FILED
                                                         United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                              November 18, 2008
                          FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                 Clerk of Court

 UNITED STATES OF AMERICA,

              Respondent-Appellee,                       No. 08-7004

 v.                                                    (E.D. of Okla.)

 GARY LYNN GAINES,                           (D.C. Nos. 6:05-CV-00249-JHP and
                                                   6:02-CR-00063-JHP-1)
              Petitioner-Appellant.



          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Gary Lynn Gaines, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to challenge the district court’s denial of his 28 U.S.C. §

2255 petition. In 2002, Mr. Gaines pled guilty to aggravated sexual abuse of a

child in Indian country. In 2005, Mr. Gaines filed this petition for habeas relief

under § 2255, arguing that his guilty plea was not knowing and voluntary because

he was incompetent when he entered it. The district court denied his request for a

COA. Mr. Gaines now applies to this court for a COA, which we deny.

                                  I. Background

      We described the facts leading to Mr. Gaines’s instant petition for habeas

relief in United States v. Gaines, 214 F. App’x 849 (10th Cir. 2007):
      After he was indicted, Mr. Gaines asked for and received a
      competency examination. Dr. Thomas Patenaude, a psychologist,
      performed it. After receiving Dr. Patenaude’s report, the court held a
      competency hearing and then issued an order deeming Mr. Gaines
      competent to stand trial. On December 18, 2002, approximately one
      week after the district court deemed him competent, Mr. Gaines
      pleaded guilty. The district court sentenced him to 168 months in
      prison and a sixty-month term of supervised release.

      On December 19, 2003—one year after Mr. Gaines was
      sentenced—the Federal Bureau of Prisons (“BOP”) sent a letter to the
      district judge informing him that an internal investigation of Dr.
      Patenaude revealed “sufficient evidence to question the credibility
      and accuracy of a psychological evaluation” Dr. Patenaude had
      prepared in another case. The letter continued:

              This internal investigation could call into question the
              credibility of other psychological evaluations conducted by
              this psychologist. Our records show that this psychologist
              issued a report in a case before your court: United States v.
              Gary L. Gaines, Case No. CR-02-063-P, concerning defendant
              Gary Lynn Gaines, Register Number 29031-177. Accordingly,
              we bring this information to your attention for any action the
              court may deem appropriate.

      The district court denied Mr. Gaines’s § 2255 petition. We granted COA,

and after receiving further briefing remanded to the district court for an

evidentiary hearing to determine whether, in light of the BOP’s letter, Mr. Gaines

was entitled to collateral relief on the ground that the credibility of his mental

competency evaluation had been called into question. 214 F. App’x at 852. We

also ordered that counsel be appointed. The district court conducted the

evidentiary hearing in accordance with this Court’s decision, and concluded that


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Mr. Gaines “presented absolutely no evidence [other than the BOP letter] to

support [his] allegation.” Dist Ct. Op. 5. The court found that “all of the

evidence presented establishes [that] the psychological evaluation of [Mr. Gaines]

was conducted in a routine manner and during the course of the evaluation [of

him] nothing came to the attention of the evaluators which would cause this Court

to question [Mr. Gaines’s] competency.” 

basis of this evidence and

the district judge’s own recollection of Mr. Gaines’s plea colloquy, the district

court denied Mr. Gaines’s petition.

                                      II. Analysis

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make such a showing, a petitioner must demonstrate that “reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 

, 483–84 (2000) (internal quotation

marks omitted).

      We do not believe that standard was met. The district court conducted an

evidentiary hearing as required by this Court’s prior decision. Petitioner,

represented by counsel, had full opportunity to present evidence in support of his

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position. Based on that evidence, the district court reached a factual conclusion

that the psychological examination of Mr. Gaines was “conducted in a routine

manner” and that there was no reason to question the original finding of

competency. That factual conclusion is subject to review in this Court only for

clear error, which we do not discern.

      Mr. Gaines bases his argument here primarily on a 2007 submission by the

government to the Eastern District of Oklahoma in a different case involving Dr.

