### *The Honorable Catherine D. Perry, United State s

District Judge for the Eastern District o f Missouri, sitting by designation. The Honorable Michael J. Melloy, Chief Judge, United States 1 

### District Court for the Northern District of Iowa. Preliminar y matters were decided by the Honorable John A. Jarvey, Chie f Magi strate Judge, United States District Court for the Norther n District of Iowa. ____________ No. 95-2443

____________ Thomas Dean Vogt, * * Appellant, * * Appeal from the United States v. * District court for the * Northern District of Iowa United States of America, * * Appellee. *

____________ Submitted: December 15, 1995 Filed: July 3, 1996

____________ Before McMILLIAN and BEAM, Circuit Judges, and PERRY, District * Judge.

____________ McMILLIAN, Circuit Judge.

Thomas Dean Vogt app eals from a final order entered in the District Co urt for the Northern District of Iowa denying his 28 U.S.C. § 225 5

1 petition for post-conviction relief on the grounds of incompetence to stan d trial and ineffective assistance of counsel. United States v. Vogt , No. CR89-0008 (N.D. Iowa May 30, 1995) (opinion and order). For reversa l peti tioner argues the district court erred in finding that there wa s insufficient doubt as to his

### The Honorable David R. Hansen, now Circuit Judge, Unite d 2 

### States Court of Appeals for the Eighth Circuit.
-2- competence to stand trial and that his trial attorneys were not ineffectiv e in not requesting a c ompetency hearing. For the reasons discussed below, we affirm the order of the district court. BACKGROUND FACTS

In Apri l 1989 a federal grand jury indicted petitioner and fou r othe rs and charged them with multiple counts of drug trafficking an d related offenses. Petitioner was found guilty by a jury on all but tw o counts. The district court sentenced petitioner to 110 month s 2 imprisonment, 5 years supervised release, a fine of $12,500, and a special assessment of $200. Certain property belonging to petitioner was subjecte d to crim inal forfeiture. The conviction and sentence were affirmed o n appeal. United States v. Vogt , 938 F.2d 184 (8th Cir. 1991) (table), cert
. denied , 502 U.S. 1092 (1992).

In Nov ember 1992 petitioner filed the present § 2255 petitio n asserting numerous grounds for relief. The magistrate judge recommended that the district court deny relief on all but two claims and hold a n evidentiary hearing on those two claims-- whether petitioner was in fact incompetent to stand trial and whether he received ineffective assistance of counsel because his trial attorneys did not request a competenc y hearing. The district court agreed with the recommendation of th e magistrate judge and held an evidentiary hearing. The witnesses included petitioner, members of petitioner’s family, his business associates, his doctors, his trial attorneys, the attorneys who represented petitioner’s co-defe ndants, various jail employees, the government case agent, th e prosecuting attorney, and the trial judge. In addition, the district cour t also considered the t ranscripts of petitioner’s testimony at trial and at sentencing and his

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deposition in a civil malpractice case he had brought against his tria l attorneys.

The di strict court found that petitioner had failed to produc e sufficient evidence of mental incompetence to wa rrant a competency hearing or new trial. Slip o p. at 9-13. The district court found that there was “no reason to doubt [ petitioner]’s competency at trial” despite his prior hospita lization for bi-polar affective disorder in November 1988, hi s behavior in April-May 1989, his doctor’s note inOctober 1989 referring to
a return o f the kind of problems he had in November 1988, his menta l condition during tria l, his post-trial psychotic condition in March 1990, and subsequent prison hospitalization for psychiatric treatment. Id. at 9. The district cour t concluded that the evidence showed that petitioner understood the nature of the proceedings and the charges against him and was able to assist his trial attorneys before, d uring and after trial, and at sentencing. Id. at 10. The district court also found that petitioner’ s trial attorneys acted reasonably in not requesti ng a competency hearing in view o f petitioner’s extensive assistance before and during trial, hi s demea nor at trial and his performance as a witness. Id. at 13-14. Th e distri ct court noted that the trial attorneys knew about petitioner’ s November 1988 hospitalization and had questionedpetitioner’s doctor about petit ioner’s likely prognosis (the doctor told defense counsel tha t petitioner would be able to return to work and lead a normal life). Id. at 14. The district court did not credit petitioner’s testimony that he had informed his tria l attorneys about his mental condition during trial. Id. The district court denied the § 2255 petition and this appea l followed. COMPETENCY TO STAND TRIAL

As a p reliminary matter, we reject the government’s argument tha t petitioner has waived or defaulted on his mental incompetency claim becaus e he did not raise this claim in the district court or

