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                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13731
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:10-cv-00255-RH-CAS


WILLIAM CARMAN,

                                                           Petitioner-Appellant,

                                  versus

DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (February 4, 2015)

Before HULL, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      William Carman, a Florida prisoner, appeals the denial of his petition for a

writ of habeas corpus. 28 U.S.C. § 2254. Carman argues that a state trial court

violated his right to due process as guaranteed in the Fourteenth Amendment by

failing sua sponte to conduct a hearing to determine whether he was competent to

stand trial. See Pate v. Robinson, 

, 

(1966). The district

court ruled that it was not contrary to or an unreasonable application of clearly

established federal law for a Florida appellate court to reject Carman’s argument.

We affirm.

                                I. BACKGROUND

      We divide the background of this appeal in three parts. First, we discuss

Carman’s trial and post-trial proceedings. Second, we discuss Carman’s direct

appeal. Third, we discuss Carman’s federal petition for a writ of habeas corpus.

        A. Carman’s Conviction and the Denial of his Motion for a New Trial

      In 2005, Carman was charged in a Florida court for abusing two minors.

Carman’s second amended information alleged that he had sexually battered S.M.,

a child under the age of 12, Fla. Stat. § 794.011(2)(a), and had twice touched G.C.,

a child under the age of 12, in a lewd or lascivious manner, 

Carman moved to sever the charges.

      On the first day of trial, August 18, 2005, defense counsel announced that he

was abandoning the motion to sever, and the trial court questioned Carman about


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the matter. The trial court asked Carman if he thought that it was in his best interest

to dismiss the motion, and Carman responded affirmatively. The trial court also

asked Carman if he had been coerced or enticed to dismiss the motion, and Carman

responded negatively to both inquiries. Finally, the trial court asked Carman if he

was satisfied with his trial attorney’s advice and Carman responded, “Yes, sir.”

      Defense counsel reported that Carman had “taken some prescription

medication” and that it might affect his ability to “assist . . . properly in his

defense.” Defense counsel stated that Carman’s family had complained that

morning that Carman was “seeing double and could not wake up and [was] not

acting himself.” Counsel also said that he had talked to Carman, he was acting

differently, and he had “taken some prescription [nerve] medication” that counsel

had “asked . . . [Carman] at some point in the past to wean himself off of.”

According to counsel, Carman had taken “one [pill] after midnight” to help him

sleep. The trial court remarked that Carman “seems to be okay . . . just looking at

him” and based on “the questions . . . [being] asked . . . .” But defense counsel

countered that he “had to hold [Carman] up in the street . . . [to] talk[] to him” and

that his “investigator, who . . . knows [Carman], has noticed that his heart is racing,

although he looks fairly composed on the outside.” Counsel insisted that Carman

was not “responding . . . the way [he] f[elt] like [Carman] should be.”




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      The trial court questioned Carman to ensure that he understood what had

transpired so far. The trial court asked Carman “how [he] [was] feeling today,” and

Carman responded, “I’m kind of groggy, a little bit groggy.” In response to being

asked if he could “hear all right,” Carman stated, “Yes, I can hear.” And Carman

responded affirmatively to being asked if he comprehended “[t]he questions [that

he was] just asked . . . about the severance motion.” When asked if he understood

“that [he] [had] the right to theoretically have two trials; . . . one on the one alleged

victim and one on the other alleged victim,” Carman replied, “Right.” Carman

acknowledged that he had talked to his attorney about the motion to sever, and then

Carman explained that “we want to do them together.” The trial court remarked

that “the same evidence would come in probably on both the trials, or could come

in on both trials anyway if you had two,” to which Carman responded, “Right.”

      Carman confirmed that he had ingested a prescription medicine during the

previous evening. The trial court asked if Carman had “taken any medication

today,” and Carman responded, “Today, no. Not this morning. This was earlier.”

And when asked if he had taken anything “since [he] woke up this morning,”

Carman answered, “Not since I woke up, no.” Carman said that he had ingested the

medicine “about midnight,” and that it worked “like an antidepressant. It helps you

sleep.” Carman said that he was “not sure” of the name of the medication or its




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dosage, but he knew that “it [was] small pills, about that size” that had been

prescribed by “Dr. Whiddon.”

