United States v. Israel

Case: 17-10948 Document: 00515684139 Page: 1 Date Filed: 12/23/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 23, 2020
No. 17-10948
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kamau Alan Israel,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
4:17-CV-409
Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.
Per Curiam:*
Our court previously granted a certificate of appealability (COA) to
Kamau Alan Israel for the following issues: whether trial counsel was
ineffective for failing to (1) investigate Israel’s mental health history and
competency; (2) move for a competency examination and hearing;
(3) investigate and advise Israel regarding an insanity defense; and
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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(4) present mitigating evidence of Israel’s mental health at sentencing. We
conclude that the district court properly denied Israel’s § 2255 motion.
Accordingly, we affirm.
I
Israel is a diagnosed schizophrenic with a history of mental health
issues. He takes medication for his schizophrenia, but the medication is not
always effective. As a result, Israel occasionally has psychotic episodes
during which he hallucinates both visually and audibly.
A
In 2014, Israel walked into a bank and waited in line. He had recently
shaved his head, removing “notably long hair that was fashioned in ‘dread
locks,’” and “was wearing construction clothing, including a yellow
reflective vest and a dust mask, which was pulled up around his chin[] but
just underneath his mouth.” Once he reached the front of the line, he
exposed a small handgun tucked in his waistband and commanded the teller
to open the cash drawer. When she did not comply, Israel climbed over the
counter and pointed his handgun at multiple tellers, commanding them to
open the drawers. After obtaining money from all the teller drawers, he fled
the bank in his vehicle.
A short pursuit ensued after Israel failed to yield to officers and fled at
an extremely high rate of speed.” Israel crashed his vehicle, disabling it and
breaking his wrist and ankle. He exited the vehicle; limped toward a nearby
vehicle; and pointed his handgun at the woman inside, unsuccessfully
attempting to steal her vehicle. An officer then approached Israel and
ordered him to drop his gun. Israel complied, was taken into custody, and
was ultimately charged with bank robbery. After his arrest, Israel told
paramedics that he was prescribed Haladol. They asked if he was
schizophrenic. Israel “appeared surprised the paramedics knew this
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medication was prescribed for schizophrenia.” “After this exchange, [Israel]
began referencing an alter ego named ‘Damon’ [who] was violent and had
attempted to kill [Israel] in the past.”
When detectives attempted to interview Israel shortly after the
paramedics’ treatment, “he stated that he could not talk in front of ‘Damon’
because Damon was going to kill him. He then said that the robbery was
supposed to be a ‘suicide by cop’ that didn’t work,” and that “he had
scheduled his funeral for the following morning at 8 a.m.” Israel now
“wanted to go to jail because Damon could not get in there.” Israel
“reported that Damon had cut his throat and wrist and had stabbed him in
the past,” when in actuality those wounds were self-inflicted.
B
At his rearraignment, Israel pleaded guilty with no plea agreement.
He assured the district court that he was “of sound mind” to understand
“exactly what [he was there] for [that day], that is, to plead guilty to the
offense of bank robbery,” and “all of [the] penalties and punishments” he
was subjecting himself to by doing so. Israel confirmed that he had discussed
his factual resume with trial counsel, that counsel explained “the legal
meaning of everything in it,” and that he read and understood everything
before he signed it. He agreed that he had been “satisfied” with trial counsel
as his lawyer and did not “have any complaint whatsoever with anything [trial
counsel had] done or failed to do during the time” he represented Israel.
The district court engaged Israel in a colloquy on the specifics of his
mental health, current medications, and the “stress” he reported
experiencing; his understanding of the charges against him and the
proceeding that day; his understanding of the factual resume; his wish to
plead guilty; the role of the sentencing court and the Guidelines; and the
possibility of a sentence including a term of imprisonment of up to 20 years,
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a $250,000 fine, and a three-year term of supervised release. When the court
addressed Israel’s potential sentence, Israel asked the court to clarify that the
sentence would not certainly be twenty years, but rather could be a maximum
of twenty years. Satisfied with the colloquy, the court determined that Israel
was “fully competent and capable of entering an informed plea, and that his
plea of guilty . . . is a knowing and voluntary plea” not “result[ing] from
force, threats, or promises.”
Shortly after the rearraignment, Israel wrote a letter to the district
court. He identified himself as “the African American male that came to
your court [two]-weeks ago on crutches to plead guilty to bank robbery.” He
knew the district court was “busy” with “all the felony cases [it was] dealing
with, including [his]” and that the district court would ultimately impose his
sentence. Israel clarified that he was writing the court “only as a last resort”
after “exhaust[ing] all [his] other avenues,” i.e., writing to the U.S. Marshals
and speaking to trial counsel. He complained that the conditions of his
confinement constituted “cruel and unusual punishment” because he was
being denied a transfer from the jail to a medical unit where he would receive
proper medication. He mentioned that his attorney had told him the week
before why he had yet to be moved to a different facility. He said that trial
counsel and the prosecutor on his case were “both privy to [his] quandary
because” trial counsel told him that the prosecutor told trial counsel Israel
would be moved after he consented to a psychological evaluation. But the
prosecutor changed his mind after Israel pleaded guilty. Israel emphasized
that he had “all [his] mental faculties . . . to say this; ‘I’m not crazy enough
to try to play games with my federal sentencing judge!!’” He assured the
court that, though he had “psychiatric issues in [his] past,” he had “never
[given] anyone a doubt about [his] competency.”
