USCA11 Case: 21-14226 Document: 48-1 Date Filed: 12/14/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14226
Non-Argument Calendar
____________________
CHRISTOPHER G. DICKERSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket Nos. 6:20-cv-00263-PGB-GJK,
6:17-cv-00123-PGB-GJK-1
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2 Opinion of the Court 21-14226
____________________
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit
Judges.
PER CURIAM:
Christopher Dickerson, a federal prisoner, appeals the dis-
trict court’s denial of his pro se
28 U.S.C. § 2255 motion to vacate
his sentence. We granted a certificate of appealability (“COA”) on
one issue: whether the district court erred by rejecting Dickerson’s
Claim 6, that his trial counsel performed ineffectively by failing to
request a full evaluation or competency hearing prior to trial, with-
out an evidentiary hearing. We also appointed counsel. On appeal,
Dickerson argues that given the evidence in the record of his men-
tal health issues, an objectively reasonable defense counsel would
have called into question his ability to understand the nature of the
proceedings against him. Thus, he reasons, the district court erred
by failing to conduct an evidentiary hearing on his claim that his
counsel provided ineffective assistance by failing to have his com-
petency evaluated prior to trial and sentencing.
When reviewing the denial of a § 2255 motion, we review
the district court’s factual findings for clear error and questions of
law de novo. Rhode v. United States,
583 F.3d 1289, 1290 (11th Cir.
2009). We liberally construe pro se filings, “including pro se appli-
cations for relief pursuant to § 2255.” Winthrop-Redin v. United
States,
767 F.3d 1210, 1215 (11th Cir. 2014). We review for an abuse
of discretion the denial of an evidentiary hearing in a motion to
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21-14226 Opinion of the Court 3
vacate a sentence under § 2255. Id. “A district court abuses its dis-
cretion if it applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures in
making a determination, or makes findings of fact that are clearly
erroneous.” Id. (quotation marks omitted).
A prisoner in federal custody may move to vacate, set aside,
or correct his sentence pursuant to § 2255 “claiming the right to be
released upon the ground that the sentence was imposed in viola-
tion of the Constitution or laws of the United States.”
28 U.S.C.
§ 2255(a). Section 2255 states that the district court “shall” hold a
hearing on a § 2255 motion “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled
to no relief.” Id. § 2255(b). “A petitioner need only allege—not
prove—reasonably specific, non-conclusory facts that, if true,
would entitle him to relief.” Winthrop-Redin, 767 F.3d at 1216
(quotation marks omitted). A petitioner is not entitled to an evi-
dentiary hearing if his “allegations are patently frivolous, based
upon unsupported generalizations, or affirmatively contradicted
by the record.” Id. (quotation marks omitted). Although we gen-
erally prefer that a district court hold an evidentiary hearing, we
have affirmed a district court’s denial of a § 2255 motion where the
movant failed to show that counsel’s alleged deficient performance
prejudiced him. See Rosin v. United States,
786 F.3d 873, 879 (11th
Cir. 2015).
To be competent to stand trial, a defendant must have “suf-
ficient present ability to consult with his lawyer with a reasonable
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4 Opinion of the Court 21-14226
degree of understanding—and whether he has a rational as well as
factual understanding of the proceedings against him.” Lawrence
v. Sec’y, Fla. Dep’t of Corr.,
700 F.3d 464, 480-81 (11th Cir. 2012)
(quotation marks omitted). A petitioner is not entitled to a pre-
sumption of incompetency and must demonstrate his incompe-
tency by a preponderance of the evidence.
Id. at 481. “[T]he stand-
ard of proof is high,” and the facts must “positively, unequivocally
and clearly generate the legitimate doubt.” Card v. Singletary,
981
F.2d 481, 484 (11th Cir. 1992) (quotation marks omitted).
