Hull v. Kyler ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-25-1999
    Hull v. Kyler
    Precedential or Non-Precedential:
    Docket 97-7551
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    Recommended Citation
    "Hull v. Kyler" (1999). 1999 Decisions. Paper 233.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/233
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    Filed August 23, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 97-7551
    LARRY GENE HULL, Appellant
    v.
    KENNETH KYLER, Superintendent;
    PA ATTORNEY GENERAL
    On Appeal From the United States District Court
    For the Middle District of Pennsylvania
    (D.C. Civ. No. 97-cv-00353)
    District Judge: Honorable Malcolm Muir
    Argued: July 13, 1999
    Before: BECKER, Chief Judge, ROTH, and RENDELL,
    Circuit Judges.
    (Filed: August 23, 1999)
    JAMES V. WADE, ESQUIRE
    (ARGUED)
    Federal Public Defender
    Middle District of Pennsylvania
    100 Chestnut Street, Suite 306
    Harrisburg, PA 17101
    Counsel for Appellant
    JOHN F. NELSON, ESQUIRE
    (ARGUED)
    Office of District Attorney
    Franklin County Court House
    157 Lincoln Way East
    Chambersburg, PA 17201
    Counsel for Appellees
    OPINION OF THE COURT
    BECKER, Chief Judge.
    This habeas corpus case is before us for the third time.
    Twenty years ago, petitioner Larry Gene Hull was convicted
    of first-degree murder in a Pennsylvania state court and
    sentenced to life imprisonment. For the past thirteen years,
    Hull has sought to have that conviction overturned on the
    ground that he received ineffective assistance of counsel at
    a pretrial competency hearing. Although the state courts
    have rejected his ineffectiveness claim, we have held that
    his counsel's performance was constitutionally deficient.
    See Hull v. Freeman, 
    932 F.2d 159
    , 168-69 (3d Cir. 1991)
    ["Hull I"]. However, we have also held that Hull procedurally
    defaulted this claim. See Hull v. Freeman, 
    991 F.2d 86
    , 90
    (3d Cir. 1993) ["Hull II"]. The primary issues in the present
    appeal are whether the Pennsylvania courts have waived
    Hull's procedural default, and whether, if they have, he has
    demonstrated that his counsel's deficient performance was
    prejudicial under Strickland v. Washington, 
    466 U.S. 668
    (1984).
    For the reasons that follow, we conclude that the
    Pennsylvania courts have waived Hull's procedural default
    and that he thus may bring his claim in federal court. We
    also conclude that Hull was prejudiced by his counsel's
    failure to present any of the numerous pieces of available
    evidence regarding his competency or to challenge the
    government's single witness at his short competency
    hearing. We will therefore reverse the judgment of the
    District Court and remand the case with directions to issue
    a writ of habeas corpus conditioned on Hull's being retried
    2
    by the Commonwealth. Of course, before new criminal
    proceedings may be commenced against Hull, the
    Pennsylvania courts must determine that he has regained
    his competency to be tried.
    I. Procedural History
    The procedural history of this case is long and
    convoluted. We recite it in detail, given its importance to
    the first issue before us--procedural default.
    A. The Initial State Proceedings
    On February 26, 1975, Hull was charged with murder in
    Franklin County, Pennsylvania. On March 7, 1975, he was
    found incompetent to stand trial by the Franklin County
    Court of Common Pleas. At that time, a defendant who
    asserted his incompetence to stand trial in Pennsylvania
    was required to demonstrate by a preponderance of the
    evidence that he was incompetent. See Commonwealth v.
    Kennedy, 
    305 A.2d 890
    , 892 (Pa. 1973). Hull was
    committed to Farview State Hospital until a second
    competency hearing was held on July 31, 1979. By that
    time, the state legislature had altered the burden for a
    defendant asserting his incompetency to proof by"clear and
    convincing evidence." See Pa. Stat. Ann. tit. 50, S 7403(a)
    (West Supp. 1996), amended by Act of July 2, 1996, No.
    77, S 2, 1996 Pa. Laws 481, 482 (requiring proof by a
    preponderance). However, as Hull had already been found
    incompetent in 1975, the burden to prove that he had
    regained his competency was most likely on the
    Commonwealth. See 
    id. S 7403(e)
    (West Supp. 1999)
    (providing that, after an initial finding of incompetency,
    criminal proceedings will resume only "[w]hen the court . . .
    determines that such person has regained his competence
    to proceed").
    At the July 31, 1979, competency hearing, the
    government presented a single witness, Dr. Harry C.
    Stamey, a court-appointed psychiatrist who had examined
    Hull. Dr. Stamey was asked only eleven questions. The first
    nine were preliminary questions regarding Dr. Stamey's
    background, qualifications, and the foundation for his
    3
    opinion. He was then asked what his opinion was"as to
    whether Mr. Hull would be able to understand the nature
    or object of the proceedings against him." App. at 422. He
    answered, "I feel that he could." 
    Id. at 423.
    The final
    question posed to Dr. Stamey asked his opinion "as to
    whether or not Mr. Hull would be able to participate and
    assist in his defense." 
    Id. He answered,
    "At that time I felt
    that he could do so." 
    Id. Presumably, "that
    time" referred to
    the date of his examination of Hull, April 20, 1979, more
    than three months before the competency hearing. Then,
    when the court asked Hull's counsel to cross-examine Dr.
    Stamey, he responded, "We have no questions, Your
    Honor." 
    Id. The record
    does not disclose if the state court considered
    the report that Dr. Stamey had produced, although the
    doctor sent it to the court about three months before the
    hearing. See 
    id. at 441.
    As we discuss in more detail infra
    Part IV.D.1, eight different doctors at Farview had found
    Hull mentally ill and incompetent on numerous occasions
    leading up to the competency hearing. Hull's counsel did
    not present any evidence from these examinations nor did
    he call any of these doctors as witnesses on Hull's behalf.
    Nor did his counsel argue to the trial court that Hull was
    incompetent, despite the prior finding of incompetence in
    1975 and the strong evidence in this regard.
    At the conclusion of the short competency hearing, and
    with the consent of Hull's counsel, the court found Hull
    competent to stand trial. On August 3, 1979, Hull entered
    a general guilty plea to murder. Following a degree-of-guilt
    hearing, the trial court found Hull guilty of first-degree
    murder and imposed a life sentence. Hull appealed his
    conviction, claiming that he could not be guilty offirst-
    degree murder because "he was intoxicated and acting
    under the influence of a mental illness at the time of the
    shooting." Commonwealth v. Hull, 
    435 A.2d 1204
    , 1204 (Pa.
    1981). In a one-paragraph per curiam opinion, the
    Pennsylvania Supreme Court rejected his appeal.
    B. The Initial State Post-Conviction Proceedings
    Hull filed a premature state post-conviction petition in
    January 1981. Following the denial of his motion for
    4
    modification of his sentence, he filed a new state post-
    conviction petition, on July 18, 1986. This petition was
    consolidated with his prior, premature petition. Hull raised
    four issues in his state petition, including the one he
    presses in the current habeas petition--that his trial
    counsel was ineffective for failing adequately to contest the
    issue of his competency to stand trial in 1979. On February
    22, 1988, following two days of hearings in July and
    November of 1987, the Court of Common Pleas rejected all
    of the claims in Hull's post-conviction petition. See
    Commonwealth v. Hull, Crim. No. 101-1975 (Pa. C.P. Ct.
    Feb. 22, 1988). Hull's appeal to Pennsylvania Superior
    Court from the denial of post-conviction relief raised only a
    single issue, the current ineffectiveness claim. On
    September 30, 1988, the Superior Court affirmed the denial
    of relief on this claim. See Commonwealth v. Hull, No. 215
    Harr. 1988 (Pa. Super. Ct. Sept. 30, 1988).
    The Superior Court was the last state court to reach the
    merits of Hull's ineffective-assistance claim. In rejecting this
    claim, the court "reviewed the colloquy which followed the
    guilty plea and [was] impressed with appellant's ability to
    recount in detail his actions and emotions at the time of
    the murder." 
    Id., slip op.
    at 3-4. The court held that this
    "ability" demonstrated that Hull was able to assist his
    counsel and to understand the proceedings against him,
    making his ineffectiveness claim meritless. See 
    id. at 4.
    The
    court added that Hull's trial counsel testified that he failed
    to cross-examine the government's witness or to offer
    independent evidence of Hull's incompetence because of
    "the findings of the court-appointed psychiatrist, his own
    observation of appellant, and appellant's expressed wish to
    be found competent and enter a guilty plea"--and the court
    held that this constituted a reasonable basis for counsel's
    actions. 
    Id. The court
    did not directly address the single
    substantive issue before us, i.e., whether Hull was
    prejudiced by his counsel's deficient performance.
    Following issuance of the Superior Court order, Hull's
    counsel failed to timely file a petition for allowance of
    appeal with the Pennsylvania Supreme Court.1 When he
    _________________________________________________________________
    1. The petition for allowance of appeal is sometimes referred to as a
    petition for allocatur. We use the terms interchangeably.
    5
    learned of his counsel's actions (or lack thereof), Hull filed
    a pro se petition for allowance of appeal nunc pro tunc. The
    Pennsylvania Supreme Court denied Hull's petition, without
    comment, on February 21, 1989. See Commonwealth v.
    Hull, No. 4 M.D. Misc. Dkt. 1989 (Pa. Feb. 21, 1989).
    C. The Initial Federal Habeas Petition
    On May 8, 1989, Hull filed a pro se petition for a writ of
    habeas corpus in the District Court for the Middle District
    of Pennsylvania, pursuant to 28 U.S.C. S 2254. He raised a
    number of issues, including the ineffective-assistance
    claim. Following appointment of counsel and a magistrate
    judge's initial report and recommendations on the other
    (non-competency related) issues, the district court
    remanded for consideration of the ineffectiveness/
    competency claim. The magistrate judge found that Hull
    had exhausted his state remedies, but that the claim did
    not have merit. Hull filed objections to the magistrate
    judge's report, and on July 13, 1990, the district court
    (following de novo review) held that Hull had received
    ineffective assistance of counsel at the 1979 competency
    hearing. The district court issued an order on September
    11, 1990, granting Hull the writ of habeas corpus, and
    remanding the case to the state trial court for a hearing to
    determine Hull's competency to stand trial as of 1979. The
    Commonwealth timely appealed this ruling.
    In Hull I, we reviewed essentially the same two issues
    before us now: whether Hull's ineffectiveness claim was
    procedurally defaulted, and (if it was not) whether he had
    received ineffective assistance of counsel at the 1979
    competency hearing. First, we held that Hull's failure to file
    a timely petition for allowance of appeal from the Superior
    Court's 1988 decision did not constitute a procedural
    default: "Absent a clear and express statement that the
    Pennsylvania Supreme Court based its denial [of Hull's
    petition for allowance of appeal] on a procedural default (to
    wit, untimeliness), we must assume that the Court denied
    Hull's appeal on the merits." Hull 
    I, 932 F.2d at 167
    (emphasis omitted).
    Regarding Hull's substantive claim, we agreed with the
    district court that the first prong of the Strickland
    6
    ineffectiveness test had been met, as his " `counsel's
    representation fell below an objective standard of
    reasonableness.' " 
    Id. at 169
    (quoting 
    Strickland, 466 U.S. at 688
    ). However, we were unable to discern whether the
    district court had reached the second Strickland prong, i.e.,
    that Hull was prejudiced by his counsel's deficient
    performance. We therefore remanded the case to the district
    court for a determination whether Hull had been prejudiced
    by his counsel's failure to cross-examine the government's
    witness or to present a case at the 1979 competency
    hearing. See 
    id. at 170.
    We also made clear that, if the
    district court found that Hull was prejudiced, the proper
    remedy would not be a state hearing to determine Hull's
    competency as of 1979. Rather, the appropriate remedy
    would be the granting of a writ of habeas corpus
    conditioned on the state retrying Hull after it established
    that he had regained his competency to be tried.
    On remand, the district court held two days of hearings,
    in September and October of 1991, on the issue of
    prejudice. On October 18, 1991, the district court issued an
    opinion and order in which it held that the outcome of
    Hull's 1979 competency hearing would not have been
    different if his counsel's performance had not been
    deficient. See Hull v. Freeman, Civ. No. 89-0681 (M.D. Pa.
    Oct. 18, 1991). It therefore denied his petition for a writ of
    habeas corpus. Hull timely appealed to this court.
    In Hull II, we declined to reach the merits of Hull's
    ineffectiveness claim because we concluded, contrary to our
    holding in Hull I, that the claim had been procedurally
    defaulted. We reasoned that two U.S. Supreme Court
    decisions handed down less than two months after Hull I
    compelled the finding that "the Pennsylvania Supreme
    Court's denial without comment of Hull's untimely appeal
    of his state petition was based on procedural default." Hull
    