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C
A month later, in an interview with the probation officer who prepared
his presentencing report, Israel “admitted that all the facts set forth in his
Factual Résumé are true, and he is guilty of the offense.” He stated that “he
does not know why he decided to rob the bank,” “that his actions may have
been caused by his mental health condition,” and that “he may have been
partially motivated by a desire to commit suicide.” He “reported a history
of suicidal ideation and stated that he has attempted suicide on multiple
occasions in the past.” When asked why he robbed the bank, located in
Grapevine, Texas, when he lived in Fort Worth, Texas, Israel “said he got
lost on the way to his wife’s home.” “[U]pon advice from counsel, he
declined to clarify this statement.” When asked “if there were any
circumstances of the offense which needed clarification or further
explanation” than was in the factual resume, Israel wished to dispute “that
he attempted to steal a car . . . , which is inconsistent with the evidence in this
case.” When the officer attempted to clarify, “upon advice of counsel,
[Israel] declined to say anything else about his relevant conduct” to avoid
risking the loss of an adjusted offense level for acceptance of responsibility.
The “Mental and Emotional Health” section of Israel’s
presentencing report noted “discrepancies regarding the nature of [Israel’s]
mental health conditions.” It concluded with a request for a condition of
supervised release “requiring a mental health evaluation,” as it “would be
beneficial to determine the full nature and extent of [Israel’s] reported, but
uncorroborated, mental health history.” Israel never objected to any
statement in the presentencing report addressing his mental health.
Two months later—and two weeks before sentencing—Israel sent
another letter to the district court, addressed to trial counsel, discussing
Israel’s concerns with trial counsel “downplay[ing]” his mental illness “in
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an effort to get [him] through this judicious process [as] expeditiously as
possible, with little or no assistance.” He accused counsel of not securing a
psychiatric evaluation, failing to contact family members and hospitals to
substantiate his history of mental illness, and “constantly patronizing” him
due to his mental illness. Israel concluded that he was “presently conscious
to the harsh reality that [trial counsel had] been playing on” his mental health
issues by telling him that the interview room in the jail may be bugged. That
made him “afraid to speak freely” and was “why [he writes trial counsel]
letters, but [trial counsel] ‘never’ respond[s] to them.”
In response to that letter, the court commented that “[o]ften what
appear to be irreconcilable differences between a defendant and appointed
counsel for a defendant are nothing more than misunderstandings that can
readily be resolved by frank and open discussions between the defendant and
counsel. The court is optimistic that such is the case here.” The court then
ordered that the two meet and, if any problems remained, trial counsel would
be required to file an appropriate motion on behalf of Israel. Accordingly,
Israel and trial counsel met for twenty-five minutes. Trial counsel then filed
a report in compliance with the court’s order stating that the two had
“resolved the differences between them at the outcome of the meeting.”
Israel sent no further communication to trial counsel or the court, and all
proceeded to sentencing.
D
At sentencing, the district court confirmed that Israel and trial counsel
had received in a timely manner and read the presentencing report and all
three addenda. After addressing all objections, the district court adopted all
of the factual findings of the presentencing report. The court then allowed
counsel and Israel to “make whatever statement [they] would like to make
on the subject of sentencing or mitigation.” Trial counsel clarified aspects of
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Israel’s criminal history. Israel addressed his “bad” record in the 1990s. He
explained that after 2003, until the robbery for which he pleaded guilty, he
had not “been in any trouble,” “seen [a] judge,” or “spent the night in jail.”
Because he had “kind of been on the straight and narrow just trying to get
[his] life together” “lately,” he “ask[ed] for leniency.” He “did not raise
any issue regarding his competence at any time or any dissatisfaction with
counsel.”
The district court responded that “the information [it had did not]
quite bear out what [Israel was] talking about.” It went on to detail the
robbery and Israel’s “criminal history going back to age 18.” The court
called Israel a “dangerous person” and sentenced him to the statutory
maximum sentence of 240 months in prison, departing from the Guidelines
range of 151 to 188 months. The court qualified the sentence, stating “a
longer sentence than that would be appropriate and necessary to adequately
address the factors the [c]ourt should consider in sentencing, but” it must
impose the statutory maximum. It concluded by setting supervised release
conditions, including that Israel “shall participate in mental health treatment
services . . . until successfully discharged, . . . [which] may include
prescribed medications.”
We affirmed Israel’s conviction on direct appeal. Israel then filed a 28
U.S.C. § 2255 motion, asserting several ineffective assistance of counsel
claims related to trial counsel’s failure to investigate and present evidence of
Israel’s mental health issues. The district court denied Israel’s motion on
the merits without an evidentiary hearing. The court stated that Israel’s
claims were “wholly conclusory” and that his “bald assertions” were
“insufficient to raise a constitutional issue.” The district court further
concluded that Israel could not refute his testimony at the rearraignment that
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he was competent and that he did not suffer from any emotional or mental
disability.
Israel sought, and the district court denied, a COA. Israel then sought
a COA in this court. We appointed pro bono counsel and granted Israel a
COA.
II
On appeal, Israel argues that the district court erred in denying—
without an evidentiary hearing—the ineffective assistance of counsel claims
supporting his 28 U.S.C. § 2255 motion.
A defendant who seeks to argue that the district court should have
held an evidentiary hearing before denying habeas relief must raise that
argument in his opening brief.1 Failure to do so forfeits the issue on appeal.2
Israel did not raise the lack of an evidentiary hearing as an issue in his initial
brief. Though Israel has forfeited his argument on appeal that an evidentiary
hearing should have been held, we conclude that even were the issue
preserved, habeas relief is not warranted. We review a district court’s denial
of an evidentiary hearing on a § 2255 motion for an abuse of discretion.3 A
district court is required to conduct an evidentiary hearing on a § 2255
motion “[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 4 A movant must present
“independent indicia of the likely merit of his allegations” to warrant an
1
United States v. Valdez, 973 F.3d 396, 406 n.6 (5th Cir. 2020).
