[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 12611

Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus JARVIS WAYNE MADISON,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:17

- cr

- 00015

- RBD

- LRH

- 1

____________________ USCA11 Case: 21-12611 Date Filed: 09/19/2022 Page: 1 of 62 Opinion of the Court 21

- 12611

Before W ILSON , J ORDAN , and B LACK , Circuit Judges.

PER CURIAM:Jarvis Madison, a federal prisoner counseled on appeal, appeals the district court's finding he was competent to stand trial before he ple a d ed guilty to interstate stalking, in violation of
18 U.S.C. §§ 2261a and 2261(b). Madis on contends the district court erred when it limited its competency analysis to whether he could consult with his attorneys without considering whether he could rationally or relevantly testify , and that his inability to testify coherently and intelligentl y adversely impacted his ability to assist in his defense.
The G overnment responds by moving for summary affirmance of the district court’s order and to stay the briefing schedule,

a sserting Madison abandoned any challenge to the district court’s accepta nce of his guilty plea, so summary affirmance is warranted. It further contends because Madison does not argue on appeal that the district court erred in determining he was competent to plead guilty at the time he entered his guilty plea, it is irrelevant whether he was incompetent at some time before he ple a d ed guilty. The Due Process Clause of the Fifth Amendment prohibits the G overnment from trying an incompetent defendant. U.S. Const. amend. V ; United States v. Rahim , 431 F.3d 753, 759 (11th
Cir. 200 5). For a defendant to be competent to stand trial, he must have sufficient present ability to consult with his lawyer with a USCA11 Case: 21-12611 Date Filed: 09/19/2022 Page: 2 of 621

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reasonable degree of rational understanding and have a rational and factual understanding of the proceedings against him. Dusky v. United States , 362 U.S. 402 , 402 (1960) . The defendant’s competency is an ongoing inquiry, and he must be competent at all stages of the trial. Rahim , 431 F.3d at 759. A district court must conduct a competency hearing when there is a bona fide doubt regarding the defendant’s competency. Id. The same competency standard applies to a defendant who wishes to plead guilty rather than stand trial. United States v. Rodri guez ., 751 F.3d 1244, 1252 (11th Cir. 2014).

T he district court’s competency determination is primarily factual in nature

. United States v. Izquierdo , 448 F.3d 1269, 127 8 (11th Cir. 2006)

. In Izquierdo
, the record contained expert opinions that differe d in their conclusions about the defendant’s competence

. Id. W e rejected the defendant’s argument the district court erred when it found him competent because there were two permissible views of the evidence. Id. at 1279.

S ummary affirmance is appropri ate because Madison abandoned the issue of whether he was competent to enter his change of plea and plead guilty, as he does not challenge his conviction on appeal based on that ground. See United States v. Jernigan , 341 F.3d 1273, 1283 n. 8 (11th Cir. 2003) (stating an issue on appeal must be plainly and prominently raised in the party ’ s brief, and the brief must devote a discrete, substantial portion of their argument to that issue, or the issue will be deemed abandoned )

. But, even if Madison did not abandon his right to challenge his guilty plea, the USCA11 Case: 21-12611 Date Filed: 09/19/2022 Page: 3 of 64 Opinion of the Court 21

- 12611

G overnment’s position is still correct as a matter of law and summary affirmance is warranted. SeeGroendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969 ) 1 (explaining s ummary disposi tion is appropriate where the position of one of the parties isclearly right as a matter of law so there can be no substantial question as to the outcome of the case )

.First, clear error review applies to the district court’s decision Madison was compet ent to stand trial and competent to enter his guilty plea. See Izquierdo , 448 F.3d at 1276 (reviewing a district court’s decision on a defendant’s competency to stand trial for clear error). The magistrate judge conducted an extensive three

- day competenc y hearing where eight expert witnesses testified regarding Madison’s competency. Although Madison’s and the G overnment’s expert witnesses came to different conclusions about hiscompetency, the district court cannot clearly err when deciding between two p ermissible views of the evidence. See id. at 1278

. Likewise, the magistrate judge thoroughly explained in her report and recommendation (R&R) why she afforded more weight to the
G overnment’s expert witness es ’ opinions over Madison’s expert witnesses, due in part to the frequency and recency of the G overnment’s witnesses’ evaluations of Madison. Additionally, the magistrate judge noted she observed Madison’s behavior and reactions

1 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. USCA11 Case: 21-12611 Date Filed: 09/19/2022 Page: 4 of 621

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at his competency hearings

. S he found he was able to communicate with his attorneys and he responded competently and appropriately to her questions. The district court reviewed the record de

novo , considered the R&R, and concluded Madison was restored to competency and was competen t to stand trial. Accordingly, the district court did not clearly err when it found that Madison was competent to stand trial

. Second, after the district court found Madison competent to stand trial, he entered into a plea agreement with the G overnment. Plain error review applies because Madison did not raise the issue of his competency at his change of plea hearing

. See Rodriguez
, 751 F.3d at 1251 (stating we review for plain error when a defendant fails to object to the district court’s determination that he is competent to plead guilty). Because a defendant’s competency is an ongoing inquiry, and because the district court did not clearly err when it found Madison was competent to stand trial, it did not plainly err when it again inquired into his c ompetency when he changed his plea. At Madison’s change of plea hearing, the district court asked his counsel whether they were concerned about his competency, and counsel stated that Madison was competent and

stat ed they did not wish to further pursue hi s competency. Also, Madison testified under oath he was voluntarily and freely entering the change of plea, he had full knowledge of the consequences, and there was a factual basis upon which the district court could accept the plea. Similarly, the dist rict court noted Madison was alert and intelligent, understood the nature of the charges USCA11 Case: 21-12611 Date Filed: 09/19/2022 Page: 5 of 66 Opinion of the Court 21

- 12611
against him and the possible penalties, the consequences of pleading guilty, that his plea was free, knowing, voluntary, and intelligently made, he understood the cour t’s questions and appropriately answered them, he did not exhibit any irrational behavior, and comported himself straightforwardly and professionally

. Because the district court did not err when it accepted Madison’s guilty plea and found him competent at the change of plea hearing, he cannot establish plain error and the G overnment’s position is clearly correct as a matter of law. Thus, the G overnment’s position is clearly correct as a matter of law, no substantial question remains as to the outcome of the case, and summary affirmance is appropriate. See Groendyke Transp., Inc

. , 406 F.2d at 1162

. Therefore, we GRANT the G overnment’s motion for summary affirmance and DENY as moot its motion to stay the briefing schedule. USCA11 Case: 21-12611 Date Filed: 09/19/2022 Page: 6 of 6