    II, 991 F.2d at 90
    (citing Coleman v. Thompson, 
    501 U.S. 722
    (1991), and Ylst v. Nunnemaker, 
    501 U.S. 797
    (1991)).
    After holding that Hull's claim was procedurally defaulted,
    we noted that he could still bring his claim in federal court
    if he established cause and prejudice for his procedural
    default. The "cause" that Hull put forth was his post-
    conviction counsel's ineffectiveness in failing tofile a timely
    7
    appeal to the state supreme court, as well as his own
    illiteracy and mental retardation. We rejected these as
    insufficient for establishing "cause" under controlling
    Supreme Court precedent. See 
    id. at 91.
    However, we held
    that "Hull's mental deficiencies, combined with post-
    conviction counsel's failure to file the appeal and failure to
    notify Hull until after the deadline passed, create a
    colorable claim for waiver [of the procedural default] under
    Pennsylvania law." 
    Id. We therefore
    remanded the case to
    the district court with directions to dismiss Hull's habeas
    petition without prejudice, so that he could "attempt to
    establish a basis for waiver in state court, after which he
    may obtain federal habeas review if the Pennsylvania
    Supreme Court rejects his claim on the merits." 
    Id. at 92.
    Because it is important to our analysis of the waiver
    issue, see infra Part III.B, we rescribe our reasoning in Hull
    II regarding Hull's attempt to establish waiver in state
    court:
    Accordingly, we will dismiss Hull's petition without
    prejudice so he may file a state post-conviction petition
    to assert his claim of ineffective assistance of post-
    conviction counsel as a ground for his untimely
    petition for allocatur on his ineffective assistance of
    trial counsel claim. If the Pennsylvania Supreme Court
    rejects Hull's ineffective assistance of post-conviction
    counsel claim, we presume it will deny his petition for
    permission to appeal nunc pro tunc on this basis. It will
    then have ruled based on procedural default and,
    under Coleman, Hull will be barred from federal habeas
    review . . . .
    By contrast, if the Pennsylvania Supreme Court
    upholds Hull's ineffective assistance of post-conviction
    counsel claim, we presume it will grant his petition for
    permission to appeal nunc pro tunc on his ineffective
    assistance of trial counsel claim. The court will then
    either deny or grant Hull's petition for allocatur on his
    ineffective assistance of trial counsel claim. In either
    scenario, the court will be considered to have reached
    the merits of Hull's ineffective assistance of trial counsel
    claim, and thus to have waived his procedural default
    with respect to this claim. If the Pennsylvania Supreme
    8
    Court grants Hull's petition for allocatur, it will in fact
    reach the merits of the ineffective assistance of trial
    counsel claim. If the court denies Hull's petition for
    allocatur, it will be deemed, under the Ylst "look-
    through" rule, to have decided the ineffective
    assistance of trial counsel claim on the same ground as
    the Pennsylvania Superior Court, which rejected it on
    the merits. Thus, in either event, Hull will have
    obtained a determination on the merits of his
    ineffective assistance of trial counsel claim by the
    Pennsylvania Supreme Court, and, necessarily, a ruling
    by that court that it waived Hull's procedural default of
    this claim on the ground he received ineffective
    assistance of post-conviction counsel.
    If the Pennsylvania Supreme Court denies Hull's
    ineffective assistance of trial counsel claim either by
    denying allocatur or by granting allocatur and rejecting
    it on the merits, he may re-file his federal habeas
    petition.
    
    Id. at 93-94
    (footnote omitted) (emphasis added). On May
    21, 1993, following our directive, the district court
    dismissed Hull's habeas petition without prejudice. See Hull
    v. Freeman, Civ. No. 89-0681 (M.D. Pa. May 21, 1993).
    D. The Second State Post-Conviction Proceedings
    On March 16, 1995, Hull returned to the Franklin
    County Court of Common Pleas, and sought leave tofile a
    petition for allowance of appeal nunc pro tunc to the
    Pennsylvania Supreme Court. Finding the issue of hisfirst
    post-conviction counsel's ineffectiveness "rather
    straightforward," the court granted Hull the relief he
    sought, on August 30, 1995. See Commonwealth v. Hull,
    Crim. No. 101-1975 (Pa. C.P. Ct. Aug. 30, 1995). The
    specific relief granted to Hull was as follows:
    [D]efendant is granted leave to file a petition for appeal
    nunc pro tunc to the Supreme Court of Pennsylvania
    from the decision of the Superior Court of Pennsylvania
    dated September 30, 1988, conditioned upon the relief
    granted herein not being inconsistent with the order of
    the Supreme Court dated February 21, 1989.
    9
    
    Id., slip op.
    at 7.
    On September 28, 1995, the Commonwealth filed a
    notice of appeal to the Pennsylvania Superior Court from
    the Common Pleas Court's order. The following day, the
    Common Pleas Court filed an order directing the
    Commonwealth to serve the court with a statement of the
    matters complained of on appeal, pursuant to Pennsylvania
    Rule of Appellate Procedure 1925(b). On October 23, 1995,
    fifty-four days after the Common Pleas Court had issued its
    original order granting Hull the relief he sought, the
    government filed the statement requested by the court. On
    the next day, the Common Pleas Court filed a supplemental
    opinion and order, denying Hull his requested relief, which
    it had granted him fifty-five days before. See Commonwealth
    v. Hull, Crim. No. 101-1975 (Pa. C.P. Ct. Oct. 24, 1995).
    Hull filed a notice of appeal from the Common Pleas
    Court's second order. This appeal and the Commonwealth's
    appeal of the initial Common Pleas Court order were
    consolidated. The parties stipulated that the
    Commonwealth would be designated the appellant for
    purposes of the appeal. The Commonwealth failed tofile its
    brief before the Superior Court, and on January 23, 1996,
    the Superior Court dismissed the consolidated appeal. See
    Commonwealth v. Hull, Nos. 735 & 848 Harr. 1995 (Pa.
    Super. Ct. Jan. 23, 1996). As far as the present record
    reveals, the Commonwealth did not seek reconsideration of
    this dismissal order nor seek review of the dismissal by the
    Pennsylvania Supreme Court.
    Meanwhile, on September 20, 1995, on the basis of the
    initial Common Pleas Court order, Hull filed a petition for
    allowance of appeal nunc pro tunc to the state supreme
    court, in which he raised the ineffective-assistance claim
    that is before us now. On February 29, 1996, the
    Pennsylvania Supreme Court denied without comment
    Hull's petition for allowance of appeal from the Superior
    Court's 1988 decision. See Commonwealth v. Hull, 
    673 A.2d 332
    (Pa. 1996).
    E. The Second Federal Habeas Petition
    Hull filed his present petition for a writ of habeas corpus
    on March 6, 1997. After referral, the Magistrate Judge
    10
    found that Hull's ineffective-assistance claim remained
    procedurally defaulted and that, for the reasons stated in
    the district court's 1991 opinion, Hull had not
    demonstrated that he was prejudiced by his counsel's
    deficient performance at the 1979 competency hearing. On
    October 2, 1997, following Hull's filing of objections (and
    the Commonwealth's failure to file a response), the District
    Court rejected the Magistrate Judge's recommendation
    regarding procedural default, but denied Hull's petition on
    the merits, "for the reasons set forth in [its] opinion and
    order dated October 18, 1991." Hull v. Kyler, No. 4:CV-97-
    353, slip op. at 7 (M.D. Pa. Oct. 2, 1997). Hull filed a timely
    notice of appeal. We have jurisdiction under 28 U.S.C.
    SS 1291 & 2253.
    II. Standard of Review
    Our review of the procedural default issue is plenary. See
    Toulson v. Beyer, 
    987 F.2d 984
    , 986 (3d Cir. 1993). We
    review the District Court's findings of fact regarding Hull's
    substantive claim for clear error. See Government of V.I. v.
    Weatherwax, 
    77 F.3d 1425
    , 1430 (3d Cir. 1996). In the
    1997 order from which Hull appeals, the District Court
    incorporated the findings of fact from its 1991 order
    denying Hull's initial petition. See Hull v. Kyler, No. 4:CV-
    97-353, slip op. at 7. None of the facts relevant to the
    prejudice issue appear disputed. See Hull v. Freeman, Civ.
    No. 89-0681, slip op. at 3-9 (M.D. Pa. Oct. 18, 1991). We
    exercise plenary review over the question whether the facts
    found by the District Court demonstrate prejudice under
    Strickland. See Parrish v. Fulcomer, 
    150 F.3d 326
    , 328 (3d
    Cir. 1998).
    III. Procedural Default
    A. Background
    It is well established that a state prisoner may not seek
    habeas relief in federal court if he has failed to raise the
    alleged error in state court. If state proceedings remain
    available, the claim is not yet exhausted, and the habeas
    petition must be dismissed. See 28 U.S.C. S 2254(b)(1), (c)
    11
    (1994 & Supp. II 1996); Rose v. Lundy, 
    455 U.S. 509
    , 518-
    19 (1982) ("A rigorously enforced total exhaustion rule will
    encourage state prisoners to seek full relief first from the
    state courts, thus giving those courts the first opportunity
    to review all claims of constitutional error."). If state
    avenues of relief, including post-conviction proceedings,
    have been exhausted, but the petitioner has failed to raise
    the alleged grounds for error, the claim is procedurally
    defaulted and may not be raised in federal court. See
    
