Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1999

Hull v. Kyler
Precedential or Non-Precedential:

Docket 97-7551




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Recommended Citation
"Hull v. Kyler" (1999). 1999 Decisions. Paper 233.
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Filed August 23, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-7551

LARRY GENE HULL, Appellant

v.

KENNETH KYLER, Superintendent;
PA ATTORNEY GENERAL

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 97-cv-00353)
District Judge: Honorable Malcolm Muir

Argued: July 13, 1999

Before: BECKER, Chief Judge, ROTH, and RENDELL,
Circuit Judges.

(Filed: August 23, 1999)

       JAMES V. WADE, ESQUIRE
        (ARGUED)
       Federal Public Defender
       Middle District of Pennsylvania
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101

       Counsel for Appellant
       JOHN F. NELSON, ESQUIRE
        (ARGUED)
       Office of District Attorney
       Franklin County Court House
       157 Lincoln Way East
       Chambersburg, PA 17201

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This habeas corpus case is before us for the third time.
Twenty years ago, petitioner Larry Gene Hull was convicted
of first-degree murder in a Pennsylvania state court and
sentenced to life imprisonment. For the past thirteen years,
Hull has sought to have that conviction overturned on the
ground that he received ineffective assistance of counsel at
a pretrial competency hearing. Although the state courts
have rejected his ineffectiveness claim, we have held that
his counsel's performance was constitutionally deficient.
See Hull v. Freeman, 

, 168-69 (3d Cir. 1991)
["Hull I"]. However, we have also held that Hull procedurally
defaulted this claim. See Hull v. Freeman, 

, 90
(3d Cir. 1993) ["Hull II"]. The primary issues in the present
appeal are whether the Pennsylvania courts have waived
Hull's procedural default, and whether, if they have, he has
demonstrated that his counsel's deficient performance was
prejudicial under Strickland v. Washington, 

(1984).

For the reasons that follow, we conclude that the
Pennsylvania courts have waived Hull's procedural default
and that he thus may bring his claim in federal court. We
also conclude that Hull was prejudiced by his counsel's
failure to present any of the numerous pieces of available
evidence regarding his competency or to challenge the
government's single witness at his short competency
hearing. We will therefore reverse the judgment of the
District Court and remand the case with directions to issue
a writ of habeas corpus conditioned on Hull's being retried

                               2
by the Commonwealth. Of course, before new criminal
proceedings may be commenced against Hull, the
Pennsylvania courts must determine that he has regained
his competency to be tried.

I. Procedural History

The procedural history of this case is long and
convoluted. We recite it in detail, given its importance to
the first issue before us--procedural default.

A. The Initial State Proceedings

On February 26, 1975, Hull was charged with murder in
Franklin County, Pennsylvania. On March 7, 1975, he was
found incompetent to stand trial by the Franklin County
Court of Common Pleas. At that time, a defendant who
asserted his incompetence to stand trial in Pennsylvania
was required to demonstrate by a preponderance of the
evidence that he was incompetent. See Commonwealth v.
Kennedy, 

, 892 (Pa. 1973). Hull was
committed to Farview State Hospital until a second
competency hearing was held on July 31, 1979. By that
time, the state legislature had altered the burden for a
defendant asserting his incompetency to proof by"clear and
convincing evidence." See Pa. Stat. Ann. tit. 50, S 7403(a)
(West Supp. 1996), amended by Act of July 2, 1996, No.
77, S 2, 1996 Pa. Laws 481, 482 (requiring proof by a
preponderance). However, as Hull had already been found
incompetent in 1975, the burden to prove that he had
regained his competency was most likely on the
Commonwealth. See 

(West Supp. 1999)
(providing that, after an initial finding of incompetency,
criminal proceedings will resume only "[w]hen the court . . .
determines that such person has regained his competence
to proceed").

At the July 31, 1979, competency hearing, the
government presented a single witness, Dr. Harry C.
Stamey, a court-appointed psychiatrist who had examined
Hull. Dr. Stamey was asked only eleven questions. The first
nine were preliminary questions regarding Dr. Stamey's
background, qualifications, and the foundation for his

                               3
opinion. He was then asked what his opinion was"as to
whether Mr. Hull would be able to understand the nature
or object of the proceedings against him." App. at 422. He
answered, "I feel that he could." 

The final
question posed to Dr. Stamey asked his opinion "as to
whether or not Mr. Hull would be able to participate and
assist in his defense." 

"At that time I felt
that he could do so." 

time" referred to
the date of his examination of Hull, April 20, 1979, more
than three months before the competency hearing. Then,
when the court asked Hull's counsel to cross-examine Dr.
Stamey, he responded, "We have no questions, Your
Honor." 

does not disclose if the state court considered
the report that Dr. Stamey had produced, although the
doctor sent it to the court about three months before the
hearing. See 

As we discuss in more detail infra
Part IV.D.1, eight different doctors at Farview had found
Hull mentally ill and incompetent on numerous occasions
leading up to the competency hearing. Hull's counsel did
not present any evidence from these examinations nor did
he call any of these doctors as witnesses on Hull's behalf.
Nor did his counsel argue to the trial court that Hull was
incompetent, despite the prior finding of incompetence in
1975 and the strong evidence in this regard.

At the conclusion of the short competency hearing, and
with the consent of Hull's counsel, the court found Hull
competent to stand trial. On August 3, 1979, Hull entered
a general guilty plea to murder. Following a degree-of-guilt
hearing, the trial court found Hull guilty of first-degree
murder and imposed a life sentence. Hull appealed his
conviction, claiming that he could not be guilty offirst-
degree murder because "he was intoxicated and acting
under the influence of a mental illness at the time of the
shooting." Commonwealth v. Hull, 

, 1204 (Pa.
1981). In a one-paragraph per curiam opinion, the
Pennsylvania Supreme Court rejected his appeal.

B. The Initial State Post-Conviction Proceedings

Hull filed a premature state post-conviction petition in
January 1981. Following the denial of his motion for

                               4
modification of his sentence, he filed a new state post-
conviction petition, on July 18, 1986. This petition was
consolidated with his prior, premature petition. Hull raised
four issues in his state petition, including the one he
presses in the current habeas petition--that his trial
counsel was ineffective for failing adequately to contest the
issue of his competency to stand trial in 1979. On February
22, 1988, following two days of hearings in July and
November of 1987, the Court of Common Pleas rejected all
of the claims in Hull's post-conviction petition. See
Commonwealth v. Hull, Crim. No. 101-1975 (Pa. C.P. Ct.
Feb. 22, 1988). Hull's appeal to Pennsylvania Superior
Court from the denial of post-conviction relief raised only a
single issue, the current ineffectiveness claim. On
September 30, 1988, the Superior Court affirmed the denial
of relief on this claim. See Commonwealth v. Hull, No. 215
Harr. 1988 (Pa. Super. Ct. Sept. 30, 1988).

The Superior Court was the last state court to reach the
merits of Hull's ineffective-assistance claim. In rejecting this
claim, the court "reviewed the colloquy which followed the
guilty plea and [was] impressed with appellant's ability to
recount in detail his actions and emotions at the time of
the murder." 

at 3-4. The court held that this
"ability" demonstrated that Hull was able to assist his
counsel and to understand the proceedings against him,
making his ineffectiveness claim meritless. See 

The
court added that Hull's trial counsel testified that he failed
to cross-examine the government's witness or to offer
independent evidence of Hull's incompetence because of
"the findings of the court-appointed psychiatrist, his own
observation of appellant, and appellant's expressed wish to
be found competent and enter a guilty plea"--and the court
held that this constituted a reasonable basis for counsel's
actions. 

did not directly address the single
substantive issue before us, i.e., whether Hull was
prejudiced by his counsel's deficient performance.

Following issuance of the Superior Court order, Hull's
counsel failed to timely file a petition for allowance of
appeal with the Pennsylvania Supreme Court.1 When he
_________________________________________________________________

1. The petition for allowance of appeal is sometimes referred to as a
petition for allocatur. We use the terms interchangeably.

                               5
learned of his counsel's actions (or lack thereof), Hull filed
a pro se petition for allowance of appeal nunc pro tunc. The
Pennsylvania Supreme Court denied Hull's petition, without
comment, on February 21, 1989. See Commonwealth v.
Hull, No. 4 M.D. Misc. Dkt. 1989 (Pa. Feb. 21, 1989).

C. The Initial Federal Habeas Petition

On May 8, 1989, Hull filed a pro se petition for a writ of
habeas corpus in the District Court for the Middle District
of Pennsylvania, pursuant to 28 U.S.C. S 2254. He raised a
number of issues, including the ineffective-assistance
claim. Following appointment of counsel and a magistrate
judge's initial report and recommendations on the other
(non-competency related) issues, the district court
remanded for consideration of the ineffectiveness/
competency claim. The magistrate judge found that Hull
had exhausted his state remedies, but that the claim did
not have merit. Hull filed objections to the magistrate
judge's report, and on July 13, 1990, the district court
(following de novo review) held that Hull had received
ineffective assistance of counsel at the 1979 competency
hearing. The district court issued an order on September
11, 1990, granting Hull the writ of habeas corpus, and
remanding the case to the state trial court for a hearing to
determine Hull's competency to stand trial as of 1979. The
Commonwealth timely appealed this ruling.