In Brumfield, the Supreme Court concluded that a prisoner’s
IQ score of 75 was “squarely in the range of potential intellectual
disability.” Brumfield v. Cain,
576 U.S. 305, 315 (2015). The Court
held that a state post-conviction court’s determination that the IQ
score demonstrated that the prisoner could not possess subaverage
intelligence constituted an unreasonable determination of the
facts.
Id. at 314.
The Sixth Amendment gives criminal defendants the right
to effective assistance of counsel. U.S. Const., amend. VI. A de-
fendant is entitled to the effective assistance of counsel not only
during the guilt or innocence phase of a criminal trial, but also dur-
ing sentencing, resentencing, and on direct appeal. See Strickland
v. Washington,
466 U.S. 668, 686 (1984). To establish ineffective
assistance of counsel, a petitioner must show that (1) his attorney’s
performance was deficient, and (2) the deficient performance prej-
udiced his defense.
Id. at 687. Failure to establish either prong of
the Strickland test is fatal and makes it unnecessary for us to
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21-14226 Opinion of the Court 5
consider the other.
Id. at 697. Deficient performance “requires
showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”
Id. It is presumed that a petitioner’s counsel acted
competently, and the petitioner must prove that his attorney’s rep-
resentation was unreasonable under prevailing professional norms.
Chandler v. United States,
218 F.3d 1305, 1314 n.15 (11th Cir. 2000)
(en banc). To make such a showing, a defendant “must establish
that no competent counsel would have taken the action that his
counsel did take.”
Id. at 1315. Prejudice occurs when there is a
“reasonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694.
We consider whether a reasonable attorney should have
been on notice that a competency evaluation was necessary when
determining if he rendered ineffective assistance by failing to obtain
one. See Devier v. Zant,
3 F.3d 1445, 1451 (11th Cir. 1993). An
attorney’s decision not to pursue a claim of incompetency does not
amount to prejudice unless a petitioner can raise a real, substantial,
and legitimate doubt as to his mental competency at the time of
trial. Adams v. Wainwright,
764 F.2d 1356, 1367 (11th Cir. 1985),
abrogated on other grounds as recognized in Granda v. United
States,
990 F.3d 1272 (11th Cir. 2021). Evidence of incompetence
“must indicate a present inability to assist counsel or understand
the charges.” Medina v. Singletary,
59 F.3d 1095, 1107 (11th Cir.
1995). Absent evidence of such an inability, evidence of low
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6 Opinion of the Court 21-14226
intelligence, mental deficiency, bizarre, volatile, or irrational be-
havior, or the use of anti-psychotic drugs is not sufficient to show
incompetence to stand trial.
Id.
“[U]nder certain circumstances, trial counsel’s failure to ap-
prise the court of a client’s changing mental state—thereby depriv-
ing the court of critical information regarding its own potential
duty to hold a [competency] hearing—can constitute ineffective as-
sistance.” Johnston v. Singletary,
162 F.3d 630, 635 (11th Cir. 1998).
To establish deficient performance in this context, a defendant
must show that his counsel failed to bring information raising a
bona fide doubt regarding his competency to the trial court’s atten-
tion when every reasonable attorney would have done so. See Al-
len v. Sec’y, Fla. Dep’t of Corr.,
611 F.3d 740, 751 (11th Cir. 2010).
Further, to establish prejudice, he must show that “there was a rea-
sonable probability that he would have received a competency
hearing and been found incompetent had counsel requested the
hearing.” Lawrence, 700 F.3d at 479.
Here, the district court abused its discretion in denying Dick-
erson’s ineffective-assistance claim without holding an evidentiary
hearing. The district court was required to hold an evidentiary
hearing on Dickerson’s motion because the record did not conclu-
sively show that he was entitled to no relief. See
28 U.S.C. §
2255(b). In his motion, Dickerson alleged that counsel was ineffec-
tive for not requesting a competency hearing because: his IQ was
below 60; he was “mentally retarded with a non-violent abnormal
behavioral attitude and personality”; he could not read or write at
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21-14226 Opinion of the Court 7
a normal level; and it would have been obvious that he suffered
from serious mental disorders if he was evaluated by a mental
health professional. Since Dickerson filed his § 2255 motion pro se,
his motion was entitled to liberal construction. See Winthrop
Redin, 767 F.3d at 1215. If true, these facts, as liberally construed,
would arguably entitle Dickerson to relief. Id. at 1216.
