United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3431
                                    ___________

Jeffery William Paul,                    *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Arkansas.
United States of America,                *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: December 10, 2007
                                 Filed: July 22, 2008
                                  ___________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

      A jury convicted Jeffery William Paul of murder, while aiding and abetting
another, in violation of 18 U.S.C. §§ 2 and 1111(a), and for knowing use of a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924. The jury
sentenced Paul to death under the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et
seq. This court affirmed Paul’s conviction and sentence. United States v. Paul, 

(8th Cir. 2000).

     Paul then moved for a writ of habeas corpus under 28 U.S.C. § 2255, arguing,
among other things, that he was denied his Sixth Amendment right to effective
assistance of counsel at trial and sentencing. The district court1 denied relief without
a hearing, and denied Paul’s application for a certificate of appealability. A panel of
this court granted a certificate on two questions relating to the assistance of counsel:
(1) whether trial counsel were ineffective for failing to investigate and present
evidence of Appellant’s mental, medical, and physical history, and (2) whether trial
counsel were ineffective for failing to investigate and assert Appellant’s incompetence
to stand trial. On appeal, Paul also contends that he was mentally incompetent to
proceed in the district court during this habeas corpus action. This court granted a
certificate of appealability on the question whether Appellant has a constitutional right
to competence during federal habeas corpus proceedings and, if so, whether that
constitutional right was violated. For the reasons that follow, we affirm the district
court’s denial of Paul’s § 2255 motion.

                                           I.

       Paul was convicted of murder, while aiding and abetting another, for the killing
of 82-year-old Sherman Williams at the Hot Springs National Park in Arkansas.2
According to evidence adduced at trial, on June 22, 1995, Paul and an acquaintance,
Trinity Ingle, followed Williams from downtown Hot Springs to a walking trail in the
National Park, where they first robbed and beat Williams, and then shot him in the
head and shoulder. Paul and Ingle attempted to hide the body by dragging it away
from the trail. Four days later, a hiker found Williams’s body under logs and rocks,
with hands and ankles bound by duct tape. A medical examiner testified that Williams

      1
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
      2
       Count One of the indictment charged that “Paul, and another individual known
to the grand jury, while aiding and abetting each other, . . . did, with malice
aforethought, kill Sherman Williams.” (A 64). The verdict form stated that the jury
found Paul “guilty of murder in the first degree as charged in Count 1 of the
indictment.” (A 159).

                                          -2-
suffered gunshot wounds to the head and chest, and that the wound to the head caused
his death. Williams’s vehicle was found in a remote area of the park, and Ingle’s
latent fingerprint was recovered from inside the car.

        As explained in our opinion resolving Paul’s direct appeal, several of Paul’s
acquaintances testified that he confessed to involvement in the murder. Kris Rogers
testified that Paul admitted that he and Ingle had killed an old man in the park after
beating him and kicking him in the head. According to Rogers, Paul stated that he and
Ingle both shot Williams before dragging the body into the woods. Christine Lapaglia
testified that Paul told her that he had killed someone when he kicked him and broke
his neck. Cindy Wallace testified that Paul had a recurring dream about following an
old man, taking his money, beating him severely, and then shooting him in the head.
Dan Coughlin testified that Paul admitted that he and another man had robbed an old
man, and then shot and killed him. Paul’s older brother testified that Paul and Ingle
had picked him up on the afternoon of Williams’s murder in a vehicle that matched
the description of Williams’s stolen car. See 

. Rebecca Pingle
testified that she saw Paul on the day of the killing and that Paul “was limping.” Paul
told Kris Rogers the day after Williams was killed that “his foot hurt.” And after
admitting to Rogers that he had been involved in Williams’s killing, Paul showed
Rogers his shoe, “which looked like it had been splattered with blood.”

       Paul left Arkansas shortly after the murder, and he was eventually apprehended
in South Carolina in August 1996. After his arrest, Paul confessed to participating in
Williams’s murder, but denied shooting Williams himself. Paul stated that after he
and Ingle followed Williams into the federal park, Ingle drew a .38 caliber revolver
from his waist and pointed it at Williams, demanding Williams’s money and car keys.
According to Paul’s post-arrest statement, Ingle instructed Paul to bind Williams’s
wrists and ankles using duct tape, after which Ingle struck Williams using the butt of
his gun and then kicked Williams twice in the head, while Paul kicked him once in the
chest. Paul stated in the interview that he started to leave the scene when Ingle said

                                         -3-
that he was not going to do prison time for the robbery. Paul said the two men turned
and walked back to Williams, where Ingle shot him twice. Paul explained that he and
Ingle then dragged the body approximately thirty feet off the hiking trail, and that Paul
hid the victim’s wallet under some rocks. Ingle was convicted in a separate trial for
aiding and abetting first degree murder and use of a firearm during and in relation to
a crime of violence. He was sentenced to life imprisonment. See United States v.
Ingle, 

(8th Cir. 1998).

      Paul’s trial counsel presented no witnesses during the guilt phase of
proceedings, and relied on cross-examination of prosecution witnesses to develop
evidence in support of a defense. During the penalty phase, Paul’s counsel presented
testimony from Paul’s mother, Paula Paul, and an audio recording of Ingle, created
surreptitiously by the government, in which Ingle made statements to a cellmate that
arguably supported Paul’s mitigation case.3 After a short deliberation, the jury
decided to impose a sentence of death.

        Paul filed his § 2255 motion, spanning 340 pages, on January 30, 2002. The
district court denied relief on January 31, 2005. With respect to alleged ineffective
assistance of counsel regarding investigation of Paul’s personal history, the district
court, citing Saunders v. United States, 

, 952 (8th Cir. 2001), held that
Paul’s allegations were insufficient to allow an assessment of potential prejudice to
the defense, because he had failed to identify the conjectural witnesses and the
substance of their testimony. Alternatively, the court found no basis to conclude that
the evidence discussed generally by Paul likely would have changed the result of the
trial, because the proposed testimony would have been “cumulative at best.” The
court observed that the jury unanimously found four mitigating factors, that eight

      3
        Interpreting the recording in the light most favorable to Paul, Ingle uses code
names of “Andy” and “Bob” for Paul and himself, see T. Tr. 1071, and states at one
point, referring to the Williams murder, that Paul “at first . . . didn’t even want to
shoot him,” and that “Bob” (i.e., Ingle) “shot him first.” (T. Tr. 1103)

                                          -4-
jurors found a fifth mitigating factor, and that the jury thus apparently accepted the
mitigation testimony of Paul’s mother. As for counsel’s assistance on the issue of
Paul’s competency, the court ruled that trial counsel was sufficiently diligent, and that
it was highly unlikely that the court would have ordered another competency hearing
if counsel had requested it. In response to this order, Paul filed a motion to reconsider
or to vacate the order, pursuant to Federal Rule of Civil Procedure 59(e) and 60(b),
and submitted witness declarations to support his claim of ineffective assistance of
counsel. The district court denied the motion, concluding that the arguments and
affidavits raised issues that were previously addressed, and did not alter the court’s
conclusions. (A 1995).

                                           II.

       The first issue identified in the certificate of appealability is whether Paul’s
constitutional right to effective assistance of counsel was violated when his attorneys
failed to investigate and present evidence of Paul’s mental, medical, and physical
history. Paul argues that counsel’s failure in this respect prejudiced him at both the
guilt and penalty phases of the trial.

       To establish ineffective assistance of counsel, Paul must show that his counsel’s
performance was deficient, and that he suffered prejudice as a result. Strickland v.
Washington, 

, 687 (1984). To show prejudice, Paul must demonstrate
a reasonable probability that the outcome would have been different but for the
deficient performance. Malcom v. Houston, 

, 626 (8th Cir. 2008). A
reasonable probability is less than “more likely than not,” Kyles v. Whitley, 

, 434 (1995), but it is more than a possibility. White v. Roper, 

, 732
(8th Cir. 2005). A reasonable probability “is a probability sufficient to undermine
confidence in the outcome.” 

