* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### December 22, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIAMMA J. PHILIPOSE, Defendant-Appellant. No. 04-6240 (D.C. No. CR-02-124-T) (D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , HOLLOWAY, and LUCERO , Circuit Judges.

Mariamma Philipose appeals the district court’s den ial of her § 2255 habeas petition. She argues that she was denied effective assistance of counsel in connection with her decision to plead guilty to making a false statement to obtain federal employee’s compensation. Because her couns el’s performance did not fall below an objective standard of reasonableness, we AFFIRM the district court’s decision denying Philipose habeas relief.-2- I Philipose severely injured her back while working a s a nurse at the V.A. Hospital. On July 6, 1980, Philipose attempted to lift a patient out of bed when she lost her balance and struck her back against a wall heater. Increasing pain and a failed back surgery forced her to work only s poradically until 1984, when Philipose’s doctors determined that she was no long er able to work at all. Philipose subsequently endured three more failed su rgeries, after which her primary treating physician determined that she “cou ld not stand, walk, or sit, without some change in position, for more than 20 t o 30 minutes at a time,” and that Philipose “could not lift, bend or stoop.” As a result of her total disability stemming from a personal injury incurred while perf orming duties as a federal employee, Philipose collected compensation from the United States government. Dr. Wade McCoy, a family practitioner, began treati ng Philipose for her constant pain. He became increasingly concerned wi th Philipose’s mental health, as Philipose reported suffering from suicidal ideat ion. In response, Dr. McCoy recommended that Philipose “try to be with family a s much as possible . . . that she be in the store, that she owns a retail shop in Bethany, if possible, that she go to the store and, at least for part of the day, be there in the store . . . .” Philipose and her husband owned two stores located on the sam e street and, in response to Dr. McCoy’s recommendation, Philipose began spendin g time in these establishments.-3-

Suspecting that Philipose was performing some dutie s at her family’s stores, the FBI and the U.S. Department of Labor Office of Inspector General launched an undercover operation in March 1998. The record rev eals that on July 7, 1998, an undercover law enforcement officer purchased a pairof “scrub pants” from Philipose, that a series of undercover agents posedas customers over a one-year period, and that Philipose “had helped several agen ts who had come to the store.” On May 4, 1999, Philipose filled out Form 1032. Bycompleting and sending this form to the Department of Labor (“DOL” ), benefits recipients comply with federal regulations requiring them to disclose to the DOL any employment compensation they have received. Philipose truthfu lly reported that she had not received any compensation. Form 1032 also requires disclosure of any employment, self-employment, volunteer work, and any involvement in a business enterprise for the preceding fifteen months. Phili pose indicated on Form 1032 that she had not performed any work over the covered per iod of time. In January 2000, four federal agents appeared at on e of Philipose’s stores. Two agents took Philipose aside for questioning andthe other two agents began questioning a store employee. According to the emp loyee’s affidavit, she felt “very threatened” by the agents’ questioning. For example, after the employee stated that Philipose’s husband, and not Philipose, managed the store’s accounts and deposited money in the bank, the agents alleged ly said: “You had better be careful because Mary is in serious trouble and you don’t want to get into serious-4-

trouble by lying” and “we have been watching her fo r a long time and today we watched her walk between the uniform store and the clothing store.” The employee acknowledged that on occasion, Philipose “ rang up a sale or sacked clothes.” In response to questioning by the other two agents, Philipose admitted that she occasionally completed sales at a cash reg ister, drove from the store to her house, and made bank deposits for the stores. Aware that she was the subject of a serious federal criminal investigation, Philipose retained Mark Blasdel as counsel. Blasde l had extensive experience as a state prosecutor and criminal defense attorney. He met numerous times with Philipose and extensively reviewed her medical hist ory and the facts surrounding her activities at the stores. Blasdel interviewed Philipose’s husband and store employees. After securing affidavits from the empl oyees, he submitted them to the U.S. Attorney’s Office in advance of several me etings that he had with prosecutors to discuss the investigation. He also provided prosecutors with Philipose’s medical records and letters from physic ians, and on one occasion brought one of Philipose’s treating physicians withhim to meet with prosecutors. Blasdel presented a compelling case to the U.S. Att orney’s Office that Philipose was functionally incapable of working at her family ’s stores. Despite Blasdel’s efforts, prosecutors informed himthat they were contemplating filing four felony charges against Ph ilipose. Blasdel entered plea negotiations and secured an offer from the governme nt that would allow Philipose-5-