The district court concluded that nothing in the record sup-
ported a finding that Dickerson did not have the ability to consult
with his lawyer with a reasonable degree of rational understanding.
However, the only thing that the district court could point to in the
record was Dickerson’s response of “Yes, sir” when asked whether
it was his decision not to testify on his own behalf and whether he
consulted with his counsel about that decision. Based on that one
statement, the district court concluded that Dickerson “was able to
understand and communicate with the Court” and thus failed to
demonstrate that his trial counsel was deficient for failing to re-
quest a competency evaluation. However, it is unclear what evi-
dence Dickerson could have cited because counsel did not raise the
competency issue and thus no competency hearing was held. Re-
garding the deficient performance prong of the Strickland analysis,
Dickerson needed to demonstrate that “no competent counsel”
would have declined to request a competency evaluation. Freixas,
332 F.3d at 1319-20. To make that showing, Dickerson needed an
evidentiary hearing to ask Dickerson’s counsel what he knew re-
garding Dickerson’s competency throughout the course of the rep-
resentation and why he did not request a competency evaluation.
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8 Opinion of the Court 21-14226
Further, the record does contain evidence detailing Dicker-
son’s limited mental capacity. For example, Dickerson’s sister in-
formed the probation officer that Dickerson was unable to work
for his entire adult life and had been on disability since he was a
child because of his mental issues. She confirmed that Dickerson
had suffered from various mental health issues throughout his
childhood, took medication, and attended counseling. The PSI also
indicated that Dickerson had a limited, alternative education be-
cause of mental health issues throughout his childhood. Dickerson
noted in his sentencing memorandum that he suffered from learn-
ing disabilities and had collected disability payments for most of his
life. Similarly, at the sentencing hearing, Dickerson’s counsel ar-
gued in mitigation that he had a “limited education” and was on
“disability for the majority of his life” because of his mental health
issues. Dickerson’s sister also testified that he “always had diffi-
culty” in school and required special attention because of his men-
tal issues.
Moreover, if Dickerson’s allegations are true regarding his
IQ and inability to read or write, his counsel arguably should have
been on notice that a competency evaluation was necessary. See
Devier,
3 F.3d at 1451. Presumably, Dickerson’s inability to read
various legal documents presented to him by his counsel would
have been discovered early in the attorney-client relationship.
Also, the Supreme Court has indicated that an IQ of 75 is “squarely
in the range of potential intellectual disability.” Brumfield, 576 U.S.
at 315. If Dickerson’s IQ truly is below 60 as he claims, that would
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21-14226 Opinion of the Court 9
have raised serious doubts as to his ability to understand the nature
of the proceedings against him. See Medina, 59 F.3d at 1107. Dick-
erson’s allegations, if true, support a claim that Dickerson’s counsel
rendered ineffective assistance in deciding not to request a compe-
tency evaluation. See Devier,
3 F.3d at 1451. Additionally, it is
unclear whether Dickerson was prejudiced by his trial counsel’s de-
cision to not pursue an evaluation or competency hearing because
the district court denied his request to hold an evidentiary hearing
on the § 2255 claim where those problems could have been ad-
dressed. See Lawrence, 700 F.3d at 479.
We conclude that the record does not conclusively show
that Dickerson is not entitled to relief on his ineffective assistance
of counsel claim. Accordingly, we vacate the district court’s order
and remand for an evidentiary hearing on Dickerson’s ineffective-
assistance claim.
VACATED AND REMANDED.
