist

ory, the langua

ge in Drope can justify th is conclusion on the part of an objecti

vely reasonable

judge: the issue of whether a defenda nt must be present at all times in a cap ital trial has not yet bee n settled by the Supreme Court

. Based upon the lack of

clarity of the

Supreme Cour

t precedents, we

cannot concl ude th at the state court ’s det ermina tion that a capit al def endan t in Al abama can forfeit his right to be competent -- that is mentally present -- at trial w as cont rary to or was an unr eason able a ppli catio n of cl early e stabl ished Supre me Court precedent. 9 See L’Abbe v. Di paolo , 311 F.3d 93, 97-99 (1 st Cir. 2002), cert.We, however, note that Proffitt and Hall were decided before Congress enac

ted the AEDPA which provides for a far more deferen tial fe deral review of state court decisions. See Putman v. Head , 268 F.3d 1223, 1247 n.23 (11th Cir. 2001), cert. denied , 123 S.Ct. 278 (2002). We now can only interfere with the state court’s decision if it is contrary to or applies clearly established federal law as deter

min ed by the Supreme Court of the United States in an “objectively unreasonable” manner. “Clear

ly established fede

ral law is not

the case law of

the lower federal courts, including this Court.” Id. at 1241. Rather, “clearly established Federal law ‘r efers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Hall v. Head , 310 F.3d 683, 691 (11th Cir. 2002), petition for cert. filed , (U.S. June 6, 2003) (No. 03-574) (quoting Williams , 120 S.Ct. at 1523) (alteration in original). For more background about AEDPA’s limits on federal court authority, see Hawki ns v . Alabama , 318 F.3d 1302 (11th Cir. 2003). 23 denied , 123 S.Ct. 1593 (2003) (concluding that state court’s conclusion that capital defendant could waive right to be present at trial not contrary to or an unreasonable application of Supreme Court precedent). Neither was the state court’s determination that Moore’s incompetence w as self-induced in a “

concerted” and “

calculated” m

anner an unreasonable determination o f the facts. The Rule 32 court also des cribes Moore’s a cts during the time of his t

rial as “a ca

lculated trial stra

tegy.” We

understand from

the state court’s words,

in the context of the t

otal Rule 32 order,

that Moore intended t

o make himse

lf mentally

or physically

incompetent to st

and trial. The R

ule 32 court’s words lik

e “calculate

d” tell us that the Rul

e 32 court found Moore

had the power to think, to reason, and to plan about how to get a mistrial: Moore competently

and purposefully

embarked on a p

rocess that would re sult in his becoming incompetent or ot herwise absent from the tria l.24

Dr. Brodsky t

estified at Moore’ s Rule 32 hearing that it was not

Moore’s depression alone that made Moore incompetent: instead it -- according to Dr. Brodsky -- was Moore’s failure to eat and to drink that rendered Moore incompetent on the two days in question. Although Dr. Brodsky testified that he, from the vanta

ge of hindsight, belie

ved that Moore’s r

efusal to eat was due to his profound depression a

nd that Moore was not

malingering, Dr. Nagi, (w ho evaluated Moore during the trial’s course) found Moore competent before Moore refused food and dri

nk and testified that Moore expressed con cern about the venue in which his case was being tried. Moore indicated to Dr. Nagi that Moore desired a mistrial: “

I’m very frustrated. W

hat do you want m

e to do--shoot the ju

ry to have it mistried?” Furthermore, the evidence reflects that Moore only stopped eating upon being rem

oved from the hos

pital (following his s

uicide attempt

) and taken to the count y jail to resume his trial. Based upon the evidence presented, the state court’s determination -- finding and concluding th at Moore “under

took a calculated an

d concerted effor

t to disrupt his capital m

urder trial” and th

at Moore, thus, fo

rfeited his right to b e competent at the trial -- was not an unreasonable determination of the facts or an unreasonable appl ication of clearly establ ished Supreme Court law. See generally 28 U.S.C. § 2254(d).25

2. Procedural Due Process and Ineffective Assistance of Counsel

A defendant who w

as at the pertinent t

ime compe

tent to stand trial is not entitled to a new trial on the procedural ground that the trial judge in his initial trial failed to hold a competency hearing. James v. Singletary , 957 F.2d 1562, 1571-72 (11th Cir. 199 2) (failure to hold c ompetency h

earing harmle ss error if defendant was competent at the time of trial). In a sim ilar way, defense lawyers cannot have impr

operly prejud

iced a defendant - - depriving him of his constitutional right to counsel -- by not asserting the need f or (or appealing abo

ut) a competency

hearing when the de fendant was, in f act, compete

nt for the pertinent period. The Alabama

Rule 32 court decide

d that Moore was, in legal effect, competent beca

use his incompete

ncy -- if any

in fact -- was c aused by his concerted and calc

ulated strategy

of avoiding food and dri nk to stop the trial: Moore, by his ow

n conduct, forfeit

ed his right to be com

petent at trial. T

his decision was not an unr

easonable one in the l

ight of Supreme

Court precedent,

so, Moore’s other cl

aims must a

lso fail. If he w

as, in effect,

competent, th

e failure of10 Although the evidence established that Moore refused to eat or to drink, no evidence shows that the trial court wa

s aware of this fa

ct until Moore was t

aken to the hospital on the eveningof 1 September, that is after the trial days which are the focus of Moore’s incompetency claim. Neither does the evidence reflect that Moore’s appearance and acts at trial raised a “bona fide doubt” about his competency. Although two re porters, a s heriff’s deputy, and Moore’s mother testified that Moore exhibited weakness

and lethargy

during the trial

, this situation -- even if observed by the trial court -- would not necessarily lead a reasonable trial judge to question Moore’s competency. After Moore’s suicide attempt, the trial judge ordered a competency evaluation

and was assured by Dr. Nagi that Moore was competent

to sta nd trial. A trial judge reasonably could have concluded that Moore ’s weakness was the after-effects of his suicide attempt. We agree with the district court that Moore failed to establish that the evidence before the state trial court established a “bo na fide doubt” regarding Moore’s competency to stand tria l. 26 lawyers to ask

for or of the trial

court to hold a com

petency hearin

g cannot be prejudicial enough to justify habeas relief. 10

CONCLUSION

For the fore going reas ons, the di strict cou rt’s order d enying Moor e’s petition for habeas corpus is AFFIRMED.