NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 09-1770


                        PETER MICHAEL KARENBAUER,
                                                Appellant

                                          v.

       JEFFREY BEARD, Secretary, Pennsylvania Department of Corrections;
       LOUIS FOLINO, Superintendent, State Correctional Institution at Greene




                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (Civ. No. 2-05-cv-01586)
                     Honorable David S. Cercone, District Judge


                                Argued June 23, 2010


            BEFORE: SMITH, FISHER, and GREENBERG, Circuit Judges

                               (Filed: August 12, 2010)
                                     __________

Lisa B. Freeland (argued)
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

      Attorney for Appellant
James P. Barker (argued)
Jennifer A. Buck
Office of Attorney General of Pennsylvania
Appeals & Legal Services
Strawberry Square
16th Floor
Harrisburg, PA 17120

       Attorneys for Appellees




                                OPINION OF THE COURT




GREENBERG, Circuit Judge,

                                    I. INTRODUCTION

       This matter comes on before the Court on Peter Michael Karenbauer’s appeal from

a District Court order entered on February 25, 2009, denying his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, a provision of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). Though the District Court wrote its

own opinion, it also adopted a report and recommendation of a magistrate judge

recommending that it deny the petition. Karenbauer v. Klem, No. 2:05-cv-1586, 

, at *1 (W.D. Pa. Feb. 25, 2009). In an order entered on July 16, 2009, we

granted Karenbauer’s application for a certificate of appealability limited to his claims

that (1) the state trial court violated his due process rights when it did not conduct a

hearing on whether he was competent to stand trial; and (2) his trial counsel provided



                                               2
unconstitutionally ineffective assistance by not requesting a hearing on the issue of his

competency to stand trial. Because we conclude that Karenbauer is not entitled to relief

on either of these claims, we will affirm the order denying Karenbauer’s petition for a

writ of habeas corpus.




                                    II. BACKGROUND

       The facts of this case are recited in great detail in the magistrate judge’s report and

recommendation and in the District Court’s opinion and order. Accordingly, we will

discuss only those facts pertinent to the issues contained in the certificate of appealability.

Police arrested Karenbauer in 1995 for the killing of Lacy Johnson,1 the eight-year-old

daughter of his girlfriend, Nita Johnson, following which the Commonwealth charged

him with her first degree murder in the Court of Common Pleas of Lawrence County,

Pennsylvania. Though Karenbauer confessed to the homicide, he maintained that he

could not be guilty of first degree murder because his diminished mental capacity

rendered him unable to form the specific intent to kill.




       A.     Medical Evaluations of Karenbauer

       Several mental health professionals evaluated Karenbauer in advance of the trial.



  1
   We note that the victim’s name has been spelled as “Lacy” and “Lacey” at different
places in documents in this case. We use the form “Lacy” as the parties have in their
briefs.

                                               3
Psychologist Dr. Albert Scott evaluated Karenbauer on April 1 and May 21, 1996. Dr.

Scott diagnosed Karenbauer with a variety of ailments including depression, substance

dependency, borderline personality disorder, and antisocial personality disorder. Dr.

Scott’s ultimate conclusion, however, was that although Karenbauer was “definitely

mentally ill,” he was competent to stand trial and did not have a defense to the murder

charge based on diminished capacity. App., Vol. II, at 10. With respect to competency,

Dr. Scott concluded “[i]t was quite obvious that [Karenbauer] understood and was able to

participate in his defense.” 

see also 

(stating that Karenbauer “was

certainly capable of participating in his own defense”); and 

(stating that

Karenbauer was competent). Dr. Scott’s findings were contained in a Psychological

Report dated June 8, 1996, and in deposition testimony given on July 22, 1996.2

Psychiatrist Dr. Robert Wettstein also evaluated Karenbauer during this period and found

him not to have a defense to first degree murder based on diminished capacity. Dr.

Wettstein did not opine on Karenbauer’s competency to stand trial.