In Hull I, we reviewed essentially the same two issues
before us now: whether Hull's ineffectiveness claim was
procedurally defaulted, and (if it was not) whether he had
received ineffective assistance of counsel at the 1979
competency hearing. First, we held that Hull's failure to file
a timely petition for allowance of appeal from the Superior
Court's 1988 decision did not constitute a procedural
default: "Absent a clear and express statement that the
Pennsylvania Supreme Court based its denial [of Hull's
petition for allowance of appeal] on a procedural default (to
wit, untimeliness), we must assume that the Court denied
Hull's appeal on the merits." Hull 

(emphasis omitted).

Regarding Hull's substantive claim, we agreed with the
district court that the first prong of the Strickland

                               6
ineffectiveness test had been met, as his " `counsel's
representation fell below an objective standard of
reasonableness.' " 

(quoting 

). However, we were unable to discern whether the
district court had reached the second Strickland prong, i.e.,
that Hull was prejudiced by his counsel's deficient
performance. We therefore remanded the case to the district
court for a determination whether Hull had been prejudiced
by his counsel's failure to cross-examine the government's
witness or to present a case at the 1979 competency
hearing. See 

We also made clear that, if the
district court found that Hull was prejudiced, the proper
remedy would not be a state hearing to determine Hull's
competency as of 1979. Rather, the appropriate remedy
would be the granting of a writ of habeas corpus
conditioned on the state retrying Hull after it established
that he had regained his competency to be tried.

On remand, the district court held two days of hearings,
in September and October of 1991, on the issue of
prejudice. On October 18, 1991, the district court issued an
opinion and order in which it held that the outcome of
Hull's 1979 competency hearing would not have been
different if his counsel's performance had not been
deficient. See Hull v. Freeman, Civ. No. 89-0681 (M.D. Pa.
Oct. 18, 1991). It therefore denied his petition for a writ of
habeas corpus. Hull timely appealed to this court.

In Hull II, we declined to reach the merits of Hull's
ineffectiveness claim because we concluded, contrary to our
holding in Hull I, that the claim had been procedurally
defaulted. We reasoned that two U.S. Supreme Court
decisions handed down less than two months after Hull I
compelled the finding that "the Pennsylvania Supreme
Court's denial without comment of Hull's untimely appeal
of his state petition was based on procedural default." Hull

(citing Coleman v. Thompson, 

(1991), and Ylst v. Nunnemaker, 

(1991)).
After holding that Hull's claim was procedurally defaulted,
we noted that he could still bring his claim in federal court
if he established cause and prejudice for his procedural
default. The "cause" that Hull put forth was his post-
conviction counsel's ineffectiveness in failing tofile a timely

                               7
appeal to the state supreme court, as well as his own
illiteracy and mental retardation. We rejected these as
insufficient for establishing "cause" under controlling
Supreme Court precedent. See 

However, we held
that "Hull's mental deficiencies, combined with post-
conviction counsel's failure to file the appeal and failure to
notify Hull until after the deadline passed, create a
colorable claim for waiver [of the procedural default] under
Pennsylvania law." 

remanded the case to
the district court with directions to dismiss Hull's habeas
petition without prejudice, so that he could "attempt to
establish a basis for waiver in state court, after which he
may obtain federal habeas review if the Pennsylvania
Supreme Court rejects his claim on the merits." 

Because it is important to our analysis of the waiver
issue, see infra Part III.B, we rescribe our reasoning in Hull
II regarding Hull's attempt to establish waiver in state
court:

        Accordingly, we will dismiss Hull's petition without
       prejudice so he may file a state post-conviction petition
       to assert his claim of ineffective assistance of post-
       conviction counsel as a ground for his untimely
       petition for allocatur on his ineffective assistance of
       trial counsel claim. If the Pennsylvania Supreme Court
       rejects Hull's ineffective assistance of post-conviction
       counsel claim, we presume it will deny his petition for
       permission to appeal nunc pro tunc on this basis. It will
       then have ruled based on procedural default and,
       under Coleman, Hull will be barred from federal habeas
       review . . . .

        By contrast, if the Pennsylvania Supreme Court
       upholds Hull's ineffective assistance of post-conviction
       counsel claim, we presume it will grant his petition for
       permission to appeal nunc pro tunc on his ineffective
       assistance of trial counsel claim. The court will then
       either deny or grant Hull's petition for allocatur on his
       ineffective assistance of trial counsel claim. In either
       scenario, the court will be considered to have reached
       the merits of Hull's ineffective assistance of trial counsel
       claim, and thus to have waived his procedural default
       with respect to this claim. If the Pennsylvania Supreme

                               8
       Court grants Hull's petition for allocatur, it will in fact
       reach the merits of the ineffective assistance of trial
       counsel claim. If the court denies Hull's petition for
       allocatur, it will be deemed, under the Ylst "look-
       through" rule, to have decided the ineffective
       assistance of trial counsel claim on the same ground as
       the Pennsylvania Superior Court, which rejected it on
       the merits. Thus, in either event, Hull will have
       obtained a determination on the merits of his
       ineffective assistance of trial counsel claim by the
       Pennsylvania Supreme Court, and, necessarily, a ruling
       by that court that it waived Hull's procedural default of
       this claim on the ground he received ineffective
       assistance of post-conviction counsel.

        If the Pennsylvania Supreme Court denies Hull's
       ineffective assistance of trial counsel claim either by
       denying allocatur or by granting allocatur and rejecting
       it on the merits, he may re-file his federal habeas
       petition.

(footnote omitted) (emphasis added). On May
21, 1993, following our directive, the district court
dismissed Hull's habeas petition without prejudice. See Hull
v. Freeman, Civ. No. 89-0681 (M.D. Pa. May 21, 1993).

D. The Second State Post-Conviction Proceedings

On March 16, 1995, Hull returned to the Franklin
County Court of Common Pleas, and sought leave tofile a
petition for allowance of appeal nunc pro tunc to the
Pennsylvania Supreme Court. Finding the issue of hisfirst
post-conviction counsel's ineffectiveness "rather
straightforward," the court granted Hull the relief he
sought, on August 30, 1995. See Commonwealth v. Hull,
Crim. No. 101-1975 (Pa. C.P. Ct. Aug. 30, 1995). The
specific relief granted to Hull was as follows:

       [D]efendant is granted leave to file a petition for appeal
       nunc pro tunc to the Supreme Court of Pennsylvania
       from the decision of the Superior Court of Pennsylvania
       dated September 30, 1988, conditioned upon the relief
       granted herein not being inconsistent with the order of
       the Supreme Court dated February 21, 1989.

                               9


at 7.

On September 28, 1995, the Commonwealth filed a
notice of appeal to the Pennsylvania Superior Court from
the Common Pleas Court's order. The following day, the
Common Pleas Court filed an order directing the
Commonwealth to serve the court with a statement of the
matters complained of on appeal, pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b). On October 23, 1995,
fifty-four days after the Common Pleas Court had issued its
original order granting Hull the relief he sought, the
government filed the statement requested by the court. On
the next day, the Common Pleas Court filed a supplemental
opinion and order, denying Hull his requested relief, which
it had granted him fifty-five days before. See Commonwealth
v. Hull, Crim. No. 101-1975 (Pa. C.P. Ct. Oct. 24, 1995).

Hull filed a notice of appeal from the Common Pleas
Court's second order. This appeal and the Commonwealth's
appeal of the initial Common Pleas Court order were
consolidated. The parties stipulated that the
Commonwealth would be designated the appellant for
purposes of the appeal. The Commonwealth failed tofile its
brief before the Superior Court, and on January 23, 1996,
the Superior Court dismissed the consolidated appeal. See
Commonwealth v. Hull, Nos. 735 & 848 Harr. 1995 (Pa.
Super. Ct. Jan. 23, 1996). As far as the present record
reveals, the Commonwealth did not seek reconsideration of
this dismissal order nor seek review of the dismissal by the
Pennsylvania Supreme Court.

Meanwhile, on September 20, 1995, on the basis of the
initial Common Pleas Court order, Hull filed a petition for
allowance of appeal nunc pro tunc to the state supreme
court, in which he raised the ineffective-assistance claim
that is before us now. On February 29, 1996, the
Pennsylvania Supreme Court denied without comment
Hull's petition for allowance of appeal from the Superior
Court's 1988 decision. See Commonwealth v. Hull, 

(Pa. 1996).

E. The Second Federal Habeas Petition

Hull filed his present petition for a writ of habeas corpus
on March 6, 1997. After referral, the Magistrate Judge

                               10
found that Hull's ineffective-assistance claim remained
procedurally defaulted and that, for the reasons stated in
the district court's 1991 opinion, Hull had not
demonstrated that he was prejudiced by his counsel's
deficient performance at the 1979 competency hearing. On
October 2, 1997, following Hull's filing of objections (and
the Commonwealth's failure to file a response), the District
Court rejected the Magistrate Judge's recommendation
regarding procedural default, but denied Hull's petition on
the merits, "for the reasons set forth in [its] opinion and
order dated October 18, 1991." Hull v. Kyler, No. 4:CV-97-
353, slip op. at 7 (M.D. Pa. Oct. 2, 1997). Hull filed a timely
notice of appeal. We have jurisdiction under 28 U.S.C.
SS 1291 & 2253.