to plead guilty to a single misdemeanor charge – ma king a false statement to obtain federal employee’s compensation. 18 U.S.C. § 1920. After receiving the government’s offer, Blasdel met for several hours o n numerous occasions with Philipose, her husband, and her son (a chiropractor ) to discuss the possibility of pleading guilty. They discussed the facts of the c ase, possible defenses, the risk of trial, and the benefits and detriments of pleading guilty to the misdemeanor. As a result of these conversations, Philipose decided to accept the plea offer. With the assistance of Blasdel, Philipose completed a Petition to Enter a Plea of Guilty. On this form, Philipose answered t hat she has “been under the care of a doctor or under treatment for a mental or emot ional condition,” and elaborated that she was being treated for “pain management.” She represented that she had enough time to speak with Blasdel about her case an d that she was satisfied with his representation. She indicated an understanding of the rights that she was waiving by pleading guilty and of the sentence expo sure that she faced. In her own words, she stated that she “did the act charged ,” specifically representing: “I made a statement on the Federal Workers Compensatio n form that I was not working when I was.” During the plea colloquy before the district court, Philipose stated that she had consulted with Blasdel to her satisfaction abou t the consequences of pleading guilty. She indicated an understanding of her righ t to a jury trial and a right to indictment and waived those rights. After approvin g the waiver of her jury trial-6-

and indictment rights, the court began to question her about the factual basis for her plea. Philipose affirmed that the statements o n her Petition to Enter a Plea of Guilty were her own words. To further satisfy itse lf that there was a factual basis for the plea, the court asked the prosecution to qu estion Philipose under oath. In response to the prosecution’s inquiries, Philipose affirmed that she had denied on Form 1032 having worked in the preceding fifteen mo nths, that she was in fact “doing work in that 15 month period,” that her “ans wer was false on the form,” that she “knew that it wasn’t true and . . . signed it knowing it wasn’t true,” and that she did so knowingly and willfully. The courtaccepted her guilty plea. At sentencing, Blasdel spoke effectively on Philipose’ s behalf and requested that the court impose the most lenient sentence available. The court agreed and sentenced Philipose to a two-year term of probation and order ed her to make restitution to the government. Although Philipose did not directly appeal her sent ence, she retained new counsel and timely filed a 28 U.S.C. § 2255 petitio n to vacate, modify, or set aside her sentence, arguing that she received ineffective assistance of counsel in connection with the entry of her plea. The governm ent sought summary dismissal of the petition, arguing that the plea agreement in to which Philipose entered contains an express waiver of the right to appeal o r to collaterally attack the plea. The plea agreement specifically provides: “defenda nt in exchange for the promises and concessions made by the United States in this plea agreement,-7-

knowingly and voluntarily waives her right to appea l or collaterally challenge Defendant’s guilty plea and any other aspect of herconviction, including but not limited to any rulings on pretrial suppression moti ons or any other pretrial dispositions of motions and issues.” Because Phili pose attacked her plea on the basis of ineffective assistance of counsel, the cou rt denied the government’s motion relying on our ruling that “a plea agreementwaiver of postconviction rights does not waive the right to bring a § 2255 p etition based on ineffective assistance of counsel claims challenging the validi ty of the plea or the waiver.” United States v. Cockerham , 237 F.3d 1179, 1187 (10th Cir. 2001). The court proceeded to consider Philipose’s claim t hat she was denied effective assistance of counsel. At a hearing on t he matter, Philipose presented testimony from Dr. McCoy and from Gene Hawkins, a p sychologist and pain management specialist who treated her at the time o f her plea. Dr. McCoy testified that he had no contact with Blasdel durin g the time that he represented Philipose. He further stated that at the time Phil ipose entered her plea, “her ability to make a rational decision and understand the cons equences of that decision were greatly impaired.” Hawkins testified that McCoy referred Philipose to him for treatment in February 2002, three months before Phi lipose agreed to plead guilty. He diagnosed her as suffering from posttraumatic stress disorder, a condition which left her with “an indifference about life and what’s going to happen to [her].” In response to the question, “would you tr eat with some suspicion or-8-