2
Id.3
United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013).
4
28 U.S.C. § 2255(b).
8
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evidentiary hearing.5 That is “typically in the form of one or more affidavits
from reliable third parties.”6 Conclusory allegations will not suffice.7
“If . . . the defendant’s showing is inconsistent with the bulk of [his] conduct
or otherwise fails to meet [his] burden of proof in the light of other evidence
in the record, an evidentiary hearing is unnecessary.”8
As for the underlying assertions, we review the district court’s denial
of ineffective assistance of counsel claims on a § 2255 motion de novo.9
“[T]he right to counsel is the right to the effective assistance of counsel.”10
“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.”11
To establish a claim for ineffective assistance of counsel, a defendant must
show both that (1) “counsel’s performance was deficient” and that (2) the
“deficient performance prejudiced the defense.”12
5
Reed, 719 F.3d at 373 (brackets omitted) (quoting United States v. Cavitt, 550 F.3d
430, 442 (5th Cir. 2008)).
6
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).
7
Reed, 719 F.3d at 373; see also Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983)
(“Absent evidence in the record, a court cannot consider a habeas petitioner’s bald
assertions on a critical issue in his pro se petition . . . to be of probative evidentiary value.”).
8
Cervantes, 132 F.3d at 1110.
9
United States v. Valdez, 973 F.3d 396, 402 (5th Cir. 2020) (“A district court’s
conclusions concerning a § 2255 petitioner’s claims of ineffective assistance of counsel
involve mixed questions of fact and law, which we review de novo.” (quoting United States
v. Bass, 310 F.3d 321, 325 (5th Cir. 2002))).
10
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis added).
11
Strickland v. Washington, 466 U.S. 668, 686 (1984); cf. Padilla v. Kentucky, 559
U.S. 356, 371 (2010) (“Surmounting Strickland’s high bar is never an easy task.”).
12
Strickland, 466 U.S. at 687.
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First, establishing deficient performance requires a showing that
“counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.”13 “This requires
showing that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”14
Second, generally, establishing prejudice requires a showing that there is a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.”15
In assessing such a prejudice claim, “[c]ourts should not upset a plea
solely because of post hoc assertions from a defendant about how he would
have pleaded but for his attorney’s deficiencies.”16 Rather, courts must look
to the defendant’s decision-making process, accounting for “the risks he
would have faced at trial, his representations about his desire to retract his
plea, and the district court’s admonishments.”17 Because a defendant must
satisfy both prongs to carry his burden, “a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies.” 18
13
Id. at 688.
14
Id. at 687.
15
Id. at 694.
16
United States v. Valdez, 973 F.3d 396, 403 (5th Cir. 2020) (alteration in original)
(quoting Lee v. United States, 137 S. Ct. 1958, 1967 (2017)).
17
Id. at 403 (alterations and internal quotation marks omitted) (quoting United
States v. Batamula, 823 F.3d 237, 240 n.4 (5th Cir. 2016) (en banc)).
18
Strickland, 466 U.S. at 687, 697.
10
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III
Israel does not assert that, had the district court held an evidentiary
hearing, he would have presented evidence that was not in the record before
the district court. In the habeas proceedings, Israel has not provided
evidence that had his trial counsel been effective, counsel could have
obtained evidence from a mental health expert that Israel was incompetent
when he was rearraigned or when he was sentenced.
A
First, Israel argues that “trial counsel was ineffective for failing to
investigate Israel’s mental health history and competency.” To establish
prejudice, Israel must “demonstrate a ‘reasonable probability’ that he was
incompetent, ‘sufficient to undermine confidence in the outcome.’”19 “This
is a lower burden of proof than the preponderance standard” required for
incompetence in fact.20 “Thus, even if [Israel] were to fail to prove his
incompetency by a preponderance of the evidence, it is still possible that he
raised sufficient doubt on that issue to satisfy the prejudice prong of his
19
Bouchillon v. Collins, 907 F.2d 589, 590, 595 (5th Cir. 1990) (quoting Strickland,
466 U.S. at 694) (applying this standard to a claim for ineffective assistance for failure to
investigate the defendant’s competency prior to entering his plea); see also United States v.
Avila-Gonzalez, 757 F. App’x 353, 357 (5th Cir. 2018) (per curiam) (for the same ineffective
assistance of counsel claim under 28 U.S.C. § 2255, the defendant must “demonstrate a
reasonable probability that the court would have found him incompetent. Otherwise, there
is no prejudice”); accord Hummel v. Rosemeyer, 564 F.3d 290, 298, 303 (3rd Cir. 2009)
(holding that, in a case for ineffective assistance of counsel for stipulating that the
defendant was competent to stand trial and for failing to request a court order to evaluate
the defendant’s competency by a psychiatrist, the defendant “must demonstrate that there
is a reasonable probability he would have been found incompetent to stand trial” to prove
prejudice).
20
Bouchillon, 907 F.2d at 595; accord Cooper v. Oklahoma, 517 U.S. 348, 362 (1996)
(citing 18 U.S.C. § 4241 for the rule that one “must prove incompetence by a
preponderance of the evidence”).