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on direct appeal and has not shown cause and prejudice (or actual innocenc e or that a fundamental miscarriage of justice wou ld occur if his claim were not cons idered) in order to excuse the procedural default. “[T]h e procedural default rule . . . does not operate t o preclude a defendant who failed to request a competency hearing at trial or pursue a claim o f incompetency on direct appeal from contesting his [or her] competency to stand trial and be sentenced through post-conviction proceedings.” See, e.g., Adams v. Wainwright , 764 F.2d 1356, 1359 (11th Cir. 1985) (citin g Pate v. Robinson , 383 U.S. 375, 384 (1966) (noting that it is contradictor y to argue that a defendant may be incompetent and yet knowingly o r int elligently waive right to have the court determine capacity to stan d trial)), cert. denied , 474 U.S. 1073 (1986).
Petitioner argues the district court erred in f inding that there was insufficient doubt about his competence to standtrial. Petitioner argues his history of mental problems established a sufficient doubt about hi s comp etence to stand trial--his psychiatric hospitalization in Novembe r 1988, his diagnosis of bi-polar affective disorder and continue d psy chiatric treatment, including the prescription of anti-psychoti c medication, his erratic behavior and deteriorati ng mental condition before and dur ing trial, and his psychotic condition and psychiatri c hospitalization after sentencing. He also argue s the district court erred in considering his demeanor at trial as evidence of competency becaus e person s with bi-polar affective disorder could be mentally impaired bu t appear to be normal. The government argues the district court’s finding that petitioner failed to present facts sufficie nt to create the requisite “suffic ient doubt” about his competence to stand trial is not clearl y
erroneous.
Due process prohibits the trial and conviction of a defendant who is mentally incompetent. Drope v. Missouri , 420 U.S. 162, 172 (1975). This is the “substantive” competency principle. See, e.g., Weisberg v

. Minnesota , 29 F.3d 1271, 1275-76 (8th Cir. 1994),

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cert. denied , 115 S. Ct. 935 (1995); see also Medina v. Singletary , 59 F.3 d 1095, 1106-07 (11th Cir. 1995), cert. denied , 19 96 WL 163786 (No. 95-8394) (U.S. Jun e 10, 1996). “[D]ue process [also] requires that a hearing b e held w henever evidence raises a sufficient doubt about the menta l competency of an accused to stand trial.” Griffin v. Lockhart , 935 F.2d 926, 9 29 (8th Cir. 1991) (footnote omitted). “[This ‘procedural ’ compet ency] principle operates as a safeguard to ensure that th e [`subs tantive' competency] principle is not violated.” Id. Claim s involving these principles raise similar but distinct issues: the issue in a substantive competency claim is whether the defendant was in fac t competent to stand trial, but the issue in a procedural competency claim is whether the trial court should have conducted a competency hearing

. See, e.g., Sheley v. Singletary , 955 F.2d 1434, 1438 (11th Cir. 1992) ; Unit ed States v. Day , 949 F.2d 973, 982 (8th Cir. 1991). “A denial o f either of these rights may provide the basis for habeas relief.” Weisberg v. Minnesota , 29 F.3d at 1276.

Here, petitioner made a substantive competency claim by alleging tha t he was in fact tried and convicted while mentall y incompetent. The burden of per suasion was on petitioner to show that he was incompetent by a preponderance of the evidence. See, e.g., Medina v. Singletary , 59 F.3d at 1106; Branscomb v. Norris , 47 F.3d 258, 261 (8th Cir.) (noting that , absent some contrary indication, state and federal trial judges may presum e defendants are competent), cert. denied , 115 S. Ct. 2260 (1995). We revie w the dis trict court’s competency finding for clear error. Weisberg v

. Min nesota , 29 F.3d at 1278. “Retrospective determinations of whether a defendant is competent to stand trial . . . are strongly disfavored.” Id. The test for determining competence to stand trial is whether the defendan t has “a sufficient present ability to consult wit h his [or her] lawyer with a reasonable degree of rational understanding--a nd whether [the defendant] has a rational as well as factual understanding of the proceedings against him [or her].” Dusky v. United States , 362 U.S. 402, 402 (1960).

