* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 20, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-70053

_______________________

THEODORE GOYNES,

Petitioner-Appellant,

versus

DOUG DRETKE, Director, Texas Department

of Criminal Justice, Institutions Division,

Respondent-Appellee.

Appeal from the U.S. District Court

Southern District of Texas

No. H-02-2665

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM * :

Petitioner Theodore Goynes (“Goynes”) has already been

granted federal habeas relief on an Penry claim. In this appeal,

he seeks a Certificate of Appealability (“COA”) from this court on

two issues relating to his conviction: (1) whether he was denied

due process of law, in violation of the Fifth and Fourteenth

Amendments, because he was mentally incompetent to stand trial; and

(2) whether he was denied due process of law, in violation of the

Fifth and Fourteenth Amendments, as a result of the trial court’s2

f ailure to sua sponte hold a hearing to determine Goynes’s

competency to stand trial. Finding neither issue debatable, we

affirm the district court and deny COA.

BACKGROUND

There is no dispute about the facts of this case, the

account of which we borrow heavily from the Texas Court of Criminal

Appeals’s (“CCA”) unpublished decision, Goynes v. State

, No. 71,387

(Tex. Crim. App., Dec. 14, 1994). On October 6, 1990, Linda Marie

Tucker (“Tucker”) left her workplace in northeast Houston, Texas,

and stopped at a grocery store. As she exited the store, Goynes

followed her. When Tucker opened her car door, Goynes shoved her

into the car, pushed the front seat forward, and forced himself

into the back seat. She briefly struggled, but was subdued once

Goynes brandished a weapon. Goynes then held her with one arm,

pointed the gun a t Tucker’s head with his other arm, and ordered

her to drive away.

Tucker’s family, who were waiting to surprise her at home

for her birthday, learned that she had been abducted and began

searching for her with police. Around 1:00 a.m. the next morning,

a wrecker reported finding Tucker’s car in an abandoned apartment

complex. The police shortly thereafter discovered her body lying

on a staircase with a single gunshot wound to the head.

Witnesses to the abduction identified Goynes as the man

lingering outside the store and attacking Tucker. Other witnesses3

confirmed that a man wearing a jacket bearing the name, “Forest

Brook” was the attacker. Police obtained an arrest warrant for

Goynes. When they arrived at Goynes’s apartment, they did not find

him, but did find a jacket matching the witnesses’ description and

a blood-stained rug. A more detailed search resulted in discovery

of a box containing a pair of gloves, a revolver with six live

rounds of ammun ition, and a six-round “bullet holder” with five

l ive rounds in the living room. The bullet taken from Tucker’s

head matched the weapon discovered at Goynes’s home.

On October 9, 1990, police inadvertently discovered

Goynes while responding to an unrel ated disturbance call. After

his arrest, Goynes confessed to the abduction and murder of Tucker.

Goynes was convicted of capital murder and sentenced to

death for the kidnaping and murder of Tucker. He directly appealed

his conviction and sentence to the CCA, which affirmed the

conviction and sentence in an unpublished opinion filed

December 14, 1994. The Supreme Court of the United States denied

Goynes’s petition for certiorari on June 26, 1995. G oynes v.

Texas

, 515 U.S. 1165, 115 S. Ct. 2625 (1995). Goynes then filed a

state application for writ of habeas corpus in the trial court on

October 24, 1997. The trial court subsequently entered findings of

fact and conclusions of law recommending Goynes be denied relief.

The CCA ad opted the trial court’s findings and conclusions, and

denied relief on June 26, 2002. Ex parte Goynes , No. 52,487-01.1 We granted the Director’s unopposed motion to dismiss its appeal on

the sentencing issue on February 3, 2005. Goynes v. Dretke , No. 05-70001 (5th

Cir. Feb. 3, 2005).

4

On July 15, 2002, Goynes filed a skeletal habeas petition

in the district court with that court’s permission. Goynes then

filed a supplemental habeas petition on July 31, 2003. On

November 30, 2004, the district court granted Goynes’s petition

based on a Penry claim and denied his petition and his COA request

with regard to all other clai ms. The result of the district

court’s partial grant of relief, which the Director has not

appealed, is that Goynes must be resentenced. 1 However, Goynes

p ersists in his challenge to the underlying conviction itself

.

Thus, we must address whether a COA should issue, and an appeal on

the merits be heard, on Goynes’s two claims relating to his

competence to stand trial.