skepticism her having entered a knowing, voluntary, and rational decision to enter a plea in this case,” Hawkins answered, “I would.” Blasdel testified about the course of his represent ation of Philipose. He stated that he had no problem communicating with he r and although she often was in pain during their meetings, “she wasn’t totally preoccupied with her pain.” In his view, Philipose understood the risks of proceed ing to trial and the costs and benefits of pleading guilty. During their conversations “she was on little, if any, medication, maybe minimal medication.” Although Ph ilipose informed Blasdel that she was being treated by a psychologist for pa in management, Blasdel never perceived her level of pain as rendering her incomp etent. He emphasized several times in his testimony that he never suspected thatshe was incompetent to proceed with a guilty plea. On consideration of the evidence, the district court denied Philipose’s § 2255 petition. The court found that Blasdel dili gently investigated Philipose’s defense and “consistently offered effective assista nce.” Moreover, given that neither Philipose, her husband, nor her son ever “s uggested that her pain level affected her ability to think rationally or her competency to make decisions,” that neither Dr. McCoy nor Hawkins “raised any question or concern on her behalf” despite their knowledge that she was facing federal criminal charges, and that Blasdel consistently considered Philipose’s communi cation and demeanor as consistent with competence, the court found that “[ t]he evidence does not support1 Philipose’s petition was filed after April 24, 199 6, the effective date of

the Antiterrorism and Effective Death Penalty Act ( “AEDPA”); as a result, -9- defendant’s claim that Mr. Blasdel should have cont acted Dr. McCoy and Dr. Hawkins prior to discussing the plea agreement withthe defendant.” Based on these findings, the court ruled that Blasdel provid ed Philipose with effective assistance. Having rejected Philipose’s ineffectiv e assistance of counsel claim, the court did not rule on whether Philipose was incompe tent to enter a plea of guilty. The district court denied Philipose’s application f or a certificate of appealability (“COA”), concluding that “her claim of ineffective assistance of counsel does not satisfy the standards and requirements of Stricklan d v. Washington , 466 U.S. 668 (1984); reasonable jurists could not debate that co nclusion.” Her application for a COA having been denied below, Philipose sought a COA from this court. We granted a COA “on the two issues . . . pertaining to ineffective assistance of counsel,” namely whether Philipose “was denied effective assistance of trial counsel in connection with the plea agreement both because counsel failed to consult her doctors regarding hercompetency and because the evidence in the case overwhelmingly demonstrated th at she was not guilty.” These are the sole issues before us: (1) did Blasdel ren der ineffective assistance by failing to consult with Philipose’s doctors regardi ng her competency and (2) did Blasdel render ineffective assistance by pressuring Philipose to plead guilty even if overwhelming evidence demonstrated that she was not guilty? 1AEDPA’s provisions apply to this case. See Rogers v. Gibson , 173 F.3d 1278,

1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy , 521 U.S. 320 (1997)). AEDPA conditions a petitioner’s right to appeal a d enial of habeas relief under § 2255 upon a grant of a COA. 28 U.S.C. § 2253(c)( 1)(B). Although Philipose seeks to argue on appeal that her plea was invalid because she was incompetent to enter a plea of guilty, we have not granted a COA o n that issue. -10- II On appeal of the denial of habeas relief, this court reviews factual findings for clear error and legal determinations de novo. Romero v. Tansy , 46 F.3d 1024, 1028 (10th Cir. 1995). To prevail on her ineffecti ve assistance of counsel claim, Philipose must prove that Blasdel’s representation fell below an objective standard of reasonableness and that his deficient representation prejudiced her defense. Strickland v. Washington , 446 U.S. 668, 687-88 (1984). “There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Romano v. Gibson , 278 F.3d 1145, 1151 (10th Cir. 2002) (quotation omitted). Philipose argues that B lasdel rendered ineffective assistance in two ways: by failing to contact her doctors to inquire into her mental state and by pressuring her to plead guilty in orde r to “dump the case.” After careful review of the record, we have determined th at Blasdel’s representation did not fall below an objective standard of reasonablen ess. Because Phillipose indicated on her Petition to Ent er a Plea of Guilty that she has “been under the care of a doctor or under t reatment for a mental or emotional condition,” and elaborated that she was b eing treated for “pain2Philipose cites to McLuckie v. Abbott , 337 F.3d 1193, 1199 (10th Cir.

