*The Honorable Catherine D. Perry, United States

District Judge for the Eastern District of

Missouri, sitting by designation.

 The Honorable Michael J. Melloy, Chief Judge, United States 1

District Court for the Northern District of Iowa. Preliminary

matters were decided by the Honorable John A. Jarvey, Chief

Magistrate Judge, United States District Court for the Northern

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 appeals from a final order entered in the District

Court for the Northern District of Iowa denying his 28 U.S.C. § 2255

1

petition for post-conviction relief on the grounds of incompetence to stand

trial and ineffective assistance of counsel. United States v. Vogt, No.

CR89-0008 (N.D. Iowa May 30, 1995) (opinion and order). For reversal

petitioner argues the district court erred in finding that there was

insufficient doubt as to his
 The Honorable David R. Hansen, now Circuit Judge, United

2

States Court of Appeals for the Eighth Circuit.

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competence to stand trial and that his trial attorneys were not ineffective

in not requesting a competency hearing. For the reasons discussed below,

we affirm the order of the district court. 

BACKGROUND FACTS

In April 1989 a federal grand jury indicted petitioner and four

others and charged them with multiple counts of drug trafficking and

related offenses. Petitioner was found guilty by a jury on all but two

counts. The district court sentenced petitioner to 110 months

2

imprisonment, 5 years supervised release, a fine of $12,500, and a special

assessment of $200. Certain property belonging to petitioner was subjected

to criminal forfeiture. The conviction and sentence were affirmed on

appeal. United States v. Vogt, 938 F.2d 184 (8th Cir. 1991) (table), cert.

denied, 502 U.S. 1092 (1992). 

In November 1992 petitioner filed the present § 2255 petition

asserting numerous grounds for relief. The magistrate judge recommended

that the district court deny relief on all but two claims and hold an

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 competency

hearing. The district court agreed with the recommendation of the

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-defendants, various jail employees, the government case agent, the

prosecuting attorney, and the trial judge. In addition, the district court

also considered the transcripts 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 trial

attorneys. 

The district court found that petitioner had failed to produce

sufficient evidence of mental incompetence to warrant a competency hearing

or new trial. Slip op. at 9-13. The district court found that there was

“no reason to doubt [petitioner]’s competency at trial” despite his prior

hospitalization for bi-polar affective disorder in November 1988, his

behavior in April-May 1989, his doctor’s note in October 1989 referring to

a return of the kind of problems he had in November 1988, his mental

condition during trial, his post-trial psychotic condition in March 1990,

and subsequent prison hospitalization for psychiatric treatment. Id. at

9. The district court 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, during and after trial, and

at sentencing. Id. at 10. The district court also found that petitioner’s

trial attorneys acted reasonably in not requesting a competency hearing in

view of petitioner’s extensive assistance before and during trial, his

demeanor at trial and his performance as a witness. Id. at 13-14. The

district court noted that the trial attorneys knew about petitioner’s

November 1988 hospitalization and had questioned petitioner’s doctor about

petitioner’s likely prognosis (the doctor told defense counsel that

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 trial attorneys about his mental condition during trial.

Id. The district court denied the § 2255 petition and this appeal

followed. 

COMPETENCY TO STAND TRIAL

As a preliminary matter, we reject the government’s argument that

petitioner has waived or defaulted on his mental incompetency claim because

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 innocence

or that a fundamental miscarriage of justice would occur if his claim were

not considered) in order to excuse the procedural default. “[T]he

procedural default rule . . . does not operate to preclude a defendant who

failed to request a competency hearing at trial or pursue a claim of

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) (citing

Pate v. Robinson, 383 U.S. 375, 384 (1966) (noting that it is contradictory

to argue that a defendant may be incompetent and yet knowingly or

intelligently waive right to have the court determine capacity to stand

trial)), cert. denied, 474 U.S. 1073 (1986). 