.




                                          -5-
        Paul argues that counsel failed to interview and present prospective witnesses
who could have strengthened his case at both phases of the trial. He points to several
declarations gathered from these witnesses by post-conviction counsel to demonstrate
that favorable evidence could have been presented on his behalf. Paul contends that
if this evidence had been submitted to the jury, there is a reasonable probability that
the jury would have acquitted him of capital murder or imposed a sentence of life
imprisonment rather than death.

       The government defends the professional competence of Paul’s trial counsel,
emphasizing that counsel spent several months preparing for trial, hired a mitigation
specialist to compile background materials and to locate witnesses, requested
additional funds (albeit unsuccessfully) when the specialist exhausted what was
authorized by the district court, sought psychiatric experts to examine Paul, presented
a mitigation case through Paul’s mother and the tape-recording of Ingle, and
succeeded in persuading many jurors to find several mitigating circumstances. The
government also proffers strategic reasons why counsel may have limited their
mitigation case to one live witness, pointing to Paul’s disruptive behavior in the
courtroom, and the potential that extending the trial in that situation would have
caused the jury to react unfavorably to Paul. Indeed, the mitigation specialist declared
that she learned that the defense chose not to present an extended mitigation case
“because of Jeff’s behavior in the court room.” (A 2246)

       The district court, however, rejected Paul’s claims of ineffective assistance of
counsel without a hearing, and the record is not developed concerning counsel’s
contemporaneous rationale for the actions that Paul now challenges. There appears
to be a disagreement among the circuits on whether the reasonableness of counsel’s
performance may be assessed solely by reference to strategy that a hypothetical
attorney might have pursued under the circumstances, without any inquiry as to
counsel’s actual strategy, see, e.g., Cofske v. United States, 

, 444 (1st Cir.
2002); Chandler v. United States, 

, 1315 & nn.16 & 17 (11th Cir.

                                           -6-
2000); Bonin v. Calderon, 

, 838 (9th Cir. 1995), or whether the petitioner
is entitled to inquire into whether his counsel actually employed a purposeful strategy
before a decision is reached on the adequacy of performance, see Thomas v. Varner,

, 499-500 & nn.7 & 8 (3d Cir. 2005); Greiner v. Wells, 

,
320 & n.17 (2d Cir. 2005). Our court has said that where trial counsel is unable to
recall or explain the reasons underlying a decision at trial, we will examine counsel’s
“trial tactics and strategy as revealed by the state court record,” and we have held
counsel’s performance competent in that situation where we could “readily reconstruct
at least two strategic reasons why counsel may have made this decision.” Fretwell v.
Norris, 

, 624, 627 (8th Cir. 1998). But we have located no circuit
precedent that directly addresses how the court should evaluate counsel’s performance
in the absence of an evidentiary hearing or where counsel admits that a particular
decision was negligent or not strategic. We deem it unnecessary in this case to delve
into these matters, because we conclude the record shows conclusively that Paul did
not suffer prejudice from what he now alleges was deficient performance by counsel.
See Hill v. Lockhart, 

, 60 (1985) (“Because petitioner in this case failed
to allege the kind of ‘prejudice’ necessary to satisfy the second half of the Strickland
v. Washington test, the District Court did not err in declining to hold a hearing on
petitioner’s ineffective assistance of counsel claim.”).

       With respect to the guilt phase, Paul argues that further investigation by counsel
would have produced witnesses to testify that Paul had a history of exaggerating his
“badness,” and that trial counsel in 1996 also should have interviewed Paul’s
accomplice, Ingle, who provided a statement in 2005 that exculpates Paul. Paul
argues that the evidence of his tendency to exaggerate, combined with Ingle’s
acceptance of responsibility for the murder of Williams, would have persuaded the
jury to disbelieve Paul’s admissions to several persons that he participated in the
murder.




                                          -7-
       To support this claim, Paul presents a declaration from Richard McCaslin, a
boyhood friend of Paul, who recounts that Paul once “made up a story about shooting
a kid at a shopping mall, but it never happened.” (A 2257). Paul cites a report of
psychiatrist Seymour Halleck that when Paul was hospitalized at the Rivendell
Psychiatric Hospital, he once reported to a counselor “that he had killed somebody,”
although “[t]his never happened.” (A 2313). And he relies on a declaration of
Michael Roberson, who knew Paul as a youth, that it “makes sense that Jeff tended
to exaggerate his ‘badness’ to gain status with his peers, as he had learned this from
[his father], who was not a true master at much except the art of lying and living a lie.”
(A 2293). The Ingle declaration from 2005 asserts that Paul tried to convince Ingle
to leave the park before Williams was killed, and avers that Ingle alone shot Williams
while Paul yelled at him to stop. (A 2254).

        The district court concluded that Paul’s contention that counsel was ineffective
in declining to present a history of false admissions by Paul was “strained at best,” and
we conclude there is no reasonable probability that a jury would have acquitted Paul
of capital murder if counsel had taken these additional steps. Paul’s trial counsel
already elicited evidence – from the same witnesses who reported Paul’s admissions
about the Williams murder – that Paul had a history of concocting stories. Christine
LaPaglia testified that she did not believe Paul’s admission about the Williams
murder. She acknowledged that “he’s just known to tell lies,”and said she thought
Paul had made up the story “because [they] were breaking up.” Cindy Wallace
testified that Paul’s admission “didn’t sound real,” and that she had “caught [Paul]
several times” telling her things that were not true. Additional testimony that Paul had
made up stories many years earlier about his “badness” would have been largely
cumulative of evidence already presented, and likely less powerful than testimony
already elicited from the very witnesses to whom Paul made admissions about the
Williams murder.




                                           -8-
       The certificate of appealability does not encompass whether counsel were
ineffective for failing to contact Ingle, because that matter does not relate to Paul’s
“mental, medical, and physical history.” But even if we were to expand the certificate
to consider the point, we do not think there is a reasonable probability that the guilty
verdict would have been different if Paul’s counsel also had sought to contact Ingle
about testifying in Paul’s defense. Most important, Paul provides no reason to believe
that, at the time of Paul’s trial in June 1997, Ingle would have offered to take full
responsibility for the murder of Williams and to exculpate Paul. At that point, Ingle
had just been convicted and sentenced to life imprisonment. He was about to
commence a direct appeal, in which he argued that his conviction should be reversed,
and the case remanded for a new trial. See Ingle, 

. There is scant
reason to believe that Ingle, still represented by counsel in his direct appeal, would
have waived his rights against self-incrimination and given public testimony that
would have ensured his conviction in the event of a new trial. That alone is reason to
conclude that Paul suffered no prejudice from counsel’s failure to contact Ingle about
testifying in Paul’s defense.4

      Even if Ingle had testified consistent with his 2005 declaration, moreover, the
jury would have had good reason to be skeptical of Ingle’s account. Ingle’s
declaration is inconsistent with statements he made in April 1996 during a recorded
conversation with an FBI informant. In that discussion, Ingle used apparent code-


      4
        The record supplied by the parties in this case does not reveal whether Ingle’s
sentence of life imprisonment was the result of a decision by a jury that the
government failed to prove that death was the appropriate punishment, such that the
death penalty would have been barred in a retrial, see Bullington v. Missouri, 

, 446 (1981), or whether the life sentence was the consequence of a deadlocked
jury, see 18 U.S.C. § 3594; Jones v. United States, 

, 379-81 (1999), such
that the death penalty could have been available in the event of a successful appeal.
See Sattazahn v. Pennsylvania, 

, 109 (2003). In the latter situation, of
course, there would have been even more reason for Ingle to assert his privilege
against self-incrimination if Paul sought to call him as a witness.

