Case: 18-70026   Document: 00514961570     Page: 1   Date Filed: 05/17/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 18-70026               United States Court of Appeals
                                                                     Fifth Circuit

                                                                   FILED
                                                               May 17, 2019
MICHAEL DEAN GONZALES,
                                                              Lyle W. Cayce
            Petitioner - Appellant                                 Clerk


v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

            Respondent - Appellee



                Appeal from the United States District Court
                     for the Western District of Texas


Before JONES, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:
      This is an appeal from the district court’s denial of an inmate’s petition
for habeas relief relating to his alleged incompetence to stand trial on capital
sentencing, and for a Certificate of Appealability (“COA”). The district court
erroneously granted a hearing on the merits of petitioner’s claims and denied
relief. We deny the petitioner a COA because his claims are procedurally
barred and, alternatively, lack merit.
                             I. BACKGROUND
      The petitioner, Michael Gonzales, was convicted of the gruesome
murders of an elderly couple and was sentenced to death by an Ector County
district court on December 8, 1995. Significant evidence supporting Gonzales’s
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conviction was a jailhouse confession he gave to a prison guard who also
happened to be one of his relatives. The Texas Court of Criminal Appeals
(“TCCA”) affirmed his conviction and sentence, Gonzales v. State, No. AP—
72,317 (Tex. Crim. App. June 3, 1998) (not designated for publication), and
subsequently denied his initial state habeas petition.      Ex Parte Gonzales,
No. WR-40,541-01 (Tex. Crim. App. Mar. 10, 1999) (not designated for
publication).
      The following year, Gonzales filed a federal petition for habeas relief in
the federal district court.    The district court denied relief concerning his
conviction, but after the Texas Attorney General’s office notified the court
about an error that had occurred during the sentencing phase, the district
court ordered the state court to grant Gonzales a new sentencing trial.
Gonzales v. Cockrell, No. 7:99-cv-00073 (W.D. Tex. Dec. 19, 2002) (not
designated for publication).    Gonzales unsuccessfully appealed the district
court’s denial of guilt-phase relief to this court. Gonzales v. Quarterman,

(5th Cir. 2006), cert. denied, 

, 

(Mem.) (2007).
      In May 2009, Gonzales was again sentenced to death in a second
sentencing trial, presided over by the same judge who oversaw his previous
sentencing trial.    The second sentencing trial—and Gonzales’s conduct
throughout it—is the subject of this appeal. The trial court assigned two
attorneys, Woody Leverett and Jason Leach, to serve as trial counsel for
Gonzales during the sentencing trial.        After Leverett and Leach were
appointed, Gonzales wrote to them and requested that they secure the services
of a New York mitigation specialist named Charles Lanier. Leverett responded
that he and Leach had looked into Gonzales’s request but learned that Lanier
was not a mitigation specialist, but, rather, a mental health expert who
opposed the death penalty. Those statements were not accurate. When Lanier
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told Gonzales that Leverett’s statements were inaccurate, Gonzales petitioned
the court to terminate Leverett’s position as his court-assigned counsel.
Gonzales told the court that he did not “trust [his counsel], plain and simple.
When an attorney lies to you one time, he is going to lie to you every time, so
my point [is] they aren’t worth s***.” The court held a hearing and ultimately
decided to keep Leverett in his position as trial co-counsel, basing its decision
partly on Leverett’s qualifications and Leverett’s explanation that he had not
intended to mislead Gonzales, as well as the court’s distrust of Lanier’s motives
for involving himself.
      After the court denied Gonzales’s request to remove Leverett, Gonzales
stopped cooperating with his counsel entirely and instructed his friends and
family members to do the same. Leverett then filed a motion on his own,
asking to be replaced as counsel for Gonzales because he had “absolutely no
working relationship” with Gonzales, and because Gonzales repeatedly refused
to cooperate with his defense team (although Gonzales sometimes reached out
to his attorneys for help acquiring items for day-to-day use inside prison). The
court denied the motion.
      Gonzales’s demeanor in court became increasingly hostile and volatile
over the course of his sentencing trial.         On the first day of testimony,
Gonzales’s wife was called to testify and was warned by prosecutors that she
could be charged as an accomplice if she repeated previous statements she had
made to the police.      When she appeared confused by the admonishment,
Gonzales spoke out:
      GONZALES: If she don’t want to testify, leave her alone, man.
      That’s my wife. She has the right to plead the Fifth Amendment.
      She don’t got to testify against nobody. You are harping her, man.
      You are f***ing with her mind. Leave her alone. She don’t want
      to testify.