II. Standard of Review

Our review of the procedural default issue is plenary. See
Toulson v. Beyer, 

, 986 (3d Cir. 1993). We
review the District Court's findings of fact regarding Hull's
substantive claim for clear error. See Government of V.I. v.
Weatherwax, 

, 1430 (3d Cir. 1996). In the
1997 order from which Hull appeals, the District Court
incorporated the findings of fact from its 1991 order
denying Hull's initial petition. See Hull v. Kyler, No. 4:CV-
97-353, slip op. at 7. None of the facts relevant to the
prejudice issue appear disputed. See Hull v. Freeman, Civ.
No. 89-0681, slip op. at 3-9 (M.D. Pa. Oct. 18, 1991). We
exercise plenary review over the question whether the facts
found by the District Court demonstrate prejudice under
Strickland. See Parrish v. Fulcomer, 

, 328 (3d
Cir. 1998).

III. Procedural Default

A. Background

It is well established that a state prisoner may not seek
habeas relief in federal court if he has failed to raise the
alleged error in state court. If state proceedings remain
available, the claim is not yet exhausted, and the habeas
petition must be dismissed. See 28 U.S.C. S 2254(b)(1), (c)

                               11
(1994 & Supp. II 1996); Rose v. Lundy, 

, 518-
19 (1982) ("A rigorously enforced total exhaustion rule will
encourage state prisoners to seek full relief first from the
state courts, thus giving those courts the first opportunity
to review all claims of constitutional error."). If state
avenues of relief, including post-conviction proceedings,
have been exhausted, but the petitioner has failed to raise
the alleged grounds for error, the claim is procedurally
defaulted and may not be raised in federal court. See

; Wainwright v. Sykes, 

, 81-87 (1977).

Recently, the Supreme Court made clear that a petitioner
procedurally defaults a claim if he fails to raise it in a
discretionary state appeal. See O'Sullivan v. Boerckel, 

, 1734 (1999). In Boerckel, the Court
acknowledged that the Illinois Supreme Court was not
obligated to hear an appeal in a criminal case, but relied on
the fact that it might take such an appeal to hold that
failure to petition for such review constituted procedural
default. Therefore, Hull's failure to timely petition the state
supreme court for allowance of appeal on his ineffectiveness
claim constitutes procedural default.

A petitioner with a defaulted claim may nonetheless raise
this claim in federal habeas proceedings if either (1) he can
demonstrate a valid cause for the default and prejudice
from the alleged violation of his constitutional rights, see

; 

, or (2) the
state has waived (or declined to rely on) the procedural
default, see 

; Harris v. Reed, 

, 262-63 (1989). We have already held that Hull cannot
meet the first prong of the cause-and-prejudice exception.
See Hull 

. Therefore, Hull can only bring
his current claim in federal court if the Pennsylvania courts
have waived the procedural default of failing to timely file
an appeal to the state supreme court from the Superior
Court's denial of his post-conviction claim. As we outlined
in 

Part I.C, our decision in Hull II gave Hull the
opportunity to return to state court to seek such a waiver.
The first question we must answer in this case is whether

                               12
he obtained this relief in his second trip to state post-
conviction court.2

B. Waiver of Hull's Procedural Default

1.

We briefly review the relevant events from Hull's two state
post-conviction proceedings, as these events furnish the
answer to the initial question. First, on September 30,
1988, the Pennsylvania Superior Court rejected Hull's
ineffective-assistance claim on the merits. Hull's counsel
then failed to timely file a petition for allowance of appeal
to the state supreme court. Almost seven years later, Hull
sought, and received, from the Franklin County Court of
Common Pleas leave to file a petition for allowance of
appeal nunc pro tunc to the state supreme court from the
Superior Court's 1988 decision. The leave was granted on
the basis of his post-conviction counsel's ineffectiveness in
failing to timely file such a petition originally or to notify
Hull of this failure in a timely fashion. See Commonwealth
v. Hull, Crim. No. 101-1975, slip op. at 5-6 (Pa. C.P. Ct.
Aug. 30, 1995). This leave to file a nunc pro tunc appeal,
granted by the state court, constituted a waiver of the
_________________________________________________________________

2. Before denying Hull's claim on the merits, the District Court rejected
the Magistrate Judge's finding that there had been no state waiver of
Hull's procedural default. The Commonwealth did not appeal this
decision of the District Court, nor do we believe it could have. See
Deposit Guar. Nat'l Bank v. Roper, 

, 333 (1980) ("Ordinarily,
only a party aggrieved by a judgment or order of a district court may
exercise the statutory right to appeal therefrom. A party who receives all
that he has sought generally is not aggrieved by the judgment affording
the relief and cannot appeal from it."). However, "[i]t is well accepted .
. .
that without filing a cross-appeal or cross-petition, an appellee may rely
upon any matter appearing in the record in support of the judgment
below." Blum v. Bacon, 

, 137 n.5 (1982). The
Commonwealth has raised the procedural-default issue in its brief, and
we therefore find it appropriate to reach this issue. Cf. Smith v. Horn,

, 408 (3d Cir. 1997) (noting that the court of appeals may
raise procedural default sua sponte), cert. denied, 

(1998).

                               13
procedural default that arose when Hull failed originally to
timely appeal from the Superior Court's 1988 decision.

If the Commonwealth wished to avoid the state court's
waiver of the procedural default, it was incumbent upon it
to appeal this order of the Common Pleas Court. Initially, it
did so. However, after the Commonwealth failed tofile a
brief, the Superior Court dismissed its appeal. As a result,
the Common Pleas Court's (initial) order granting Hull the
relief he sought, i.e., a waiver of his procedural default so
that he could file a petition for allowance of appeal to the
Pennsylvania Supreme Court, remained in effect. Following
the trial court's granting of this relief, Hull timely filed his
petition for allowance of appeal nunc pro tunc, seeking
review of the Superior Court's 1988 decision. The state
supreme court denied the appeal without comment.

2.

While the Common Pleas Court qualified its order
granting Hull leave to file his nunc pro tunc petition by
providing that it was doing so only on the condition that
the state supreme court not consider such a petition
untimely, the state supreme court, in silently denying
Hull's petition, gave no indication that it was invoking this
"qualifier." It could have done so by either dismissing
(rather than denying) Hull's second petition, or by clearly
stating that Hull's petition remained untimely and that his
procedural default remained effective. It did neither, but
instead followed the trial court's granting of relief to Hull
with a denial of his second nunc pro tunc petition, without
comment. Therefore, we read the state supreme court's
unexplained denial of Hull's most recent nunc pro tunc
petition as "a determination on the merits of his ineffective
assistance of trial counsel claim by the Pennsylvania
Supreme Court, and, necessarily, a ruling by that court
that it waived Hull's procedural default of this claim on the
ground he received ineffective assistance of post-conviction
counsel." Hull 

.

In Hull II, we did not anticipate that Hull would obtain
the waiver he sought from a lower state court and then be
unable to have this relief ratified (or overturned) by the

                                14
state supreme court. We assumed that one of three things
would happen after Hull returned to state court. First, the
state supreme court could reject Hull's waiver argument,
and he would be procedurally barred from bringing his
federal habeas claim. Second, the state supreme court
could accept his waiver argument, then grant his petition
for allowance of appeal nunc pro tunc from the 1988
Superior Court decision, and rule on (and reject) the merits
of his ineffective-assistance claim, in which case he would
be able to raise his ineffective-assistance claim in federal
habeas court. Third, the state supreme court could accept
his waiver argument, but deny his petition for allowance of
appeal nunc pro tunc from the Superior Court's decision, in
which case he also would be able to raise his ineffective-
assistance claim in federal habeas court. See Hull 

-94 & n.6. Because the Commonwealth failed to
pursue its appeal from the state post-conviction court's
granting of a waiver of Hull's procedural default, the state
supreme court never had the formal opportunity, through
no fault of Hull's, to fulfill one of these three scenarios by
expressly accepting or rejecting Hull's waiver argument.

The actual course of events in state court was essentially
that outlined in Hull II's final scenario, i.e., acceptance of
Hull's waiver argument, and then denial of his petition for
allowance of appeal nunc pro tunc. However, it was the
state trial court, and not the state supreme court, that
accepted Hull's waiver argument, after which the state
supreme court denied the petition for allowance of appeal
from the Superior Court's 1988 decision. Although we did
not foresee, in Hull II, a scenario in which Hull's waiver
claim would never get past the state trial court, Hull only
needed a waiver from "the Pennsylvania courts," not
necessarily from the state's highest court. See 

("Hull can only obtain federal habeas review if the
Pennsylvania courts waive his procedural default."
(emphasis added)); cf. 

("State
procedural bars are not immortal, however; they may expire
because of later actions by state courts." (emphasis added)).
Once a lower state court granted Hull a waiver, and the
Commonwealth failed to appeal from this order (and the
state supreme court did not indicate that the waiver was
improperly granted when it denied Hull's petition for

                               15
allowance of appeal), Hull had done what federal law and
our decision in Hull II required of him. To hold otherwise
would allow states to circumvent the waiver exception to
the procedural-default rule by failing to appeal from lower
state court decisions holding that a procedural default is
waived.