                                          -9-
names of “Bob” and “Andy” when describing the murder of Williams. See T. Tr.
1071. Although some portions of the recording could suggest that Paul was less
culpable than Ingle, 

n.2, Ingle’s statements clearly indicated that both
participants played a role in the murder, to wit: “ANDY and BOB, they, you know,
did this for some money, you know?” (T. Tr. 1063); “BOB and ANDY both did this,”
(T. Tr. 1068) (in response to the question, “Did both of y’all shoot him or just one of
y’all?”); “Whenever one did it . . . both did it,” (T. Tr. 1073); and “whenever BOB
[making cocking of gun sounds again], ANDY automatically . . . . You know, they,
they work together.” (T. Tr. 1077). In the unlikely event that Ingle had volunteered
to testify at Paul’s trial, any testimony along the lines of the 2005 declaration could
have been impeached substantially by Ingle’s recorded statements in 1996. We
therefore conclude that Paul has failed to make a sufficient showing to undermine
confidence in the jury’s guilty verdict on the capital offense.

       Paul also contends that if trial counsel had conducted further investigation and
presented additional witnesses at the penalty phase of his trial, then there is a
reasonable probability that at least one juror would have voted to impose a sentence
of life imprisonment rather than death. Because an evaluation of this contention
requires a “predictive judgment” about how jurors would have weighed the totality of
the evidence, including the new evidence that Paul now cites, see Williams v. Taylor,

, 397-98 (2000), it is important first to review the record that was created
in the trial itself, and the findings made by the jury on that record.

       The government presented a strong case on aggravating factors that supported
a sentence of death. The jury unanimously found that Paul intentionally aided and
abetted in the killing of Sherman Williams, and it unanimously found three statutory
aggravating factors and six non-statutory aggravating factors in support of the death
penalty: (1) the defendant committed the offenses in an especially heinous, cruel or
depraved manner, in that they involved torture or serious physical abuse, (2) the
defendant committed the offenses with the expectation of the receipt of something of

                                         -10-
pecuniary value, (3) the victim was particularly vulnerable due to old age, (4) the
defendant is likely to commit criminal acts of violence in the future which would be
a continuing and serious threat to society, (5) the defendant successively eluded
capture by the FBI until his arrest in August 1996, (6) the defendant demonstrated a
lack of remorse for the capital offense, (7) the victim was killed to prevent the
defendant from being identified as a participant in the robbery, (8) the “victim had
personal characteristics as an individual human being,” and (9) the family of the
victim has suffered injury and loss as the result of the victim’s death. (A 161-69).
The new evidence proffered by Paul would not undermine any of the evidence in
aggravation, or the jury’s findings on those factors.

      The mitigation case relied on the testimony of Paul’s mother, Paula Paul, who
spoke about Paul’s background, including his mental, medical, and physical history.
Paula testified about positive aspects of Paul’s life, saying that he fostered an
extremely close relationship with his maternal great-grandmother, loved a stray dog
he adopted, carried a picture of Paula in his wallet, and helped support the family
financially. In particular, Paula testified that Paul received excellent school grades,
regularly attended church, Sunday school, and church camp, and was enthusiastic
about the boy scouts, where he earned several merit badges. In the seventh grade,
Paul received the “most outstanding achievement award for improved student.”

       Paula also testified about the hardships that Paul faced as a youth. These
included an absentee and abusive father, the family’s constant relocation, and marital
problems experienced by his parents. Several times during Paul’s childhood, Paul’s
father, Dennis, secretly packed up all of his belongings and “just disappear[ed]” for
up to five weeks at a time. Dennis did not provide steady income to support Paul and
his family, and never maintained a job for more than a year while Paul was growing
up. As a result of Dennis’s irregular employment, the Paul family moved at least four
times during Paul’s middle and high school years, enrolling him in new schools each
time, and creating stress for Paul during his youth. Paul also experienced stress as a

                                         -11-
result of the tumultuous relationship between Paula and Dennis, including a separation
when Paul was three years old, and an extramarital affair conducted by Dennis in
1992. Paula described one instance in which Dennis severely cut Paul’s face, when
he was eight years old, in a knife-throwing demonstration that was designed to
impress Dennis’s friends. Dennis lied about the cause of the injury for years, claiming
that Paul accidentally had fallen on the knife.

       These and other stressors, according to Paula, began to influence Paul in a
negative way during middle school. Paul fought with other children, and his grades
declined from A’s to D’s and F’s. Paul was charged in a juvenile proceeding for
“making an obscene gesture towards” a neighbor. He failed the second half of the
seventh grade, and later failed his first two years of high school. He stopped attending
boy scouts and church. Around this time, Paul was caught stealing cigarettes, and
later was arrested in separate incidents for stealing a car, burglarizing home
electronics equipment, and shoplifting. When Paul turned 17, he was charged as an
adult for pointing a shotgun at someone, and he spent several months in jail before his
parents posted bail. Paul later violated the terms of his parole and spent
approximately six months in state prison. Paula sought to counter Paul’s criminal
history by arguing his innocence.

       Finally, Paula testified about Paul’s troubled mental health history, including
two stays at Rivendell psychiatric hospital, the possibility that Dennis had suffered a
past mental breakdown, and a family history of alcoholism and drug abuse. As a
young child, Paul was diagnosed with “Attention Hyper Activity Deficit Disorder”
and placed on Ritalin. Paula testified that Paul had been treated twice as an inpatient
at Rivendell “psychiatric residential treatment home,” one time pursuant to court order
after he was found guilty of auto theft, and a second time after Paul “tried to commit
suicide.” Paula testified that Dennis had been discharged from the military after
having a “mental breakdown.” She characterized Dennis as “a pathological liar” who
created stories to impress people. Paula testified that Paul took after this habit of

                                         -12-
Dennis’s and often told “tall tales.” Paula also testified that Paul has a family history
of alcohol and drug abuse. Although Dennis does not drink, she said that Paul’s
paternal grandparents are alcoholics, and his uncles are either alcoholics or addicted
to drugs. Paul’s paternal grandfather has been involved in two drunk-driving related
accidents, including twice when Paul was very young and in the car.

       Paula recalled that Paul’s mental state grew worse after he witnessed a shooting,
which Paula characterized as “this little boy’s head being blow off.” According to
Paula, Paul had frequent nightmares about the event and developed “insecurities,”
stopped sleeping regularly, ceased studying, and never wanted to be alone. Paul
became unable to sleep unless he was in bed with his mother, and did not sleep apart
from her until he was 17 years old. Paul’s insecurity grew so acute that he even slept
in Paula’s hospital bed after she had surgery. Around this time, Paul developed a
“nervous condition” of picking at his face until sores developed. And since he was
a child, he had a habit of biting his knuckles until they bled. Paula testified that Paul
had been treated for his behavioral problems at both the Child Study Center in the
Little Rock Children’s Hospital, and at “Community Counseling.”

       This evidence clearly had an effect on the jury, as Paul’s trial counsel were
successful in persuading the jurors unanimously to find four factors that mitigated
against a sentence of death, namely: (1) that the defendant experienced parental
neglect, abandonment, and corruptive influence, (2) that the defendant experienced
parental abdication as to holding the defendant accountable for his behavior, (3) that
the defendant experienced chaotic family instability, and (4) that the defendant
identified with criminally convicted peers. In addition, eight jurors found the
mitigating factor (5) that the defendant “experienced modeled parental
irresponsibility;” six jurors found it mitigating (6) that the defendant was youthful at
the time of the offense, and (7) that the defendant witnessed a shooting in a mall; and
three jurors found (8) that there existed “any other factors in defendant’s background
or character that mitigate against imposition of the death sentence.” (A 169-72).