       Following the Scott and Wettstein evaluations, another psychiatrist, Dr. Lawson




  2
    In a sworn Declaration and Affidavit dated September 6, 1999, Dr. Scott stated, inter
alia, that it was his understanding at the time that he was deposed that his deposition
testimony “would relate to the guilt-stage issues only, i.e., threshold competency,
diminished capacity, insanity or possible guilty but mentally ill plea,” but that if he had
been questioned about mitigating circumstances for penalty phase purposes, he “would
have testified that Mr. Karenbauer was under the influence of extreme mental and
emotional disturbances at the time of the offense, and his ability to conform his conduct
to the requirements of the law w[as] diminished.” App., Vol. II, at 12.

                                              4
Bernstein, evaluated Karenbauer on July 23, 1996. Dr. Bernstein issued a report stating

that Karenbauer was moderately mentally retarded, suffered severe physical and sexual

abuse as a child, sustained numerous head injuries in his youth, had diminished

neuropsychological functioning as a result of chronic substance abuse, and suffered from

depression and post-traumatic stress disorder. Based on these diagnoses, Dr. Bernstein

concluded that Karenbauer “suffered from a significant and chronic diminished cognitive

capacity to premeditate and deliberate in regards to the formation of specific criminal

intent during the time period in question.” 

Dr. Bernstein did not address

whether Karenbauer was competent to stand trial. At the trial the prosecution challenged

Dr. Bernstein’s conclusions with testimony from Dr. Christine Martone, a staff

psychiatrist at the Pennsylvania State Correctional Institution at Pittsburgh, who

concluded that Karenbauer’s mental retardation was mild not moderate, and that during

the relevant time period he was able to form the specific intent to kill.




       B.     Karenbauer’s Behavior During the Trial Court Proceedings

       Karenbauer’s mental condition and his behavior while in custody were discussed at

various points throughout the trial court proceedings. A detective who testified for the

prosecution at trial stated that during a recess in a pre-trial proceeding she overheard

Karenbauer, who was in a private room about fifteen feet away from her, shouting “I did

it, I don’t know why I did it, nobody can tell me why I did it. . . . They should just shoot



                                              5
me.” Commonwealth v. Karenbauer, 

, 1090 (Pa. 1998). The witness

described Karenbauer as crying and upset.

         On July 15, 1996, before the commencement of voir dire, the trial court judge

asked Randall Hetrick, Karenbauer’s trial counsel, whether Karenbauer’s competency

was an issue in light of the mental health evaluations that had been conducted at that

point, i.e., the Scott and Wettstein evaluations.3 After counsel responded that it was not,

the judge asked Karenbauer whether he understood what they were talking about when

they referred to competency. Karenbauer responded in the affirmative. The judge then

explained:

         Competency and insanity are two different things. One can be both, and
         one can be one and not the other. I’m concerned about your understanding
         what’s going on, but you don’t have any mental illness that would adversely
         affect your ability to know what’s going on and understand and make
         intelligent decisions. All right.

App., Vol. II, at 21-22. After an off-the-record discussion, counsel for both sides stated

that they were ready to proceed to trial and begin voir dire.

         Jury selection continued uneventfully until Monday, July 22, 1996, when Hetrick

requested a sidebar conference and informed the trial court judge and opposing counsel

that:

         It came to my attention this weekend that Mr. Karenbauer took a razor
         blade to himself and carved up both of his arms real good. He did not
         require any type of hospitalization, but he’s been in the med cell all



  3
      As we have indicated, Dr. Bernstein made his evaluation on July 23, 1996.

                                              6
       weekend, and they’ve been checking him every 15 minutes. I talked to him
       on Saturday. I believe that he’s okay, but my concern is that maybe
       somebody should meet with him briefly to put something on the record that
       at this point he’s competent.

Hetrick continued, noting that he had talked to Karenbauer after the incident for

about two hours, and that during the first half hour Karenbauer was “very agitated, not

making a whole lot of sense,” but that he eventually calmed down and didn’t seem any

different than he had previously. 

then stated he could question Karenbauer with respect to his

competency to stand trial, but requested that Hetrick speak with Karenbauer first to get a

sense of Karenbauer’s condition. After conferring with Karenbauer, Hetrick stated:

       He appears to be okay this morning. He’s basically told me that he’s upset,
       he doesn’t know if he can go forward with this. I don’t know any basis for
       why he’s saying that. Other than that, he appears to understand what’s
       going on. . . . He says he’s upset and doesn’t know if he can go through
       with this, but I explained to him a little bit, or tried to explain to him, what
       I’d meant by competency and he said he understands what’s going on and
       he thinks he can assist in the case at this point.