2003), for the proposition that “[w]here a lawyer h as actual or constructive knowledge of the mental state of his client, he has a duty to investigate.” Appellant’s Br. at 11. McLuckie does not stand for such a broad proposition. Rather, McLuckie held that counsel rendered ineffective assistance in a firstdegree murder case by failing to investigate and pr esent a mental health defense to the crime charged where there was significant ev idence that the defendant lacked the requisite mens rea. McLuckie ’s holding is irrelevant to the question presented in this case. -11- management,” she argues that it constituted ineffec tive assistance for Blasdel not to contact her psychologist to inquire into her competency to plead guilty. We disagree. 2Blasdel encountered a client who was well educate d and demonstrated no difficulty in communicating with him about the c ase or the decision to plead guilty. He met with her, her husband, and her son numerous times and clearly explained the process of entering a guilty plea and the details of the plea agreement. At no point did anyone, including Phili pose’s doctors or her chiropractor son, express to Blasdel a concern overPhilipose’s competence. Philipose herself supplied the answers in the petit ion and indicated on several occasions that she understood the implications of p leading guilty and desired to do so. Philipose was on little or no pain medication during her meetings with Blasdel, and although Blasdel perceived that she wa s in pain, the pain never seemed to distract her from their conversation. Gi ven this context, the mere fact that Philipose informed Blasdel that she was being treated for pain management3 The record contains no evidence that at the time s he pled guilty, Philipose

exhibited signs of legal incompetence such that Bla sdel should have suspected that his client lacked sufficient competency. “[T] he test of mental competency at the time of trial or the entering of a plea in a cr iminal case is whether the accused ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the proceedings against him.’” Fi elds v. Gibson , 277 F.3d 1203, 1215 n.7 (10th Cir. 2002) (quoting Dusky v. United States , 362 U.S. 402, 402 (1960)). “The presence of some degree of mental di sorder in the defendant does not necessarily mean that he is incompetent to know ingly and voluntarily enter a plea . . . .” Miles v. Dorsey , 61 F.3d 1459, 1472 (10th Cir. 1995) (quotation omitted). Although Dr. McCoy testified that at the time Philipose entered her plea, “her ability to make a rational decision and understand the consequences of that decision were greatly impaired” and Hawkins ag reed with the statement that he would “treat with some suspicion or skepticism h er having entered a knowing, voluntary, and rational decision to enter a plea in this case,” this testimony does not demonstrate that Philipose lacked the ability t o consult with Blasdel with a reasonable degree of rational understanding or thatshe lacked a rational understanding of the proceedings against her. See, e.g. , Dorsey , 61 F.3d at 1474 (“Petitioner’s history of mental problems, low inte lligence, psychotropic medication, and substance abuse do not establish th at he was incompetent to plea.”). -12- did not impose on him a duty to seek an expert opin ion as to her competence to plead guilty. 3 Philipose also argues that Blasdel “had become tire d of the case or had an aversion to committing himself to the total represe ntation of this person’s interests and was looking to ‘dump the case.’” Appellant’s Br . at 13. She asserts that Blasdel possibly recognized “the psychologic proble ms of his client and chose to simply ignore them” because “if he discovered that she was not able to enter a plea then his ‘dump the case’ plan would have been derai led.” Id. In sum, she argues-13-