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      COURT: Retire the jury.

      (Jury retired from courtroom).

      GONZALES: See how you got her all emotional. You ain’t got to
      testify, Martha. Don’t let them get in your head. You have got the
      right to keep the Fifth Amendment. You should be ashamed of
      yourself, man.

      COURT: Now, where are we?

      PROSECUTOR: [Gonzales’s wife] has told me that she is
      frightened, that she is scared of the defendant, and I think she –

      GONZALES: Godd*** right she is scared because y’all put her in
      that f***ing position, man. Just leave her alone. She don’t want
      to testify.

After a recess, Gonzales’s wife testified that Gonzales had murdered the
victims. Gonzales interrupted her testimony and exclaimed, “[s]ame thing’s
gonna happen to you, b****. I’m gonna f***ing have somebody kill your ass.”
After the jury was excused, the court admonished Gonzales for repeatedly
interrupting the proceedings and asked if he was aware of the consequences
for continuing that behavior.     Gonzales said that he was aware of the
consequences—that the court could either “remove [him] from the courtroom
or gag [him].” The court then asked Gonzales if he was “going to continue to
create problems,” and Gonzales replied, “whenever my blood rises, I speak my
mind.”
      On the final day of the trial, Gonzales’s counsel announced their intent
to call several witnesses, including Gonzales’s half-sister, his daughter, and an
expert witness. But Gonzales adamantly refused to allow the witnesses to
testify and threatened to cause a disturbance if they did.        Consequently,
Gonzales was the last witness the defense called. On the stand, when Leverett
asked Gonzales if there was anything he wanted to tell the jury, Gonzales
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                                 No. 18-70026
replied, “[y]eah. Y’all can f***ing kill me. Makes me no f***ing difference. Pass
the witness.” The prosecution said it had no questions for Gonzales on cross-
examination, and the court called Leverett back to the stand for a redirect.
When the court called Leverett to conduct the redirect, Gonzales protested,
“[n]o, man. I told you yesterday why do I want your f***ing assistance, man?
You won’t listen to me.” Leverett then told the court that the defense rested.
Gonzales was subsequently sentenced to death.
      Gonzales’s second     death   sentence    was   upheld by     the TCCA,
Gonzales v. State, 

(Tex. Crim. App. 2011), and he did not seek
state habeas relief. On November 10, 2010, the TCCA issued an order stating
that Gonzales had not filed a habeas application, and that any subsequent
applications would be reviewed under Texas Code of Criminal Procedure
11.071, Section 5 (governing abuse of the writ) as a result. Ex Parte Gonzales,
No. 40,541-03 at Order.
      Gonzales filed another federal habeas petition on December 27, 2012 and
an amended petition on November 5, 2013. Gonzales then moved to stay the
federal habeas proceedings while he returned to state court to exhaust his
claims. The district court granted the motion in part, and Gonzales filed
another state habeas petition.      Relying on Gonzales’s waiver, the TCCA
dismissed his petition as an abuse of the writ. Ex Parte Gonzales, 

(Tex. Crim. App. 2015). Thereafter, Gonzales filed an amended petition in
the district court, along with a motion for an evidentiary hearing. The district
court overruled the state’s contention that all of Gonzales’s issues were
procedurally barred and further concluded that it could hold a de novo hearing
on the issues. But see 28 U.S.C. § 2254(e)(2). The court accordingly held a
seven-day evidentiary hearing, after which it ruled, in a lengthy and careful
opinion, that the trial court did not err by not ordering a competency hearing
sua sponte, that Gonzales was not incompetent to participate in the second
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                                      No. 18-70026
sentencing trial, and that his trial counsel’s decision not to raise the issue of
Gonzales’s competency did not amount to ineffective assistance of counsel. The
court also denied Gonzales a COA.
       Gonzales has appealed, seeking a COA for issues that he raised for the
first time in the state writ application denied as an abuse—his Pate claim and
his Ineffective Assistance of Trial Counsel (“IATC”) claim—and for his
contention that the district court’s retrospective competency hearing, which he
sought to begin with, was inadequate and speculative.
                          II. STANDARD OF REVIEW
       A COA is necessary to appeal the denial of federal habeas relief,
28 U.S.C.      § 2253(c)(1),    and      the    requirement       is   jurisdictional.
Miller- El v. Cockrell, 