                                          -13-
       Paul now contends that trial counsel should have investigated additional
witnesses, and presented testimony from friends and relatives regarding Paul’s
medical, mental, and physical history. Much of the proposed testimony concerns
abuse that Paul suffered at the hands of his father. Heather Iacobacci-Miller declared
that Paul “bore the brunt of his father’s raging fists.” Cyrilda Sue Teague stated that
Paul’s father repeatedly beat Paul “black and blue,” and that she observed him “beaten
from head to toe” and with “bruises all over him – on his back, his stomach, his arms,”
including one occasion when Paul’s eye was “swollen so badly he couldn’t see out of
it.” Paul’s uncle, James Massey, declared that a physical attack on Paul by his father
“was just a very regular occurrence in that house,” and that Paul’s father frequently
threw Paul into walls and choked him. Massey recounted the incident in which Paul’s
father hit Paul in the face with a thrown knife, leaving his face badly scarred. Michael
Roberson’s declaration described how Paul’s face was cut when his father was
“practicing one of these martial arts ‘techniques’ with him,” and explained that Paul’s
father “had a tendency to lose control in fits of rage.” Paul’s maternal grandfather,
Hubert Massey, stated that Paul’s father repeatedly hurt Paul as a child, including by
pulling him from the ground by the ears, throwing him against a wall in anger, or
“wailing the tar” out of Paul in another room. Zach Dryden declared that Paul was
very afraid of his father, and that Paul’s father once “grabbed a kid by his testicles and
shook him around and threw him against the wall.”

       Other proposed evidence cited by Paul pertains to his compassionate
personality. Iacobacci-Miller declared that Paul had a well-known “concern for
animals, especially vulnerable ones,” and once picked up or rescued a “truly ugly
mutt” from the side of a road. Hubert Massey stated that Paul was a “good little boy”
who was “very gentle and loving” and “really cared for animals.” Cyrilda Sue Teague
declared that Paul was “one of the sweetest children I have ever met,” while Martha
Massey said that he had “the sweetest disposition,” and Richard McCaslin proffered
that he knew Paul “a kind and compassionate person,” especially with the McCaslin
children.

                                          -14-
       Viewing Paul’s proffer in the context of the trial record as a whole, we are not
persuaded that there is a reasonable probability that if Paul’s trial counsel had gathered
and presented this additional evidence, then the jury would not have selected a
sentence of death. Much of the new evidence cited by Paul is largely cumulative of
evidence that was presented through his mother at the penalty phase of the trial.
Paul’s mother testified about Paul’s difficult childhood, including the incident in
which Paul’s father struck Paul in the face with a knife and produced a wound that
required extensive surgery. The jury clearly gave weight to her account, unanimously
finding three mitigating factors relating to Paul’s troubled upbringing. The additional
evidence that Paul proffers concerning his compassionate nature is also largely
duplicative. Paul’s mother testified at trial that he cared for animals, shared a close
relationship with his great-grandmother, and supported his family financially.

       If Paul’s trial counsel had presented these additional witnesses at the penalty
phase, moreover, it is likely that there would have been negative repercussions for
Paul’s case. A graphic description of a defendant’s childhood can affect the jury’s
appraisal of his moral culpability, see 

, but the evidence
proffered by the new witnesses in this case is not uniformly helpful. Two of the
witnesses connected Dennis Paul’s behavior with negative characteristics of the
defendant. Iacobacci-Miller stated that Dennis Paul’s “pushing [Paul] to be badder
and tougher than he actually was had the effect of sending [Paul] into his gang group
to prove himself.” (A 2264). Roberson said it made sense to him that “Dennis’
philosophy would lead [Paul] to associate with a street gang.” (A 2293). McCaslin
declared that Paul and Ingle were members of rival “gangs” until Paul negotiated “a
peace treaty.” (A 2257). Dryden’s declaration explains that Paul once ran away from
home and stole a car, although he attempted to minimize the seriousness of the
incident. Extending the mitigation case also likely would have exposed the jury to
more of Paul’s inappropriate courtroom demeanor, thus hampering his efforts to
secure a favorable verdict at the penalty phase. Paul’s mitigation specialist averred
that “the defense chose not to put on the mitigation that we had developed because of

                                          -15-
Jeff’s behavior in the court room,” (A 2246), and one of the psychiatrists who
examined Paul explained that counsel “called only one mitigation witness, Jeff’s
mother, feeling that any continuation of the trial would only result in Jeff damaging
himself further.” (A 2319).

       We recognize that the jury’s findings do not preclude the possibility that more
detail about Paul’s difficult and abusive childhood or his compassionate character may
have caused the jury to give more weight to mitigating factors that some or all of the
jurors already found, but we must consider the incremental benefit of the proffered
evidence in the context of the entire record. Nothing that Paul offers detracts from the
government’s strong case in aggravation, and the weight of this evidence is a proper
and significant factor in considering whether Paul has established prejudice. See

; Malone v. Vasquez, 

, 721 (8th Cir. 1998).
The mitigation case at trial covered much of the same ground as the newly proffered
evidence. The record at trial gave the jury an opportunity to consider the same
mitigating factors to which the new evidence pertains for similar or identical reasons.
We acknowledge that the evidence of physical abuse by Paul’s father presented at trial
was not as extensive as that proffered in this habeas proceeding, but the jury certainly
was not given reason to develop a “benign conception” of Paul’s childhood, as in
Rompilla v. Beard, 

, 391 (2005). Unlike the record in Williams v. Taylor,

, and Wiggins v. Smith, 

, 534-38 (2003), the mitigation case
here did include a good deal of mitigating information about Paul’s childhood,
sufficient to convince all jurors that Paul experienced “parental neglect, abandonment,
and corruptive influence,” “parental abdication as to holding the defendant
accountable for his behavior,” and “chaotic family instability,” and to persuade eight
jurors that Paul “experienced modeled parental irresponsibility.” The double-edged
nature of some of the proffered evidence, and further exposure of the jury to Paul’s
unruly behavior in the courtroom, likely would have increased the weight of the
government’s case in aggravation, and counteracted any incremental gain that might
have been made on the mitigating side of the balance.

                                         -16-
       Taking the record as a whole, therefore, we conclude that Paul’s proffered
evidence concerning his medical, mental, or physical history is insufficient to
undermine confidence in the jury’s verdict in the penalty phase. Accordingly, even
assuming that Paul could show that the performance of trial counsel was
constitutionally deficient, he has not established resulting prejudice.5

                                            B.

       The second issue identified in the certificate of appealability is whether trial
counsel were ineffective for failing to investigate and assert Paul’s incompetence to
stand trial. Paul contends that counsel performed deficiently in this respect, and that
effective assistance would have resulted in a decision that he was incompetent to stand
trial. To address this claim, it is necessary first to recount the proceedings in the
district court regarding Paul’s competence.

      In November 1996, the district court granted a motion filed by Paul’s trial
counsel, and ordered Paul to undergo a psychiatric evaluation to determine whether
he was insane at the time of the alleged offenses, and whether he was suffering from
a mental disease or defect rendering him mentally incompetent to proceed with the


      5
        Paul argues that trial counsel was ineffective for failing to contact Trinity Ingle
with respect to the penalty phase as well. Based on the declaration executed by Ingle
in 2005, Paul contends that Ingle would have testified in a mitigation case that he
alone was responsible for the murder of Williams, and that Paul was both unaware of
the plan and opposed to its execution. This contention does not relate to Paul’s
“mental, medical, and physical history,” and it is therefore outside the scope of the
certificate of appealability. In any event, for the reasons stated 

,
we see no reasonable probability that Ingle would have waived the privilege against
self-incrimination and testified consistent with his 2005 declaration while he was in
the process of mounting a direct appeal of his own conviction in June 1997, or that
testimony consistent with the 2005 declaration would have carried much weight in the
face of impeachment by Ingle’s recorded statements.