that Blasdel was not committed to representing Phil ipose and pressured her to plead guilty to terminate the representation. The record, however, paints a very different pictur e. Blasdel conducted a thorough investigation of the case, including meeti ng with Philipose, her family, and store employees. Following extensive interview s with store employees, he secured affidavits from them that he submitted to t he government. He combed through Philipose’s voluminous medical records and presented compelling evidence to the government that Philipose was incap able of working. To supplement this evidence, he brought one of her tre ating physicians with him during one of his many meetings with the U.S. Attor ney’s Office. When it became apparent that the government would go forward with the prosecution on four felony counts, Blasdel negotiated a plea to a one c ount misdemeanor charge. Although Blasdel had amassed significant evidence t o defend his client at trial, there was a real possibility that Philipose would b e convicted based on the evidence yielded by the government’s undercover ope ration and its interviews with Philipose and store employees. Under the circumsta nces, it was not unreasonable for Blasdel to explore a plea agreement with his cl ient. See Strickland , 466 U.S. at 689 (“Strategic choices made after thorough inve stigation of law and facts relevant to plausible options are virtually unchall engeable”). He met extensively with Philipose and her family to discuss the plea agreement, and Philipose repeatedly stated under oath – both in written form and-14-

orally – that she understood the implications of pl eading guilty, that she committed the crime charged, and that she was satis fied with Blasdel’s representation of her. At sentencing Blasdel gave an impassioned defense of his client and helped secure a sentence of probation. The record clearly demonstrates that Blasdel’s representation did not fall below an objective standard of reasonableness. Id. at 687. In reaching this conclusion, we do not implicate t he government’s decision to target Philipose for investigation or its decisi on to prosecute her. We merely hold that in not gambling with a four count felony indictment, and in obtaining for his client an agreement from the government to acce pt a plea to a single misdemeanor charge and no incarceration, Philipose’ s attorney did not render ineffective assistance.
III Because Philipose has failed to show that Blasdel’s representation fell below an objective standard of reasonableness, we conclud e that she did not receive ineffective assistance of counsel in connection wit h her plea of guilty. We
AFFIRM the decision of the court below denying Philipose’ s § 2255 motion and
DISMISS this appeal.

ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge1 Although this court has not granted a Certificate of Appealability (COA)

on the issue of whether Defendant’s plea was invali d because she was incompetent, Defendant’s competency is directly rel evant to the issue on which we have granted a COA: whether she received ineffec tive assistance of counsel. This is because even if counsel’s performance fell below an objective standard of reasonableness, Defendant would not be prejudiced u nless she indeed lacked competency at the time she entered into the plea. No. 04-6240 , United States v. Philipose HOLLOWAY, Circuit Judge , dissenting : I respectfully dissent. The Order and Judgment of the majority thoroughly discusses the evidence and authorities pertaining t o the ruling on appeal, the denial of Defendant Philipose’s motion under 28 U.S.C. § 2 255 to set aside her plea and sentence. The basic issue raised by this appeal fr om that ruling is whether the Defendant was denied the constitutionally guarantee d effective assistance of counsel. I must disagree with the majority’s concl usion that Defendant received effective assistance of counsel. The longstanding test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intell igent choice among the alternative courses of action open to the Defendant .” 1 North Carolina v. Alford, 400 U.S. 25, 31 (1970); see Boykin v. Alabama , 395 U.S. 238, 242 (1969); Machibroda v. United States , 368 U.S. 487, 493 (1962). The Defendant asserts that her guilty plea was not a voluntary and intell igent choice because she lacked the competency to make the rational decision necess ary to enter into the plea. Defendant’s counsel failed to investigate her menta l health status despite his knowledge of seriously disturbing circumstances abo ut Defendant’s mental health.-2-

I am convinced that Defendant demonstrates that she received ineffective assistance of counsel due to counsel’s failure to p roperly investigate her mental status before conferring with her as to the advisab ility of entering a guilty plea. It is uncontroverted that Defendant’s then counsel, Mr. Blasdel, knew that Defendant was under the care of a psychologist at t he time Defendant entered into the plea agreement. Defendant’s psychologist, Doct or Hawkins’s, name was written in the change of plea petition. See Transcript of April 29, 2004 proceedings at 51. In response to Question 5 in th e form which asks “Have you ever been under the care of a doctor or under treat ment for a mental or emotional condition?,” the answer “yes” was marked. Id . Counsel also knew that Defendant had been under the care of Doctor McCoy, Defendant’ s then treating general physician. Counsel admitted on cross examination t hat he was aware of the existence of Doctor McCoy and a document from the O klahoma Diagnostic Imaging Company, which was reviewed by counsel, sho ws Doctor McCoy’s name as the referring physician. Id . at 58. Doctor McCoy had referred Defendant to Doctor Hawkins because of concern about Defendant’s suicidal tendencies. Despite his knowledge that Defendant was being treated by Doctors McCoy and Hawkins, counsel did not make any effort to contactthese health care professionals or to receive any medical information from them.2The record shows that counsel reviewed medical ev idence from Doctors