, 335–36, 

, 1039 (2003).
Federal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on
a state procedural bar. Harris v. Reed, 

, 

(1989).
To overcome a procedural bar, a habeas petitioner must show cause for the
default and actual prejudice, or that a miscarriage of justice will occur if the
federal court does not consider the claim.                 Coleman v. Thompson,

, 750, 

, 2565 (1991). Failure to raise a claim in an
initial state habeas corpus application may not be excused for cause unless the
claim was not “reasonably available” at the time of the prior petition.
Fearance v. Scott, 

, 636 (5th Cir. 1995) (internal quotation marks
and citation omitted). To show cause, a petitioner must show that “some
objective factor external to the defense impeded counsel’s efforts to comply with
the State’s procedural rule.”           Murray v. Carrier, 

, 488,

, 2645 (1986). To show prejudice, a petitioner must show that
the    error   “worked     to   his    actual   and     substantial    disadvantage.”
United States v. Frady, 

, 170, 

, 1596 (1982)
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                                 No. 18-70026
(emphasis omitted). And a miscarriage of justice in this context means that
the petitioner is actually innocent of the crime of which he was convicted.
Sawyer v. Whitley, 

, 339–40, 

, 2519 (1992).
      When claims are properly preserved, this court reviews “the district
court’s findings of fact for clear error and its conclusions of law de novo.”
Dorsey v. Stephens, 

, 314 (5th Cir. 2013) (citation omitted). This
court “will not disturb a district court’s factual findings unless they are
implausible in the light of the record considered as a whole.” Wiley v. Epps,

, 213 (5th Cir. 2010) (citation omitted).
      Determining whether a COA should issue “requires an overview of the
claims in the habeas petition and a general assessment of their merits,” but
not “full consideration of the factual or legal bases adduced in support of the
claims.” 

, 123 S. Ct. at 1039. To receive a COA for a
preserved claim, a petitioner must “show 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.” 

marks and citation omitted).
                              III. DISCUSSION
      Gonzales seeks a COA to advance three arguments to defeat his
sentence. First, he contends that the state trial court erred by not conducting
sua sponte a competency hearing after Gonzales continually displayed bizarre
behavior during his second sentencing trial, as required by Pate v. Robinson,

, 

(1966). Relatedly, he argues that his trial counsel
rendered ineffective assistance by failing to raise the question of Gonzales’s
competency during the resentencing trial. Finally, he asserts that the seven-
day, retrospective competency hearing conducted by the district court was
inadequate and yielded a purely speculative competency finding concerning


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                                       No. 18-70026
the decade-earlier trial. We agree with the state, however, that Gonzales’s
claims are procedurally defaulted. Alternatively, the claims lack merit.
       A. Procedural Bar
       The district court held that Gonzales’s claims were not procedurally
barred, because, in its view, the transcript from Gonzales’s post-sentencing
hearing in state trial court did “not sufficiently support the conclusion that
petitioner’s waiver of a portion of his post-conviction remedies was fully
voluntary and intelligent.” The district court further based its decision on the
fact that “[t]he state trial court did not make any genuine or sincere effort to
advise petitioner of the rights he was waiving by rejecting appointment of state
habeas counsel or to ascertain whether petitioner’s purported waiver of the
right was voluntary.”          The district court denied the state’s motion for
reconsideration because it identified “no precedent in which a waiver of state
habeas rights in a death penalty case has been recognized upon circumstances
analogous to those” in this case.
       The district court’s ruling was in error. Contrary to its conclusion, we
are unaware of any cases that found no waiver of rights following the type of
colloquy that occurred here. 1 The TCCA’s brief opinion explains plainly why
Gonzales’s successive state habeas petition was an abuse of the writ. Ex Parte

. Alluding to the record, the TCCA notes that
Gonzales told the state trial court in a post-trial hearing that he did not wish
to pursue any appeals or have any counsel appointed on his behalf. Gonzales