Hetrick also noted that the jail where Karenbauer was being housed had moved

Karenbauer from the med cell back into his regular cell. After both Hetrick and the

prosecution expressed their belief that Karenbauer was competent to stand trial, the judge

concluded the sidebar conference and proceeded with jury selection.

       At the trial itself, Karenbauer acted in a way he claims was not rational and

revealed his inability to understand the nature of the proceedings against him and assist in

his own defense. In deciding whether or not to testify on his own behalf during the guilt

                                              7
phase of the trial, Karenbauer sought the advice of Nita Johnson, mother of the victim and

Karenbauer’s girlfriend at the time of the killing. Johnson testified for both the

prosecution and Karenbauer, and although she directly implicated Karenbauer in the

murder of her daughter Lacy, she also described the positive relationship that Karenbauer

had with Lacy and expressed the difficulty she had believing that Karenbauer was capable

of committing the murder. Thus, it is fair to say that her testimony was helpful to both

sides of the case.

       During the penalty phase of the proceedings, as part of Karenbauer’s presentation

of mitigating evidence, his mother, Darla McBride, testified about the abuse that

Karenbauer’s stepfather had inflicted on the family when Karenbauer was a child. While

describing one particular incident of abuse, McBride became emotional and began crying,

at which point Karenbauer interrupted the proceedings to demand that the trial judge take

her off the stand. The Court took a recess, and after Karenbauer and McBride regained

their composures, McBride resumed her testimony without incident.




       C.     Procedural History

       The jury convicted Karenbauer of first degree murder and sentenced him to death.

On direct appeal, the Supreme Court of Pennsylvania affirmed the conviction and

sentence and the Supreme Court of the United States denied Karenbauer’s petition for a

writ of certiorari. Karenbauer, 

, cert. denied, 

, 

1258 (1999). Karenbauer then sought collateral relief from the Pennsylvania courts under

the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-

9546 (West 2010), challenging both his conviction and his sentence. While PCRA

proceedings were pending, the Supreme Court of the United States decided Atkins v.

Virginia, holding that the execution of a mentally retarded person violated the Eighth

Amendment’s prohibition on cruel and unusual punishment. 

, 

(2002). Karenbauer thereafter filed a petition for resentencing in the trial court as

experts for both sides had testified at trial that Karenbauer was mentally retarded. The

Court granted the petition and resentenced Karenbauer to life imprisonment.

       Following the resentencing, Karenbauer continued to challenge his conviction in

the PCRA proceedings, arguing, inter alia, that the trial court should have conducted a

competency hearing and that his trial counsel had been ineffective for failing to request

that it conduct such a hearing. The Court denied Karenbauer relief and on appeal the

Superior Court affirmed and the Supreme Court of Pennsylvania denied his petition for

allowance of an appeal. See Commonwealth v. Karenbauer, 

(Pa. Super.

Ct. 2004) (table), perm. app. denied, 

(Pa. 2005) (table). Karenbauer

thereafter timely filed a petition for a writ of habeas corpus in the United States District

Court for the Western District of Pennsylvania.




                 III. JURISDICTION AND STANDARD OF REVIEW



                                              9
       The District Court had jurisdiction under 28 U.S.C. § 2254 and upon our issuance

of a certificate of appealability we obtained jurisdiction under 28 U.S.C. §§ 1291 and

2253. Inasmuch as the District Court did not conduct an evidentiary hearing our review

of its order is plenary. Holland v. Horn, 

, 111 (3d Cir. 2008). Under the

AEDPA:

       An application for a writ of habeas corpus . . . 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; or

              (2) resulted in a decision that was based on an unreasonable
              determination of the facts in light of the evidence presented in the
              State court proceeding.

28 U.S.C. § 2254(d). Moreover, in considering the application a federal habeas court

must afford a presumption of correctness to the state court’s factual findings, which the

petitioner bears the burden of rebutting by clear and convincing evidence. 28 U.S.C. §

2254(e)(1).