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ineffective assistance of counsel claim.”21 It is irrelevant that the case
establishing the standard for this claim, Bouchillon v. Collins, was decided
before the enactment of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA).22 AEDPA did not change the relevant burdens of proof or
standards of review for habeas proceedings involving federal convictions.23
Because “[n]ot all people who have a mental problem are rendered by
it legally incompetent,”24 Israel’s schizophrenia diagnosis and attendant
treatment did not necessarily render him legally incompetent at the time of
his plea. Indeed, a person with schizophrenia “will have periods of time
when symptoms are better (maybe even much better).” A defendant is
incompetent only when “he lacks the capacity to understand the nature and
object of the proceedings against him, to consult with counsel, and to assist
in preparing his defense.”25 Accordingly, to establish prejudice on this claim,
21
Bouchillon, 907 F.2d at 595.
22
Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of
28 U.S.C.).
23
Compare 28 U.S.C. § 2255 (1949), with 28 U.S.C. § 2255 (1996), and 28 U.S.C.
§ 2255 (2008) (for federal convictions, 1996 amendments adding only a one-year period of
limitation (subsection f), a court-appointed counsel provision (subsection g), and a second
or successive motion provision (subsection h)). The same is not true for state convictions.
Compare 28 U.S.C. § 2254 (1966), with 28 U.S.C. § 2254 (1996) (for state convictions, 1996
amendments adding standards of review for questions of law or fact (subsection d), as well
as a presumption and burden of proof to overcome it for determinations of factual issues
made by state courts (subsection e)).
24
Bouchillon, 907 F.2d at 593.
25
Drope v. Missouri, 420 U.S. 162, 171 (1975); see also 18 U.S.C. § 4241(a) (“The
court shall grant the motion [for a hearing to determine the mental competency of the
defendant], or shall order such a hearing on its own motion, if there is reasonable cause to
believe that the defendant may presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to understand the
nature and consequences of the proceedings against him or to assist properly in his
defense.”).
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there must be a reasonable probability that, but for trial counsel’s
performance, Israel would have been found to lack the capacity to understand
the nature and object of the proceedings against him, to consult with counsel,
or to assist in preparing his defense. While the district court explicitly found
Israel to be competent, that finding is not dispositive here. 26
Israel has not shown that there is a reasonable probability that he
lacked the capacity to understand the nature and object of the proceedings
against him. In Austin v. Davis, the defendant claimed trial counsel was
ineffective for “failing to undertake significant discovery or investigation into
[his] competency.”27 This court held that the defendant had “wholly failed”
to show that trial counsel’s performance prejudiced his defense because “the
evidence presented both to the . . . trial court and in post-conviction
proceedings strongly support[ed] the . . . trial court’s determination that [he]
was competent.”28 Prior to trial, the defendant wrote a number of letters to
the trial court explaining, among other things, that he did not want an
attorney, would accept a death sentence, and was “fully aware of his rights
26
United States v. Flores-Martinez, 677 F.3d 699, 706 n.4 (5th Cir. 2012)
(parenthetically quoting United States v. McKnight, 570 F.3d 641, 648 (5th Cir. 2009) noting
“this [c]ourt takes a ‘hard look’ at the ultimate competency finding” to support the
proposition that if the federal trial court makes “an ultimate competency finding,
we . . . review that factual finding for clear error” on direct appeal); see also supra note 23;
but cf. 28 U.S.C. § 2254(e) (providing that in habeas proceedings from state convictions “a
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence”); Austin v. Davis, 876 F.3d 757, 779 (5th Cir. 2017) (“Because
competency is a question of fact, we afford the state trial court the deference due under
§ 2254(e)(1).”).
27
Austin, 876 F.3d at 784.
28
Id. at 785.
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and was fully competent to stand before [the court] and make these
decisions.”29
Before accepting [the defendant’s] guilty plea, the . . . trial
court again confirmed that [the defendant] understood the
charges against him and the possible punishment. It also
admonished [the defendant] that he had a right to a jury trial
and asked [him] a series of questions to determine if his plea
was voluntary. The court asked [the defendant] if he was of
sound mind. It explained the consequences of pleading guilty.
The court specifically found, based on its prior evaluation of
[the defendant’s] competency to stand trial at the first Faretta
hearing as well as prior conversations with [the defendant], that
[he] was “mentally competent to enter [a] plea of guilty” and
that he was “doing so freely and voluntarily with full
knowledge of the consequences.”30
The defendant’s letters and colloquy with the judge did “not suggest
an inability to understand the proceedings or charges against him,” but rather
showed that the defendant “remained articulate and focused in his aim of
representing himself and refusing to present a defense.”31 Further, although
the defendant detailed “various psychiatric treatments, interactions with
mental health professionals, and the opinions of experts hired post-
conviction, nothing suggest[ed] he suffered any impairment that would bear
on his competency to stand trial.”32 The same is true for Israel.
First, at the rearraignment, Israel assured the district court that he was
of sound mind and understood the charges against him, his rights, his plea of
29
Id. at 763 (brackets omitted).
30
Id. at 783-84 (last alteration in original) (footnotes omitted).
31
Id. at 785.
32
Id. at 786.
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guilty, and all of the penalties and punishments that could come with that
plea.33 Explicitly evincing this understanding, Israel asked the court to clarify
that the sentence would not certainly be twenty years, but rather could be a
maximum of twenty years. Before accepting Israel’s guilty plea, the district
court engaged in a colloquy with Israel, like the district court did with the
defendant in Austin, to confirm Israel’s assertions and determine if his plea
was voluntary.34 Satisfied, the district “court specifically found” 35 that Israel
was “fully competent and capable of entering an informed plea,” and that his
plea was “knowing and voluntary.”