       1   From the standpoint of AEDPA, the court should not have disagreed with the
TCCA’s holding on waiver except under the standards of 28 U.S.C. §§ 2254(d) or (e)(1). Be
that as it may, the district court’s professed concern about Gonzales’s ability to understand
and knowingly waive his rights about post-trial procedure is confusing considering the court’s
finding, based on the testimony of the trial judge from the sentencing trial, that Gonzales,
despite his outbursts, had a surprisingly sophisticated understanding of the legal
proceedings.
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                                      No. 18-70026
told the trial court: “I would like the record to reflect I want to waive all my
appeals and will have execution set as soon as possible.” To be more specific
about the underlying proceeding, the state court informed Gonzales that an
appeal on the merits was mandatory and then appointed counsel for his appeal.
The judge then informed Gonzales, “you are entitled for [sic] an attorney to file
a Writ of Habeas Corpus in addition to the attorney for the appeal. Now, do
you wish that to be done? Do you want an attorney?” Gonzales again stated
that he did not wish to file any appeals. Twice more, the state trial court asked
Gonzales whether he wanted an attorney for habeas purposes, and both times
Gonzales responded, “I don’t want no attorney, period.” During the exchange,
the state court also informed Gonzales: “you may proceed pro se if you desire
to.”
        Federal habeas claims are procedurally barred if the last state court to
review the petitioner’s claims unambiguously based its denial on a state
procedural bar. See 

, 109 S. Ct. at 1044. Here, the
TCCA unambiguously held that Gonzales’s claims were procedurally barred
because he had waived his right to habeas counsel and did not file a habeas
claim pro se before the deadline expired.                    See Ex Parte 

. And based on the foregoing record, it had ample reason to
so hold. The district court’s expressed view that the state’s procedural bar
might not apply, because there is no precedent analogous to the facts in this
case, is unfounded in light of this court’s consistent application of the
procedural bar when a state court has rejected a claim based on a clearly-
explained application of procedural rules. 2            See, e.g., Garza v. Stephens,


        2 Gonzales reiterates a similar claim in his reply brief. He acknowledges that
“[u]nquestionably, the abuse-of-the-writ rule utilized by the [T]CCA in Gonzales’s case is in
most cases an adequate state procedural ground” but argues that the procedural bar in his
case is inadequate. First, Gonzales alleges that the “representation issue was never properly
addressed” by the state trial court. Second, Gonzales argues that the TCCA failed to address
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, 675 (5th Cir. 2013) (“A federal habeas claim is barred by
procedural default when the state court has rejected the claim pursuant to a
state procedural rule that provides an adequate basis for the decision,
independent       of    the    merits      of    the    claim.”)     (citations    omitted);
Balentine v. Thaler, 

, 857 (5th Cir. 2010); Hayes v. Quarterman,

, 342 (5th Cir. 2008).
       Because the last state court to consider Gonzales’s habeas petition
unambiguously based its denial on a state procedural bar, Gonzales’s federal
habeas claims are procedurally barred.               To overcome this procedural bar,
therefore, Gonzales must meet the cause and prejudice standard set forth in
Murray. Gonzales’s claims fall short of the high procedural hurdle they must
clear. Because Gonzales’s failure to seek state habeas relief was caused solely
by his refusal to accept habeas counsel 3 and his failure to file a timely pro se
petition, he cannot point to a cause external to his defense to excuse his
procedural default. See 

, 106 S. Ct. at 2645. To the
extent that Gonzales might claim that his alleged mental incompetency
satisfies the “cause” requirement, that claim fails not only because it is not a
cause external to the petitioner, 4 but also as a factual matter, discussed below.



Gonzales’s argument that due process does not permit incompetent prisoners to waive state
habeas counsel and that he was, in fact, incompetent to waive his state habeas counsel.
Finally, Gonzales argues that the TCCA’s holding violated due process because it implicitly
held “that a prisoner’s mental incompetence does not affect the validity of his waiver of state
habeas proceedings or waiver of counsel for such proceedings.” These arguments are no more
than an attempted end run around the TCCA’s finding, noted above, that Gonzales was
competent and decisive in his rejection of appointed counsel. They do not reflect the
“inadequacy” of the procedural bar.

       3Because Gonzales failed to accept counsel for habeas following the resentencing, he
may not avail himself of the Martinez/Trevino exception to cause and prejudice, which is
contingent on counsel’s failings.