                                           -17-
trial. On February 20, 1997, health professionals in the Mental Health Division at FCI
Butner, North Carolina, diagnosed Paul with antisocial personality disorder, but
concluded that he was not “suffering from a mental disease or defect rendering him
mentally incompetent” for purposes of trial. (A 90-97). Based on this report, Paul
stipulated on April 4, 1997, that he was mentally competent to proceed with trial.
Paul’s trial counsel then retained a psychiatrist to help prepare mitigation evidence for
use in a potential penalty phase. After conducting a psychiatric examination on May
12, 1997, the mitigation psychiatrist, Dr. Anthony Semone, concluded that Paul was
“suffering from a borderline psychotic panic or possibly an acutely psychotic
decompensation.” Dr. Semone opined that Paul was “not now able sufficiently to
understand the charges against him,” that he was “unable to cooperate sufficiently
with [counsel] in effectively assisting in his own defense,” that he was “not now able
at all to make a rational and informed decision with respect to the plea arrangement
offered by the U.S. Attorney,” and that he was “at serious risk of being unable to
control himself throughout the rigors of trial.” (A 137c). Based on this new report,
Paul’s trial counsel sought funding for a third psychiatric exam by Dr. Irving Kuo, and
the district court granted the motion. Dr. Kuo, however, reached a conclusion
contrary to that of Dr. Semone, and opined that Paul was competent. (A 2296, 2316).
Thereafter, Paul’s counsel did not seek a competency hearing in the district court, and
the case proceeded to trial.

      Paul now contends that trial counsel were ineffective for failing to investigate
adequately his background and mental health, and failing to raise in the district court
his competence to proceed. He relies on the report of Dr. Semone, his own disruptive
behavior during the course of the trial, and declarations from several lay witnesses
regarding his family and personal history. These declarations include statements of
Paul’s uncle that Paul “would see things, mostly people, in the room with us, which
were not there,” and that “[s]ometimes he told me they would talk to him.” Paul’s
maternal grandfather describes a family medical history of alcoholism, drug use,
depression, schizophrenia, and suicide: Five relatives have attempted suicide, one

                                          -18-
family member has been diagnosed with schizophrenia, and one family member has
been committed to a mental facility.

       The district court rejected this claim of ineffective assistance, ruling that “trial
defense counsel was sufficiently diligent in considering and pursuing the competency
issue.” The court found it “highly unlikely (as no doubt perceived by trial defense
counsel) that the trial court would have interrupted the trial to order yet another
competency hearing even if defense counsel had asked for same – because petitioner’s
behavior, while unwise and detrimental to him and his cause, did not indicate he was
uncontrollable, or that he did not understand the situation.”

       Again, although the district court resolved this claim without a hearing, there
are substantial reasons to believe that counsel’s performance was not constitutionally
deficient. Counsel sought a psychiatric examination before trial, but received a report
concluding that Paul was competent to proceed. Counsel continued nonetheless to
develop competency issues for purposes of mitigation, and when a second psychiatrist
opined that Paul may be incompetent to proceed, counsel sought and received funding
for an examination by a third psychiatrist. Only after this third psychiatrist reached
an opinion contrary to the second, such that counsel was faced with two psychiatric
opinions that Paul was competent to proceed, did counsel elect to forego a request for
a formal competency hearing in the district court. The district court itself, moreover,
observed that counsel “no doubt perceived” that it was “highly unlikely” that the court
would have agreed to hold a competency hearing after the trial was underway.

       Nonetheless, if we assume for the sake of argument that counsel’s performance
was deficient, we conclude that Paul has not shown a reasonable probability that the
district court would have found him incompetent to stand trial. Two psychiatric
examinations conducted for the purpose of determining whether Paul was competent
to stand trial concluded that he was competent. Much of the family history cited by
Paul is not directly relevant to the question whether Paul himself was competent to

                                           -19-
stand trial in June 1996. It may have given counsel reason to investigate Paul’s
mental competence, but counsel in fact did investigate this point by obtaining three
professional opinions. Much of Paul’s family history of mental health problems,
moreover, was detailed in the psychological report submitted to the court on February
20, 1997. (A 90-93). That report informed the trial court that Paul had been
hospitalized at Rivendell mental health treatment facility in 1993 after attempting
suicide, that Paul’s uncle had been diagnosed with schizophrenia, and that Paul’s
brother had been discharged from the Navy for “mental reasons.” Much of the family
and personal history that Paul now cites is therefore cumulative of information that
trial counsel discovered and disclosed through this report. The historical information,
moreover, related to afflictions that Paul suffered years before the trial, and which thus
had little if any bearing on his competence to proceed in June 1996. For these
reasons, the alleged shortcomings of trial counsel in addressing Paul’s competence to
stand trial do not undermine our confidence in the outcome of the proceeding.

                                           III.

      The third issue identified in the certificate of appealability is whether Paul has
a constitutional right to competence during federal habeas corpus proceedings and, if
so, whether that constitutional right was violated.6 Paul cites the English common-law
prohibition on execution of the insane, and argues that it was justified as a way of
preserving the condemned’s ability to make arguments on his behalf. See 4 W.
Blackstone, Commentaries 24-25 (1769) (“[I]f, after judgment, he becomes of non-


      6
        Paul did not raise this claim in the district court, but an administrative panel
of this court granted a certificate of appealability on the issue, and we will therefore
proceed to consider it. In light of our resolution of the issue, we need not decide
whether Paul’s alleged incompetence should excuse a procedural default in the district
court. See United States v. Lawson, 

, 982 (8th Cir. 1998) (“[I]ssues not
presented to the district court will not be considered on appeal unless a finding of
waiver would be unfair or unjust.”).
                                          -20-
sane memory, execution shall be stayed: for peradventure, says the humanity of the
English law, had the prisoner been of sound memory, he might have alleged
something in stay of judgment or execution.”); see also 1 Sir Matthew Hale, The
History of the Pleas of the Crown 35 (1736); Sir John Hawles, Remarks on the Trial
of Mr. Charles Bateman, 11 How. St. Tr. 474, 477 (1685). It follows from this
rationale, he contends, that a prisoner also has a right to a stay of habeas corpus
proceedings – the post-conviction forum in which he may raise arguments on his
behalf – until he can communicate rationally with counsel.

       In his brief on appeal, however, Paul does not argue directly that he enjoys a
constitutional right to be competent during a habeas corpus proceeding, and the
authority most nearly on point runs against the claim. O.K. v. Bush, 

(D.D.C. 2004); see also Rector v. Clark, 

, 572 (8th Cir. 1991)
(rejecting a contention that Ford should be extended, in the context of a first federal
habeas proceeding, to include an “ability-to-assist counsel requirement” – that is, “a
determination of whether the convict possesses the ability to inform counsel or the
court of any fact which might exist which would make the punishment unjust or
unlawful.”); Rector v. Bryant, 

, 1240-43 (1991) (Marshall, J., dissenting
from denial of certiorari) (explaining that the Eighth Circuit “concluded that
petitioner’s ability to recognize or communicate facts that might make his punishment
unlawful or unjust was of no legal consequence,” and acknowledging that Justice
Powell in Ford rejected an “ability-to-assist counsel” definition of incompetence, but
urging the Court to consider a “strong argument” to the contrary).