Next, Israel’s first letter to the court after the rearraignment further
demonstrates his capacity to understand and overall competency. He
identified himself as the individual who came to the court to plead guilty to
bank robbery. He knew the district court would ultimately impose his
sentence and clarified that he had “all [his] mental faculties” and was “not
crazy enough to try to play games with [his] federal sentencing judge.” Israel
assured the court that while he had mental health issues in the past, he had
“never [given] anyone a doubt about [his] competency.” 36 Finally, Israel’s
request to the court for “leniency” at sentencing shows his capacity to
understand the nature (sentencing) and object (Israel) of that proceeding.
Israel has not presented any evidence in the habeas proceedings that, at the
time he pleaded guilty or when he was sentenced, he was unable either to
comprehend or to participate in the criminal proceedings.
33
Cf. id. at 783-84.
34
Cf. id. at 766.
35
Cf. id. at 784.
36
Cf. id. at 763 (defendant explaining to the state trial court in a letter, “I am fully
competent and definitely know the difference between right and wrong”).
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There is also not a reasonable probability that Israel lacked the
capacity to consult with counsel and to assist in preparing his defense. As for
the capacity to consult with counsel, the test is whether he had “sufficient
present ability to consult with [trial counsel] with a reasonable degree of
rational understanding.”37 First, at the rearraignment, Israel swore that he
had discussed his factual resume with trial counsel and that counsel explained
the legal meaning of everything in it.38 He also agreed that he had been
satisfied with trial counsel and did not have any complaint with anything trial
counsel had done or failed to do while representing him.
Next, Israel’s letters after the rearraignment further indicate Israel’s
capacity, and even willingness, to consult with counsel with a reasonable
degree of rational understanding. In Israel’s first letter to the court after the
rearraignment, he mentioned multiple times how he had spoken to trial
counsel regarding his potential transfer to a medical unit. In the second
letter, addressed to trial counsel, Israel discussed his concerns with trial
counsel “downplay[ing]” his mental illness and failing to contact the proper
entities to document that illness. Finally, after the second letter, Israel
consulted with counsel in a twenty-five-minute court-ordered meeting, at the
outcome of which the two “resolved the differences between them.” Israel
never again raised any issue regarding his competence at any time or any
dissatisfaction with counsel after that consultation.
As for the capacity to assist in preparing his defense, Israel’s first
letter to the court after the rearraignment—complaining about the conditions
of his confinement in jail, stating that he “truly hate[d] to bother [the court]
37
See Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam).
38
Cf. Austin, 876 F.3d at 763 (“[The defendant] stated that he was ‘fully aware of
[his] rights and [was] fully competent to stand before you and make these decisions.’”
(alterations in original)).
16
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No. 17-10948
about such a frivolous issue” but he was being denied a transfer to the
medical unit where he would receive proper medication—evinces his
capacity to assist his defense by contacting the district court. Next, Israel’s
second letter to the district court (addressed to trial counsel) shows Israel’s
capacity to assist with a defense related to his mental health issues. Israel
specifically mentions two steps—securing a psychiatric evaluation and
contacting family members and hospitals to document his history of mental
illness—which he thought should be taken for his case. Last, at sentencing,
when asked by the court if he would like to make any statement regarding
mitigation, Israel had the capacity to emphasize to the court that although he
had a criminal history, he had “kind of been on the straight and narrow,” and
ultimately “ask[ed] [the court] for leniency.” Based on the rearraignment,
Israel’s letters, and his sentencing, there is not a reasonable probability that
Israel lacked the capacity to assist in his defense.
Israel has not presented any evidence in the habeas proceedings that
at the time he pleaded guilty or when he was sentenced he was unable to
understand the nature or object of the proceedings, consult with counsel, or
assist in preparing his defense. While Israel presents evidence pertaining to
his mental health issues before and after the criminal proceedings, including
treatment he received after his criminal proceedings concluded, nothing
suggests any impairment that would bear on his competency during the
criminal proceedings. Moreover, “to succeed on a claim for failure to
investigate, a defendant ‘must allege with specificity what the investigation
would have revealed and how it would have altered the outcome of the
trial.’”39 Israel has not met that burden. He has not presented any evidence
that trial counsel could have obtained evidence from a health care expert that
39
United States v. Bernard, 762 F.3d 467, 477 (5th Cir. 2014) (quoting Druery v.
Thaler, 647 F.3d 535, 541 (5th Cir. 2011)).
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Israel was incompetent when he pleaded guilty. 40 Therefore, Israel cannot
prevail on his claim of ineffective assistance of counsel for failure to
investigate his mental health and competency.
B
Second, Israel argues trial counsel was ineffective for failing to move
for a competency examination and hearing. For the same reasons discussed
above, this claim fails. To establish prejudice, Israel must show a reasonable
probability that the district court would have found Israel incompetent if trial
counsel had moved for a competency examination or hearing.41 The district
court would had to have found Israel incompetent by a preponderance of the
evidence.42
It is unclear from the case law of this court and our sister circuits
whether the standard for prejudice on an ineffective assistance claim for
failure to move for a competency hearing, unlike such for failure to investigate
the defendant’s competency,43 requires melding the burdens of proof for an
ineffective assistance claim and incompetence in fact.44 That is, it is unclear
40
Cf. Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990) (holding the prejudice
prong satisfied when a psychologist testified that due to a clinically recognized mental
disorder the defendant was incompetent to plead guilty).
41
See Felde v. Butler, 817 F.2d 281, 282-83 (5th Cir. 1987); see also Saldaño v. Davis,
701 F. App’x 302, 315 (5th Cir. 2017) (per curiam) (“To show prejudice, Saldaño must
demonstrate a reasonable probability that the trial court would have found him incompetent
had counsel requested a competency hearing.” (citing Felde, 817 F.2d at 282)).
42
18 U.S.C. § 4241(d).
43
See supra note 19.