In short, our holding in Hull II compels the result in the
present case: We expressly held in Hull II that the state
courts would be deemed to have waived Hull's procedural
default if he was given permission to file a petition for
allowance of appeal nunc pro tunc (which he was) and the
state supreme court then denied that petition (which it did).
In fact, we held that, "as a matter of federal law," if the
state supreme court denied Hull's petition for allowance of
appeal under these circumstances, it would be deemed a
decision on the merits. See Hull 

n.5; see
also 

("It remains the duty of the
federal courts . . . to determine the scope of the relevant
state court judgment."). We are of course bound by Hull II
but, at all events, agree that on these facts when the
Pennsylvania courts granted Hull the right to file a petition
for allowance of appeal nunc pro tunc, the subsequent
denial of that petition was on the merits.

3.

Despite the foregoing, the Commonwealth argues that the
state courts have not waived Hull's procedural default
because the second post-conviction court issued a
supplemental opinion and order rejecting Hull's waiver
argument, fifty-five days after issuing its initial opinion and
order granting him relief. We agree that, if this is a valid
order regarding Hull's request for waiver of the procedural
default, and if he failed to adequately appeal from this
order, his federal habeas claim remains procedurally
barred. We reject the Commonwealth's argument, however,
because once an appeal was filed, state law clearly
precluded the post-conviction court from issuing a
"supplemental" order that completely reversed the effects of
its initial, valid order.

It is settled law in Pennsylvania that the timely filing of
a notice of appeal divests the trial court of jurisdiction to

                               16
take any further action in a case. See Pa. R. App. P.
1701(a). A court may grant reconsideration of its order if an
application for reconsideration is filed and granted within
the time provided for filing a notice of appeal (thirty days).
See Pa. R. App. P. 1701(b)(3). In this case, however, there
is no indication that the Commonwealth filed (or that the
trial court granted) such an application for reconsideration
within thirty days. Therefore, the court had no authority to
"reconsider" the merits of its initial order.

In issuing its "supplemental" order, the state court in this
case purported to rely on Pennsylvania Appellate Rule
1925, which allows a lower court to "enter an order
directing the appellant to file of record in the lower court
and serve on the trial judge a concise statement of the
matters complained of on the appeal." Pa. R. App. P.
1925(b). The purpose of the rule, as seen most clearly by
subsection (a), is to allow the lower court to clarify the
basis of its initial order to ensure meaningful appellate
review. See Pa. R. App. P. 1925(a) ("Upon receipt of the
notice of appeal the judge who entered the order appealed
from, if the reasons for the order do not already appear of
record, shall forthwith file of record at least a brief
statement, in the form of an opinion, of the reasons for the
order, or for the rulings or other matters complained of, or
shall specify in writing the place in the record where such
reasons may be found."); see also Commonwealth v. Stilley,

, 247 (Pa. Super. Ct. 1997); Franklin S. Van
Antwerpen et al., Plugging Leaks in the Dike: A Proposal for
the Use of Supplemental Opinions in Federal Appeals, 20
Cardozo L. Rev. 1233, 1235-36 (1999).

Nothing in Rule 1925, which involves only "clarification"
of lower court orders for the purpose of appeal, gives a trial
court authority to issue a supplemental opinion in which it
completely reverses its prior holding, more than thirty days
after entry of the original order and without an order
granting reconsideration of the original order. See
Pennsylvania Indus. Energy Coalition v. Pennsylvania Pub.
Util. Comm'n, 

, 1346 (Pa. Commw. Ct. 1995)
(holding that a lower tribunal that "made substantive
changes to its earlier decision" had effectively granted
reconsideration, not clarification, of that prior decision, and

                               17
it did not have authority to do so more than thirty days
after the prior decision was filed), aff'd per curiam, 

(Pa. 1996); Commonwealth v. McMillan, 

, 305 (Pa. Super. Ct. 1988) ("[I]t is well-settled that the
trial court loses all power to alter its orders,final or
interlocutory, thirty days from entry of judgment of
sentence unless an order granting reconsideration is
granted within that thirty day period."), aff'd per curiam,

(Pa. 1990).

Under Pennsylvania's rules of appellate procedure and its
unequivocal caselaw, the trial court's "supplemental"
decision had no effect on this case. Indeed, "it was a
nullity." Commonwealth v. Hairston, 

, 1006
(Pa. Super. Ct. 1984). Once the post-conviction court
granted Hull the relief he sought and thirty days passed
without the granting of a motion for reconsideration, the
trial court's order was final, and was alterable only by a
state appeals court. Cf. 42 Pa. Cons. Stat. Ann. S 5505
(West 1981) (permitting modification of a court order
"within 30 days after its entry . . . if no appeal from such
order has been taken").3 The Commonwealth abandoned its
_________________________________________________________________

3. The Pennsylvania Supreme Court recently addressed the issue of
"supplemental" orders indirectly. See Commonwealth v. Lantzy, ___ A.2d
___, No. 66 W.D. 1988, 

(Pa. July 7, 1999). In Lantzy,
a defendant's counsel failed to inform him that a trial court's
modification of his sentence was a nullity because it was entered more
than thirty days after imposition of the original sentence and without an
express grant of reconsideration. See 

Because the defendant
withdrew the appeal from his original (and only valid) sentence, and the
appeal from the modified (invalid) sentence was quashed, he lost any
opportunity to directly appeal his sentence. See 

held that
the advice (or lack thereof) that led to this scenario constituted
ineffective assistance of counsel. See 

("As counsel lacked a
reasonable basis for failing to advise Lantzy that the sentence
modification would be invalid, counsel's representation was deficient.").
This implies that the state of the law in this area is quite well-settled.

The court additionally noted that it was questionable whether the
defendant "would have been able to compel the Department of
Corrections to honor the [modified] order had its validity been
challenged," citing a case that held that "mandamus does not lie to
compel the Department of Corrections to honor a facially invalid order."

                               18
only avenue of relief, however, when it failed tofile a brief
with the Superior Court. Therefore, the Pennsylvania courts
definitively waived Hull's procedural default when the order
granting such relief became final and not subject to further
appeal.4
_________________________________________________________________

n.9 (emphasis added) (citing Fajohn v. Commonwealth, 

, 1068 (Pa. 1997)). In our view, this recent case confirms that a
supplemental or modified order, entered more than thirty days after an
initial order and unaccompanied by an express grant of reconsideration,
is a "nullity," is "facially invalid," and should be given no effect.

4. The post-conviction court issued its supplemental order reversing its
prior order because it found that the initial order was based on an
incorrect interpretation of state law. However, it is not clear that state
law would have precluded Hull from raising the issue of his trial
counsel's ineffectiveness in a second post-conviction petition.
Pennsylvania courts will entertain a post-conviction claim that has been
waived or that is contained in a second (or later) post-conviction
petition
if the petitioner makes "a strong prima facie showing . . . that a
miscarriage of justice may have occurred." Commonwealth v. Lawson,

, 112 (Pa. 1988). This condition is met when a petitioner is
actually innocent or when "the proceedings resulting in his conviction
were so unfair that a miscarriage of justice occurred which no civilized
society can tolerate." Commonwealth v. Szuchon, 

, 1100
(Pa. 1993); see also 

(Papadakos, J., concurring)
(defining miscarriage of justice as an error that is "so serious that it
undermined the reliability of the outcome of the proceeding," as when "a
conviction can be shown to result from a breakdown in the adversary
process").

The Pennsylvania courts, including the state supreme court, have
frequently considered the merits of petitioners' claims in second post-
conviction petitions, and have held that no miscarriage of justice
occurred because the underlying claims had no merit. For example, in
Commonwealth v. Jermyn, 

(Pa. 1998), the state supreme
court entertained a petitioner's claim, in a second post-conviction
petition, that "his prior counsel were ineffective for failing to raise"
the
issue of his competency to stand trial. 

The court noted that
"Jermyn points to nothing which occurred during trial . . . to establish
that he was incompetent to stand trial and that the trial court should
have held a hearing on that issue." 

It then observed that the
second post-conviction court had "concluded that there was no merit to
Jermyn's contentions" regarding his competency and had "ruled that
Jermyn failed to show that a miscarriage of justice occurred in this

                               19
4.

Finally, we choose to address the facial tension between
our conclusion today that the Pennsylvania Supreme
Court's silent denial of Hull's second petition for allowance
of appeal constituted a decision on the merits and our
determination in Hull II that the court's silent denial of
Hull's first petition was based on procedural default. The
primary basis for our decision in Hull II was the holding by
_________________________________________________________________

regard." 

"We agree with the PCRA court." 

Flaherty dissented, concluding that the failure of Jermyn's
counsel to raise the incompetency issue was "a miscarriage of justice
sufficient to warrant PCRA relief." 

(Flaherty, C.J.,
dissenting).
The majority took issue with the Chief Justice's view of the merits, but
not with his assertion that such ineffectiveness of trial counsel would
constitute a miscarriage of justice. See 

n.34.