       Paul argues instead that a right to competence is grounded in “federal law,” and
he relies principally on a decision of the Ninth Circuit in Rohan ex rel. Gates v.
Woodford, 

(9th Cir. 2003), which recognized a statutory right to
competence during the course of a first federal habeas petition. Rohan concluded that
the petitioner’s constitutional claim of a right to competence was “debatable,” 

but substantial enough to trigger the principle that statutes should be interpreted

                                         -21-
to avoid substantial constitutional questions. The court then implied a right to
competence from the statutory right to counsel for death penalty defendants provided
by 21 U.S.C. § 848(q)(4)(B), now codified at 18 U.S.C. § 3599(e), reasoning that “if
meaningful assistance of counsel is essential to the fair administration of the death
penalty and capacity for rational communication is essential to meaningful assistance
of counsel, then it follows that Congress’s mandate cannot be faithfully enforced
unless courts ensure that a petitioner is 

. The Ninth
Circuit held that the petitioner was entitled to a stay of habeas corpus proceedings
until he regained competence to communicate rationally with counsel, and Paul seeks
the same relief here.

       Our certificate of appealability does not encompass Paul’s statutory claim to a
right of competence, and Paul’s argument might be rejected on this basis alone. See
28 U.S.C. § 2253(c); United States v. Taylor, 

, 1079 (10th Cir. 2006).
To overcome that problem, Paul relies on Slack v. McDaniel, 

, 483-85
(2000), which held that a certificate should issue on a non-constitutional procedural
issue, where a petitioner demonstrates that jurists of reason would find it debatable (1)
whether the petition states a valid claim of a denial of a constitutional right, and (2)
whether the district court was correct in its procedural ruling that barred consideration
of the constitutional claim. See also Nichols v. Bowersox, 

, 1070 n.2
(8th Cir. 1999) (en banc). As we understand Paul’s argument, he contends, in a
variation on Slack, that his ability to communicate rationally with counsel is necessary
to the presentation of his constitutional claims, so that consideration of his statutory
claim is necessarily antecedent to consideration of his constitutional claims. In
particular, he asserts that claims of ineffective assistance of counsel often depend on
facts outside the record, and that a litigant cannot effectively pursue such claims
unless he is competent. See 

.

      At least on the facts of this case, we are not persuaded that the certificate of
appealability should be expanded to encompass Paul’s claim of a statutory right to

                                          -22-
competence. Paul alleges that his incompetence arose after his attempted suicide in
November 2003. As of that date, however, Paul already had filed his 344-page habeas
corpus motion and a 514-page, two-volume appendix on December 17, 2002. The
government had responded on June 2, 2003, and the court issued its decision based
on those lengthy pleadings. To the extent counsel needed assistance from Paul in
developing facts outside the record, that work was completed before November 2003.

       This is not a situation, therefore, where counsel must speculate about what the
petitioner might have told him if the petitioner had been competent when the post-
conviction arguments were formulated. Cf. 

. If there is a
statutory right to competency in post-conviction proceedings, the scope of the right
must correspond to what mental capabilities the litigant needs to assist in the conduct
of the litigation. See Holmes v. Buss, 

, 581 (7th Cir. 2007). Once a
habeas corpus motion is submitted to the court, and the parties are merely awaiting a
decision, there is no need for rational communication between counsel and client in
furtherance of the motion. Unlike the constitutional claims in Slack, therefore,
consideration of Paul’s constitutional claims were not “barred” by a preliminary ruling
– or, more precisely in this case, by the district court’s failure sua sponte to stay the
proceedings after November 2003 – because Paul’s alleged incompetence did not bar
Paul from presenting his Sixth Amendment claims.7


      7
        Paul’s brief does complain that his incompetence “prevented counsel from
addressing the factual underpinnings” of the district court’s order on his due process
claim based on Brady v. Maryland, 

(1963). But the assertion that Paul
could not respond effectively to the district court’s order after it was entered,
presumably for purposes of appeal, provides no basis to say that the district court
should have stayed its own proceedings before the order was entered. As for the
appeal, it must be grounded in the record created in the district court, without new
factual information supplied by the petitioner. See Fed. R. App. P. 10(a). While
litigants must sometimes make strategic decisions about what issues to pursue on
appeal, we see no reason to conclude that Paul’s 191-page application for a certificate
of appealability winnowed the issues on appeal in a way that may have prejudiced a
                                          -23-
       Even were we to follow Paul this far down the path, however, and expand the
certificate of appealability in a manner that presents his claim to a statutory right to
competence, our reaction to the claim is similar to that of the Seventh Circuit in
Holmes:

      As a matter of first impression, we might doubt the legal significance of
      a person’s lacking the mental competence to prosecute, or to assist his
      lawyer in prosecuting, a federal habeas corpus proceeding. Technically,
      habeas corpus is a civil proceeding rather than a criminal one.
      Realistically, it is a stage initiated by the criminal defendant rather than
      by the state; and it is odd to think that someone who initiates a
      proceeding can then freeze it by claiming to be mentally incompetent.
      An incompetent person can of course have a legal claim, and it will be
      prosecuted by his guardian or (in the antiquated legal phrase) his “next
      friend,” but the fact of his incompetence will not be allowed to interrupt
      or delay the 

. The Seventh Circuit, nonetheless, declined to reject Rohan, and
thereby to create a conflict in the circuits, because the State in that case did not
challenge the claimed right to competence and assumed it throughout the proceedings.
By contrast, the government here vigorously disputes the existence of a statutory right
to competence.

       We also find it unnecessary, for different reasons, to reach a definitive
conclusion on the question whether a statutory right to competence exists. As in
Clayton v. Roper, 

, 790 (8th Cir. 2008), we conclude that even assuming
that a habeas petitioner has a right to competence during habeas proceedings, a right
that encompasses the ability to communicate rationally with counsel, this petitioner
is not entitled to relief. The district court here determined during the course of the


petitioner who could not communicate rationally with counsel. Assuming, again for
the sake of argument, that there is a statutory right to competence that extends even
to an appeal in a first federal habeas corpus action, we see no basis for a stay.
                                         -24-
habeas proceeding that Paul was competent to proceed, and this finding is neither
clearly erroneous nor prejudicial. The court’s factual finding was made in light of
events that occurred during the habeas corpus proceeding, so we recount them here
in some detail.

        As we have explained, the district court authorized two mental health
examinations of Paul to assess his competence to stand trial. The report of the first
experts concluded that Paul was competent. The record shows that after Paul’s
mitigation expert, Dr. Semone, voiced an opinion that Paul was not competent to stand
trial, a second expert, Dr. Kuo, was retained to examine that question, and he
expressed an opinion that Paul was competent. (A 2296, 2316). The defense then
elected not seek a competency hearing, and the case proceeded to trial. In its order
denying the § 2255 motion, the district court considered the record, including its
personal observations of Paul’s disruptive behavior at trial, and said it had “no
difficulty in concluding that petitioner was competent to stand trial and to assist in his
own defense.”

       The issue of mental competence arose in this habeas proceeding on November
21, 2003, when counsel moved to authorize access to Paul by mental health
professionals. Counsel advised the court that Paul had attempted suicide by hanging
at the federal penitentiary on November 18. Counsel later reported, in September
2004, that informal conversations with correctional officers led them to understand
that Paul was not breathing when he was found hanging by his neck on November 18,
but that he was resuscitated by correctional officers. Counsel also stated that Paul
broke through a glass window in the observation unit to which he was moved, and
then attempted to cut himself with shards of glass. Counsel conducted a telephone call
with Paul on November 19, the day after the attempted suicide, and according to what
one of Paul’s attorneys described as his “armchair psychology,” Paul made statements
during the call that were “clearly delusional.” (A 1568). On December 2, the court



                                          -25-
granted the motion, and authorized a consultation between Paul and two mental health
professionals.

