### The Hon. George F. Gunn, Jr., United States District Judg e 1 

### for the Eastern District of Missouri, adopting the report an d re commendation of the Hon. Terry I. Adelman, United State s Magistrate Judge for the Eastern District of Missouri. _____________ No. 95-4188EM

_____________ Arvin J. Garrett, * * Appellant, * * On Appeal from the United v. * States District Court * for the Eastern District * of Missouri Michael Groose, * * Appellee. *

___________ Submitted: September 11, 1996 Filed: November 1, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

___________ RICHARD S. ARNOLD, Chief Judge.
Arvin Garrett appeals the dismissal of his second habeas corpu s pe tition by the District Court. The Court dismissed two of his fou r 1 proffered grounds for relief as successive and two as abusive. We hol d that petit ioner has not met the requirements necessary to allow us t o consider this successive petition on its merits. Therefore, we affirm.

### Garrett was at the time serving a life sentence for another 2 

### murder for which he had been convicted in 1977. -2- I.
Arvin Garrett was convicted in 1978 of the first degree murder o f Ja mes Bundy. The Court sentenced him to life imprisonment withou t 2 possibilityof parole for 50 years. After an unsuccessful appeal of the guilty verdict, State v. Garrett , 595 S.W.2d 422 (Mo. App. 1980), Garrett brough t his initial federal habeas corpus action, which was rejected
. Garrett v. Armontrout , No. 85-2168-C(2) (E.D. Mo. 1985), aff'd , No. 86-228 2 (8th Cir., Oct. 21, 1986). In 1990, Garrett sou ght post-conviction relief in state court, but again had no success. Garrett v. State , 814 S.W.2d 32 5 (Mo. App. 1991). He then, in 1995, filed this action in the Distric t Court. The Court denied relief without an evide ntiary hearing, dismissing two of Garrett's claims as successive and two as abusive. Garrett v
. Groose , No. 4:95CV00758 (E.D. Mo., Oct. 4, 1995).

Garrett a dvanced four grounds for relief in his petition to th e Dis trict Court. He contended first that his confession was involuntar y beca use of his diminished mental capacity. He also claimed that hi s conviction was obtained through a violation of his right not to incriminat e himself, again becaus e his diminished mental capacity impeded his ability to recogn ize his rights. He asserted that the trial court's failure t o sequester the jury and notify him of the nature of the charges violated hi s equal-protection rights. Finally, he argued that his trial, appellate, an d state post-conviction counsel were ineffective. Recognizing that he faced a higher hurdle on hi s second petition, Garrett offered mental incapacity
as an excuse providing the cause that a repeat petitioner must show t o avoid hav ing his claim dismissed. He offered to present as evidence i n support of this claim the fact that drugs were being administered to him while in prison to treat

### Gar rett claims he was being treated with Mellaril an d 3 

### Thorazine. Mellaril is used to treat adults for depression an d anxiety. Thorazine is used to control manic depression and som e psychotic disorders. Drugs of these types have, in rare ins tances, been associated with temporary psychosis. See Physicians' Des k Reference 2269-71, 2523-25 (50th ed. 1996). Garrett claimed in his state post-conviction proceeding that he had been taking Mellaril and Thorazine at the time of his trial. His tr ial lawyer, however, noted that Garrett appeared perfectl y competent when the two conferr ed prior to and during trial. As no questi onarose about his competency to stand trial, no pretria l motion f or a mental examination was made. See Garrett v. State , 814 S.W.2d at 327-28. Garrett 's lawyer unsuccessfully moved for a mental examination after the g uilty verdict and before sentencing. See State v. Garrett , 595 S.W.2d at 433-34. -3- his anti -social personality disorder. Garrett argued that the menta l 3 illness prevented him from developing fully the claims he made previously, and from realizing the existence of the claims he failed to make.

II. In general, second or successive petitions for writs of habeas corpus must be dismissed unless the petitioner can show both cause and prejudice

- cause, for example, justifying his failure to raise certain claims in an earlie r petition, and prejudice resulting from those claims' not havin g beenraised and decided earlier. See, e.g. , Washington v. Delo , 51 F.3d 756, 760 (8th Cir.), cert. denied , 116 S. Ct. 205 (1995). Under certain narrowlylimited circumstances, a petitioner might be able to show that, at the ti me of a previous filing, he had been suffering from a menta l disorder so severe that it was impossible for hi m to understand the papers filed on his behalf or to make rational decisions about what claims t o include in them. We have said, for example, that "[a] conclusive showing of incompetence is required before mental illness can constitute cause." Nachtigall v. Class , 48 F.3d 1076, 1081 (8th Cir. 1995). "Mental illness and legal incompetenc e are not identical, nor are all mentally ill people legally

### -4-

incompetent." Ibid.

Evenif petitioner's allegations in the present case meet thi s standard, which we doubt, he cannot succeed, bec ause the state courts have already found him competent, and this finding is entitled to a presumption of correctness under 28 U.S.C. § 2254(d)(8). Defendant has been contendin g ever since 1978 that he was suffering from mental infirmity and was being treated with Thorazin e and Mellaril. His motion for a mental examination befo re sentencing was denied, and this action was affirmed on direc t appeal
. State v. Garrett , supra , 595 S.W.2d at 433-34. The opinio n reject ing petitioner's contentions in this regard was filed in 1980
. Later, when petitioner applied for post-conviction relief in the stat e courts, an evidentiary hearing was held. The lawyer who had represented petitioner at trial testified that he had no problems with petitioner in prepa ring the case, that petitioner was competent, that he was able t o assist i n his own defense, and that he did ably assist counsel. Post

conviction relief was denied. The Missouri Court of Appeals said: "The testimonyof movant's lawyer, which the motion court obviously believed, est ablished there was no indication movant had any mental affliction o r that the medication impaired his mental acuity." Garrett v. State , supra , 814 S.W.2d at 328.
We have no reason to doubt these fin dings. They certainly establish that petitioner was competent and able to assist in his own defense at the time of t he trial. It appears from papers filed by petitioner in th e District Court in the instant case that the mental condition he now allege s is pre cisely the same as the impairment that he claimed in the stat e courts. N o facts are alleged to indicate that his condition worsene d betw eenthe time of his trial in the state court and the filing of hi s first habeas petition. Criminal law presumes that individuals ar e competent, see Smith v. Armontrout , 865 F.2d 1502, 1506 (8th Cir. 1988) (e n banc) (subsequent history omitted), and a finding of competence,

### -5-

once made, continues to be presumptively correct until some good reason to doubt it is presented. Nothing like this has occurred in the present case
.
We hold, therefore, that petitioner's allegation of cause, whe n cons idered in the context of the state-court records in his case, i s legall yinsufficient. The District Court was therefore correct i n dismissing his second petition for writ of habea s corpus, and the judgment is
Affirmed.
A true copy.

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