    Coleman, 501 U.S. at 729-30
    ; Wainwright v. Sykes, 
    433 U.S. 72
    , 81-87 (1977).
    Recently, the Supreme Court made clear that a petitioner
    procedurally defaults a claim if he fails to raise it in a
    discretionary state appeal. See O'Sullivan v. Boerckel, 
    119 S. Ct. 1728
    , 1734 (1999). In Boerckel, the Court
    acknowledged that the Illinois Supreme Court was not
    obligated to hear an appeal in a criminal case, but relied on
    the fact that it might take such an appeal to hold that
    failure to petition for such review constituted procedural
    default. Therefore, Hull's failure to timely petition the state
    supreme court for allowance of appeal on his ineffectiveness
    claim constitutes procedural default.
    A petitioner with a defaulted claim may nonetheless raise
    this claim in federal habeas proceedings if either (1) he can
    demonstrate a valid cause for the default and prejudice
    from the alleged violation of his constitutional rights, see
    
    Coleman, 501 U.S. at 750
    ; 
    Sykes, 433 U.S. at 87
    , or (2) the
    state has waived (or declined to rely on) the procedural
    default, see 
    Ylst, 501 U.S. at 801
    ; Harris v. Reed, 
    489 U.S. 255
    , 262-63 (1989). We have already held that Hull cannot
    meet the first prong of the cause-and-prejudice exception.
    See Hull 
    II, 991 F.2d at 93
    . Therefore, Hull can only bring
    his current claim in federal court if the Pennsylvania courts
    have waived the procedural default of failing to timely file
    an appeal to the state supreme court from the Superior
    Court's denial of his post-conviction claim. As we outlined
    in 
    detail supra
    Part I.C, our decision in Hull II gave Hull the
    opportunity to return to state court to seek such a waiver.
    The first question we must answer in this case is whether
    12
    he obtained this relief in his second trip to state post-
    conviction court.2
    B. Waiver of Hull's Procedural Default
    1.
    We briefly review the relevant events from Hull's two state
    post-conviction proceedings, as these events furnish the
    answer to the initial question. First, on September 30,
    1988, the Pennsylvania Superior Court rejected Hull's
    ineffective-assistance claim on the merits. Hull's counsel
    then failed to timely file a petition for allowance of appeal
    to the state supreme court. Almost seven years later, Hull
    sought, and received, from the Franklin County Court of
    Common Pleas leave to file a petition for allowance of
    appeal nunc pro tunc to the state supreme court from the
    Superior Court's 1988 decision. The leave was granted on
    the basis of his post-conviction counsel's ineffectiveness in
    failing to timely file such a petition originally or to notify
    Hull of this failure in a timely fashion. See Commonwealth
    v. Hull, Crim. No. 101-1975, slip op. at 5-6 (Pa. C.P. Ct.
    Aug. 30, 1995). This leave to file a nunc pro tunc appeal,
    granted by the state court, constituted a waiver of the
    _________________________________________________________________
    2. Before denying Hull's claim on the merits, the District Court rejected
    the Magistrate Judge's finding that there had been no state waiver of
    Hull's procedural default. The Commonwealth did not appeal this
    decision of the District Court, nor do we believe it could have. See
    Deposit Guar. Nat'l Bank v. Roper, 
    445 U.S. 326
    , 333 (1980) ("Ordinarily,
    only a party aggrieved by a judgment or order of a district court may
    exercise the statutory right to appeal therefrom. A party who receives all
    that he has sought generally is not aggrieved by the judgment affording
    the relief and cannot appeal from it."). However, "[i]t is well accepted .
    . .
    that without filing a cross-appeal or cross-petition, an appellee may rely
    upon any matter appearing in the record in support of the judgment
    below." Blum v. Bacon, 
    457 U.S. 132
    , 137 n.5 (1982). The
    Commonwealth has raised the procedural-default issue in its brief, and
    we therefore find it appropriate to reach this issue. Cf. Smith v. Horn,
    
    120 F.3d 400
    , 408 (3d Cir. 1997) (noting that the court of appeals may
    raise procedural default sua sponte), cert. denied, 
    118 S. Ct. 1037
    (1998).
    13
    procedural default that arose when Hull failed originally to
    timely appeal from the Superior Court's 1988 decision.
    If the Commonwealth wished to avoid the state court's
    waiver of the procedural default, it was incumbent upon it
    to appeal this order of the Common Pleas Court. Initially, it
    did so. However, after the Commonwealth failed tofile a
    brief, the Superior Court dismissed its appeal. As a result,
    the Common Pleas Court's (initial) order granting Hull the
    relief he sought, i.e., a waiver of his procedural default so
    that he could file a petition for allowance of appeal to the
    Pennsylvania Supreme Court, remained in effect. Following
    the trial court's granting of this relief, Hull timely filed his
    petition for allowance of appeal nunc pro tunc, seeking
    review of the Superior Court's 1988 decision. The state
    supreme court denied the appeal without comment.
    2.
    While the Common Pleas Court qualified its order
    granting Hull leave to file his nunc pro tunc petition by
    providing that it was doing so only on the condition that
    the state supreme court not consider such a petition
    untimely, the state supreme court, in silently denying
    Hull's petition, gave no indication that it was invoking this
    "qualifier." It could have done so by either dismissing
    (rather than denying) Hull's second petition, or by clearly
    stating that Hull's petition remained untimely and that his
    procedural default remained effective. It did neither, but
    instead followed the trial court's granting of relief to Hull
    with a denial of his second nunc pro tunc petition, without
    comment. Therefore, we read the state supreme court's
    unexplained denial of Hull's most recent nunc pro tunc
    petition as "a determination on the merits of his ineffective
    assistance of trial counsel claim by the Pennsylvania
    Supreme Court, and, necessarily, a ruling by that court
    that it waived Hull's procedural default of this claim on the
    ground he received ineffective assistance of post-conviction
    counsel." Hull 
    II, 991 F.2d at 94
    .
    In Hull II, we did not anticipate that Hull would obtain
    the waiver he sought from a lower state court and then be
    unable to have this relief ratified (or overturned) by the
    14
    state supreme court. We assumed that one of three things
    would happen after Hull returned to state court. First, the
    state supreme court could reject Hull's waiver argument,
    and he would be procedurally barred from bringing his
    federal habeas claim. Second, the state supreme court
    could accept his waiver argument, then grant his petition
    for allowance of appeal nunc pro tunc from the 1988
    Superior Court decision, and rule on (and reject) the merits
    of his ineffective-assistance claim, in which case he would
    be able to raise his ineffective-assistance claim in federal
    habeas court. Third, the state supreme court could accept
    his waiver argument, but deny his petition for allowance of
    appeal nunc pro tunc from the Superior Court's decision, in
    which case he also would be able to raise his ineffective-
    assistance claim in federal habeas court. See Hull 
    II, 991 F.2d at 93
    -94 & n.6. Because the Commonwealth failed to
    pursue its appeal from the state post-conviction court's
    granting of a waiver of Hull's procedural default, the state
    supreme court never had the formal opportunity, through
    no fault of Hull's, to fulfill one of these three scenarios by
    expressly accepting or rejecting Hull's waiver argument.
    The actual course of events in state court was essentially
    that outlined in Hull II's final scenario, i.e., acceptance of
    Hull's waiver argument, and then denial of his petition for
    allowance of appeal nunc pro tunc. However, it was the
    state trial court, and not the state supreme court, that
    accepted Hull's waiver argument, after which the state
    supreme court denied the petition for allowance of appeal
    from the Superior Court's 1988 decision. Although we did
    not foresee, in Hull II, a scenario in which Hull's waiver
    claim would never get past the state trial court, Hull only
    needed a waiver from "the Pennsylvania courts," not
    necessarily from the state's highest court. See 
    id. at 93
    ("Hull can only obtain federal habeas review if the
    Pennsylvania courts waive his procedural default."
    (emphasis added)); cf. 
    Ylst, 501 U.S. at 801
    ("State
    procedural bars are not immortal, however; they may expire
    because of later actions by state courts." (emphasis added)).
    Once a lower state court granted Hull a waiver, and the
    Commonwealth failed to appeal from this order (and the
    state supreme court did not indicate that the waiver was
    improperly granted when it denied Hull's petition for
    15
    allowance of appeal), Hull had done what federal law and
    our decision in Hull II required of him. To hold otherwise
    would allow states to circumvent the waiver exception to
    the procedural-default rule by failing to appeal from lower
    state court decisions holding that a procedural default is
    waived.
    In short, our holding in Hull II compels the result in the
    present case: We expressly held in Hull II that the state
    courts would be deemed to have waived Hull's procedural
    default if he was given permission to file a petition for
    allowance of appeal nunc pro tunc (which he was) and the
    state supreme court then denied that petition (which it did).
    In fact, we held that, "as a matter of federal law," if the
    state supreme court denied Hull's petition for allowance of
    appeal under these circumstances, it would be deemed a
    decision on the merits. See Hull 
    II, 991 F.2d at 94
    n.5; see
    also 
    Coleman, 501 U.S. at 739
    ("It remains the duty of the
    federal courts . . . to determine the scope of the relevant
    state court judgment."). We are of course bound by Hull II
    but, at all events, agree that on these facts when the
    Pennsylvania courts granted Hull the right to file a petition
    for allowance of appeal nunc pro tunc, the subsequent
    denial of that petition was on the merits.
    3.
    Despite the foregoing, the Commonwealth argues that the
    state courts have not waived Hull's procedural default
    because the second post-conviction court issued a
    supplemental opinion and order rejecting Hull's waiver
    argument, fifty-five days after issuing its initial opinion and
    order granting him relief. We agree that, if this is a valid
    order regarding Hull's request for waiver of the procedural
    default, and if he failed to adequately appeal from this
    order, his federal habeas claim remains procedurally
    barred. We reject the Commonwealth's argument, however,
    because once an appeal was filed, state law clearly
    precluded the post-conviction court from issuing a
    "supplemental" order that completely reversed the effects of
    its initial, valid order.
    It is settled law in Pennsylvania that the timely filing of
    a notice of appeal divests the trial court of jurisdiction to
    16
    take any further action in a case. See Pa. R. App. P.
    1701(a). A court may grant reconsideration of its order if an
    application for reconsideration is filed and granted within
    the time provided for filing a notice of appeal (thirty days).
    See Pa. R. App. P. 1701(b)(3). In this case, however, there
    is no indication that the Commonwealth filed (or that the
    trial court granted) such an application for reconsideration
    within thirty days. Therefore, the court had no authority to
    "reconsider" the merits of its initial order.
    In issuing its "supplemental" order, the state court in this
    case purported to rely on Pennsylvania Appellate Rule
    1925, which allows a lower court to "enter an order
    directing the appellant to file of record in the lower court
    and serve on the trial judge a concise statement of the
    matters complained of on the appeal." Pa. R. App. P.
    1925(b). The purpose of the rule, as seen most clearly by
    subsection (a), is to allow the lower court to clarify the
    basis of its initial order to ensure meaningful appellate
    review. See Pa. R. App. P. 1925(a) ("Upon receipt of the
    notice of appeal the judge who entered the order appealed
    from, if the reasons for the order do not already appear of
    record, shall forthwith file of record at least a brief
    statement, in the form of an opinion, of the reasons for the
    order, or for the rulings or other matters complained of, or
    shall specify in writing the place in the record where such
    reasons may be found."); see also Commonwealth v. Stilley,
    