44
See United States v. Torres, 717 F. App’x 450, 455-56 (5th Cir. 2018) (per curiam)
(for claim that counsel was ineffective for failing to investigate defendant’s competency
and request a competency hearing, defendant “must demonstrate a reasonable probability
that he was incompetent when he pleaded guilty”); accord Warren v. Baenen, 712 F.3d 1090,
1100 (7th Cir. 2013) (“In cases where a defendant contends that he received ineffective
18
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if Israel must show that there is a reasonable probability that he could have
been found incompetent by a preponderance of the evidence at a hearing, or
that, like a claim for failure to investigate, he must show that there is a
reasonable probability he was incompetent.45 Regardless, “the difference
between Strickland’s prejudice standard and a more-probable-than-not [i.e.,
preponderance] standard is slight and matters ‘only in the rarest case.’ The
likelihood of a different result must be substantial, not just conceivable.”46
There is no evidence that, had there been a competency examination
or hearing, any testimony would have been elicited or other evidence would
have been offered that Israel was incompetent at the time he pleaded guilty.
Therefore, Israel was not prejudiced by trial counsel’s performance because
there is not a reasonable probability—or a reasonable probability of proof by
a preponderance of the evidence—that the district court would have found
Israel incompetent had trial counsel moved for such an examination or
assistance because his attorney failed to request a competency hearing, ‘we have
interpreted the [Strickland] prejudice inquiry as asking whether there is a reasonable
probability the defendant would have been found unfit had a hearing been held.’”
(alteration in original) (quoting Burt v. Uchtman, 422 F.3d 557, 567 (7th Cir. 2005)));
Stanley v. Cullen, 633 F.3d 852, 862-63 (9th Cir. 2011) (quoting Third Circuit case Jermyn
v. Horn in support of holding that counsel was not ineffective for failing to move for
competency proceedings during the guilt phase of the trial when there was “insufficient
evidence” of the defendant’s incompetence during that phase); Jermyn v. Horn, 266 F.3d
257, 283 (3rd Cir. 2001) (holding that counsel’s failure to move for a competency hearing
violates the defendant’s right to effective assistance of counsel if “there is a reasonable
probability that the defendant would have been found incompetent to stand trial had the
issue been raised and fully considered”).
45
Compare supra note 19 & accompanying text, with supra notes 41-44 &
accompanying text.
46
Harrington v. Richter, 562 U.S. 86, 112 (2011) (citation omitted) (quoting and
citing Strickland v. Washington, 466 U.S. 668, 693, 697 (1984)).
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hearing. Accordingly, Israel is not entitled to relief on that ineffective
assistance of counsel claim.
C
Third, Israel argues trial counsel was ineffective for failing to
investigate and advise Israel regarding an insanity defense. The government
argues that Israel waived his right to assert an insanity defense—along with
any associated ineffective assistance claim—when he pleaded guilty to bank
robbery. Generally, “[a] voluntary guilty plea waives all nonjurisdictional
defects in the proceedings against the defendant. This includes claims of
ineffective assistance of counsel except insofar as the ineffectiveness is
alleged to have rendered the guilty plea involuntary.” 47 More specifically,
the defendant must allege that, “but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”48
Israel made no such allegation in relation to this ineffective assistance
claim in his opening brief. Instead he argued that “[t]rial counsel had reason
to know that [he] might have been able to plead innocent by reason of
insanity” and that “such a defense might indeed have been ‘promising.’” At
no point did he classify the plea as involuntary or unknowing.49 Israel
contended in his § 2255 motion that “his guilty plea wasn’t valid because he
47
United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000) (citation omitted)
(citing United States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991)).
48
Hill v. Lockhart, 474 U.S. 52, 54-56, 59 (1985) (defendant filing a federal habeas
corpus petition alleging that his guilty plea was involuntary by reason of ineffective
assistance of counsel because his attorney had misinformed him as to his parole eligibility
date and the Court requiring for the prejudice prong a showing that “there is a reasonable
probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and
would have insisted on going to trial”).
49
Cf. Glinsey, 209 F.3d at 392 (defendant explicitly alleging “his plea was
involuntary”).
20
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No. 17-10948
was incompetent.” He argued in his reply brief that his “claims of
ineffectiveness here go directly to the guilty plea, which [he] argues he only
entered on these grounds because he was left without a defense.” Those
arguments likely go to the voluntariness of Israel’s plea. 50 However, failure
to brief an issue adequately on appeal can constitute forfeiture of that
argument,51 and issues raised for the first time in a reply brief are waived. 52
Thus, Israel likely waived this claim of ineffective assistance of counsel.
Nevertheless, assuming without deciding that he did not waive the
claim, to demonstrate prejudice Israel must show “that there is a reasonable
probability that he would have prevailed on his insanity defense had he
pursued it.”53 We “must consider the totality of the evidence before the
judge or jury.”54 Trial counsel’s “failure to raise a meritless
argument . . . cannot form the basis of a successful ineffective assistance of
counsel claim because the result of the proceeding would not have been
different had [trial counsel] raised the issue.”55 In that case, the defense
suffers no prejudice.
50
See supra note 48 & accompanying text.
51
Monteon-Camargo v. Barr, 918 F.3d 423, 428 (5th Cir. 2019).
52
Ashford v. Aeroframe Servs., L.L.C., 907 F.3d 385, 398 (5th Cir. 2018) (Jones,
J., dissenting).
53
Knowles v. Mirzayance, 556 U.S. 111, 114, 127-28 (2009) (internal quotation marks
omitted) (reversing the state court’s conclusion that there was no ineffective assistance of
counsel under 28 U.S.C. § 2254 because the defendant did not demonstrate that he
suffered prejudice from counsel recommending he withdraw his insanity defense).