                                     IV. DISCUSSION

       We granted a certificate of appealability to decide whether Karenbauer is entitled

to habeas corpus relief on his claims that the trial court violated his due process rights

under the Fourteenth Amendment by not conducting a competency hearing and his trial



                                              10
counsel denied him effective assistance under the Sixth Amendment by not requesting a

competency hearing. Because the Pennsylvania Superior Court was the highest state

court to address Karenbauer’s competency claims on the merits, we review that court’s

disposition of those claims under the AEDPA.4




       A.     Due Process

       A state criminal defendant has a right under the Due Process Clause of the

Fourteenth Amendment not to be tried while mentally incompetent. Drope v. Missouri,

, 171-73, 

, 903-05 (1975); Pate v. Robinson, 

, 385,

, 842 (1966). A defendant is competent if he is able “to consult with his

lawyer with a reasonable degree of rational understanding” and possesses “a rational as

well as factual understanding of the proceedings against him.” Dusky v. United States,

, 402, 

, 789 (1960).

       Karenbauer argues that he was incompetent to stand trial and that his medical

records, attempted suicide, and erratic behavior throughout the trial court proceedings

demonstrated his incompetency. He contends this evidence gave the trial court reason to

doubt his competency and that consequently the trial court constitutionally was required

to hold a hearing to ascertain if he was competent. Karenbauer contends in his habeas




  4
   The Supreme Court did not address the competency issue on the direct appeal and thus
we infer that Karenbauer did not raise it at that time.

                                            11
corpus petition that by finding that he was not entitled to that hearing, the Superior Court

unreasonably applied Drope and unreasonably determined the facts in light of the

available evidence.5

       In Drope the Supreme Court held that a trial court must conduct a competency

hearing if it has sufficient indicia to believe that a defendant is incompetent to stand trial.

“[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any prior

medical opinion on competence to stand trial are all relevant in determining whether

further inquiry is required, but [] even one of these factors standing alone may, in some

circumstances, be sufficient.” 

, 95 S.Ct. at 908. The Court found

in Drope that the defendant James Edward Drope had exhibited sufficient indicia of

incompetency to require the trial court to conduct further inquiry because, inter alia, a

psychiatric evaluation of Drope raised questions about his competency, Drope tried to kill

himself during the trial, and there was evidence that Drope attacked his wife prior to the

trial. 

95 S.Ct. at 907-08.

       It was of particular significance to the Supreme Court that Drope had attempted

suicide during the trial by shooting himself in the stomach, causing him to be hospitalized

and “absent for a crucial portion of his trial,” and that Drope’s wife, who was the victim




  5
   Karenbauer concedes that the facts of Drope are distinguishable from those in the
present case. Accordingly, he does not argue that the Superior Court’s rejection of his
competency claim was “contrary to” Drope. See 28 U.S.C. § 2254(d); Reply br. for
Appellant at 5 n.2.

                                              12
of his crime, testified that she had not wanted to press the prosecution but changed her

mind after Drope tried to choke and kill her the Sunday evening prior to the trial. 

95 S.Ct. at 907-08. With respect to the suicide attempt and Drope’s resultant

absence from trial, the Court observed that the absence affected its due process analysis in

two ways:

       first, it was due to an act which suggests a rather substantial degree of
       mental instability contemporaneous with the trial; second, as a result of
       petitioner’s absence the trial judge and defense counsel were no longer able
       to observe him in the context of the trial and to gauge from his demeanor
       whether he was able to cooperate with his attorney and to understand the
       nature and object of the proceedings against him.

95 S.Ct. at 908 (internal citation omitted). The Court further noted that

Drope’s wife’s testimony cast substantial doubt on Drope’s competency because the

alleged attack “hardly could be regarded as rational conduct” given that Drope’s “fate

depended in large measure on the indulgence of his wife, who had hesitated about

pressing the prosecution.” 

95 S.Ct. at 907.

       The record and proceedings before the trial court in Drope was far more suggestive

of incompetency than that before the trial court in Karenbauer’s case. To start with in

Drope, unlike in this case, the defense attorney after the suicide attempt sought a

continuance of the trial, an application that could have put the trial court on notice of the

need for a competency hearing. 