      Carman stated that he took the medicine occasionally and that it did not

affect his cognitive abilities. When asked if he had been “taking [the medicine] for

awhile now,” Carman responded, “Just off and on when there’s anxiety. I don’t

take them all the time.” The trial court asked if Carman had “take[n] them the other

day for jury selection,” and he said, “Actually, I didn’t take them before then, no.”

Carman acknowledged that, “if [he] [got] anxious or nervous or something, [he]

t[ook] them and they tend[ed] to calm [him] down” and that the medicine

“[n]ormally” did not affect his reasoning. When asked if he could complete a

crossword puzzle, Carman answered, “It might take me a little longer, but I can do

it.” And Carman affirmed that he was “able to assist [his attorney],” who Carman

acknowledged would need his “input on certain things with witnesses and what

they say or . . . what they might not say.” The trial court asked Carman if he had

“any more of the medicine with [him],” and Carman responded, “No,” and then he

interrupted the trial court to say, “In fact, I don’t have any more at all now.” When

asked if he “took the last one last night,” Carman replied, “This is over with.”

      The trial court assured Carman that he could request a recess, if one was

needed. The trial court asked for an “assur[ance] . . . [from Carman] that if [he]

need[ed] a break, [he] [could] tell [his attorney] and [the court would] take a


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break,” and Carman replied, “Okay.” The trial court also instructed Carman that “if

things start going too fast, [he could] stop and . . . tell [his attorney] and [the court

would] take a break,” and Carman responded, “Yes, sir.” Carman also responded

affirmatively when he was told that he “need[ed] to know what’s going on here

today and . . . need[ed] to be able to help” his attorney because a trial “is kind of a

team thing.” And Carman agreed “that if [he] g[ot] confused or something that

[he’d] stop and tell [his attorney], and [the trial court] would take a recess . . . [or]

take a break if that’s necessary.”

      After a brief conference with Carman, defense counsel moved for a

continuance on the ground that Carman “c[ould] [not] assist . . . today.” The

prosecutor responded that Carman “m[ight] be a little wobbly on his pins,” but that

a continuance was unnecessary in the light of the “inquir[ies]” made and Carman’s

“ab[ility] to understand all the questions that the Court gave[ and to] make

intelligent, rational responses.”

      The trial court denied Carman’s motion, but it reminded Carman that he

could request a recess at any time. The trial court explained that it “had a fairly

extensive colloquy with Mr. Carman, and [was] convinced that he understands

what’s going on” despite his consumption of “some medication last night that’s

prescription medication that he takes for nerves and so forth.” The trial court

acknowledged that it “would feel the same way . . . if [it] was sitting in [Carman’s]


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chair,” but that it “th[ought] [Carman] [was] competent to go forward today.” The

trial court assured Carman that “if things are starting to go too fast for him, or he is

confused as to what’s going on, that he needs to tell [his attorney], . . . [who] can

ask . . . [for] a recess to make sure that he’s able to assist his lawyer.” And Carman

responded affirmatively to a reminder that he had “promised . . . that if things go

out of hand, as far as [his] ability to keep up with things, [he] would tell [his]

lawyer to stop the trial . . . .” The trial court was confident that Carman would “be

all right” because “as the day [went] on, and this medication that [he] took last

night . . . w[ore] off, [he] w[ould] probably feel better and better.” Carman would

be capable of assisting his attorney, the trial court opined, because “the first

witness is probably not going to be called for about an hour. And that . . . w[ould]

assist [him] in getting [his] sea legs under [him] . . . .”

       Carman “ma[de] gestures to the jury in reaction to things” that were said by

the prosecutor during the opening statements. During a recess, the prosecutor asked

the trial court to “admonish[]” Carman for “trying to communicate with the jury by

nodding [his] head[] and making gestures.” The trial court remarked that it was

“counter productive for anybody to do that” and agreed to “admonish everyone not

to do that.”

       On August 19, 2005, the jury returned its verdicts. The jury found Carman

guilty of the sexual battery of S.M. and of two counts of battering G.C., as lesser-


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included offenses of the two charges of touching G.C. in a lewd and lascivious

manner.