        Two days later, however, the court received a handwritten letter from Paul, in
which Paul asked “to be declared competent to waive further appeals hindering the
imposition of this sentence upon me.” Paul further stated, “I do know that I am guilty
of the crime which resulted in Mr. Williams (Sherman) untimely and unnatural death,”
and “I regret the pain caused by my robbing, kicking and incapacitating Mr.
Williams.” The letter concluded: “Please consider my appeals dropped.” (A 1579).
In response to this letter, the court requested that Paul’s counsel postpone any
meetings between Paul and mental health professionals until further notice from the
court. On December 9, after visiting Paul, Paul’s counsel filed a document, prepared
by counsel and signed by Paul, in which Paul withdrew his “uncounseled expression
of his desire to waive his appeal.” This document stated that Paul would continue to
pursue his § 2255 motion, and that he repudiated the positions expressed in his pro se
letter to the court.

        Paul corresponded again with the court in May 2004. In a one-page typewritten
letter to the district judge, Paul explained that he had a case before the court at the
“2255; Habeas Corpus stage,” and asked the court to consider the applicability of the
Supreme Court’s decision in Banks v. Dretke, 

(2004), decided on
February 24, 2004. In a one-page handwritten addendum, Paul wrote that if the court
did not conclude that he was entitled to “a new trial or vacated guilty verdict” based
on Banks, then he did “not wish to proceed to the 8th Circuit and would ask for an
execution date to be set.” (A 1630). In an order dated June 21, 2004, the court
concluded that Banks was distinguishable from Paul’s case, and denied Paul’s request
for discovery to pursue a claim based on Banks and Brady v. Maryland.

     On July 14 and 15, 2004, the court received yet another pair of letters directly
from Paul. In these letters, Paul again expressed his desire to terminate post-

                                         -26-
conviction litigation and to proceed with the sentence handed down by the court. Paul
wrote, among other things, that he had experienced a “supernatural amount of
punishment” since he was moved to the death row unit at Terre Haute, and that “no
one would choose to appropriate a living death such as this for themselves.” Paul
stated that he had “no reliable source to acquire answers needed to remedy an
unbearable situation.” The court then scheduled a hearing on the matter via video
conference on August 6, 2004. On August 5, the day before the hearing, Paul’s
counsel renewed their request that the court authorize mental health experts to meet
with Paul. The motion was accompanied by a declaration of Dr. Halleck, the
psychiatrist, recounting that Halleck had spoken with Paul by telephone on January
7, 2004, and that Paul “expressed some very bizarre and disjointed ideas and beliefs.”8
Dr. Halleck said he formed the “firm impression” that Paul was “very likely
experiencing a serious psychotic illness that could interfere with his ability to make
rational choices or understand his legal rights,” but that it would be necessary for
Halleck to evaluate Paul in person to reach “a definitive conclusion.” (A 1772).

      The court then proceeded on August 6 with the hearing, which included a
lengthy colloquy between the court and Paul via video conference. Early in the



      8
       Dr. Halleck declared that Paul made the following statements:

      1.     “I see things outside of my mind and body.”
      2.     “My attorneys may be involved in letting me become a fall guy.”
      3.     “Everything I see on T.V. I saw before T.V. is directed at me.
             Everything that happens to me happened before.”
      4.     “During my last phone call the words I spoke were not my own.
             Words were put in my mouth.”
      5.     “My girlfriend Cary is not a woman. She’s a hermaphrodite.
             She’s in love with a black inmate.”
      6.     “People are calling me things like a ‘maggot pedophile.’ They
             want me to kill myself. I’m being programmed.”
      7.     “I have conversations with voices only I can hear.”
                                         -27-
hearing, during discussions between the court and counsel, Paul interjected the
following statement:

      Paul: I would like to – my attorneys are emotionally close to me in this
      case, and – and I love them dearly, but I’m – I’m fully competent to
      make this decision on my own. Although I’m not going to sit up here
      and try to speak legalese with you, the decision that I’ve made is to
      forego the habeas 2255 petition, waive it, and I would like to proceed
      forward with an execution date before November, as per the judgment
      rendered against me by the jury in your court and upheld by you through
      your rulings on my direct appeal and the rulings, the concurrent rulings,
      of the Eighth Circuit. That’s what I want to do.

      And I do appreciate the work that my attorneys have done for me. I – if
      you have any questions about my psychiatric stability at the moment, the
      Justice Department’s psychiatrist team here in the prison, as well as
      North Carolina, have all declared me competent, and you can – I’m sure
      they could fax you copies of any report or whatnot that you would need.
      I am competent, and I would like to secure an execution date before
      November, if possible, and if you will work with me on that I’d
      appreciate it. That’s what I want to do.

(A 1806-07).

       Paul later discussed with the court his May 2004 letters regarding Banks v.
Dretke, acknowledged receipt of the court’s ruling on that point, and expressed his
understanding that if his habeas corpus waiver was approved, then he would be put
to death by execution. Paul then had the following exchanges with the court:

      The Court: Now . . . your lawyers have said for you, that they think
      you’ve been doing crazy things and funny things, that they’re – they
      have a serious question that you really know what you’re doing, that
      you’re in there. Is there any reason they should think that?



                                        -28-
Paul: Well, obviously they think so, but that’s not the issue I’m speaking
with you, and if – if that’s what you think, then feel free to question me
on it and let me consider the questions that – specifically, in specific, that
you have about that. . . . As far as the staff here is concerned, I have
report after report saying that my affect is normal and that my behavior,
with the exception of a couple of disciplinary problems is fine,
competent.

The Court: But would you agree with me that if a person doesn’t know
for sure where he is or he’s hallucinating, hears voices, or maybe tries to
take his own life, there might be a question that he’s okay?

Paul: I agree. I agree. Yeah, I agree wholeheartedly with what you’re
saying and – and I don’t believe that train of thought really applies to
me. I know where I’m at.

I hear voices when people are talking to me, but – and as far as taking
my own life, I have a death sentence. I didn’t – I don’t have to, you
know, so – I’m not hearing any voices that aren’t speaking to me.

The Court: Is anybody trying to convince you that you ought to give up
the ship and just let it happen, or is this something you are trying to
decide or deciding on your own?

Paul: Well, the – are you – are you speaking of – basically, what you’re
implying is are there some kind of undue influence on me? No, not that
. . . this is the decision that I’m making after having been convicted of
aiding and abetting murder and having my direct appeal denied and
being sentenced to death. I didn’t make this decision for myself. I was
convicted by a jury of my peers, which is what you know for a fact is the
truth. I was convicted. I was sentenced to death. This decision was
taken out of my hands. What I’m asking you, Your Honor, and would
basically be appreciative, or I hope so, is that – is that we forego this pro
forma appellate review, and if you could help me facilitate an execution
date for some closure before November, that’s all I’m asking.

                              *       *       *

                                    -29-
      The Court: I want you to – to understand as clearly as I can convey it to
      you that this is a matter of great concern to me, that I be able to read you
      correctly and fairly. It’s a heavy responsibility. . . . So please
      understand, I am trying my best to be sure that I understand what you’re
      saying to me, and that nobody is forcing you or that you’re not out of
      your mind or anything, but that you’re just laying it out and saying it
      man-to-man how you feel about it. Is that what you’re doing?

      Paul: Well, I – no one – no one is forcing me to speak right now, and –
      and as far as some personal insight, I’m ready, and that’s a – you know
      – that’s all there is to it. I’m ready. I’m – I’m not a – a – a rambling
      moron. I – I can’t presume to know what will happen after a man dies,
      and so obviously there’s some – some trepidation about that, but it’s
      inevitable, and there you go. I mean, I have to face it. I have to face it.
      I don’t want to be, you know, on this yo-yo any longer, and, you know,
      on a personal level, I – I wish that you would understand that, and if – I
      do want to say that – and, you know, obviously, I feel favorably about
      my counsel. If they have to be released from – from – from my
      appointment in order to facilitate this before November, then please
      consider this a verbal request to do so. I – I regret everything that’s
      happened, but I’m ready.