Brent Tipton and Nathan Bradley who apparently at d ifferent times had treated Defendant. Id . at 43. Counsel also reviewed medical evidence fr om Doctor Jeff Pardee, the federal workers compensation doctor that reviewed Ms. Philipose’s condition. Id

. -3- In representing Defendant in the underlying case, c ounsel contacted and reviewed medical evidence from some of Defendant’s physicians. 2However, he did not contact or review medical evidence from Doc tors McCoy and Hawkins. We, therefore, must decide whether it was reasonabl e for counsel to fail to contact these health care professionals before conferring w ith the Defendant on the advisability of entering a plea of guilty. As the majority notes, there is a strong presumptio n that counsel’s conduct falls within the wide range of reasonable professio nal assistance. Romano v. Gibson , 278 F.3d 1145, 1151 (10th Cir. 2002). However, t he presumption is not an absolute bar to a finding of ineffective assista nce of counsel. A Defendant can sustain a claim of ineffective assistance of counse l if she is able to prove: (1) that counsel’s representation fell below an objective st andard of reasonableness, and (2) that counsel’s deficient representation prejudi ced her defense. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984). At the same time, “ counsel has a duty to make reasonable investigations or to make areasonable decision that makes particular investigations unnecessary.” Id . at 691. In Strickland, the Supreme Court considered a similar claim as the one here. Defendant claimed-4-

ineffective assistance of counsel because counsel d id not seek more character or psychological evidence than was already before the trial court. The Court rejected Defendant’s claim because it found that “counsel ma de a strategic choice to argue for the extreme emotional distress mitigating circu mstance and to rely as fully as possible on [Defendant’s] acceptance of responsibil ity for his crimes.” Id . at 699. The Court held that trial counsel could reasonably surmise from his conversations with Defendant that character and psychological evi dence would be of little help. Id . “Restricting testimony on [Defendant’s] characte r to what had come in at the plea colloquy ensured that contrary character and p sychological evidence and [Defendant’s] criminal history, which counsel had s uccessfully moved to exclude, would not come in.” Id . As a result, the Court concluded that trial coun sel’s defense was the result of reasonable professional j udgment. In the present case, it would be reasonable for cou nsel not to contact Doctors McCoy and Hawkins if it was not necessary t o contact them or the decision not to do so was the result of a strategic choice. There is, however, no evidence in the record to show that it was either u nnecessary for counsel to contact these health care professionals or that counsel mad e a strategic choice not to do so. Doctor McCoy advised Defendant to spend some time i n the family store because of his concern about Defendant’s suicidal i deation. See Transcript of April 29, 2004 proceedings at 26. Since Defendant was charged because of her alleged work in the family store, it would seem nec essary for counsel to have3 Although Defendant provided information to counse l that she was being

treated by Doctor Hawkins for a mental health condi tion, counsel did not seek to know more about Defendant’s mental health status fr om Defendant. On direct examination during the § 2255 evidentiary hearing, counsel, Blasdel, stated that he did not feel that Defendant’s pain management co uld affect Defendant’s competence even after he knew that Defendant was be ing treated for a mental health condition. Transcript at 51. This suggests that Blasdel’s failure to contact Doctor Hawkins did not result from due consideratio n of the importance of this fact.

4The majority opinion misses this point and concen trates on counsel’s initial conduct in reviewing the medical evidence f rom some of Defendant’s doctors. The opinion fails to articulate why couns el’s knowledge that Defendant was being treated for a mental health condition at the time of the plea proceedings should not have raised counsel’s curiosity and inte rest to investigate Defendant’s mental health status. -5- contacted Doctor McCoy to understand the basis for his advice to Defendant. Similarly, nothing in the record suggests that it w as not necessary for counsel to contact Doctor Hawkins after he knew that Defendantwas being treated by Doctor Hawkins for a mental health condition. On the cont rary, it appears that counsel did not pay attention to the implication of his cli ent being treated by a psychologist for a mental health condition. 3 By the time of the underlying plea proceedings in this case, Defendant’s condition hadprogressed beyond mere physical illness and pain to psychological and ment al problems. 4Had counsel contacted Doctor McCoy or Doctor Hawkins he would h ave discovered this fact casting doubt on Defendant’s competency to enter in to a plea. In addition, counsel’s failure to contact these hea lth care professionals did not result from a strategic choice. Nothing sugges ts that evidence from Doctor5 Counsel’s conduct may be reasonably influenced bythe actions or