      On August 29, 2005, Carman moved for a new trial. Carman argued that he

had been entitled to a continuance because “he was incapable of assisting his own

counsel in his defense at all stages of his trial on August 18–19, 2005.” Carman

alleged that, in addition to the evidence in the trial transcript about his mental state,

he had been “pale, nearly ashen in complexion” when his trial commenced; he had

been “unsteady on his feet and used walls, chairs, and counsel table for balance”;

he had “said nothing to counsel and wrote no notes to counsel” when the first

victim and a second prosecution witness testified; he had “continued to appear

ashen and disoriented” throughout the morning; he “beg[a]n to write notes and

communicate with counsel” after the second victim testified; his counsel had

realized that his condition had been “much more apparent and serious [after]

[being] provided with an apparent suicide letter that was found in [Carman’s] room

after the trial”; and he had “ingested far more Lorazepam than he disclosed to the

Court.”

      The trial court held a hearing on Carman’s motion. Carman testified that he

consumed between four and eight pills of Lorazepam in an attempt to commit

suicide. Carman also presented testimony from Dr. Darren Rothschild, a forensic

psychiatrist, that Carman had to have been intoxicated on the morning of trial


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because his previous ingestion of only one pill had “knocked [him] out” and that,

“due to [his] intoxication[,] . . . he was not competent to stand trial[] because he

was unable to adequately assist in his defense.” The doctor opined that, in the

morning, Carman would have been “confus[ed]” and “sedat[ed],” had “difficulty

processing information,” and had a “memory [that was] impaired,” and “by the

afternoon, he [w]ould have been coming to a little bit and [could] . . . pay

attention.” Dr. Rothschild testified that Carman “would have been . . .[un]abl[e] to

pay attention” and that his statements before trial were not credible because, “while

intoxicated, people can say all types of things” and are “[un]ihibit[ed]” and, “if

asked superficial questions, . . . [are] likely to comply yes or no and may . . .

respond[] to part of the question . . . not understanding [its] full magnitude . . . .”

      The trial court questioned defense counsel, who acknowledged that he had

not requested a recess. Counsel had deposed the victims and had discussed the

depositions with Carman before trial and the victims testified consistent with their

depositions. Defense counsel stated that, after the trial commenced, he had been

“engaged in defending [Carman] and not monitoring his progress . . . .”

      At the beginning of Carman’s sentencing hearing, the trial court denied

Carman’s motion for a new trial. The trial court “t[ook] [Carman] at his word” that

he had taken some medicine and had determined that a continuance was

unnecessary because he did not appear intoxicated and “answered all the questions


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appropriately.” Carman’s argument that he was intoxicated, the trial court

reasoned, was “belied” by the fact that neither Carman nor his attorney requested a

recess. Even if Carman had been intoxicated, the trial court reasoned, no new trial

was necessary because Carman had not proved that he had been prejudiced. The

trial court found that defense counsel had time but failed to confer with Carman

about the victims’ testimonies; it would have questioned Carman’s competence

“had those witnesses testimonies been exceedingly different than what they said at

their deposition”; and it was equally plausible that Carman chose not to make notes

because the victims’ testimonies did not differ. The trial court sentenced Carman to

a mandatory term of life without the possibility of parole for the sexual battery of

S.M. and to two terms of 95 days in the county jail for battering G.C. that would

run concurrently with each other and to Carman’s life sentence.

                               B. Carman’s Direct Appeal

      Carman argued, for the first time on appeal, that the trial court sua sponte

should have conducted a competency hearing. Carman argued that a hearing

should have been held because there were “reasonable grounds” to believe that he

was not competent to stand trial. See Fla. R. Crim. P. 3.210(b). Carman also argued

that the trial court had violated his right to procedural due process by failing, on its

own initiative, to hold a competency hearing. See Medina v. California, 

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437, 

(1992); Pate, 

, 

. The First District

Court of Appeals affirmed summarily Carman’s convictions and sentences.