(A 1820-24).

       Later in the hearing, Paul’s counsel attempted to advise the district court about
the details of Paul’s suicide attempt in November 2003, but Paul repeatedly pressed
the “mute” button on the videoconferencing equipment, and argued that the
information was “irrelevant.” (A 1831-33). Paul also objected when counsel advised
the court that a diagnosis of schizophrenia appears in Paul’s prison file. Paul told the
court that he was given some medication “for sleep,” not for schizophrenia, and that
“as far as the hanging incident goes, . . . I was just trying to save money.” (A 1839).

     After this hearing, the court invited briefs from the parties on whether Paul was
competent to waive his petition for writ of habeas corpus, and to request that his death

                                         -30-
sentence be carried out. See Rees v. Peyton, 

(1966). On August 19,
however, Paul’s counsel filed a motion seeking to terminate the proceedings relating
to Paul’s attempted waiver. This filing included a document signed by Paul, which
said that his earlier decisions were made before consulting with his attorney and
without understanding what he was doing, and that Paul wished to withdraw his
request to drop his appeals.9

       In January 2005, the court entered its final order on the habeas corpus petition.
In that order, the court found, based on the results of the hearing on August 6, 2004,
that “petitioner is fully capable of being able to determine whether he wishes his post
conviction efforts to continue.” The court said that Paul “impressed the Court as
being fully lucid and aware that both his attorneys were desperately trying to dissuade
him from the course of action he appeared to want to follow,” and that Paul “showed




      9
        During the course of this appeal, on February 5, 2007, Paul filed a pro se
motion to dismiss his appeal. The motion stated that Paul did not want to pursue the
appeal, as “any favorable results would only serve to prolong the judicial proceedings
and would not facilitate his release from confinement,” that after ten years of
imprisonment, he was “ready to be executed as promptly as possible,” that his
decision to seek dismissal had not been forced or coerced in any way, and that he
realized the motion would receive opposition from counsel, including a likely
challenge to his competency to waive the appeal. On February 20, 2007, after meeting
with Paul, counsel filed on behalf of Paul a notice that Paul “withdraws his
uncounseled, pro se motion to dismiss his appeal.” The notice explained that Paul’s
motion was prompted by “the cumulative effect of the conditions of his confinement,
the stress of his pending sentence of death, and his despair of obtaining a just result
in his case,” and that Paul “did not kill Sherman Williams, nor did he intend for Mr.
Williams to be killed by Trinity Ingle,” but that Paul feels he did not receive a fair
trial. The notice was accompanied by a document signed by Paul, which stated that
he withdrew his pro se motion to dismiss the appeal, “which was filed without prior
consultation with counsel.” This court permitted Paul to withdraw the previously-
filed motion to dismiss the appeal.
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remarkable patience with his attorneys.” The court then made the following findings
regarding Paul’s competence to determine the course of proceedings:

      The Court has no reservations about petitioner’s mental ability to
      determine whether he wishes to proceed with the appellate process.
      Based upon his letters to the Court and his conduct, conversation, and
      general demeanor during the video conference hearing, the Court
      believes petitioner was and is fully capable of determining whether he
      wants to proceed. That said, it follows that if petitioner be fully
      competent to determine that he wished to terminate the appellate process,
      he is also fully competent to change his mind – on advice of counsel –
      and determine that he wishes to proceed with that process. This is what
      petitioner has done and the Court agrees with both petitioner and
      respondent that the Court should proceed to a disposition of the pending
      petition without further delay.

The court also denied Paul’s motion for access to mental health professionals, finding
in light of the August 6 hearing and the record as a whole that there was no basis for
allowing such access.10


      10
        After Paul filed his notice of appeal, he moved this court to authorize access
to mental health experts and to provide funds to conduct a mental examination. An
administrative panel of this court authorized Dr. Halleck to examine Paul. In a June
2006 report, Dr. Halleck stated that Paul’s mental status during a February 2006
interview “was certainly better than it was” during his two previous telephone
conversations with Paul in January and August 2004. Nonetheless, Dr. Halleck
opined that there was “considerable evidence of recent severe psychosis as well as
some residuals of psychosis insofar as his cognitive functions were concerned.” The
report concluded that “since [Paul’s] hanging attempt in November 2003, his mental
condition has deteriorated to such an extent that he is unable to assist his attorneys in
proceedings relevant to his appeal,” and that Paul has “difficulty in communicating
rationally with his attorneys.” (A 2326).

      The government notes that the report also includes evidence that Paul may have
been malingering. Dr. Halleck recounted that Paul made the following statements to
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       It is evident from these findings that the district court believed Paul was capable
of rational communication with his attorneys and with the court regarding the habeas
corpus proceeding. We are not left with the definite and firm conviction that the court
was mistaken; the finding is not clearly erroneous. The district court did not come to
this matter with a blank slate. Paul had been examined by mental health professionals
prior to trial, and he was found competent by doctors at FCI Butner and by Dr. Kuo.
Paul’s counsel cite the subsequent suicide attempt in November 2003, and Dr.
Halleck’s “firm impression” from a telephone conference that Paul was thereafter
experiencing a serious mental illness in January 2004, as evidence of a change in
circumstances. But after these events, the court received written communications
directly from Paul in May and July 2004 and spoke directly with Paul during a video
conference in August 2004. These interactions, together with the pre-trial reports
about Paul’s competence, gave the court a sufficient basis for its finding that Paul was
“fully lucid” and “fully capable” of making decisions about his habeas corpus action.
See 

(Powell, J., concurring in part and in judgment) (“[I]n order
to have been convicted and sentenced, petitioner must have been judged competent
to stand trial, or his competency must have been sufficiently clear as not to raise a


Dr. Bill Elliott, the chief psychologist at the penitentiary, shortly after the suicide
attempt in November 2003: “Look Elliott, you and I both know that I am competent
and I’m not going to kill myself. I am going to beat this case and be out of here in two
years. My lawyer is working on a psychological angle and I’m just trying to help out
the cause. Just give him a call and he’ll explain everything. We don’t need to go
through all of this bullshit.” (A 2320). Dr. Halleck explained that Dr. Elliott viewed
this as a “virtual admission of malingering,” and removed Paul from suicide watch.
(A 2320-21). Dr. Halleck, however, was “puzzled as to why the psychologists who
were working with [Paul] were so committed to viewing him as malingering,” and
stated that he would have “strongly questioned statements [Paul] gave to this
psychologist that he was malingering.” (A 2325-26).

       Based on Dr. Halleck’s report, Paul moved this court to remand the case to the
district court for further proceedings. The administrative panel denied the motion, and
then granted a certificate of appealability on the three issues discussed in this opinion.
                                          -33-
serious question for the trial court. The State therefore may properly presume that
petitioner remains sane at the time sentence is to be carried out, and may require a
substantial threshold showing of insanity merely to trigger the hearing process.”).

       Mental competence ultimately is an issue for the court, and it is not
inappropriate for the court to consider its own observations of the petitioner, and even
to disagree with experts on mental functioning where warranted. 

. The court’s finding here is adequately supported. Moreover, as noted in our
discussion regarding the scope of the certificate of appealability, we see no potential
prejudice to Paul from alleged incompetence arising after November 2003, given the
stage of the habeas litigation and the role of a litigant in the period after claims are
developed and briefs are filed. Cf. 

(considering prejudice
arising from “[c]onducting an entire habeas proceeding while a petitioner is
incompetent”) (emphasis added).

                                   *       *       *

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




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