54
Martinez v. Dretke, 404 F.3d 878, 890 (5th Cir. 2005) (quoting Strickland v.
Washington, 466 U.S. 668, 695 (1984)) (holding, on a claim of ineffective assistance for
failure to present an insanity defense, that “even if counsel had asserted the presumption
and defense of insanity . . . it is highly improbable that the outcome would have been
different”).
55
United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
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Insanity is an affirmative defense requiring clear and convincing
evidence that “at the time of the commission of the acts constituting the
offense, the defendant, as a result of a severe mental disease or defect, was
unable to appreciate the nature and quality or the wrongfulness of his acts.
Mental disease or defect does not otherwise constitute a defense.” 56 Israel
argues that an insanity defense would have been “promising” because Israel
has always been mentally ill and the evidence demonstrates that he
committed the alleged crime while mentally ill. Thus, Israel contends, he
was unable to appreciate the “nature and quality or the wrongfulness of his
acts” at the time of the crime.57 However, the record “establishes only that
[Israel] may have had a diminished capacity to appreciate the nature and
quality or wrongfulness of his actions [due to his mental health issues], not
that he was completely unable to appreciate such things, as required by 18
U.S.C § 17.”58
A defendant’s concealment of a crime can provide evidence of his
capacity.59 In United States v. Eff, the undisputed evidence showed that the
defendant, a fireman with Klinefelter’s syndrome convicted of arson, “had
the ability to and did appreciate that his actions were wrong” when he “set
the fires in secret and initially attempted to cover up his involvement by lying
to investigators.”60 The defendant’s attempt to hide his commission of the
crime showed that he “appreciate[d] that his conduct was wrong as an eight-
56
18 U.S.C. § 17(a).
57
Id.58
United States v. Eff, 524 F.3d 712, 718 (5th Cir. 2008) (emphasis in original).
59
See id. at 718-19.
60
Id. at 718 (citing United States v. Barton, 992 F.2d 66, 69 (5th Cir. 1993) (“[A]
person’s attempt to hide his commission of a crime suggests that the person knows the
action is wrongful or illegal . . . .”)).
22
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year-old child appreciates that stealing is wrong—they can articulate that
their actions were wrong, but they will complete the act anyway.” 61
Similarly, Israel, a diagnosed schizophrenic convicted of bank
robbery, attempted to cover up his involvement in the robbery by shaving his
head and wearing a construction “disguise”; leading police on a high-speed
chase away from the bank; and attempting to carjack a victim to continue
evading the police even after he crashed the initial getaway car and was
injured as a result.62 Thus, while Israel’s mental health issues may have led
him to have a diminished capacity to appreciate the nature and quality or
wrongfulness of his actions, he was not completely unable to appreciate such
things.
Nevertheless, Israel argues that, under this court’s decision in United
States v. Long,63 a “schizotypal personality disorder ‘fits comfortably’”
within the § 17 definition of insanity. Israel is incorrect for two reasons.
First, we held in Long that an approach “that treats a particular diagnostic
category as necessary or sufficient for” an insanity defense “would
improperly surrender to mental health experts the ultimate responsibility of
adjudicating criminal culpability and just as improperly would take that
decision away from the court and jury, causing the insanity defense to again
61
Id. at 718-19.
62
Accord United States v. Freeman, 804 F.2d 1574, 1577 (11th Cir. 1986) (“The fact
that immediately after the robbery was done while he was in disguise, he fled; that after a
change of clothes he was accosted by a policeman from whom he ran in an attempt to avoid
apprehension; that during the bank robbery he threatened to kill all of the bank employees
if they reported the robbery, and his statements after his arrest—that is, immediately after
his arrest—showing that he knew that he had done wrong, that he didn’t know why he did
it, that he badly needed money, that his family badly needed money and he was
disappointed with himself, all tend to show that he knew what he did was wrong.”).
63
562 F.3d 325 (5th Cir. 2009).
23
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rise or fall solely on the basis of a clinical diagnosis.” 64 Second, Israel misses
the critical distinction between Eff and Long. The “bulk of the relevant
testimony” in Long “relate[d] to the manner in which Long’s disturbances
of thought affected his ability to appreciate his actions,” rather than focusing
on being “driven by something like an irresistible impulse” as in in Eff.65
That is, the defendant in Long attempted to prove that his illness interfered
with thought, rather than with volition.66 He had a delusional belief that he
had to commit the crimes because the voices he was hearing told him it was
for the “betterment of mankind or God.”67 In contrast to Long and similar
to Eff, Israel has consistently focused on his volition, arguing “[t]here is
strong evidence that he committed his crimes under schizophrenic
compulsion.” Rather than committing the robbery for a purpose told to him
by voices he was hearing, he committed the robbery as a means to escape
those voices or for a reason he cannot recall.
In his briefing on appeal, Israel highlights that: he told his wife on the
day he was arrested that demons were chasing him that day; he mentioned to
the arresting officers that a being called “Damon” had cut him, although the
64
Long, 562 F.3d at 332-33.
65
Id. at 344.
66
Id.67
Id. at 340; see also id. at 336 (discussing evidence that the defendant heard voices
“saying that this is what you need to do” and “telling him that it was his ‘job to test the
system to find the weaknesses’”); id. at 339-40 (“[A] reasonable juror could just as well
conclude, based on clear and convincing evidence, that Long did not know that his acts
were wrong because of the delusional beliefs and hallucinations from which he suffered
during his psychotic episodes (for example, when he sent the letters and e-
mails). . . . [W]hether . . . Long’s hallucinations were linked to his delusional beliefs, the
very existence of the delusional belief that he had to terrorize hundreds or even thousands
of persons for the ‘betterment of mankind or God’ is sufficient to demonstrate that his
inability to appreciate the wrongfulness or the nature and quality of his actions flowed from
his illness.”).