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“Al though there are no facts which invariably create a sufficient doub t about a defendant’s competency, attention should be paid to any evidence of [the defendant’s] irrational behavior, [the defendant’s] demeanor befor e the trial court, avai lable medical evaluations, and whether trial counsel questioned the defendant’s competency before the court.” United States v. Day , 949 F.2d at 982 (discussing “sufficient doubt” in context o f pr ocedural competency claim). “‘[N]ot every manifestation of menta l illness de monstrates incompetence to stand trial . . . .’ Similarly , neither low intelligence, mental deficiency, nor bizarre, volatile, an d irrati onal behavior can be equated with mental incompetence to stan d trial.” Medina v. Singletary , 59 F.3d at 1107 (citations omitted)

. “Tr eatment with anti-psychotic drugs does not per se render a defendan t incompetent to stand trial.” Sheley v. Singletary , 955 F.2d at 1438.

We h ave carefully reviewed the record and we hold the distric t court’ s finding that there was insufficient doubt as to petitioner’ s competence to stand trial is not clearly erroneous. The record supports the district court’s finding that petitioner understood the nature of the pro ceedings and the charges against him and was able to assist hi s attorneys and consult with them with a degree of rational understanding. As noted by the district court, petitioner’s history of mental illness , including his treatme nt with anti-psychotic medication, was substantially offset by petitioner’s extensive and effective communication with hi s attorneys before, during and after trial, his de meanor during trial and as
a witness , his failure to tell his trial attorneys about his menta l conditi on during trial, and the opinion of his doctor (petitioner wa s psychotic in November 1988 and in March 1990, but the doctor could no t speculate as to petitioner’s competence at time of trial).

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INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner also argues the district court erred in finding that he did no t receive ineffective assistance of counsel because his tria l attorneys did not request a competency hearing. Petitioner argues hi s trial attorneys failed to adequately investigate his competence even thoug h they knew he had a hi story of mental illness and had been hospitalized in Novemb er 1988. Petitioner also argues his trial attorneys improperl y rel ied on their own assessments of his competence, assessments which h e argues were especially unreliable given the elusive nature of bi-pola r affective disorder. The government argues the trial attorneys’ performanc e
was no t deficient under the circumstances, particularly in light o f petitioner’s behavior and demeanor before and during the trial and hi s failur e to tell them about his allegedly deteriorating mental conditio n during trial. The government also argues that petitioner failed to show that his understanding of the nature of the proceedings and the charge s against him or his ability to assist or consult with his attorneys wa s compromised by his alleged incompetence.

In ord er to prove ineffective assistance of counsel, a petitione r must show deficient performance, that is, “counsel’s representation fell below an objective standard of reasonableness,” and actual prejudice, that is , “a reasonable probability that, but for counsel’s unprofessiona l
errors , the result of the proceeding would have been different. ” Stri ckland v. Washington , 466 U.S. 668, 688, 694 (1984). “[A] cour t deciding an actual ineffective-ness claim must j udge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct.” Id. at 690. “[T]he court shoul d recogn ize that counsel is strongly presumed to have rendered adequat e assistance and made all significant decisions in the exercise of reasonabl e profes sional judgment.” Id. "[S]trategic choices made after thoroug h investigation of law and facts relevant to plausible

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options are virtually unchallengeable . . . .” Id. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision tha t makes particular investigations unnecessary.” Id. at 691. “The failure of trial counsel to r equest a competency hearing where there was evidence raising a substantial doubt about a petitioner’s competence to stand trial may constitute ineffe ctive assistance of counsel.” Speedy v. Wyrick , 702 F.2d 723, 726 (8th Cir. 1983).

We agree with the district court that petitioner's trial attorneys acted reasonably in not requesting a competency hearing. The tria l attorneys made a reasonable investigation of pet itioner’s mental condition under the circumstances. They discussed the Nov ember 1988 hospitalization with petitioner, obtained petitioner’s medical r ecords, asked petitioner’s doctor about petition er’s condition and his ability to return to work and to lead a normal life after hospitalization, and had a psychologist consul t with petitioner in pr eparing for trial. They had worked extensively with petitioner during trial preparation and had observed his demeanor during the trial, including his performance as a trial witness, and had no t observed or experienced anything which made them question his competence to stand trial. The district court did not credit petitioner’s testimony that h e told attorney Riley about his allegedly deteriorating menta l condition during trial. The description by petitioner's trial attorneys of petitioner's behavior and demeanor as unexceptional during the trial wa s corroborated by the trial judge, the prosecuting attorney, the case agent, and the trial attorne ys who represented petitioner’s co-defendants. They testif ied at the evidentiary hearing that petitioner appeared to b e rational and alert and acted appropriately during the trial.
Accordingly, we affirm the order of the district court.

### -9- A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.