    689 A.2d 242
    , 247 (Pa. Super. Ct. 1997); Franklin S. Van
    Antwerpen et al., Plugging Leaks in the Dike: A Proposal for
    the Use of Supplemental Opinions in Federal Appeals, 20
    Cardozo L. Rev. 1233, 1235-36 (1999).
    Nothing in Rule 1925, which involves only "clarification"
    of lower court orders for the purpose of appeal, gives a trial
    court authority to issue a supplemental opinion in which it
    completely reverses its prior holding, more than thirty days
    after entry of the original order and without an order
    granting reconsideration of the original order. See
    Pennsylvania Indus. Energy Coalition v. Pennsylvania Pub.
    Util. Comm'n, 
    653 A.2d 1336
    , 1346 (Pa. Commw. Ct. 1995)
    (holding that a lower tribunal that "made substantive
    changes to its earlier decision" had effectively granted
    reconsideration, not clarification, of that prior decision, and
    17
    it did not have authority to do so more than thirty days
    after the prior decision was filed), aff'd per curiam, 
    670 A.2d 1152
    (Pa. 1996); Commonwealth v. McMillan, 
    545 A.2d 301
    , 305 (Pa. Super. Ct. 1988) ("[I]t is well-settled that the
    trial court loses all power to alter its orders,final or
    interlocutory, thirty days from entry of judgment of
    sentence unless an order granting reconsideration is
    granted within that thirty day period."), aff'd per curiam,
    
    567 A.2d 1043
    (Pa. 1990).
    Under Pennsylvania's rules of appellate procedure and its
    unequivocal caselaw, the trial court's "supplemental"
    decision had no effect on this case. Indeed, "it was a
    nullity." Commonwealth v. Hairston, 
    470 A.2d 1004
    , 1006
    (Pa. Super. Ct. 1984). Once the post-conviction court
    granted Hull the relief he sought and thirty days passed
    without the granting of a motion for reconsideration, the
    trial court's order was final, and was alterable only by a
    state appeals court. Cf. 42 Pa. Cons. Stat. Ann. S 5505
    (West 1981) (permitting modification of a court order
    "within 30 days after its entry . . . if no appeal from such
    order has been taken").3 The Commonwealth abandoned its
    _________________________________________________________________
    3. The Pennsylvania Supreme Court recently addressed the issue of
    "supplemental" orders indirectly. See Commonwealth v. Lantzy, ___ A.2d
    ___, No. 66 W.D. 1988, 
    1999 WL 455695
    (Pa. July 7, 1999). In Lantzy,
    a defendant's counsel failed to inform him that a trial court's
    modification of his sentence was a nullity because it was entered more
    than thirty days after imposition of the original sentence and without an
    express grant of reconsideration. See 
    id. at *1.
    Because the defendant
    withdrew the appeal from his original (and only valid) sentence, and the
    appeal from the modified (invalid) sentence was quashed, he lost any
    opportunity to directly appeal his sentence. See 
    id. The court
    held that
    the advice (or lack thereof) that led to this scenario constituted
    ineffective assistance of counsel. See 
    id. at *7
    ("As counsel lacked a
    reasonable basis for failing to advise Lantzy that the sentence
    modification would be invalid, counsel's representation was deficient.").
    This implies that the state of the law in this area is quite well-settled.
    The court additionally noted that it was questionable whether the
    defendant "would have been able to compel the Department of
    Corrections to honor the [modified] order had its validity been
    challenged," citing a case that held that "mandamus does not lie to
    compel the Department of Corrections to honor a facially invalid order."
    18
    only avenue of relief, however, when it failed tofile a brief
    with the Superior Court. Therefore, the Pennsylvania courts
    definitively waived Hull's procedural default when the order
    granting such relief became final and not subject to further
    appeal.4
    _________________________________________________________________
    
    Id. at *7
    n.9 (emphasis added) (citing Fajohn v. Commonwealth, 
    692 A.2d 1067
    , 1068 (Pa. 1997)). In our view, this recent case confirms that a
    supplemental or modified order, entered more than thirty days after an
    initial order and unaccompanied by an express grant of reconsideration,
    is a "nullity," is "facially invalid," and should be given no effect.
    4. The post-conviction court issued its supplemental order reversing its
    prior order because it found that the initial order was based on an
    incorrect interpretation of state law. However, it is not clear that state
    law would have precluded Hull from raising the issue of his trial
    counsel's ineffectiveness in a second post-conviction petition.
    Pennsylvania courts will entertain a post-conviction claim that has been
    waived or that is contained in a second (or later) post-conviction
    petition
    if the petitioner makes "a strong prima facie showing . . . that a
    miscarriage of justice may have occurred." Commonwealth v. Lawson,
    