       4This court and others have held that mental impairments are not factors external to
the petitioner’s defense and do not excuse procedural default. See, e.g., United States v.
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                                       No. 18-70026
       Even if Gonzales’s claims were not procedurally barred, however, they
would not merit a COA.
       B. Pate Claim
       Criminal defendants have a substantive right to be competent when
sentenced, and that right can only be guaranteed by adequate trial procedures.
United States v. Flores-Martinez, 

, 705–06 (5th Cir. 2012).
Gonzales contends that the state trial court failed to provide those procedural
safeguards by not conducting a hearing sua sponte to assess his competency in
connection with his second sentencing trial. When deciding whether a sua
sponte inquiry into a defendant’s competency is necessary, a trial court weighs
three factors: (1) whether the defendant has a history of irrational behavior;
(2) the defendant’s demeanor at trial; and (3) prior opinions from medical
professionals about the defendant’s competency.                       Drope v. Missouri,

, 180, 

, 908 (1975).               The district court took into
account all of the evidence before it in finding Gonzales competent and
rejecting Gonzales’s Pate claim. Nevertheless, Gonzales challenges the district
court’s findings.
        Gonzales argues that the state trial judge, Judge Bill McCoy, was fully
aware that Gonzales had cut his attorneys out of his defense for months
leading up to his resentencing trial and that communication between Gonzales
and his counsel about legal matters had broken down completely. His claim
boils down to the assertion that his sustained refusal to cooperate with his
attorneys while facing the death penalty, based solely on a single encounter
that may have been a miscommunication, was manifestly behavior in which a


Flores, 

, 236 (5th Cir. 1993) (“Neither [Petitioner’s] illiteracy, nor his deafness,
nor his lack of training in the law amounts to cause either, because none of these factors was
external to [Petitioner’s] defense.”); Schneider v. McDaniel, 

, 1154
(9th Cir. 2012) (holding that petitioner’s mental condition could not serve as cause to excuse
procedural default).
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                                  No. 18-70026
competent person would not engage.          Gonzales argues that his behavior
reflected deep, irrational paranoia that satisfies the first prong of the inquiry—
a “history of irrational behavior.”
      The second prong of the analysis, the defendant’s behavior at trial, is
easily satisfied in Gonzales’s view. He argues that the trial court watched him
threaten to have witnesses killed, repeatedly use profanity, and threaten to
disrupt the proceedings by grabbing a gun if his attorneys allowed three
witnesses to testify on his behalf at the close of the trial.       According to
Gonzales, the behavior the court witnessed was produced by severe mental
illness rather than his extremely anti-social attitude.
      Gonzales also argues that the trial judge was well aware of his history of
mental illness, because the judge had presided over his initial trial, in which
multiple mental health experts testified that Gonzales had been diagnosed
with schizoaffective disorder at age 16 and had possibly suffered some form of
brain damage from childhood head injuries and adolescent substance abuse.
Additionally, Gonzales argues that his defense team had made the court aware
through various filings that he had developed diabetes in 2003 that was often
uncontrolled and that could have contributed to his mental impairment. In
sum, Gonzales alleges that the cumulative effect of the evidence, from both
before and during the second sentencing trial, is that jurists of reason could
debate the district court’s conclusion that Gonzales was not deprived of
adequate assurances of a fair trial without the court’s conducting a sua sponte
competency hearing.
      This court disagrees. The district court understood that a Pate inquiry
considers whether the trial court was aware of information that “should
reasonably have raised a doubt about the defendant’s competency and alerted
[the court] to the possibility that the defendant could neither understand the
proceedings or appreciate their significance, nor rationally aid his attorney in
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                                 No. 18-70026
his defense.” Roberts v. Dretke, 

, 497 (5th Cir. 2004) (internal
quotation marks, brackets and citation omitted). The district court addressed
each of the arguments Gonzales makes here.
      To begin, Gonzales’s refusal to cooperate with his attorneys does not,
alone, demonstrate a longstanding history of irrational behavior that should
have cast doubt on his competence to stand trial. In fact, as the district court
noted, Gonzales’s explanations to the court of his reasons for not cooperating
evinced a clear understanding of the proceedings and of the significance of his
trial counsel’s participation. Gonzales was aware of his circumstances—he
simply did not wish for his attorneys to have a meaningful say in the matter.
He chose to trust the word of Charles Lanier, who wrote Gonzales a long letter
asserting that Leverett was “dangerously incompetent,” over the trial judge’s
assurances that Leverett and his co-counsel were highly capable of assisting
his defense. Although perhaps unwise, that decision is not evidence of mental
disability. Further, Gonzales’s pattern of asking his attorneys for assistance
in non-legal matters, such as obtaining items he could not access on his own in
prison, shows that he was perfectly capable of cooperating with his attorneys
when he felt that doing so was in his best interest.
      Gonzales’s behavior at trial likewise did not alert the trial court to the
need to conduct a competency hearing. Gonzales was explosive, threatening,
and uncooperative, but he did not demonstrate an inability to understand the
proceedings or to assist in his own defense. See 