Petitioner argues the district court erred in finding that there was

insufficient doubt about his competence to stand trial. Petitioner argues

his history of mental problems established a sufficient doubt about his

competence to stand trial--his psychiatric hospitalization in November

1988, his diagnosis of bi-polar affective disorder and continued

psychiatric treatment, including the prescription of anti-psychotic

medication, his erratic behavior and deteriorating mental condition before

and during trial, and his psychotic condition and psychiatric

hospitalization after sentencing. He also argues the district court erred

in considering his demeanor at trial as evidence of competency because

persons with bi-polar affective disorder could be mentally impaired but

appear to be normal. The government argues the district court’s finding

that petitioner failed to present facts sufficient to create the requisite

“sufficient doubt” about his competence to stand trial is not clearly

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.3d

1095, 1106-07 (11th Cir. 1995), cert. denied, 1996 WL 163786 (No. 95-8394)

(U.S. June 10, 1996). “[D]ue process [also] requires that a hearing be

held whenever evidence raises a sufficient doubt about the mental

competency of an accused to stand trial.” Griffin v. Lockhart, 935 F.2d

926, 929 (8th Cir. 1991) (footnote omitted). “[This ‘procedural’

competency] principle operates as a safeguard to ensure that the

[`substantive' competency] principle is not violated.” Id. Claims

involving these principles raise similar but distinct issues: the issue

in a substantive competency claim is whether the defendant was in fact

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);

United States v. Day, 949 F.2d 973, 982 (8th Cir. 1991). “A denial of

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 that

he was in fact tried and convicted while mentally incompetent. The burden

of persuasion 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 presume

defendants are competent), cert. denied, 115 S. Ct. 2260 (1995). We review

the district court’s competency finding for clear error. Weisberg v.

Minnesota, 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 defendant

has “a sufficient present ability to consult with his [or her] lawyer with

a reasonable degree of rational understanding--and 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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“Although there are no facts which invariably create a sufficient doubt

about a defendant’s competency, attention should be paid to any evidence

of [the defendant’s] irrational behavior, [the defendant’s] demeanor before

the trial court, available 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 of

procedural competency claim). “‘[N]ot every manifestation of mental

illness demonstrates incompetence to stand trial . . . .’ Similarly,

neither low intelligence, mental deficiency, nor bizarre, volatile, and

irrational behavior can be equated with mental incompetence to stand

trial.” Medina v. Singletary, 59 F.3d at 1107 (citations omitted).

“Treatment with anti-psychotic drugs does not per se render a defendant

incompetent to stand trial.” Sheley v. Singletary, 955 F.2d at 1438. 

We have carefully reviewed the record and we hold the district

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

proceedings and the charges against him and was able to assist his

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 treatment with anti-psychotic medication, was substantially

offset by petitioner’s extensive and effective communication with his

attorneys before, during and after trial, his demeanor during trial and as

a witness, his failure to tell his trial attorneys about his mental

condition during trial, and the opinion of his doctor (petitioner was

psychotic in November 1988 and in March 1990, but the doctor could not

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 not receive ineffective assistance of counsel because his trial

attorneys did not request a competency hearing. Petitioner argues his

trial attorneys failed to adequately investigate his competence even though

they knew he had a history of mental illness and had been hospitalized in

November 1988. Petitioner also argues his trial attorneys improperly

relied on their own assessments of his competence, assessments which he

argues were especially unreliable given the elusive nature of bi-polar

affective disorder. The government argues the trial attorneys’ performance

was not deficient under the circumstances, particularly in light of

petitioner’s behavior and demeanor before and during the trial and his

failure to tell them about his allegedly deteriorating mental condition

during trial. The government also argues that petitioner failed to show

that his understanding of the nature of the proceedings and the charges

against him or his ability to assist or consult with his attorneys was

compromised by his alleged incompetence. 

In order to prove ineffective assistance of counsel, a petitioner

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 unprofessional

errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “[A] court

deciding an actual ineffective-ness claim must judge 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 should

recognize that counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. "[S]trategic choices made after thorough

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 that

makes particular investigations unnecessary.” Id. at 691. “The failure

of trial counsel to request a competency hearing where there was evidence

raising a substantial doubt about a petitioner’s competence to stand trial

may constitute ineffective 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 trial

attorneys made a reasonable investigation of petitioner’s mental condition

under the circumstances. They discussed the November 1988 hospitalization

with petitioner, obtained petitioner’s medical records, asked petitioner’s

doctor about petitioner’s condition and his ability to return to work and

to lead a normal life after hospitalization, and had a psychologist consult

with petitioner in preparing 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 not

observed or experienced anything which made them question his competence

to stand trial. The district court did not credit petitioner’s testimony

that he told attorney Riley about his allegedly deteriorating mental

condition during trial. The description by petitioner's trial attorneys

of petitioner's behavior and demeanor as unexceptional during the trial was

corroborated by the trial judge, the prosecuting attorney, the case agent,

and the trial attorneys who represented petitioner’s co-defendants. They

testified at the evidentiary hearing that petitioner appeared to be

rational and alert and acted appropriately during the trial. 

Accordingly, we affirm the order of the district court.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.