    549 A.2d 107
    , 112 (Pa. 1988). This condition is met when a petitioner is
    actually innocent or when "the proceedings resulting in his conviction
    were so unfair that a miscarriage of justice occurred which no civilized
    society can tolerate." Commonwealth v. Szuchon, 
    633 A.2d 1098
    , 1100
    (Pa. 1993); see also 
    Lawson, 549 A.2d at 112
    (Papadakos, J., concurring)
    (defining miscarriage of justice as an error that is "so serious that it
    undermined the reliability of the outcome of the proceeding," as when "a
    conviction can be shown to result from a breakdown in the adversary
    process").
    The Pennsylvania courts, including the state supreme court, have
    frequently considered the merits of petitioners' claims in second post-
    conviction petitions, and have held that no miscarriage of justice
    occurred because the underlying claims had no merit. For example, in
    Commonwealth v. Jermyn, 
    709 A.2d 849
    (Pa. 1998), the state supreme
    court entertained a petitioner's claim, in a second post-conviction
    petition, that "his prior counsel were ineffective for failing to raise"
    the
    issue of his competency to stand trial. 
    Id. at 860.
    The court noted that
    "Jermyn points to nothing which occurred during trial . . . to establish
    that he was incompetent to stand trial and that the trial court should
    have held a hearing on that issue." 
    Id. at 862.
    It then observed that the
    second post-conviction court had "concluded that there was no merit to
    Jermyn's contentions" regarding his competency and had "ruled that
    Jermyn failed to show that a miscarriage of justice occurred in this
    19
    4.
    Finally, we choose to address the facial tension between
    our conclusion today that the Pennsylvania Supreme
    Court's silent denial of Hull's second petition for allowance
    of appeal constituted a decision on the merits and our
    determination in Hull II that the court's silent denial of
    Hull's first petition was based on procedural default. The
    primary basis for our decision in Hull II was the holding by
    _________________________________________________________________
    regard." 
    Id. It concluded:
    "We agree with the PCRA court." 
    Id. Chief Justice
    Flaherty dissented, concluding that the failure of Jermyn's
    counsel to raise the incompetency issue was "a miscarriage of justice
    sufficient to warrant PCRA relief." 
    Id. at 871
    (Flaherty, C.J.,
    dissenting).
    The majority took issue with the Chief Justice's view of the merits, but
    not with his assertion that such ineffectiveness of trial counsel would
    constitute a miscarriage of justice. See 
    id. at 862
    n.34.
    We view the discussion and holding in Jermyn (and in many similar
    state cases) as implicitly recognizing that a due process claim such as
    Hull's--i.e., that he was convicted of first-degree murder while
    incompetent to stand trial--is potentially one in which "a miscarriage of
    justice occurred which no civilized society can tolerate." As we discuss
    infra Part IV.E, we believe that Hull's underlying claim is meritorious
    and
    that there is a reasonable probability that he was convicted while
    incompetent to stand trial. Therefore, under state law, the post-
    conviction court may have been correct in initially determining that Hull
    was entitled to the relief he sought, which would allow him to raise his
    claim before the Pennsylvania Supreme Court. Cf. Doctor v. Walters, 
    96 F.3d 675
    , 682 (3d Cir. 1996) (concluding that the Pennsylvania courts
    might find a "miscarriage of justice" occurred, justifying waiver of a
    procedural default, when a trial court "entered a verdict against
    [petitioner] without convening any proceedings in open court and
    without any semblance of resuming adversary proceedings").
    More importantly, as we noted in Hull II,"the concept of federal-state
    comity underlying federal habeas review entitles Hull to a state court
    adjudication of his claim for waiver." Hull 
    II, 991 F.2d at 91
    . Hull
    sought
    and obtained such an "adjudication of his claim for waiver," and
    prevailed on that claim. The Commonwealth may not now allege error in
    the trial court's initial (and only valid) ruling, from which it failed to
    adequately appeal. When comity compels us to leave adjudication of an
    issue to a state court, see 
    id. at 91-93,
    it likewise requires us to
    respect
    that court's determination of the issue, despite the losing party's claim
    that the determination was contrary to state law.
    20
    the Supreme Court in Ylst that an unexplained order of a
    state court upholding a prior judgment of a lower court is
    presumed to be based upon the same ground as that relied
    upon by the lower court. See 
    Ylst, 501 U.S. at 803
    . If the
    lower court rejected a claim on the merits, a silent denial of
    an appeal is presumed to be on the merits; if the lower
    court relied on a procedural default, an unexplained order
    affirming that judgment is presumed to similarly rely on
    procedural default. Although neither of these situations--
    which were the central focus of Ylst--accurately described
    Hull's procedural posture, we looked, in Hull II , to the
    Supreme Court's additional observation that the
    presumption could be rebutted in certain situations, such
    as when a lower court reached the merits of a federal claim,
    but the appeal to the higher court "that issued the
    unexplained order was plainly out of time," 
    Ylst, 501 U.S. at 804
    , as was the case here. On the basis of this
    observation in Ylst, we concluded that the state supreme
    court's denial of Hull's first untimely petition was based on
    procedural default. See Hull 
    II, 991 F.2d at 90
    -91.
    The Court in Ylst, however, made clear that "procedural
    bars are not immortal," as "later actions by state courts"
    may lift them. 
    Ylst, 501 U.S. at 801
    . While rejecting the
    petitioner's argument in Ylst that his claim was not barred
    because the state courts might waive his procedural
    default, the Court acknowledged that "they could do so," 
    id. at 806,
    but found no evidence that they had. In this case
    (unlike in Ylst), the petitioner did obtain such a waiver of
    his procedural default from the state courts.5 Therefore, as
    _________________________________________________________________
    5. In Ylst, the Court explained that a procedural default would be lifted
    if a state court presented with a federal constitutional claim reached the
    merits of that claim after the procedural default had arisen in a lower
    court. See 
    Ylst, 501 U.S. at 801
    . We acknowledge that the Common
    Pleas Court did not reach the merits of Hull's underlying claim in his
    second post-conviction petition, but only granted Hull leave to file a
    nunc pro tunc appeal to the state supreme court. Ylst, however, does not
    address the precise situation here, as no court expressly rejected Hull's
    claim on the basis of procedural default (as the state courts did in Ylst
    and Coleman). Rather, in Hull II, we interpreted the state supreme
    court's silent denial of Hull's untimely petition as being based on
    procedural default. Because the Common Pleas Court and the Superior
    21
    Hull II contemplated, Hull obtained a waiver of his
    procedural default, presented his substantive claim to the
    one state court yet to hear that claim (the state supreme
    court), and had the claim rejected.
    Based on the foregoing, we hold that Pennsylvania has
    waived Hull's procedural default that occurred when he
    failed to file a timely petition for allowance of appeal to the
    state supreme court from the Superior Court's 1988
    decision rejecting his ineffective-assistance claim. We
    therefore turn to the merits of this claim.
    IV. Hull's Ineffective-Assistance Claim
    A. Applicability of AEDPA
    We must initially determine whether the Antiterrorism
    and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L.
    No. 104-132, 110 Stat. 1214, applies to Hull's ineffective
    assistance claim. If it does, our review will be somewhat
    different than theretofore because 28 U.S.C. S 2254(d)(1), as
    amended by AEDPA, requires us to give heightened
    deference to state court adjudications of habeas claims.
    Hull argues that AEDPA does not apply to his claim
    because the Supreme Court has held that petitionsfiled
    before AEDPA's enactment on April 24, 1996, are governed
    by the pre-AEDPA version of S 2254, see Lindh v. Murphy,
    
    521 U.S. 320
    , 336 (1997), and his initial petition was filed
    well before AEDPA's enactment. We disagree.
    Hull's initial petition was dismissed without prejudice,
    and it is only his present petition that is relevant for
    _________________________________________________________________
    Court had already addressed the merits of Hull's claim, they did not
    need to do so again to excuse his procedural default.
    The Supreme Court has never squarely addressed how a petitioner
    may have a procedural default such as the present one excused by a
    state court. It has only addressed the issue of"waiver" of procedural
    default when one court has rejected a claim on the basis of procedural
    default, and a higher court later addressed the merits of the claim. This
    is not something Hull could have sought, as no state court explicitly
    rejected his claim on the basis of procedural default, but rather we did
    (in Hull II), based on our reading of Ylst and Coleman.
    22
    purposes of analyzing his ineffectiveness claim. His present
    petition was filed almost a year after AEDPA's enactment,
    and is therefore governed by the amended S 2254. See In re
    Minarik, 
    166 F.3d 591
    , 598 (3d Cir. 1999) (interpreting
    Lindh as holding that the post-AEDPA S 2254 applies to
    petitions filed after April 24, 1996); cf. Matteo v.
    Superintendent, SCI Albion, 
    171 F.3d 877
    , 884-85 (3d Cir.
    1999) (en banc) (applying post-AEDPA S 2254(d)(1) to a
    petition filed after AEDPA's enactment, although the
    petitioner had filed a prior, dismissed petition before 1996),
    petition for cert. filed, 
    68 U.S.L.W. 3008
    (U.S. June 22,
    1999) (No. 98-2050).
    Given our holding in Minarik, it is only because Hull filed
    a petition before AEDPA's enactment that he can even
    plausibly argue that his claim is not governed by the
    AEDPA amendments. Yet his pre-AEDPA petition was
    dismissed without prejudice. Typically, when a complaint
    (or habeas petition) is dismissed without prejudice, that
    complaint or petition is treated as if it never existed. See,
    e.g., Christy v. Horn, 
    115 F.3d 201
    , 208 (3d Cir. 1997)
    (holding that a habeas petition filed after a prior one was
    dismissed without prejudice is considered the petitioner's
    first habeas petition); cf. Cardio-Medical Assocs. v. Crozer-
    Chester Med. Ctr., 
    721 F.2d 68
    , 77 (3d Cir. 1983) ("It is a
    well recognized principle that a statute of limitations is not
    tolled by the filing of a complaint subsequently dismissed
    without prejudice. As regards the statute of limitations, the
    original complaint is treated as if it never existed.").
    Therefore, the fact that Hull filed a prior (since dismissed)
    petition is irrelevant to such issues as the law that applies
    to his present petition.
    We recently held, dealing with a cognate issue, that a
    district court did not abuse its discretion in disallowing an
    amendment to a S 2255 motion, when the amendment was
    sought after the AEDPA limitations period had run. See
    United States v. Duffus, 
    174 F.3d 333
    , 337 (3d Cir. 1999).
    We reasoned that allowing the amendment would have
    "frustrated the intent of Congress that claims under 28
    U.S.C. S 2255 be advanced within one year after a judgment
    of conviction becomes final." 
    Id. If a
    petitioner cannot
    amend a timely petition after a limitations bar has risen, we
    23
    think it unlikely that a petitioner could reach back to a
    prior petition to avoid the effect of AEDPA's passage, which
    occurred after the prior petition had been completely
    dismissed and before the current petition had beenfiled.
    While applying AEDPA's stricter standard to Hull's claim
    may appear unfair, given his attempt to bring his current
    claim to federal court well before AEDPA's enactment, he
    did not have a cognizable federal habeas claim until
    February 29, 1996, when his procedural default was waived
    and his state post-conviction remedies exhausted. His
    activity before that date, including the filing of a federal
    habeas petition in 1989, is simply irrelevant for purposes of
    determining which law applies to the present claim,
    because it was only after February 29, 1996, that Hull
    could petition a federal court for habeas relief on his
    exhausted and non-defaulted claim. Once AEDPA became
    effective approximately two months later, it governed all
    new habeas petitions filed after that date, including Hull's
    current petition, which was filed on March 6, 1997.
    B. Standard of Review (Under AEDPA)
    Section 2254(d)(1), as amended by AEDPA, provides:
    An application for a writ of habeas corpus on behalf
    of a person in custody pursuant to the judgment of a
    State court shall not be granted with respect to any
    claim that was adjudicated on the merits in State court
    proceedings unless the adjudication of the claim--
    (1) resulted in a decision that was contrary to, or
    involved an unreasonable application of, clearly
    established Federal law, as determined by the
    Supreme Court of the United States . . . .
    28 U.S.C. S 2254(d)(1) (Supp. II 1996). Our recent en banc
    decision in Matteo provides the post AEDPA standard for
    reviewing a claim under S 2254(d)(1). Under Matteo, a
    habeas writ should not be granted "unless the state court
    decision, evaluated objectively and on the merits, resulted
    in an outcome that cannot reasonably be justified under
    existing Supreme Court precedent." 
    Matteo, 171 F.3d at 890
    . We noted in Matteo that Congress clearly intended
    24
    federal habeas courts to defer to reasonable state court
    adjudications of prisoners' claims: "Congress intended to
    restrict habeas relief to cases in which the state court
    judgment rested upon an objectively flawed interpretation
    of Supreme Court precedent." 
    Id. We also
    held in Matteo
    that "federal habeas courts are [not] precluded from
    considering the decisions of the inferior federal courts when
    evaluating whether the state court's application of the law
    was reasonable." 
    Id. With this
    standard in mind, we
    proceed to the merits of Hull's ineffective-assistance claim.
    C. General Legal Principles
    1. Ineffective Assistance of Counsel
    The requirements for establishing ineffective assistance of
    counsel are well-known, and we need not belabor the
    general Strickland jurisprudence here. Hull must establish
    two elements to succeed on his claim: (1) that his counsel's
    performance regarding the competency issue was deficient,
    and (2) that the deficient performance prejudiced him by
    producing an unreliable result. See 
    Strickland, 466 U.S. at 687
    . We have already held that Hull demonstrated thefirst
    prong, see Hull 
    I, 932 F.2d at 168-69
    , and we see no reason
    to revisit that holding here. We thus confine our discussion
    to the issue of prejudice.
    Before considering whether the deficient performance of
    Hull's trial counsel was prejudicial, we will briefly outline
    the relevant law regarding competency to stand trial. We do
    so not because we are deciding the underlying issue of
    whether Hull was competent to stand trial in 1979, but
    because the issue of prejudice is necessarily bound up in
    the law of competency: Whether Hull was prejudiced by his
    counsel's failure to cross-examine the government's single
    witness or to present any evidence of his possible
    incompetence is largely a function of whether Hull was in
    fact incompetent at the time. See, e.g., Eddmonds v. Peters,
    