DISCUSSION

Goynes’s § 2254 habeas petition, filed on July 15, 2002,

is subject to the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). S ee Penry v. Johnson

, 532 U.S. 782, 792, 121 S. Ct.

1910, 1918 (2001). Under AEDPA, Goynes must obtain a COA before he

can appeal the district court’s denial of habeas relief. 28 U.S.C.

§ 2253(c)(1) (2000); Slack v. McDaniel , 529 U.S. 473, 478, 120 S.

Ct. 1595, 1600 (2000). “[U]ntil a COA has been issued federal

courts of appeals lack jurisdiction to rule on the merits of5

appeals from habeas petitioners.” M iller-El v. Cockrell

, 537 U.S.

322, 336, 123 S. Ct. 1029, 1039 (2003).

To obtain a COA, Goynes must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)

(2000); Miller-El

, 537 U.S. at 336, 123 S. Ct. at 1039; Slack

, 529

U.S. at 483, 120 S. Ct. at 1603. To make such a showing, he must

demonstrate that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” M iller-El

, 537 U.S. at

336, 123 S. Ct. at 1039 (quoting Slack

, 529 U.S. at 484, 120 S. Ct.

at 1603-04).

In Miller-El , the Supreme Court instructed, as it had

previously held in Slack

, that fe deral courts entertaining a COA

application should “lim it [their] examination to a threshold

inquiry into the underlying merit of [the petitioner’ s] claims.”

Miller-El

, 537 U.S. at 327, 123 S. Ct. at 1034. The Court observed

that “a COA ruling is not the occasion for a ruling on the merit of

petitioner’s claim

. . . .” I d. at 1036. Instead, our

determination must be based o n “an overview of the claims in the

habeas petition and a general assessment of their merits.” I d. at

1039. “This threshold inquiry does not require full consideration

of the factual or legal bas es adduced in support of the claims.”

Id. We do not have jurisdiction to justify the denial of a COA

based on an adjudication of the actual merits of the claims. Id.6

Accordingly, we cannot deny an “applica tion for a COA merely

because [we believe] the applicant will not demon strate an

entitlement to relief.” I d. “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been

granted and the cas e has received full consideration, that

petitioner will not prevail.” Id.

Because the district court denied relief on the merits of

the claims for which Goynes seeks a COA, he “must demonstrate that

reasonable juri sts would find the district court’s assessment of

the constitutional claims d ebatable or wrong.” B arraza v.

Cockrell

, 330 F.3d 349, 351 (5th Cir. 2003) (quoting Miller-El

, 537

U.S. at 338, 123 S. Ct. at 1040).

Goynes first seeks a COA on whether he was denied due

process of law because he was mentally incompetent to stand trial.

The Constitution prohibits trial and conviction of a defendant who

is mentally incompetent to stand trial. S ee Cooper v. Oklahoma

,

517 U.S. 348, 354, 116 S. Ct. 1373, 1376 (1996); Pate v. Robinson

,

383 U.S. 375, 378, 86 S. Ct. 836, 839 (1966). There is a two part

standard for ascertaining competence to stand trial : (1) whether

the defendant has the “sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding” and

(2) “whether he has a rational as well as factual understanding of

the proceedings against him.” D usky v. United States

, 362 U.S.

402, 402, 80 S. Ct. 788, 789 (1960). On habeas, a petitioner may

collaterally attack his conviction by initially showing that “the7

facts are sufficient to posit i vely, unequivocally and clearly

generate a real, substantial and legitimate doubt as to his mental

competency at the time of trial.” Dunn v. Johnson , 162 F.3d 302,

306 (5th Cir. 1998) (internal quotations omitted); C arter v.

Johnson

, 131 F.3d 452, 460 (5th Cir. 1997). This threshold burden

is “extremely heavy.” Johnson v. Estelle , 704 F.2d 232, 238 (5th

Cir. 1983). Once the petitioner presents enough probative evidence

to raise a substantial doubt as to hi s competency at the time of

trial, he must then prove that incompetency by a preponderance of

the evidence. M oody v. Johnson

, 139 F.3d 477, 481 (5th Cir. 1998).