We view the discussion and holding in Jermyn (and in many similar
state cases) as implicitly recognizing that a due process claim such as
Hull's--i.e., that he was convicted of first-degree murder while
incompetent to stand trial--is potentially one in which "a miscarriage of
justice occurred which no civilized society can tolerate." As we discuss
infra Part IV.E, we believe that Hull's underlying claim is meritorious
and
that there is a reasonable probability that he was convicted while
incompetent to stand trial. Therefore, under state law, the post-
conviction court may have been correct in initially determining that Hull
was entitled to the relief he sought, which would allow him to raise his
claim before the Pennsylvania Supreme Court. Cf. Doctor v. Walters, 

, 682 (3d Cir. 1996) (concluding that the Pennsylvania courts
might find a "miscarriage of justice" occurred, justifying waiver of a
procedural default, when a trial court "entered a verdict against
[petitioner] without convening any proceedings in open court and
without any semblance of resuming adversary proceedings").

More importantly, as we noted in Hull II,"the concept of federal-state
comity underlying federal habeas review entitles Hull to a state court
adjudication of his claim for waiver." Hull 

. Hull
sought
and obtained such an "adjudication of his claim for waiver," and
prevailed on that claim. The Commonwealth may not now allege error in
the trial court's initial (and only valid) ruling, from which it failed to
adequately appeal. When comity compels us to leave adjudication of an
issue to a state court, see 

it likewise requires us to
respect
that court's determination of the issue, despite the losing party's claim
that the determination was contrary to state law.

                               20
the Supreme Court in Ylst that an unexplained order of a
state court upholding a prior judgment of a lower court is
presumed to be based upon the same ground as that relied
upon by the lower court. See 

. If the
lower court rejected a claim on the merits, a silent denial of
an appeal is presumed to be on the merits; if the lower
court relied on a procedural default, an unexplained order
affirming that judgment is presumed to similarly rely on
procedural default. Although neither of these situations--
which were the central focus of Ylst--accurately described
Hull's procedural posture, we looked, in Hull II , to the
Supreme Court's additional observation that the
presumption could be rebutted in certain situations, such
as when a lower court reached the merits of a federal claim,
but the appeal to the higher court "that issued the
unexplained order was plainly out of time," 

, as was the case here. On the basis of this
observation in Ylst, we concluded that the state supreme
court's denial of Hull's first untimely petition was based on
procedural default. See Hull 

-91.

The Court in Ylst, however, made clear that "procedural
bars are not immortal," as "later actions by state courts"
may lift them. 

. While rejecting the
petitioner's argument in Ylst that his claim was not barred
because the state courts might waive his procedural
default, the Court acknowledged that "they could do so," 

but found no evidence that they had. In this case
(unlike in Ylst), the petitioner did obtain such a waiver of
his procedural default from the state courts.5 Therefore, as
_________________________________________________________________

5. In Ylst, the Court explained that a procedural default would be lifted
if a state court presented with a federal constitutional claim reached the
merits of that claim after the procedural default had arisen in a lower
court. See 

. We acknowledge that the Common
Pleas Court did not reach the merits of Hull's underlying claim in his
second post-conviction petition, but only granted Hull leave to file a
nunc pro tunc appeal to the state supreme court. Ylst, however, does not
address the precise situation here, as no court expressly rejected Hull's
claim on the basis of procedural default (as the state courts did in Ylst
and Coleman). Rather, in Hull II, we interpreted the state supreme
court's silent denial of Hull's untimely petition as being based on
procedural default. Because the Common Pleas Court and the Superior

                               21
Hull II contemplated, Hull obtained a waiver of his
procedural default, presented his substantive claim to the
one state court yet to hear that claim (the state supreme
court), and had the claim rejected.

Based on the foregoing, we hold that Pennsylvania has
waived Hull's procedural default that occurred when he
failed to file a timely petition for allowance of appeal to the
state supreme court from the Superior Court's 1988
decision rejecting his ineffective-assistance claim. We
therefore turn to the merits of this claim.

IV. Hull's Ineffective-Assistance Claim

A. Applicability of AEDPA

We must initially determine whether the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L.
No. 104-132, 110 Stat. 1214, applies to Hull's ineffective
assistance claim. If it does, our review will be somewhat
different than theretofore because 28 U.S.C. S 2254(d)(1), as
amended by AEDPA, requires us to give heightened
deference to state court adjudications of habeas claims.
Hull argues that AEDPA does not apply to his claim
because the Supreme Court has held that petitionsfiled
before AEDPA's enactment on April 24, 1996, are governed
by the pre-AEDPA version of S 2254, see Lindh v. Murphy,

, 336 (1997), and his initial petition was filed
well before AEDPA's enactment. We disagree.

Hull's initial petition was dismissed without prejudice,
and it is only his present petition that is relevant for
_________________________________________________________________

Court had already addressed the merits of Hull's claim, they did not
need to do so again to excuse his procedural default.

The Supreme Court has never squarely addressed how a petitioner
may have a procedural default such as the present one excused by a
state court. It has only addressed the issue of"waiver" of procedural
default when one court has rejected a claim on the basis of procedural
default, and a higher court later addressed the merits of the claim. This
is not something Hull could have sought, as no state court explicitly
rejected his claim on the basis of procedural default, but rather we did
(in Hull II), based on our reading of Ylst and Coleman.

                                22
purposes of analyzing his ineffectiveness claim. His present
petition was filed almost a year after AEDPA's enactment,
and is therefore governed by the amended S 2254. See In re
Minarik, 

, 598 (3d Cir. 1999) (interpreting
Lindh as holding that the post-AEDPA S 2254 applies to
petitions filed after April 24, 1996); cf. Matteo v.
Superintendent, SCI Albion, 

, 884-85 (3d Cir.
1999) (en banc) (applying post-AEDPA S 2254(d)(1) to a
petition filed after AEDPA's enactment, although the
petitioner had filed a prior, dismissed petition before 1996),
petition for cert. filed, 

(U.S. June 22,
1999) (No. 98-2050).

Given our holding in Minarik, it is only because Hull filed
a petition before AEDPA's enactment that he can even
plausibly argue that his claim is not governed by the
AEDPA amendments. Yet his pre-AEDPA petition was
dismissed without prejudice. Typically, when a complaint
(or habeas petition) is dismissed without prejudice, that
complaint or petition is treated as if it never existed. See,
e.g., Christy v. Horn, 

, 208 (3d Cir. 1997)
(holding that a habeas petition filed after a prior one was
dismissed without prejudice is considered the petitioner's
first habeas petition); cf. Cardio-Medical Assocs. v. Crozer-
Chester Med. Ctr., 

, 77 (3d Cir. 1983) ("It is a
well recognized principle that a statute of limitations is not
tolled by the filing of a complaint subsequently dismissed
without prejudice. As regards the statute of limitations, the
original complaint is treated as if it never existed.").
Therefore, the fact that Hull filed a prior (since dismissed)
petition is irrelevant to such issues as the law that applies
to his present petition.

We recently held, dealing with a cognate issue, that a
district court did not abuse its discretion in disallowing an
amendment to a S 2255 motion, when the amendment was
sought after the AEDPA limitations period had run. See
United States v. Duffus, 

, 337 (3d Cir. 1999).
We reasoned that allowing the amendment would have
"frustrated the intent of Congress that claims under 28
U.S.C. S 2255 be advanced within one year after a judgment
of conviction becomes final." 

petitioner cannot
amend a timely petition after a limitations bar has risen, we

                               23
think it unlikely that a petitioner could reach back to a
prior petition to avoid the effect of AEDPA's passage, which
occurred after the prior petition had been completely
dismissed and before the current petition had beenfiled.

While applying AEDPA's stricter standard to Hull's claim
may appear unfair, given his attempt to bring his current
claim to federal court well before AEDPA's enactment, he
did not have a cognizable federal habeas claim until
February 29, 1996, when his procedural default was waived
and his state post-conviction remedies exhausted. His
activity before that date, including the filing of a federal
habeas petition in 1989, is simply irrelevant for purposes of
determining which law applies to the present claim,
because it was only after February 29, 1996, that Hull
could petition a federal court for habeas relief on his
exhausted and non-defaulted claim. Once AEDPA became
effective approximately two months later, it governed all
new habeas petitions filed after that date, including Hull's
current petition, which was filed on March 6, 1997.

B. Standard of Review (Under AEDPA)

Section 2254(d)(1), as amended by AEDPA, provides:

        An application for a writ of habeas corpus on behalf
       of a person in custody pursuant to the judgment of a
       State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim--

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the
       Supreme Court of the United States . . . .

28 U.S.C. S 2254(d)(1) (Supp. II 1996). Our recent en banc
decision in Matteo provides the post AEDPA standard for
reviewing a claim under S 2254(d)(1). Under Matteo, a
habeas writ should not be granted "unless the state court
decision, evaluated objectively and on the merits, resulted
in an outcome that cannot reasonably be justified under
existing Supreme Court precedent." 

. We noted in Matteo that Congress clearly intended

                               24
federal habeas courts to defer to reasonable state court
adjudications of prisoners' claims: "Congress intended to
restrict habeas relief to cases in which the state court
judgment rested upon an objectively flawed interpretation
of Supreme Court precedent." 

held in Matteo
that "federal habeas courts are [not] precluded from
considering the decisions of the inferior federal courts when
evaluating whether the state court's application of the law
was reasonable." 

standard in mind, we
proceed to the merits of Hull's ineffective-assistance claim.