    93 F.3d 1307
    , 1317 (7th Cir. 1996) (framing the issue in a
    similar case as whether "there is a reasonable probability
    that [petitioner] was not fit [to stand trial], calling into
    question the integrity of the adversarial process"), cert.
    25
    denied, 
    520 U.S. 1172
    (1997); Felde v. Butler, 
    817 F.2d 281
    , 282 (5th Cir. 1987) (noting that a petitioner would
    satisfy Strickland's prejudice prong "only if he demonstrates
    that there is a reasonable probability that but for[his
    counsel's] failure to seek a competency hearing, he would
    have been found incompetent to stand trial" (internal
    quotation omitted)).
    Regardless of Hull's guilt or innocence, his constitutional
    right to effective counsel would be violated if he were
    convicted of first-degree murder when there was a
    reasonable probability that he was incompetent to stand
    trial. We reiterate also that, under the recent amendments
    to S 2254, we are not undertaking simply an independent
    analysis of this question. Rather, when a habeas petitioner
    presents a claim that has been "adjudicated on the merits
    in State court proceedings," 28 U.S.C. S 2254(d), the writ
    should not be granted "unless the state court decision,
    evaluated objectively and on the merits, resulted in an
    outcome that cannot reasonably be justified under existing
    Supreme Court precedent." 
    Matteo, 171 F.3d at 890
    .
    2. Competence to Stand Trial
    The basic rule for competency to stand trial is that a
    defendant must (1) have "sufficient present ability to
    consult with his lawyer with a reasonable degree of rational
    understanding" and (2) possess "a rational as well as
    factual understanding of the proceedings against him."
    Dusky v. United States, 
    362 U.S. 402
    , 402 (1960) (per
    curiam) (internal quotation omitted); see also Pate v.
    Robinson, 
    383 U.S. 375
    , 385 (1966) (holding that failure to
    provide adequate procedures to ensure that the Dusky test
    is met deprives a defendant of his constitutional right to a
    fair trial).
    Following Dusky and Robinson, the Supreme Court held
    in Drope v. Missouri, 
    420 U.S. 162
    (1975), that a habeas
    petitioner's due process rights had been violated when a
    state court failed to determine his competency,
    notwithstanding his suicide attempt during trial, his wife's
    testimony at trial regarding his strange behavior, and a
    pretrial psychiatric evaluation that contained equivocal
    26
    evidence of incompetence. See 
    id. at 175-80.
    A defendant
    presenting similar evidence of incompetency would
    presumably be prejudiced by either the trial court's failure
    to grant a competency hearing or his counsel's failure to
    request one.
    Moreover, a defendant's right to be tried only when
    competent would presumably be violated if his counsel's
    conduct at a competency hearing was the virtual equivalent
    of failing to request a competency hearing in a case in
    which the indications of incompetency were as strong as
    they were in Drope. See also United States ex rel. McGough
    v. Hewitt, 
    528 F.2d 339
    , 342-43 (3d Cir. 1975) (relying on
    Drope and Robinson to hold that a petitioner was
    improperly denied "the opportunity to interrogate and
    cross-examine the psychiatrists" who had found him
    competent to stand trial, given that they reported his
    history of commitment in a state hospital "as a result of
    bizarre activities at his home," and his " `obsessive thinking
    and antisocial forms of behavior' "). Although the Superior
    Court did not cite any of these cases, this was the state of
    the law at the time of its 1988 decision denying Hull's state
    post-conviction petition, as well as at the time of the 1979
    competency hearing.6
    D. The Facts Regarding Hull's Incompetence
    We emphasize that our task is not to determine whether
    there is a reasonable probability that Hull would not have
    been convicted, absent his counsel's errors. Rather, we are
    assessing whether there is a reasonable probability that he
    would have been found incompetent to stand trial if not for
    the deficient performance of his attorney. Therefore, it is
    _________________________________________________________________
    6. In 1983, when the Supreme Court overturned a court of appeals' grant
    of habeas relief in a competency case, it noted that"[t]here is no dispute
    as to the proper legal standard to be applied for determining the
    correctness of the trial court's actions" regarding the petitioner's
    competency. Maggio v. Fulford, 
    462 U.S. 111
    , 116 (1983) (per curiam)
    (citing Robinson and Drope). Therefore, at the time of the Superior
    Court's decision on Hull's ineffective-assistance claim, Robinson and
    Drope remained the leading cases interpreting the requirements for
    competency to stand trial.
    27
    important to outline the relevant facts available to Hull's
    counsel at the time of his competency hearing. See Buehl v.
    Vaughn, 
    166 F.3d 163
    , 172 (3d Cir.) ("It isfirmly
    established that a court must consider the strength of the
    evidence in deciding whether the Strickland prejudice prong
    has been satisfied."), cert. dismissed, 
    119 S. Ct. 2418
    (1999).
    1. The Medical Evaluations of Hull
    In 1975, shortly after his arrest, Hull was found
    incompetent to stand trial. He was committed to Farview
    State Hospital, and given an initial medical diagnosis of
    borderline mental retardation and schizophrenia (chronic,
    undifferentiated type). In the first medical evaluation in the
    record, which occurred in March 1976, almost a year after
    Hull was committed to Farview, Dr. B.J. Willis reported:
    The staff was of the opinion that this patient continues
    to show clear signs of a disabling and dangerous
    mental condition that makes him a considerable risk.
    The staff was of the opinion that the patient is not now
    competent to stand trial and that he should be
    retained in the hospital for further treatment. It was
    the opinion of the staff that only the firm control and
    structure of this institution keeps the patient's
    behavior within bounds.
    App. at 426.
    Hull was evaluated again approximately five months
    later, on August 4, 1976, by Dr. Arthur D. Boxer. Dr. Boxer
    found that Hull still was not competent to go to trial. See
    
    id. at 427.
    Five months later, on January 12, 1977, Hull
    was evaluated by nine Farview staff members. Reporting on
    their evaluation, Dr. John P. Lesniak concluded that Hull
    "cannot participate in his own defense," that he was
    "potentially dangerous," and that he "still[was] not
    competent to stand trial." 
    Id. at 428.
    Later that month, Dr.
    Donald N. Twaddell concluded that Hull "is hardly in a
    position to be considered competent to stand trial, to
    consult adequately with counsel, or to testify in his own
    defense." 
    Id. at 429.
    Dr. Twaddell described Hull as
    "frequently and quite actively hallucinatory and disturbed
    28
    in both the auditory and visual areas with morbid thoughts
    of death." 
    Id. Five staff
    members evaluated Hull in May 1977, and
    concluded that Hull, "although improved, continues to be
    incompetent to stand trial at this time." 
    Id. at 432.
    On
    February 15, 1978, Dr. Lawrence Chang reported:
    History indicates that [Hull] gives a picture of a mental
    defective who has been unable to read or write. He
    went as far as only the fourth grade at the age of 15.
    . . . He remains to be psychotic throughout his
    hospitalization here with the repeated episode of
    hearing voices telling him to kill someone and that
    God's voice tells him not to do harm to anyone . . ..
    His inability to comprehend the nature of his act is a
    product and manifestation of his mental illness and
    mental retardation. Therefore, he is not considered to
    be mentally competent to stand trial at this time. It is
    also further recommended that due to his both
    homicidal and suicidal tendencies, he should continue
    to be in a setting of maximum security for his own
    protection and of others.
    
    Id. at 433.
    Dr. Chang evaluated Hull four more times
    during 1978, in April, June, August, and October. See 
    id. at 434-37.
    Each time he concluded that Hull remained
    incompetent to stand trial due to "his chronic mental
    illness and limited mental capacity." 
    Id. at 437.
    In
    November 1978, Dr. J. Michael Shovlin suggested that Hull
    might be having "a psychotic depressive reaction" to
    Lithium Therapy, and concluded that Hull was still
    incompetent to stand trial. 
    Id. at 438.
    Dr. Chang evaluated
    Hull again in January 1979 and found his condition
    unchanged, noting that "he has been undergoing numerous
    psychotropic drug therapies, without noticeable
    improvement," since his admission to Farview. 
    Id. at 439.
    On April 9, 1979, less than two weeks before the court-
    appointed psychiatrist, Dr. Stamey, evaluated Hull (and
    later testified that he was competent to stand trial), Dr.
    Kenneth Detrick reported that Hull's condition "does not
    seem to be appreciably different from any of the other
    examinations." 
    Id. at 440.
    He concluded that "his mental
    29
    incapacity continues to be so severe that he remains
    incompetent to stand trial for his crime and should
    continue at Farview State Hospital for further treatment."
    