The district court’s dismissal of this claim is not

debatable. Despite a history of mental health problems and

borderline intelligence, Goynes fails to make any initial showing

that his competency was in doubt at the time of his trial. A

psychiatric examination carried out at Vernon State Hospital found

Goynes competent to stan d trial. Goynes understood the charges

against him, the facts underlying those charges, that he was on

trial, and that he faced the death penalty. Goynes never sought a

compe tency hearing at his trial. Additionally, four different

experts evaluated Goynes’s co mpetency between his arrest and the

trial, and all of them determined he was competent to stand trial.

Goynes’s strongest piece of evide nce is that a psychologist

retained by his trial lawyers, who reviewed only his medical

history and never personally interviewed Goynes, stated that

Goynes, “while competent to stand trial for a simple offense, may8

not be competent to stand trial for a complicated offense.” 8 RR 4

(emphasis added). Counsel for Goynes presented this information to

the trial court, bu t even further qualified it by saying that he

was unsure whether the defense could offer any substantive evidence

of Goynes’s incompetence. Thus, despite repeated opportunities to

raise this issue at trial, to present evidence as to his

competency, or to request further examination or a hearing, Goynes,

through his counsel, failed to pursue a claim that he was

incompetent to stand trial. Goynes bolsters his claim with

numerous post-conviction affidavits, report s, and data, all of

which indicate Goynes’s difficulty in verbalizing and processing

information. None of his information, however, contains a single

expert opinion stating he is (or was) incompetent to stand trial.

Contrary to Goynes’s assumption, the presence of a mental defect

does not demonstrate mental incompetence to stand trial. C f. Bruce

v. Estelle

, 536 F.2d 1051, 1059 (5th Cir. 1976). M oreover, almost

all of this new information is inapposite: Goynes’s trial counsel,

for example, did not submit any information about trouble working

with Goynes or concerns over his ability to communicate with them

during trial until six years after the fact. The proper inquiry

for an incompetency claim is the petitioner’s mental state at or

near the time of trial

. S ee, e.g.

, Martin v. Estelle

, 583 F.2d

1373, 1374 (5th Cir. 1978). The evidence put forward by Goynes was

properly rejected by the district court under the standards

supplied by AEDPA, and jurists of reason could not find dismissal9

of the incompetence claim debatable. Whether viewed in terms of

t he reasonableness of the state court’s application of federal

constitutional standards of competency or in terms of the adequacy

and reasonableness of the state courts’ factfinding, the rejection

of Goynes’s contention is not debatable.

Goynes also requests a COA on his claim that the trial

court should have sua sponte granted him a competency hearing. The

trial court is required to cease proceedings and hold a competency

hearing, sua sponte if necessary, when a question arises at trial

about the defendant’s competency. R obinson

, 383 U.S. at 385, 86 S.

Ct. at 842. A procedural violation occurs if the trial court

failed to conduct an inquiry into the defendant’s mental competency

when the evidence raised a bona fide doubt as to his competency at

the time of trial. I d. ; Carter v. Johnson

, 131 F.3d 452, 459 n.10

(5th Cir. 1997). The legal question a reviewing court must ask is

whether the trial judge received “information which, objectively

considered, should reasonably have raised a doubt about a

defendant’s competency and alerted him to the possibility that the

defendant could neither understand the proceedings or appreciate

their significance, nor rationally aid his attorney in his

defense.” L okos v. Capps

, 625 F.2d 1258, 1261 (5th Cir. 1980)

(internal citations omitted).

Goynes points to no record evidence that would make the

district court’s dismissal of this claim debatable to a reasonable

jurist. Trial testimony offered as to whether Goynes had the10

ability to understand and waive his Miranda warnings did not relate

to his competency to stand trial. Additionally, some of the

Miranda testimony would have pointed the trial court in the

opposite direction. Dr. Brown, for example, testified that Goynes

had a mental illness and limited intellectual abilities , but he

also stated that at a police interrogation, Goynes did not reveal

the presence of any mental illness or impairment. Dr. Brown

further testified that Goynes had the capacity to understand what

was happening during the murder trial. Moreover, Goynes exhibited

no erratic behavior during trial that would have indicated to the

trial judge any change in his mental ability to continue to be

tried. Goynes points to evidence of his mental problems, but, as

previously stated, the presence of a mental defect does not

demonstrate incompeten ce at the time of trial nor does it

necessarily manifest such overt symptoms as to demand the trial

court’s convening of a hearing sua sponte. Goynes is thus unable

to show that jurists of reason would find debatable the district

court’s denial of this claim.

For the foregoing reasons, the application for COA is

DENIED.