C. General Legal Principles

1. Ineffective Assistance of Counsel

The requirements for establishing ineffective assistance of
counsel are well-known, and we need not belabor the
general Strickland jurisprudence here. Hull must establish
two elements to succeed on his claim: (1) that his counsel's
performance regarding the competency issue was deficient,
and (2) that the deficient performance prejudiced him by
producing an unreliable result. See 

. We have already held that Hull demonstrated thefirst
prong, see Hull 

, and we see no reason
to revisit that holding here. We thus confine our discussion
to the issue of prejudice.

Before considering whether the deficient performance of
Hull's trial counsel was prejudicial, we will briefly outline
the relevant law regarding competency to stand trial. We do
so not because we are deciding the underlying issue of
whether Hull was competent to stand trial in 1979, but
because the issue of prejudice is necessarily bound up in
the law of competency: Whether Hull was prejudiced by his
counsel's failure to cross-examine the government's single
witness or to present any evidence of his possible
incompetence is largely a function of whether Hull was in
fact incompetent at the time. See, e.g., Eddmonds v. Peters,

, 1317 (7th Cir. 1996) (framing the issue in a
similar case as whether "there is a reasonable probability
that [petitioner] was not fit [to stand trial], calling into
question the integrity of the adversarial process"), cert.

                               25
denied, 

(1997); Felde v. Butler, 

, 282 (5th Cir. 1987) (noting that a petitioner would
satisfy Strickland's prejudice prong "only if he demonstrates
that there is a reasonable probability that but for[his
counsel's] failure to seek a competency hearing, he would
have been found incompetent to stand trial" (internal
quotation omitted)).

Regardless of Hull's guilt or innocence, his constitutional
right to effective counsel would be violated if he were
convicted of first-degree murder when there was a
reasonable probability that he was incompetent to stand
trial. We reiterate also that, under the recent amendments
to S 2254, we are not undertaking simply an independent
analysis of this question. Rather, when a habeas petitioner
presents a claim that has been "adjudicated on the merits
in State court proceedings," 28 U.S.C. S 2254(d), the writ
should not be granted "unless the state court decision,
evaluated objectively and on the merits, resulted in an
outcome that cannot reasonably be justified under existing
Supreme Court precedent." 

.

2. Competence to Stand Trial

The basic rule for competency to stand trial is that a
defendant must (1) have "sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding" and (2) possess "a rational as well as
factual understanding of the proceedings against him."
Dusky v. United States, 

, 402 (1960) (per
curiam) (internal quotation omitted); see also Pate v.
Robinson, 

, 385 (1966) (holding that failure to
provide adequate procedures to ensure that the Dusky test
is met deprives a defendant of his constitutional right to a
fair trial).

Following Dusky and Robinson, the Supreme Court held
in Drope v. Missouri, 

(1975), that a habeas
petitioner's due process rights had been violated when a
state court failed to determine his competency,
notwithstanding his suicide attempt during trial, his wife's
testimony at trial regarding his strange behavior, and a
pretrial psychiatric evaluation that contained equivocal

                               26
evidence of incompetence. See 

A defendant
presenting similar evidence of incompetency would
presumably be prejudiced by either the trial court's failure
to grant a competency hearing or his counsel's failure to
request one.

Moreover, a defendant's right to be tried only when
competent would presumably be violated if his counsel's
conduct at a competency hearing was the virtual equivalent
of failing to request a competency hearing in a case in
which the indications of incompetency were as strong as
they were in Drope. See also United States ex rel. McGough
v. Hewitt, 

, 342-43 (3d Cir. 1975) (relying on
Drope and Robinson to hold that a petitioner was
improperly denied "the opportunity to interrogate and
cross-examine the psychiatrists" who had found him
competent to stand trial, given that they reported his
history of commitment in a state hospital "as a result of
bizarre activities at his home," and his " `obsessive thinking
and antisocial forms of behavior' "). Although the Superior
Court did not cite any of these cases, this was the state of
the law at the time of its 1988 decision denying Hull's state
post-conviction petition, as well as at the time of the 1979
competency hearing.6

D. The Facts Regarding Hull's Incompetence

We emphasize that our task is not to determine whether
there is a reasonable probability that Hull would not have
been convicted, absent his counsel's errors. Rather, we are
assessing whether there is a reasonable probability that he
would have been found incompetent to stand trial if not for
the deficient performance of his attorney. Therefore, it is
_________________________________________________________________

6. In 1983, when the Supreme Court overturned a court of appeals' grant
of habeas relief in a competency case, it noted that"[t]here is no dispute
as to the proper legal standard to be applied for determining the
correctness of the trial court's actions" regarding the petitioner's
competency. Maggio v. Fulford, 

, 116 (1983) (per curiam)
(citing Robinson and Drope). Therefore, at the time of the Superior
Court's decision on Hull's ineffective-assistance claim, Robinson and
Drope remained the leading cases interpreting the requirements for
competency to stand trial.

                               27
important to outline the relevant facts available to Hull's
counsel at the time of his competency hearing. See Buehl v.
Vaughn, 

, 172 (3d Cir.) ("It isfirmly
established that a court must consider the strength of the
evidence in deciding whether the Strickland prejudice prong
has been satisfied."), cert. dismissed, 

(1999).

1. The Medical Evaluations of Hull

In 1975, shortly after his arrest, Hull was found
incompetent to stand trial. He was committed to Farview
State Hospital, and given an initial medical diagnosis of
borderline mental retardation and schizophrenia (chronic,
undifferentiated type). In the first medical evaluation in the
record, which occurred in March 1976, almost a year after
Hull was committed to Farview, Dr. B.J. Willis reported:

       The staff was of the opinion that this patient continues
       to show clear signs of a disabling and dangerous
       mental condition that makes him a considerable risk.
       The staff was of the opinion that the patient is not now
       competent to stand trial and that he should be
       retained in the hospital for further treatment. It was
       the opinion of the staff that only the firm control and
       structure of this institution keeps the patient's
       behavior within bounds.

App. at 426.

Hull was evaluated again approximately five months
later, on August 4, 1976, by Dr. Arthur D. Boxer. Dr. Boxer
found that Hull still was not competent to go to trial. See

Five months later, on January 12, 1977, Hull
was evaluated by nine Farview staff members. Reporting on
their evaluation, Dr. John P. Lesniak concluded that Hull
"cannot participate in his own defense," that he was
"potentially dangerous," and that he "still[was] not
competent to stand trial." 

Later that month, Dr.
Donald N. Twaddell concluded that Hull "is hardly in a
position to be considered competent to stand trial, to
consult adequately with counsel, or to testify in his own
defense." 

Dr. Twaddell described Hull as
"frequently and quite actively hallucinatory and disturbed

                               28
in both the auditory and visual areas with morbid thoughts
of death." 

members evaluated Hull in May 1977, and
concluded that Hull, "although improved, continues to be
incompetent to stand trial at this time." 

On
February 15, 1978, Dr. Lawrence Chang reported:

       History indicates that [Hull] gives a picture of a mental
       defective who has been unable to read or write. He
       went as far as only the fourth grade at the age of 15.
       . . . He remains to be psychotic throughout his
       hospitalization here with the repeated episode of
       hearing voices telling him to kill someone and that
       God's voice tells him not to do harm to anyone . . ..
       His inability to comprehend the nature of his act is a
       product and manifestation of his mental illness and
       mental retardation. Therefore, he is not considered to
       be mentally competent to stand trial at this time. It is
       also further recommended that due to his both
       homicidal and suicidal tendencies, he should continue
       to be in a setting of maximum security for his own
       protection and of others.

Dr. Chang evaluated Hull four more times
during 1978, in April, June, August, and October. See 

Each time he concluded that Hull remained
incompetent to stand trial due to "his chronic mental
illness and limited mental capacity." 

In
November 1978, Dr. J. Michael Shovlin suggested that Hull
might be having "a psychotic depressive reaction" to
Lithium Therapy, and concluded that Hull was still
incompetent to stand trial. 

Dr. Chang evaluated
Hull again in January 1979 and found his condition
unchanged, noting that "he has been undergoing numerous
psychotropic drug therapies, without noticeable
improvement," since his admission to Farview. 

On April 9, 1979, less than two weeks before the court-
appointed psychiatrist, Dr. Stamey, evaluated Hull (and
later testified that he was competent to stand trial), Dr.
Kenneth Detrick reported that Hull's condition "does not
seem to be appreciably different from any of the other
examinations." 

He concluded that "his mental

                                29
incapacity continues to be so severe that he remains
incompetent to stand trial for his crime and should
continue at Farview State Hospital for further treatment."

20, 1979, at the request of the Franklin County
Court of Common Pleas, Dr. Stamey evaluated Hull, and on
May 4, 1979, the doctor sent his report to the court. In his
report, Dr. Stamey noted that Hull's "thoughts were logical
and coherent and goal directed, and somewhat forceful." 

He also found Hull's affect "appropriate, but
shallow." 

did not find Hull to be suicidal.
See 

that Hull had "some [insight], but not
much," and that Hull was "a relatively simple soul, not a
deep thinker or feeler." 