statements of a client. In Strickland, the Supreme Court noted: The reasonableness of counsel's actions may be dete rmined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly , on informed strategic choices made by the defendant and on info rmation supplied by the defendant. In particular, what investigatio n decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential lin e of defense are generally known to counsel because of what the defe ndant has said, the need for further investigation may be considera bly diminished or eliminated altogether. And when a defendant has gi ven counsel reason to believe that pursuing certain investigati ons would be fruitless or even harmful, counsel's failure to pur sue those investigations may not later be challenged as unrea sonable. In short, inquiry into counsel's conversations with the defen dant may be critical to a proper assessment of counsel's investigation decisions, just as it may b e critical to a proper assessment of counsel's other litigation decisions. Strickland

at 691 (internal citations omitted). In the prese nt case, nothing suggests that Defendant led counsel to believe thatit was unnecessary to contact Doctor McCoy or Doctor Hawkins. Nor is there any e vidence to suggest that Defendant gave counsel reason to believe that it wo uld be fruitless to contact the doctors or that information from them would be detr imental to her case. The majority asserts that counsel thoroughly invest igated Defendant’s case. However, this is not supported by the record. Alth ough counsel reviewed the records of some of Defendant’s physicians, he did n ot contact Doctors McCoy and Hawkins who were at the time treating Defendantfor both pain and mental -6- McCoy or Doctor Hawkins could have been harmful to Defendant’s underlying case. Indeed, as mentioned above, counsel did not know the evidence they had and whether the evidence could have assisted or pre judiced Defendant’s case. Moreover, neither Defendant nor her relatives sugge sted to counsel that it was unnecessary to contact these health care profession als. 5 In short, despite hishealth problems. More importantly, his omission of contact with Doctor McCoy ignored the fact that Doctor McCoy was the doctor t hat advised Defendant to spend some time in the family store, the reason forwhich she was charged. An assertion of thoroughness should require review of the records from Doctors McCoy and Hawkins since counsel knew about them. -7- knowledge of these medical professionals, counsel u nreasonably failed to contact them. The majority concludes that Defendant did not recei ve ineffective assistance of counsel because counsel’s performance did not fa ll below an objective standard of reasonableness. However, the majority provides no explanation why counsel’s duty to investigate in this case was unnecessary orthe result of a strategic choice. Instead, the majority asserts that Defendant failed to apprise counsel of the details of her mental status, notwithstanding that counsel was aware that Defendant was being treated for a mental health condition. Accor ding to the majority: Blasdel encountered a client who was well educated and demonstrated no difficulty in communicating with him about the c ase or the decision to plead guilty. He met with her, her husband, and her son numerous times and clearly explained the process of entering a gui lty plea and the details of the plea agreement. At no point did any one, including Philipose’s doctors or her chiropractor son, expres s to Blasdel a concern over Philipose’s competence.
See Order and Judgment at 11. The majority therefore implies that a Defendant has the duty to inform counsel of the details of De fendant’s mental status, even though such information could easily be gathered fr om Defendant’s mental health professional.-8-

In view of the fact that counsel here was aware that Defendant was being treated for a mental health condition, the “educati on” or the ability of Defendant to “communicate” should not be relevant to counsel’s d ecision to investigate Defendant’s mental status. In many cases of incomp etency, Defendant will be well educated and can communicate and that fact sho uld not obviate counsel’s duty to investigate, especially after counsel knows that his client is being treated for a mental health condition. A criminal defense lawyer should know that when a client is being treated for a mental health conditi on, the client may not be the source of authority for the client’s condition or b asis of treatment. Similarly, the failure of Defendant’s son and docto rs to express concern about Defendant’s competency should not be of any s ignificance in this case. Counsel knew here that Defendant was being treated for a mental health condition. A Defendant provides the names of her treating phys icians and mental health professionals to a lawyer so that the lawyer can ev aluate the information from the professionals and make the judgment on case strateg y. As Strickland makes clear, counsel has the duty to investigate. Strickland at 691 (“counsel has a duty to make reasonable investigations or to make a reasonable d ecision that makes particular investigations unnecessary”). Defendant’s doctors have no such duty and indeed may not provide any information to counsel or the c ourt, without the permission of the client, in light of the physician-patient privi lege.-9-