                    C. Carman’s Petition for Habeas Corpus Relief

      Carman filed in the district court a petition for a writ of habeas corpus and

alleged the violation of his right to procedural due process. The state answered that

Carman was relying “on a factual basis not fairly presented to the trial court at the

time a continuance was requested” and Carman’s Pate argument was unexhausted.

The state also answered that Carman’s behavior before and during trial “failed to

raise a bona fide doubt as to his competency to proceed” because he “had no

history of incompetency or mental illness”; “[h]is dosage had not been deliberately

increased”; and “nothing happened during the morning session, in particular, to

raise a doubt about [his] competency.”

      The district court denied Carman’s petition. The district court ruled that

“Carman ha[d] failed to demonstrate [that] the state court’s rejection of []his claim

relied upon an unreasonable determination of the facts or constituted an

unreasonable application of clearly established federal law.” The district court

determined that the trial court “did not abuse its discretion in denying [Carman’s]

request for a continuance.” The district court also determined that “the trial court

did not err in failing to sua sponte order a competency evaluation” because “[t]he

record support[ed]” its “implicit[], if not explicit[], f[inding that there were] no


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reasonable grounds to suggest that Carman was not competent or [that] a bona fide

doubt necessitat[ed] a competency hearing.”

                           II. STANDARDS OF REVIEW

      We review de novo the denial of a petition for a writ of habeas corpus.

Moore v. Campbell, 

, 1321 (11th Cir. 2003). Under the

Antiterrorism and Effective Death Penalty Act, a petitioner is entitled to a writ of

habeas corpus only if the state court reached 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. § 2254(d). “The

decision of a state court involves an unreasonable application of clearly established

federal law ‘if the state court identifies the correct governing legal rule . . . but

unreasonably applies it to the facts of the particular state prisoner’s case.’” Greene

v. Upton, 

, 1154 (11th Cir. 2011) (quoting Williams v. Taylor, 

, 407, 

, 1520 (2000)). We presume that the findings of fact

by the state court are correct so long as they are supported by the record. 28 U.S.C.

§ 2254(e)(1); Fallada v. Dugger, 

, 1569 n.3 (11th Cir. 1987).

                                  III. DISCUSSION

      Our discussion is divided in two parts. First, we address the argument of the

State that Carman failed to exhaust his claim. Second, because we conclude that




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Carman exhausted his claim, we address whether the decision of the state court

involved an unreasonable application of clearly established federal law.

         A. Carman Exhausted His Claim for Purposes of Federal Review.

      Carman properly presented his Pate argument to the Florida courts. Before

trial, defense counsel expressed reservations about Carman’s ability to “assist in

his defense,” and after the trial court found that Carman was competent to proceed,

defense counsel moved, unsuccessfully, for a continuance. Carman was not

required, as the State argues, to request that the trial court conduct a competence

hearing. See Wright v. Sec’y for the Dep’t of Corr., 

, 1249, 1253

(11th Cir. 2002) (recognizing that, although the petitioner “never requested that the

trial court conduct a hearing on . . . whether [he] was mentally competent to stand

trial,” his “mental incompetency procedural due process claim . . . was timely

raised on direct appeal and rejected on the merits without discussion by the Fourth

District Court of Appeal”). It is not as though defense counsel failed to broach the

subject of Carman’s competency and, even if that were the case, that would “not

[be] dispositive . . . [and would serve as] evidence that [Carman’s] competency

was not really in doubt.” Watts v. Singletary, 

, 1288 (11th Cir. 1996).

A “Pate claim[] can . . . be raised on direct appeal,” James v. Singletary, 

, 1572 (11th Cir. 1992), and Carman argued to the Florida appellate court that

the trial court violated his right to due process by ignoring objective information


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that created a bona fide doubt about his competency to stand trial, see 

–86, 86 S. Ct. at 841–42. The decision of the state court to reject

Carman’s argument summarily qualifies as an adjudication on the merits and is

entitled to deference on habeas corpus review. 

–54.



B. The Florida Appellate Court Did Not Unreasonably Apply Clearly Established
                                Federal Law.

      “The failure to observe procedures adequate to protect a defendant’s right

not to be tried or convicted while incompetent to stand trial deprives him of his due

process right to a fair trial.” 