Dr. Stamey found that
Hull's judgment was "good within his intellectual limits,"
but that "under increased stress it might break down." 

schizophrenia appeared to Dr. Stamey to be
"in a degree of remission" at that time, he found the
remission "fragile," and noted that Hull "has very little in
the way of coping mechanisms, still harbors a good bit of
suspicion, and is very defensive in many areas." 

In conclusion, Dr. Stamey opined that Hull was
"competent to stand trial and probably would remain so
throughout the trial if it is not overly stressful." 

it "worth a try," though he cautioned that Hull
should be watched closely for "signs of regressing." 

the two requirements of competency,
Dr. Stamey noted that Hull had "some intellectual and
emotional understanding of the charges, what might
happen to him because of them, and what the alternatives
are," and that Hull "could help his lawyer within the limits
of his intelligence." 

qualified his opinion by
noting that Hull "could regress very quickly and become
incompetent" under even a small amount of stress. 

3, 1979, Hull was evaluated again, and found
incompetent to stand trial by Farview staff. See 

53. In the final medical evaluation prior to the competency
hearing, on July 23, 1979, Dr. Norman E. Wenger expressly
disagreed with Dr. Stamey's conclusion regarding Hull's
competency to stand trial, and recommended that Hull

                                30
"receive another period of in-patient, psychiatric
hospitalization at this facility." 

Following the court's adjudication of Hull as competent to
stand trial on July 31, 1979, see infra Part IV.D.2, and
Hull's general guilty plea on August 3, 1979, his trial
counsel requested (and the court apparently ordered) a
psychiatric evaluation of Hull in preparation for the degree-
of-guilt hearing. As a result, on August 15, 1979, Dr.
Robert L. Sadoff evaluated Hull. The focus of Dr. Sadoff 's
evaluation appears to have been on Hull's state of mind at
the time of the crime, not at the time of the competency
hearing. See App. at 456-60. Dr. Sadoff concluded that Hull
had acted with diminished mental capacity at the time of
the shooting, and closed his report with these words:

        Whatever the final determination by the court about
       the degree of homicide, it is my strong recommendation
       that Mr. Hull be treated intensively in a hospital setting
       for a prolonged period of time. The combination of his
       illness, borderline mental retardation and poor impulse
       control, with alcoholism is a potentially explosive and
       violent combination which requires security measures
       as well as medication and a therapeutic environment.
       At one level Mr. Hull is aware of the situation in which
       he is involved to the point that he wants to be put to
       death by the State for what he says he has done. He
       says, "I don't deserve to live." On the other hand, he
       wants to live and wants to engage in constructive
       rehabilitative efforts. However, these efforts will be
       long-term and his recovery will be slow and the
       remission is fragile at the present time. Moderate
       degrees of stress will be sufficient to cause further
       decompensation and deterioration in Mr. Hull's
       condition. He will require continued medication as well
       as security treatment.

As for Hull's then-current state of mind, Dr. Sadoff noted
that Hull "believes that he is competent" and"believes that
he should be found guilty and should be given the death
penalty for what he did." 

Dr. Sadoff concluded
that "Hull is mentally competent to proceed in this legal

                               31
situation. He understands the nature and consequences of
his legal condition and can work with counsel in preparing
a rational defense." 

At this point, however, Hull
had already been adjudicated competent (as his counsel
had requested, see 

and his guilty plea to
murder had been accepted.

2. The Competency Hearing

The competency hearing was held on July 31, 1979.
Despite the 1975 finding that Hull was incompetent, and
the veritable phalanx of medical reports that Hull remained
incompetent, the entire hearing took less than an hour and
is reproduced in only four pages of transcript. See 

As noted above, only one witness, Dr. Stamey,
testified. Because of its central importance in this case, we
include in the margin the entire transcript from the
competency hearing.7

(Text continued on page 34)
_________________________________________________________________

7. The competency hearing began with the government calling Dr.
Stamey to the stand:

       BY MR. WALKER [the District Attorney]:

        Q Dr. Stamey, what is your occupation?

        A I am a physician, psychiatrist.

        Q Are you associated with any hospital?

        A A senior vice president and medical director of the Geisinger
       Medical Center in Danville.

        Q Dr. Stamey, where did you do your undergraduate work?

        A At George Washington University.

        Q Where did you do your medical training?

        A Also at George Washington University.

          MR. MARTIN [Hull's trial counsel]: Your Honor, we will
       stipulate to Dr. Stamey as being a psychiatrist.

          THE COURT: Very well.

       BY MR. WALKER:

        Q Dr. Stamey, going back to April 20, 1979, did you have
occasion to evaluate Larry Gene Hull?

                        32
       A Yes, sir.

       Q Is Larry here in the courtroom today?

       A Yes.

       Q Where is he seated?

       A Right there (indicating.)

       Q Where was that evaluation at?

       A At the Farview State Hospital in Waymart.

       Q From your evaluation of Mr. Hull on that date, were you able
      to form an opinion as to whether Mr. Hull would be able to
      understand the nature or object of the proceedings against him?

       A Yes, sir.

       Q What is that opinion?

       A I feel that he could.

       Q What is your opinion as to whether or not Mr. Hull would be
      able to participate and assist in his defense?

       A At that time I felt that he could do so.

         MR. WALKER: I have no further questions.

         THE COURT: Cross examine.

         MR. MARTIN: We have no questions, Your Ho nor.

         THE COURT: Do you understand, Mr. Hull, t hat your attorney
      has the right to cross examine the doctor to find out what it was
      that formed the basis of the doctor's opinion as he has reported
it.
      Do you understand that?

         THE WITNESS [Hull]: Yes, I do.

         THE COURT: And understanding that, had yo u told your
      attorney that you do not request him to cross examine the witness?

         THE WITNESS: Yes.

         THE COURT: All right, thank you very much. You may be
      seated.

         MR. WALKER: Your Honor, that is all that we have for the
Commonwealth's case.

                       33
At the hearing, the government asked Dr. Stamey only
two substantive questions: Whether he believed "Hull would
be able to understand the nature or object of the
proceedings against him," 

and whether "Hull
would be able to participate and assist in his defense," 

To the first question, Dr. Stamey answered, "I feel
that he could." 

to the second question,
regarding Hull's assisting in his defense, Dr. Stamey
apparently referred to his evaluation of Hull approximately
three months earlier: "At that time I felt that he could do
so." 

did not elaborate on either answer, and
was asked no further questions by the district attorney.
Hull's counsel, when asked by the court to cross-examine
Dr. Stamey, responded, "We have no questions, Your
Honor." 

presented no other evidence of Hull's
competence. There is also no indication in the record that
the government introduced Dr. Stamey's report into
evidence. When the government stated that it had no
additional evidence or witnesses to present, the court asked
Hull's counsel if he had any evidence to present. He
responded, "No, we have none." 

point, the court
_________________________________________________________________

          THE COURT: Do you have any evidence to pr esent, Mr. Martin?

          MR. MARTIN: No, we have none.

          THE COURT: All right, we will make an ord er. Mr. Martin, is
       there any objection to our making an order finding Mr. Hull
       competent to stand trial?

          MR. MARTIN: No objection, Your Honor. In fact, we have agreed
       to it.

          THE COURT: You request it?

          MR. MARTIN: Yes.

App. at 421-24.

The record reflects that the court then entered an order. Following a
sidebar discussion off the record, the court set a trial date of September
10, 1979, and remanded Hull to Franklin County Prison pending trial.
See 

                               34
entered an order finding Hull competent to stand trial,
which Hull's counsel expressly "agreed to." 

E. Prejudice to Hull

Initially, we reiterate that under AEDPA and Matteo, we
must look at the last state court decision on the merits of
a petitioner's claim to determine if that decision,"evaluated
objectively and on the merits, resulted in an outcome that
cannot reasonably be justified under existing Supreme
Court precedent." 

. The last state
court decision on the merits of Hull's ineffective-assistance
claim is the Superior Court's 1988 decision. That decision,
"evaluated objectively and on the merits," reveals little
discussion of the issue before us--prejudice under
Strickland. The only aspect of the court's opinion that
appears to refer to this issue is its determination that the
colloquy at Hull's guilty plea on August 3, 1979,
demonstrated his "ability to recount in detail his actions
and emotions at the time of the murder," Commonwealth v.
Hull, No. 215 Harr. 1988, slip op. at 3-4 (Pa. Super. Ct.
Sept. 30, 1988), which established both his ability to assist
his counsel and his understanding of the proceedings
against him, see 

8

Under Strickland, a petitioner alleging prejudice from his
counsel's deficient performance "must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." 

. "A
reasonable probability is a probability sufficient to
_________________________________________________________________

8. The Common Pleas Court's decision on this issue, included in its
opinion and order of February 22, 1988, contains a similar analysis. See
Commonwealth v. Hull, Crim. No. 101-1975, slip op. at 9 (Pa. C.P. Ct.
Feb. 22, 1988) ("We have independently reviewed defendant's testimony
at the guilty plea proceeding . . ., and note that defendant testified in
a
cogent, coherent manner, giving no indication whatever of incompetency
at the time of such testimony."). We note incidentally that the Common
Pleas Court assumed--incorrectly in our view--that the burden remained
on Hull to rebut the presumption of competence with clear-and-
convincing evidence, despite the earlier adjudication that found him
incompetent to stand trial. See 

Part I.A.