Even though counsel knew that Defendant was being treated for a mental health condition, he failed to contact Defendant’s treating mental health professional before advising Defendant to enter int o a plea. Counsel did not carefully evaluate the importance of the fact that Defendant was receiving mental health treatment. It was not unnecessary for couns el to contact Doctor Hawkins and counsel should not have relied on his untrained , non-medical judgment to conclude that Defendant’s pain management could notaffect her competency. Counsel’s failure to investigate Defendant’s mental health status did not result from a strategic choice or out of consideration that evidence from Doctor Hawkins would be harmful to Defendant’s case. Accordingly, it was unreasonable for counsel not to investigate Defendant’s mental healt h status before conferring with her on the advisability of entering into a plea. During the evidentiary hearing, Doctor McCoy and Do ctor Hawkins presented the picture of a disturbed, traumatized a nd incompetent patient who could not reasonably evaluate the consequences of e ntering into a plea. Doctor Hawkins testified that Defendant suffered from posttraumatic stress disorder. See Transcript of April 29, 2004 proceedings at 5. Acc ording to Doctor Hawkins, this made Defendant indifferent about life, Id . at 6, and disinterested in the consequences of things. Id . at 7. Doctor Hawkins testified that Defendant wa s self-destructive. Id . at 10. He testified that Defendant was suicidal

. Id . He testified that Defendant was on Demerol periodicall y, even though she could not-10-

use it consistently due to tolerance problems with the medication. Doctor Hawkins testified that he would be skeptical of Defendant h aving made a knowing, voluntary and rational decision to enter a plea of guilty in this case. Id at 11. Doctor McCoy testified that Defendant’s ability to make a rational decision and understand the consequences of that decision we re greatly impaired. Id . at 23. Doctor McCoy described Defendant as living with an unrelenting, nagging at times very severe overwhelming pain on one hand and with medication which caused extreme nausea and intractable vomiting on the othe r. Id . at 23-24. Doctor McCoy stated that he was concerned about the Defend ant’s suicidal ideation, and that he did not remember another patient in his pra ctice over the course of seven years with whom he was as concerned. Id . at 25. Doctor McCoy testified that the short acting narcotics the Defendant was prescribedwould impair or affect in a negative manner the cognitive function of the Defen dant. Id . at 31. The conclusions of these professionals about Defend ant’s mental and physical health at the time she entered into the pl ea were neither refuted nor challenged by the Government. Therefore, Defendantlacked the competency to enter into the plea based on the opinion of the doc tors. As the Supreme Court has stated, in order to prove that a counsel’s action or omission were prejudicial to a Defendant’s case, “d efendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland at 694. Here, had6During the evidentiary hearing, Doctor McCoy test ified that he thought

Defendant being in the store, and even greeting cus tomers, could be therapeutic. Transcript at 32. -11- counsel contacted Doctor Hawkins before Defendant e ntered into the plea, he would have likely questioned Defendant’s competencyto enter into the plea. Had counsel contacted Doctor McCoy, he would have more properly understood why Defendant was in the store and even known that Doct or McCoy considered Defendant’s presence in the store therapeutic. 6Thus, there is a reasonable probability that the outcome would have been differ ent in this case both on the merits of the charge and Defendant’s competency to enter into the plea. Accordingly, I would vacate the district court's ju dgment and remand. Upon remand, I would direct that the district court set aside Defendant's plea of guilty and her sentence and I would direct that the distri ct court determine Defendant's present competency. If Defendant is then found to be presently competent, the Government may consider whether further proceedings against the Defendant should be undertaken or whether the criminal procee dings should be dismissed.