    Id. On April
    20, 1979, at the request of the Franklin County
    Court of Common Pleas, Dr. Stamey evaluated Hull, and on
    May 4, 1979, the doctor sent his report to the court. In his
    report, Dr. Stamey noted that Hull's "thoughts were logical
    and coherent and goal directed, and somewhat forceful." 
    Id. at 443.
    He also found Hull's affect "appropriate, but
    shallow." 
    Id. Dr. Stamey
    did not find Hull to be suicidal.
    See 
    id. He reported
    that Hull had "some [insight], but not
    much," and that Hull was "a relatively simple soul, not a
    deep thinker or feeler." 
    Id. at 444.
    Dr. Stamey found that
    Hull's judgment was "good within his intellectual limits,"
    but that "under increased stress it might break down." 
    Id. Although Hull's
    schizophrenia appeared to Dr. Stamey to be
    "in a degree of remission" at that time, he found the
    remission "fragile," and noted that Hull "has very little in
    the way of coping mechanisms, still harbors a good bit of
    suspicion, and is very defensive in many areas." 
    Id. at 445.
    In conclusion, Dr. Stamey opined that Hull was
    "competent to stand trial and probably would remain so
    throughout the trial if it is not overly stressful." 
    Id. He thought
    it "worth a try," though he cautioned that Hull
    should be watched closely for "signs of regressing." 
    Id. Specifically regarding
    the two requirements of competency,
    Dr. Stamey noted that Hull had "some intellectual and
    emotional understanding of the charges, what might
    happen to him because of them, and what the alternatives
    are," and that Hull "could help his lawyer within the limits
    of his intelligence." 
    Id. However, he
    qualified his opinion by
    noting that Hull "could regress very quickly and become
    incompetent" under even a small amount of stress. 
    Id. On May
    3, 1979, Hull was evaluated again, and found
    incompetent to stand trial by Farview staff. See 
    id. at 446-
    53. In the final medical evaluation prior to the competency
    hearing, on July 23, 1979, Dr. Norman E. Wenger expressly
    disagreed with Dr. Stamey's conclusion regarding Hull's
    competency to stand trial, and recommended that Hull
    30
    "receive another period of in-patient, psychiatric
    hospitalization at this facility." 
    Id. at 454.
    Following the court's adjudication of Hull as competent to
    stand trial on July 31, 1979, see infra Part IV.D.2, and
    Hull's general guilty plea on August 3, 1979, his trial
    counsel requested (and the court apparently ordered) a
    psychiatric evaluation of Hull in preparation for the degree-
    of-guilt hearing. As a result, on August 15, 1979, Dr.
    Robert L. Sadoff evaluated Hull. The focus of Dr. Sadoff 's
    evaluation appears to have been on Hull's state of mind at
    the time of the crime, not at the time of the competency
    hearing. See App. at 456-60. Dr. Sadoff concluded that Hull
    had acted with diminished mental capacity at the time of
    the shooting, and closed his report with these words:
    Whatever the final determination by the court about
    the degree of homicide, it is my strong recommendation
    that Mr. Hull be treated intensively in a hospital setting
    for a prolonged period of time. The combination of his
    illness, borderline mental retardation and poor impulse
    control, with alcoholism is a potentially explosive and
    violent combination which requires security measures
    as well as medication and a therapeutic environment.
    At one level Mr. Hull is aware of the situation in which
    he is involved to the point that he wants to be put to
    death by the State for what he says he has done. He
    says, "I don't deserve to live." On the other hand, he
    wants to live and wants to engage in constructive
    rehabilitative efforts. However, these efforts will be
    long-term and his recovery will be slow and the
    remission is fragile at the present time. Moderate
    degrees of stress will be sufficient to cause further
    decompensation and deterioration in Mr. Hull's
    condition. He will require continued medication as well
    as security treatment.
    