24
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wounds were self-inflicted; and he “suffers from auditory and visual
hallucinations, paranoid ideations, and disassociation with reality.” Unlike
the defendant in Long who heard voices telling him to commit specific
crimes,68 neither Israel’s arguments nor the evidence address a delusional
belief held by Israel that he had to commit the robbery for a purpose told to
him by “Damon” or other voices. Rather, Israel stated that he robbed the
bank in the hope of committing “suicide by cop” or being put in jail, thus
enabling him to escape “Damon.” Those statements show Israel knew the
nature and quality of his actions at the time of the crime because he knew that
his actions would result in interaction with police officers and potential
jailtime.
In Israel’s § 2255 motion, he “contend[ed] that he never would have
robbed that bank if he wasn’t hallucinating terribly and following the
commands of the voices in his head,” and attached a letter from his wife
claiming that on the day of his arrest he yelled that there “were demons
chasing him demanding money and he had a gun and was paranoid looking
out the window.” In his reply brief he contended that he “consistently
claimed that he has no memory of the incident—all he remembers is that he
was driving to his wife’s house and got lost.” However, all of those assertions
are “inconsistent with the bulk of [Israel’s] conduct.”69 Further, he did not
highlight that evidence or raise those arguments in his opening brief.70
The evidence in the record and the information available to trial
counsel do not indicate a reasonable probability that Israel was unable to
appreciate the nature and quality or wrongfulness of his actions as a result of
68
Long, 562 F.3d at 336.
69
See supra note 8 & accompanying text.
70
See supra notes 51-52.
25
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his mental health issues. Thus, there is not a reasonable probability that an
insanity defense would have been successful,71 and Israel was not prejudiced
by trial counsel’s allegedly deficient performance. Moreover, because Israel
argues trial counsel was ineffective for failing to investigate and advise him
regarding an insanity defense, he “must allege with specificity what the
investigation would have revealed and how it would have altered the outcome
of the trial.”72 Israel has not presented any evidence that trial counsel could
have obtained other evidence, such as that from a health care expert, that
Israel was insane at the time he committed the robbery. For both reasons,
Israel cannot prevail on this ineffective assistance of counsel claim.
D
Last, Israel argues trial counsel was ineffective for failing to present
mitigating evidence of Israel’s mental health at sentencing. Israel argues that
if trial counsel had introduced evidence concerning his mental health issues
at sentencing, there is at least a reasonable probability that the district court
would have imposed a sentence lower than the 240 months’ statutory
maximum sentence he received.
“[F]ailing to put on mitigating evidence at the punishment phase of
the trial . . . is not per se ineffective assistance.”73 While “any additional time
in prison has constitutional significance” and thus can constitute prejudice,74
71
Cf. Bouchillon v. Collins, 907 F.2d 589, 596-97 (5th Cir. 1990) (discussing the facts
of Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) to explain why counsel in Bouchillon—
unlike trial counsel here—was ineffective for failing to pursue an insanity defense).
72
See supra note 39 & accompanying text.
73
Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997) (citing King v. Puckett, 1 F.3d
280, 284 (5th Cir. 1993)).
74
United States v. Grammas, 376 F.3d 433, 438-39 (5th Cir. 2004) (emphasis in
original) (discussing how the Supreme Court’s decision in Glover v. United States, 531 U.S.
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Israel must provide a “specific, affirmative showing of what the [mitigating]
evidence would have been” to lead to a lower sentence. 75 Israel has not
identified what mitigating evidence—other than what was already before the
court pre-sentencing—would have made a difference. Consequently, we
“cannot determine whether [Israel] was prejudiced by the absence of such
evidence at”76 sentencing, beyond Israel’s bald assertion that the sentence
was higher than it would have been otherwise.77 That assertion is not
enough.78 Thus, as is, the record conclusively shows that Israel cannot
prevail on his claim that trial counsel was ineffective for failing to present
mitigating evidence of Israel’s mental health at sentencing.
IV
In sum, even if Israel could show that trial counsel’s performance was
deficient, Israel has not presented any evidence that the allegedly deficient
performance prejudiced Israel’s defense. He cannot prevail on any of his four
ineffective assistance of counsel claims.
* * *
198 (2001) abrogated the “significantly less harsh” test for prejudice in sentencing and
replaced it with the “any amount of jail time” test).
75
Rector, 120 F.3d at 564.
76
Id.77
Monteon-Camargo v. Barr, 918 F.3d 423, 428 (5th Cir. 2019) (“Federal Rule of
Appellate Procedure 28(a)(8)(A) instructs a party to brief his ‘contentions and the reasons
for them, with citations to the authorities and parts of the record on which the [party]
relies.’” (alteration in original)).
78
See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (emphasizing that “mere
conclusory allegations do not raise a constitutional issue in a habeas proceeding” (citing
Schlang v. Heard, 691 F.2d 796, 798 (5th Cir. 1982) (collecting cases))).
27
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For the foregoing reasons, the judgment of the district court denying
Israel’s § 2255 motion is AFFIRMED.
28
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No. 17-10948
James L. Dennis, Circuit Judge, concurring in the judgment:
Because I agree that Israel has forfeited his argument that the district
court erred in denying his claims without an evidentiary hearing, and that
review of the record reveals that he cannot establish prejudice on any of his
ineffective assistance of counsel claims, I concur in the judgment.
29