. To be incompetent, the

defendant must lack the “‘sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding’ or ‘a rational as well as a factual

understanding of the proceedings against him.’” 

(quoting

Dusky v. United States, 

, 402, 

, 789 (1960)). A

defendant’s right to due process is violated when the trial court fails sua sponte to

conduct a competency hearing when it has before it evidence that creates a bona

fide doubt about the defendant’s competency to proceed with his trial. 

–86, 86 S. Ct. at 841–42. The “petitioner shoulders the burden of

proving that objective facts known to the trial court were sufficient to raise a bona

fide doubt as to [his] competency.” McNair v. Dugger, 

, 401 (11th

Cir. 1989).
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        To determine whether there existed a bona fide doubt as to the defendant’s

competency, a reviewing court must “focus on what the trial court did in light of

what it then knew.” 

. Evidence about the defendant’s

mental condition, any irrational behavior on his part, and his demeanor at trial are

all relevant, “but ‘there are, of course, no fixed or immutable signs which

invariably indicate the need for further inquiry to determine fitness to proceed.’”

(quoting Drope v. Missouri, 

, 180, 

, 908 (1975)). The defendant’s use of drugs is not accorded any special

treatment; it is just another “relevant factor” in the analysis. 

.

        The Florida appellate court determined that the trial court did not violate

Carman’s right to due process, and that decision is not contrary to or an

unreasonable application of clearly established federal law. The objective facts

known to the trial court did not create a bona fide doubt about Carman’s

competency to stand trial. Despite the assertions made by defense counsel and

Carman’s family before trial that Carman was unable to assist in his defense,

Carman’s colloquy with the trial court reflects that he was coherent, articulate, and

understood the seriousness of his trial.

        None of the information presented to the trial court suggested that Carman

was unable to consult with his counsel or failed to understand his criminal


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proceedings. Carman engaged in an “intelligent colloquy” with the trial court about

his decision to abandon his motion to sever and about the effect of the prescription

medication that he had consumed. See Card v. Dugger, 

, 1519 (11th

Cir. 1990). Carman reported that he had taken one dose of an anti-anxiety

medication to help him sleep and, although it made him “groggy,” it did not affect

his lucidity. When Carman stated that the medicine “might” have slowed his

reaction time, the trial court compensated for the alleged difficulty by granting

Carman an unqualified right to obtain a recess. Neither Carman nor his counsel

asked for a recess. And counsel, who was “in the best position to . . . [assess]

Carman’s competency,” never complained during trial that Carman was not

assisting in his defense. See 

. The trial court, which had

“pa[id] close attention to Mr. Carman . . . and . . . noticed [that] he was making

notes and so forth during the course of the trial,” found that Carman “ha[d] been

able to help” in his defense, and defense counsel did not dispute that finding.

Immediately thereafter, Carman acknowledged that he was “feeling better.”

      Carman argues that other evidence created a bona fide doubt as to his

competency, but we cannot say that it was unreasonable for the state court to reach

a contrary conclusion. Carman argues that his gestures to the jury suggested that he

was incompetent, but it is equally plausible that Carman reacted to the accusations

being leveled against him by vigorously denying any wrongdoing. See Dusky, 362


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, 80 S. Ct. at 789. And even if we were to assume that Carman’s

gestures amounted to “bizarre . . . [or] irrational behavior[,] . . . [that was not

enough to] be equated with mental incompetence to stand trial.” See Medina v.

Singletary, 

, 1107 (11th Cir. 1995). Carman contends that the

evidence about his attempted suicide suggested that he was incompetent, but we

“may consider only the information before the trial court before and during trial.”

.

       The Florida appellate court did not unreasonably apply clearly established

federal law when it determined that the trial court afforded Carman all the process

required to ensure that he was competent to stand trial. See 

.

The trial court accepted Carman’s representation that he had taken medicine

several hours before his trial, but the trial court did not have any evidence before it

to suggest that Carman could not understand his criminal proceedings and assist in

his defense. And Carman failed to establish that the trial court failed to account for

any evidence that would have created a bona fide doubt about his competency to

stand trial.

                                 IV. CONCLUSION

       We AFFIRM the denial of Carman’s petition for a writ of habeas corpus.




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