                               35
undermine confidence in the outcome." 

"is not a stringent one." Baker v. Barbo, 

, 154
(3d Cir. 1999) (citing Nix v. Whiteside, 

, 175
(1986)). It is less demanding than the preponderance
standard. See 

prove that he was prejudiced
by his counsel's performance, Hull need not demonstrate
that he definitely was incompetent in 1979. Rather, he
must only establish that there was a reasonable probability
that he was.

Applying this standard from Strickland and our
interpretation of S 2254(d)(1) from Matteo, we conclude that
it was objectively unreasonable for the Superior Court to
implicitly find that there was no "reasonable probability"
that the outcome of Hull's competency hearing would have
been different if not for his counsel's failure to cross-
examine Dr. Stamey or to present evidence in support of
Hull's incompetence.

Supreme Court precedent as of 1988 clearly required
more of a state court than the summary conclusion that
the Superior Court drew from the plea colloquy. 9 Pate v.
Robinson, decided more than a decade before Hull's
competency hearing, required states to provide adequate
procedures to ensure that only competent defendants were
tried (and convicted). Drope v. Missouri, also decided before
the competency hearing and well before the Superior
Court's 1988 decision, held that a habeas petitioner's due
process rights were violated when a state court did not
consider evidence of his incompetence, even though his
incompetence was far from certain. Indeed, in 1975, we
relied on these two cases in McGough to find that a habeas
petitioner's constitutional rights were violated when he was
not given the opportunity to cross-examine psychiatrists
who deemed him competent to stand trial--one of the bases
on which we have found that Hull's trial counsel was
deficient. See Hull 

; cf. 

("[F]ederal habeas courts are [not] precluded from
considering the decisions of the inferior federal courts when
_________________________________________________________________

9. We note that both Strickland and Whiteside, as well as the competency
cases 

Part IV.C.2, were decided before the Superior
Court's consideration of Hull's ineffective-assistance claim in 1988.

                               36
evaluating whether the state court's application of the law
was reasonable.").

These cases unequivocally provide that a criminal
defendant is entitled to adequate procedures, including the
opportunity to present evidence and to cross-examine
government witnesses, when his competency is at issue.
When a defendant has not only already been found
incompetent to stand trial, as Hull was before the 1979
competency hearing, but when numerous evaluations of his
mental condition indicate that he remains incompetent, his
competency to stand trial must be carefully considered by
the court before a trial may be held or a guilty judgment
entered. Under these circumstances, when a defendant's
own attorney fails to effectively use the procedures to
determine competency that are mandated by Supreme
Court precedent, we believe that the prejudice to the
possibly still-incompetent defendant is manifest.

The state courts did not discuss at length the evidence
regarding Hull's competence. The District Court did outline
Dr. Stamey's findings, and observed that the many doctors
who found Hull incompetent "addressed Hull's past
condition and not his condition as of the date of the
hearing." Hull v. Freeman, Civ. No. 89-0681, slip op. at 14-
15 (M.D. Pa. Oct. 18, 1991). However, four of the
evaluations occurred in 1979, within six months of the
competency hearing, and fifteen different evaluations
between 1976 and 1979 found Hull incompetent while only
the single evaluation of Dr. Stamey resulted in afinding of
competency. Dr. Stamey's opinion, moreover, was not based
on Hull's condition on the date of the hearing, but on his
evaluation of Hull more than three months earlier. Even a
short, simple cross-examination could have highlighted this
fact, as well as Dr. Stamey's own concessions that Hull
"could regress very quickly and become incompetent," and
that his putative remission was "fragile" (and might have
already shattered in the three months since the doctor's
observation of Hull).

The District Court acknowledged that "Dr. Stamey's
written report was not admitted into evidence at the
competency hearing," 

though it discussed the
report at length before rejecting Hull's claim, see 

                               37
13. However, when determining whether there is a
"reasonable probability" that the Common Pleas Court
would have reached a different conclusion in the absence of
counsel's inadequate performance, we should not assume
that it considered Dr. Stamey's report in reaching its actual
conclusion. Cf. Meyers v. Gillis, 

, 669 (3d Cir.
1998) ("[W]e cannot go beyond the record to refute
[petitioner's] assertion of prejudice."). In fact, the record
does not reveal that the Common Pleas Court considered
any of the reports on Hull's competency and arguably it
would have had no reason to do so once Hull's counsel
"agreed" at the competency hearing that Hull was
competent to stand trial. We note, however, that Hull was
found incompetent on three different occasions in mid-
1979, including twice after Dr. Stamey's evaluation and
before the competency hearing.

It is not certain that the state court would have found
Hull incompetent on the basis of this evidence from the
mid-1979 evaluations (or even on the basis of the twelve
previous evaluations that found him incompetent, and the
detailed descriptions of his psychosis and mental illness in
all of the evaluations). But we have no troublefinding that
there is a reasonable probability that the court would have
determined that Hull had not regained his competence to
stand trial if this evidence had been presented by Hull's
counsel, and if Dr. Stamey had been pressed even slightly
on the qualified and equivocal nature of his report's
conclusions.

At the juncture of the dual constitutional requirements of
effective assistance of counsel and a defendant's
competency, the Supreme Court has implied that defense
counsel has a special role in effectively ensuring that a
client is competent to stand trial. See 

n.13 ("Although we do not, of course, suggest that
courts must accept without question a lawyer's
representations concerning the competence of his client, an
expressed doubt in that regard by one with `the closest
contact with the defendant,' is unquestionably a factor
which should be considered." (citations omitted)). Defense
counsel's special role arises not only from the typical
attorney-client relationship, but from the very fact that the

                               38
defendant may be unable to appreciate the proceedings or
to assist his attorney (or to make an intelligent decision on
challenging his competency). Cf. 

("[I]t is contradictory to argue that a defendant may be
incompetent, and yet knowingly or intelligently`waive' his
right to have the court determine his capacity to stand
trial."). Hull would clearly appear to have been prejudiced
by his counsel's failure to "express[ ] doubt" regarding his
competency by cross-examining the government's single
witness or presenting any of the large body of evidence in
support of Hull's incompetence to stand trial.

In Strickland, the Court noted that the "benchmark for
judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a just result." 

.
We think it abundantly clear that counsel's conduct at the
competency hearing in this case, given the demonstrated
and overwhelming evidence of Hull's incompetence,
"undermined the proper functioning of the adversarial
process" of a competency hearing, which was required (in
1979) by Supreme Court precedent and the Due Process
Clause, so that we cannot say that a just result--i.e., the
conviction of a competent and guilty defendant--occurred.
This certainly is not a case in which we can say that
prejudice did not result from counsel's failure to act
because counsel took sufficient alternative steps to ensure
that defendant was adequately represented. Cf. Hess v.
Mazurkiewicz, 

, 909 (3d Cir. 1998) (holding
that a defendant suffered no prejudice from counsel's
failure to call certain alibi witnesses because his counsel
had "presented a plausible, if ultimately unsuccessful, alibi
defense" through other witnesses).

Finally, we note that prejudice to a defendant is
presumed when his counsel's performance is so deficient as
to effectively constitute a denial of the right to counsel. See

. In this case, despite the strong
evidence of Hull's incompetence (evidence that could
presumably be presented only by counsel), Hull's trial
counsel "agreed" at the conclusion of the competency
hearing that Hull was competent to stand trial. This is

                               39
essentially tantamount to "constructive denial of the
assistance of counsel altogether[, which] is legally
presumed to result in prejudice." 

of the
District Court must therefore be reversed and the case
remanded with instructions to grant the writ.

V. Conclusion

When Hull was first granted the writ by the district court
in 1990, that court appeared to believe that the state court
should readjudicate Hull's competency to stand trial as of
1979, effectively redoing the flawed competency hearing.
However, in Hull I, we explained that if Hull's ineffective-
assistance claim was not procedurally defaulted and if he
proved prejudice from his counsel's deficient performance,
the writ should be granted conditioned on his being retried
--not conditioned on his competency in 1979 being
readjudicated. We believe this remains the proper
disposition of Hull's successful habeas petition.

The state may retry Hull if it chooses, and the writ will be
granted conditioned on his retrial within 120 days. Because
he was found incompetent to stand trial at his last valid
competency hearing (in 1975), the state must first establish
that Hull has presently regained his competency to stand
trial before retrying him. At this point, his actual
competency as of 1979 is irrelevant to any criminal
proceedings against him. See 

(remanding to the trial court "for a new hearing to ascertain
petitioner's present competency to stand trial," given "the
. . . difficulties of retrospectively determining the
petitioner's competency as of more than a year ago"); see
also 

(same, when competency
hearing was held six years before writ was granted);

(same).

For the foregoing reasons, the judgment of the District
Court will be reversed and the case remanded for the
granting of a writ of habeas corpus conditioned on Hull's
being retried within 120 days, with the understanding that,
if Hull cannot be tried within this period because he is
found incompetent to stand trial, the state has at its
disposal procedures for treating Hull, see Pa. Stat. Ann. tit.

                               40
50, SS 7401-7407 (West Supp. 1999), and it may retry him
within 120 days of his regaining his competency to stand
trial should he do so.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               41