    Id. at 460-61.
    As for Hull's then-current state of mind, Dr. Sadoff noted
    that Hull "believes that he is competent" and"believes that
    he should be found guilty and should be given the death
    penalty for what he did." 
    Id. at 455.
    Dr. Sadoff concluded
    that "Hull is mentally competent to proceed in this legal
    31
    situation. He understands the nature and consequences of
    his legal condition and can work with counsel in preparing
    a rational defense." 
    Id. at 459.
    At this point, however, Hull
    had already been adjudicated competent (as his counsel
    had requested, see 
    id. at 424),
    and his guilty plea to
    murder had been accepted.
    2. The Competency Hearing
    The competency hearing was held on July 31, 1979.
    Despite the 1975 finding that Hull was incompetent, and
    the veritable phalanx of medical reports that Hull remained
    incompetent, the entire hearing took less than an hour and
    is reproduced in only four pages of transcript. See 
    id. at 421-24.
    As noted above, only one witness, Dr. Stamey,
    testified. Because of its central importance in this case, we
    include in the margin the entire transcript from the
    competency hearing.7
    (Text continued on page 34)
    _________________________________________________________________
    7. The competency hearing began with the government calling Dr.
    Stamey to the stand:
    BY MR. WALKER [the District Attorney]:
    Q Dr. Stamey, what is your occupation?
    A I am a physician, psychiatrist.
    Q Are you associated with any hospital?
    A A senior vice president and medical director of the Geisinger
    Medical Center in Danville.
    Q Dr. Stamey, where did you do your undergraduate work?
    A At George Washington University.
    Q Where did you do your medical training?
    A Also at George Washington University.
    MR. MARTIN [Hull's trial counsel]: Your Honor, we will
    stipulate to Dr. Stamey as being a psychiatrist.
    THE COURT: Very well.
    BY MR. WALKER:
    Q Dr. Stamey, going back to April 20, 1979, did you have
    occasion to evaluate Larry Gene Hull?
    32
    A Yes, sir.
    Q Is Larry here in the courtroom today?
    A Yes.
    Q Where is he seated?
    A Right there (indicating.)
    Q Where was that evaluation at?
    A At the Farview State Hospital in Waymart.
    Q From your evaluation of Mr. Hull on that date, were you able
    to form an opinion as to whether Mr. Hull would be able to
    understand the nature or object of the proceedings against him?
    A Yes, sir.
    Q What is that opinion?
    A I feel that he could.
    Q What is your opinion as to whether or not Mr. Hull would be
    able to participate and assist in his defense?
    A At that time I felt that he could do so.
    MR. WALKER: I have no further questions.
    THE COURT: Cross examine.
    MR. MARTIN: We have no questions, Your Ho nor.
    THE COURT: Do you understand, Mr. Hull, t hat your attorney
    has the right to cross examine the doctor to find out what it was
    that formed the basis of the doctor's opinion as he has reported
    it.
    Do you understand that?
    THE WITNESS [Hull]: Yes, I do.
    THE COURT: And understanding that, had yo u told your
    attorney that you do not request him to cross examine the witness?
    THE WITNESS: Yes.
    THE COURT: All right, thank you very much. You may be
    seated.
    MR. WALKER: Your Honor, that is all that we have for the
    Commonwealth's case.
    33
    At the hearing, the government asked Dr. Stamey only
    two substantive questions: Whether he believed "Hull would
    be able to understand the nature or object of the
    proceedings against him," 
    id. at 422,
    and whether "Hull
    would be able to participate and assist in his defense," 
    id. at 423.
    To the first question, Dr. Stamey answered, "I feel
    that he could." 
    Id. In response
    to the second question,
    regarding Hull's assisting in his defense, Dr. Stamey
    apparently referred to his evaluation of Hull approximately
    three months earlier: "At that time I felt that he could do
    so." 
    Id. Dr. Stamey
    did not elaborate on either answer, and
    was asked no further questions by the district attorney.
    Hull's counsel, when asked by the court to cross-examine
    Dr. Stamey, responded, "We have no questions, Your
    Honor." 
    Id. The Commonwealth
    presented no other evidence of Hull's
    competence. There is also no indication in the record that
    the government introduced Dr. Stamey's report into
    evidence. When the government stated that it had no
    additional evidence or witnesses to present, the court asked
    Hull's counsel if he had any evidence to present. He
    responded, "No, we have none." 
    Id. At this
    point, the court
    _________________________________________________________________
    THE COURT: Do you have any evidence to pr esent, Mr. Martin?
    MR. MARTIN: No, we have none.
    THE COURT: All right, we will make an ord er. Mr. Martin, is
    there any objection to our making an order finding Mr. Hull
    competent to stand trial?
    MR. MARTIN: No objection, Your Honor. In fact, we have agreed
    to it.
    THE COURT: You request it?
    MR. MARTIN: Yes.
    App. at 421-24.
    The record reflects that the court then entered an order. Following a
    sidebar discussion off the record, the court set a trial date of September
    10, 1979, and remanded Hull to Franklin County Prison pending trial.
    See 
    id. at 424.
    34
    entered an order finding Hull competent to stand trial,
    which Hull's counsel expressly "agreed to." 
    Id. at 424.
    E. Prejudice to Hull
    Initially, we reiterate that under AEDPA and Matteo, we
    must look at the last state court decision on the merits of
    a petitioner's claim to determine if that decision,"evaluated
    objectively and on the merits, resulted in an outcome that
    cannot reasonably be justified under existing Supreme
    Court precedent." 
    Matteo, 171 F.3d at 890
    . The last state
    court decision on the merits of Hull's ineffective-assistance
    claim is the Superior Court's 1988 decision. That decision,
    "evaluated objectively and on the merits," reveals little
    discussion of the issue before us--prejudice under
    Strickland. The only aspect of the court's opinion that
    appears to refer to this issue is its determination that the
    colloquy at Hull's guilty plea on August 3, 1979,
    demonstrated his "ability to recount in detail his actions
    and emotions at the time of the murder," Commonwealth v.
    Hull, No. 215 Harr. 1988, slip op. at 3-4 (Pa. Super. Ct.
    Sept. 30, 1988), which established both his ability to assist
    his counsel and his understanding of the proceedings
    against him, see 
    id. at 4.
    8
    Under Strickland, a petitioner alleging prejudice from his
    counsel's deficient performance "must show that there is a
    reasonable probability that, but for counsel's
    unprofessional errors, the result of the proceeding would
    have been different." 
    Strickland, 466 U.S. at 694
    . "A
    reasonable probability is a probability sufficient to
    _________________________________________________________________
    8. The Common Pleas Court's decision on this issue, included in its
    opinion and order of February 22, 1988, contains a similar analysis. See
    Commonwealth v. Hull, Crim. No. 101-1975, slip op. at 9 (Pa. C.P. Ct.
    Feb. 22, 1988) ("We have independently reviewed defendant's testimony
    at the guilty plea proceeding . . ., and note that defendant testified in
    a
    cogent, coherent manner, giving no indication whatever of incompetency
    at the time of such testimony."). We note incidentally that the Common
    Pleas Court assumed--incorrectly in our view--that the burden remained
    on Hull to rebut the presumption of competence with clear-and-
    convincing evidence, despite the earlier adjudication that found him
    incompetent to stand trial. See 
    id. at 9-10;
    cf. supra 
    Part I.A.
    35
    undermine confidence in the outcome." 
    Id. This standard
    "is not a stringent one." Baker v. Barbo, 
    177 F.3d 149
    , 154
    (3d Cir. 1999) (citing Nix v. Whiteside, 
    475 U.S. 157
    , 175
    (1986)). It is less demanding than the preponderance
    standard. See 
    id. Therefore, to
    prove that he was prejudiced
    by his counsel's performance, Hull need not demonstrate
    that he definitely was incompetent in 1979. Rather, he
    must only establish that there was a reasonable probability
    that he was.
    Applying this standard from Strickland and our
    interpretation of S 2254(d)(1) from Matteo, we conclude that
    it was objectively unreasonable for the Superior Court to
    implicitly find that there was no "reasonable probability"
    that the outcome of Hull's competency hearing would have
    been different if not for his counsel's failure to cross-
    examine Dr. Stamey or to present evidence in support of
    Hull's incompetence.
    Supreme Court precedent as of 1988 clearly required
    more of a state court than the summary conclusion that
    the Superior Court drew from the plea colloquy. 9 Pate v.
    Robinson, decided more than a decade before Hull's
    competency hearing, required states to provide adequate
    procedures to ensure that only competent defendants were
    tried (and convicted). Drope v. Missouri, also decided before
    the competency hearing and well before the Superior
    Court's 1988 decision, held that a habeas petitioner's due
    process rights were violated when a state court did not
    consider evidence of his incompetence, even though his
    incompetence was far from certain. Indeed, in 1975, we
    relied on these two cases in McGough to find that a habeas
    petitioner's constitutional rights were violated when he was
    not given the opportunity to cross-examine psychiatrists
    who deemed him competent to stand trial--one of the bases
    on which we have found that Hull's trial counsel was
    deficient. See Hull 
    I, 932 F.2d at 168
    ; cf. 
    Matteo, 171 F.3d at 890
    ("[F]ederal habeas courts are [not] precluded from
    considering the decisions of the inferior federal courts when
    _________________________________________________________________
    9. We note that both Strickland and Whiteside, as well as the competency
    cases 
    discussed supra
    Part IV.C.2, were decided before the Superior
    Court's consideration of Hull's ineffective-assistance claim in 1988.
    36
    evaluating whether the state court's application of the law
    was reasonable.").
    These cases unequivocally provide that a criminal
    defendant is entitled to adequate procedures, including the
    opportunity to present evidence and to cross-examine
    government witnesses, when his competency is at issue.
    When a defendant has not only already been found
    incompetent to stand trial, as Hull was before the 1979
    competency hearing, but when numerous evaluations of his
    mental condition indicate that he remains incompetent, his
    competency to stand trial must be carefully considered by
    the court before a trial may be held or a guilty judgment
    entered. Under these circumstances, when a defendant's
    own attorney fails to effectively use the procedures to
    determine competency that are mandated by Supreme
    Court precedent, we believe that the prejudice to the
    possibly still-incompetent defendant is manifest.
    The state courts did not discuss at length the evidence
    regarding Hull's competence. The District Court did outline
    Dr. Stamey's findings, and observed that the many doctors
    who found Hull incompetent "addressed Hull's past
    condition and not his condition as of the date of the
    hearing." Hull v. Freeman, Civ. No. 89-0681, slip op. at 14-
    15 (M.D. Pa. Oct. 18, 1991). However, four of the
    evaluations occurred in 1979, within six months of the
    competency hearing, and fifteen different evaluations
    between 1976 and 1979 found Hull incompetent while only
    the single evaluation of Dr. Stamey resulted in afinding of
    competency. Dr. Stamey's opinion, moreover, was not based
    on Hull's condition on the date of the hearing, but on his
    evaluation of Hull more than three months earlier. Even a
    short, simple cross-examination could have highlighted this
    fact, as well as Dr. Stamey's own concessions that Hull
    "could regress very quickly and become incompetent," and
    that his putative remission was "fragile" (and might have
    already shattered in the three months since the doctor's
    observation of Hull).
    The District Court acknowledged that "Dr. Stamey's
    written report was not admitted into evidence at the
    competency hearing," 
    id. at 5,
    though it discussed the
    report at length before rejecting Hull's claim, see 
    id. at 11-
    37
    13. However, when determining whether there is a
    "reasonable probability" that the Common Pleas Court
    would have reached a different conclusion in the absence of
    counsel's inadequate performance, we should not assume
    that it considered Dr. Stamey's report in reaching its actual
    conclusion. Cf. Meyers v. Gillis, 
    142 F.3d 664
    , 669 (3d Cir.
    1998) ("[W]e cannot go beyond the record to refute
    [petitioner's] assertion of prejudice."). In fact, the record
    does not reveal that the Common Pleas Court considered
    any of the reports on Hull's competency and arguably it
    would have had no reason to do so once Hull's counsel
    "agreed" at the competency hearing that Hull was
    competent to stand trial. We note, however, that Hull was
    found incompetent on three different occasions in mid-
    1979, including twice after Dr. Stamey's evaluation and
    before the competency hearing.
    It is not certain that the state court would have found
    Hull incompetent on the basis of this evidence from the
    mid-1979 evaluations (or even on the basis of the twelve
    previous evaluations that found him incompetent, and the
    detailed descriptions of his psychosis and mental illness in
    all of the evaluations). But we have no troublefinding that
    there is a reasonable probability that the court would have
    determined that Hull had not regained his competence to
    stand trial if this evidence had been presented by Hull's
    counsel, and if Dr. Stamey had been pressed even slightly
    on the qualified and equivocal nature of his report's
    conclusions.
    At the juncture of the dual constitutional requirements of
    effective assistance of counsel and a defendant's
    competency, the Supreme Court has implied that defense
    counsel has a special role in effectively ensuring that a
    client is competent to stand trial. See 
    Drope, 420 U.S. at 177
    n.13 ("Although we do not, of course, suggest that
    courts must accept without question a lawyer's
    representations concerning the competence of his client, an
    expressed doubt in that regard by one with `the closest
    contact with the defendant,' is unquestionably a factor
    which should be considered." (citations omitted)). Defense
    counsel's special role arises not only from the typical
    attorney-client relationship, but from the very fact that the
    38
    defendant may be unable to appreciate the proceedings or
    to assist his attorney (or to make an intelligent decision on
    challenging his competency). Cf. 
    Robinson, 383 U.S. at 384
    ("[I]t is contradictory to argue that a defendant may be
    incompetent, and yet knowingly or intelligently`waive' his
    right to have the court determine his capacity to stand
    trial."). Hull would clearly appear to have been prejudiced
    by his counsel's failure to "express[ ] doubt" regarding his
    competency by cross-examining the government's single
    witness or presenting any of the large body of evidence in
    support of Hull's incompetence to stand trial.
    In Strickland, the Court noted that the "benchmark for
    judging any claim of ineffectiveness must be whether
    counsel's conduct so undermined the proper functioning of
    the adversarial process that the trial cannot be relied on as
    having produced a just result." 
    Strickland, 466 U.S. at 686
    .
    We think it abundantly clear that counsel's conduct at the
    competency hearing in this case, given the demonstrated
    and overwhelming evidence of Hull's incompetence,
    "undermined the proper functioning of the adversarial
    process" of a competency hearing, which was required (in
    1979) by Supreme Court precedent and the Due Process
    Clause, so that we cannot say that a just result--i.e., the
    conviction of a competent and guilty defendant--occurred.
    This certainly is not a case in which we can say that
    prejudice did not result from counsel's failure to act
    because counsel took sufficient alternative steps to ensure
    that defendant was adequately represented. Cf. Hess v.
    Mazurkiewicz, 
    135 F.3d 905
    , 909 (3d Cir. 1998) (holding
    that a defendant suffered no prejudice from counsel's
    failure to call certain alibi witnesses because his counsel
    had "presented a plausible, if ultimately unsuccessful, alibi
    defense" through other witnesses).
    Finally, we note that prejudice to a defendant is
    presumed when his counsel's performance is so deficient as
    to effectively constitute a denial of the right to counsel. See
    
    Strickland, 466 U.S. at 692
    . In this case, despite the strong
    evidence of Hull's incompetence (evidence that could
    presumably be presented only by counsel), Hull's trial
    counsel "agreed" at the conclusion of the competency
    hearing that Hull was competent to stand trial. This is
    39
    essentially tantamount to "constructive denial of the
    assistance of counsel altogether[, which] is legally
    presumed to result in prejudice." 
    Id. The order
    of the
    District Court must therefore be reversed and the case
    remanded with instructions to grant the writ.
    V. Conclusion
    When Hull was first granted the writ by the district court
    in 1990, that court appeared to believe that the state court
    should readjudicate Hull's competency to stand trial as of
    1979, effectively redoing the flawed competency hearing.
    However, in Hull I, we explained that if Hull's ineffective-
    assistance claim was not procedurally defaulted and if he
    proved prejudice from his counsel's deficient performance,
    the writ should be granted conditioned on his being retried
    --not conditioned on his competency in 1979 being
    readjudicated. We believe this remains the proper
    disposition of Hull's successful habeas petition.
    The state may retry Hull if it chooses, and the writ will be
    granted conditioned on his retrial within 120 days. Because
    he was found incompetent to stand trial at his last valid
    competency hearing (in 1975), the state must first establish
    that Hull has presently regained his competency to stand
    trial before retrying him. At this point, his actual
    competency as of 1979 is irrelevant to any criminal
    proceedings against him. See 
    Dusky, 362 U.S. at 403
    (remanding to the trial court "for a new hearing to ascertain
    petitioner's present competency to stand trial," given "the
    . . . difficulties of retrospectively determining the
    petitioner's competency as of more than a year ago"); see
    also 
    Drope, 420 U.S. at 183
    (same, when competency
    hearing was held six years before writ was granted);
    
    Robinson, 383 U.S. at 387
    (same).
    For the foregoing reasons, the judgment of the District
    Court will be reversed and the case remanded for the
    granting of a writ of habeas corpus conditioned on Hull's
    being retried within 120 days, with the understanding that,
    if Hull cannot be tried within this period because he is
    found incompetent to stand trial, the state has at its
    disposal procedures for treating Hull, see Pa. Stat. Ann. tit.
    40
    50, SS 7401-7407 (West Supp. 1999), and it may retry him
    within 120 days of his regaining his competency to stand
    trial should he do so.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    41