Patenaude, in which the government reported that “the actions taken by the

Courts, government, and defense counsel [in response to the BOP’s letter on Dr.

Patenaude] [have] varied.” Government Response to Motion for Continuance

(September 10, 2007), 2. In some of the cases briefly described by the

government, the defendant was resentenced; in one, Dr. Patenaude’s study was

rejected and another study ordered; in another, a court found that nothing in the

BOP letter had anything to do with the particular defendant before that court, and

the defendant’s sentence was upheld. 

Given these different outcomes,

Mr. Gaines suggests, reasonable minds must be able to debate whether he is

entitled to habeas relief.

      This argument fails to recognize that in each case, the court is bound to

consider the import of the BOP’s letter as to the particular defendant before it.

The unfortunate history of Dr. Patenaude provided ample reason for this Court to

insist that an evidentiary hearing be conducted, but that hearing failed to uncover

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any evidence that Mr. Gaines’s psychological test was faulty or the results

incorrect. That in other cases there was such evidence avails Mr. Gaines not at

all.

       As a brief review of the BOP’s complaint against Dr. Patenaude and the

record in this case will demonstrate, the district court was not mistaken in

concluding that Mr. Gaines is not entitled to habeas relief. The basis of the

BOP’s complaint against Dr. Patenaude was that he allegedly “falsified the

records of four federal inmates to make it appear he met with inmates when in

fact he had not.” Violette v. United States, 

, 4 (D. Me. 2005)

(internal quotations omitted). 1 If, therefore, this were a case where the district

judge had based his competency determination solely on Dr. Patenaude’s word

that he met with Mr. Gaines and found him competent, we might agree that

reasonable minds could at least debate whether Mr. Gaines was entitled to a new

competency hearing. The facts here, however, are different. At the evidentiary

hearing, testimony confirmed that Dr. Patenaude did, in fact, meet with Mr.

Gaines. A second doctor, Dr. Balduzzi, who was then completing a pre-doctoral

internship program at the Federal Medical Center-Devens, recalled assisting Dr.

Patenaude with the interview. As the district court noted, “Dr. Balduzzi



1
       Dr. Patenaude apparently claims that this was merely the result of a clerical
error on his part. For purposes of this appeal, we assume the allegations against
Dr. Patenaude are true.

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remembered interviewing the defendant and the defendant’s life story as he told it

to her. Dr. Balduzzi administered the psychological tests referred to in

Petitioner’s Forensic Mental Health Evaluation and none of the testing results

gave her any reason to question [Mr. Gaines’s] competency.” Dist. Ct. Order

(Oct. 17, 2007), 4.

      Mr. Gaines gives us no reason to question Dr. Balduzzi’s account. Her

independent recollection of Mr. Gaines’s case also bolsters the credibility of Dr.

Patenaude’s statement at the evidentiary hearing that Mr. Gaines presented an

“easy” case of competency, such that it was appropriate for a pre-doctoral intern

to handle. 

      The district judge also based his conclusion that the BOP letter did not

impeach Mr. Gaines’s competency determination on his own interaction with Mr.

Gaines during the plea process. The district court found that Mr. Gaines

“personally appeared before this Court and communicated rationally and

effectively in entering a change of plea.” 

Indeed, our own review of Mr.

Gaines’s plea colloquy with the district court convinces us that it would be hard

to conclude anything other than that Mr. Gaines was competent to plead guilty.

Not only did Mr. Gaines engage rationally and articulately with the district judge,

but he clearly understood the implications of receiving different advisory

Guidelines scores on the basis of his plea and his willingness to accept

responsibility for his actions.

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      Because Mr. Gaines’s competency at trial was confirmed by several

sources, each of which supported the conclusion that he was competent, we find

that there is little risk that Mr. Gaines was incompetent to enter a guilty plea.

      Therefore, we DENY Mr. Gaines’s request for a certificate of appealability.

All of Mr. Gaines’s other motions are DENIED.

                                                 Entered for the Court,


                                                 Michael W. McConnell
                                                 Circuit Judge




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