95 S.Ct. at 905-06. Moreover, the only

evaluating expert to address the issue found Karenbauer competent to stand trial;

Karenbauer’s conduct throughout the trial court proceedings, while perhaps erratic, did

                                              13
not reveal an inability to understand what was at stake in those proceedings; and

Karenbauer’s self-mutilation, even if considered a genuine suicide attempt,6 did not

prevent the defense counsel or the trial judge from observing Karenbauer in the context of

the trial to ensure he was capable of cooperating with his attorney and understanding the

nature of the proceedings. We recognize that Hetrick after the suicide attempt but prior to

the trial told the trial judge that Karenbauer said he did not know that he could “go

forward with this” and did not “know if he can go through with this,” meaning the trial,

but such a reluctance to proceed was hardly surprising because he was, after all, facing

the death penalty.

       Overall it is clear that the facts before the trial court in this case did not provide

sufficient indicia cause to believe Karenbauer was incompetent to stand trial. See, e.g.,

Jermyn v. Horn, 

, 298 (3d Cir. 2007) (no competency hearing required

“where there were no medical opinions on competency submitted to the trial court, no

signs from trial counsel that the defendant’s competence was in doubt in his view, and the

defendant’s behavior, while strange, was not sufficiently indicative of an individual who

was incapable of understanding the nature of the proceedings, communicating with

counsel or assisting in his defense”). Accordingly, the Superior Court reasonably applied




  6
   We note that Dr. Bernstein, who examined Karenbauer several days after the supposed
suicide attempt, made no mention of the incident in his examination report, but did state
that during the examination, Karenbauer “denied current suicidal or homicidal ideation.”
App., Vol II, at 17.

                                               14
Drope and reasonably determined the facts in light of the available evidence when it held

that the trial court was not required to inquire further into Karenbauer’s competency to

stand trial.




       B.      Ineffective Assistance of Counsel

       A person accused of a crime in federal or state court has a right under the Sixth

Amendment to the effective assistance of counsel. Strickland v. Washington, 

, 685-86, 

, 2063 (1984). A claim of ineffective assistance is governed

by the two-prong test set forth by the Supreme Court in Strickland v. Washington.

“Under Strickland, a habeas petitioner must demonstrate that: (1) counsel’s representation

fell below an objective standard of reasonableness; and (2) there is a reasonable

probability that, but for counsel’s error, the result would have been different.” Rainey v.

Varner, 

, 197 (3d Cir. 2010) (citing 

, 104 S.Ct. at

2052). Karenbauer argues that he was denied effective assistance of counsel because his

trial counsel failed to seek a hearing on his competency from the trial court. Karenbauer

argues that the Superior Court by rejecting this claim unreasonably applied Strickland and

unreasonably determined the facts in light of the available evidence.

       Counsel’s failure to request a competency hearing would give rise to an ineffective

assistance claim if there were “sufficient indicia of incompetence to give objectively

reasonable counsel reason to doubt the defendant’s competency, and there is a reasonable



                                             15
probability that the defendant would have been found incompetent to stand trial had the

issue been raised and fully considered.” Taylor v. Horn, 

, 438 (3d Cir. 2007)

(quoting 

). Karenbauer’s claim fails on the first prong of

Strickland because Hetrick’s decision not to request further inquiry into Karenbauer’s

competency was objectively reasonable in light of the circumstances. “As with the trial

court’s decision not to convene a competency hearing, there were insufficient indicia of

incompetence to deem counsel’s decision unreasonable.” See 

Moreover,

Karenbauer has failed to show prejudice under Strickland’s second prong because he

cannot demonstrate a reasonable probability that he would have been found incompetent

if only his attorney had asked for a hearing. See 

Accordingly, the Superior

Court reasonably applied Strickland and reasonably determined the facts in light of the

available evidence when it denied Karenbauer’s ineffective assistance of counsel claim on

this issue.




                                   V. CONCLUSION

       For the reasons set forth above, we will affirm the District Court order entered on

February 25, 2009, denying Karenbauer’s petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254.




                                            16