(“[Petitioner’s] conduct, while angry and inappropriate, was not divorced
from reality.”). To the contrary, Gonzales told the court that he was aware that
his outburst could lead to his being gagged or removed from the courtroom. In
other words, he was aware of the consequences of his behavior, but simply
chose to speak anyway when his “blood [rose].” Gonzales was also clearly
aware of the significance of his wife’s testimony and of her right against self-
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                                      No. 18-70026
incrimination, as he repeatedly encouraged her to invoke the protections of the
Fifth Amendment. To hold that recalcitrant and anti-social behavior at trial
constitutes, by itself, evidence in favor of a Pate claim would create perverse
incentives for future defendants to disrupt court proceedings.
       Finally, the district court recognized the limits of Gonzales’s contention
that the state court judge was aware of his previous diagnoses of mental illness
from expert testimony at his 1995 trial. As the state points out, “[t]he flaw in
this claim is that Gonzales has conceded he was competent at his 1995 trial.”
Gonzales’s mental health diagnoses have not changed since his initial trial,
except for his new claim that diabetes (diagnosed in 2003) may have caused
his conditions to worsen. There is no objective evidence showing that to be the
case, however.
       Gonzales’s arguments are largely quarrels with the findings of fact by
the district judge, which he has not shown to be clear error. Cumulatively, all
of the evidence brought to bear in the district court on the issue of Gonzales’s
competency in 1995 supports the conclusion that reasonable jurists cannot
debate that court’s denial of the Pate claim.
       C. Ineffective Assistance of Trial Counsel Claim
       Gonzales pursues a COA that his trial counsel’s decision not to pursue a
competency hearing during his second sentencing trial was constitutionally
deficient. He argues that his attorneys “were bound by professional standards
to pursue the issue” of his competency. To succeed on an ineffective assistance
of counsel claim, a petitioner must show that his counsel’s performance (1) fell
below the objective standard of assistance that a reasonable attorney would be
expected     to       provide;   and        (2) resulted   in   actual     prejudice.
Strickland v. Washington, 

, 687, 

, 2064 (1984).
       The district court dismissed Gonzales’s claim and denied a COA because
it   concluded    that,    “[b]ased    on    their   numerous   conversations     and
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                                 No. 18-70026
correspondence with [Gonzales], there was . . . nothing before trial counsel to
lead them to question [Gonzales’s] competency.” Indeed, Gonzales’s counsel
was fully aware that he was capable of interacting and cooperating with them
when he felt that doing so would benefit him. Gonzales also clearly explained
his reasons, misguided or otherwise, for not cooperating with his counsel
during conversations with the court at various points in the trial. Moreover,
considering Gonzales’s admission that he was competent to stand trial in 1995,
the expert testimony from that trial about Gonzales’s various mental health
conditions did not require his counsel to pursue the matter in his subsequent
trial. Although one woman hired as a mitigation specialist by the trial counsel
suggested the need for a competency hearing, the district court found counsel’s
rejection of that idea a rationally grounded tactical decision.
      In short, because there was no objective evidence that Gonzales was
incompetent other than his recalcitrance, his trial counsel was not deficient for
choosing not to pursue that issue at his second sentencing trial.            See
McCoy v. Lynaugh, 

, 964 (5th Cir. 1989) (“There can be no
deficiency in failing to request a competency hearing when there is no evidence
of incompetency.”). Reasonable jurists could not debate the district court’s
decision to reject this claim, and a COA was properly denied.
      D. Inadequate        District   Court     Retrospective     Competency
      Hearing Claim
      Gonzales’s disgruntlement with the district court’s retrospective
competency hearing, which he had demanded, is not only barred but is
unfathomable. After failing to persuade the district court on his Pate claim,
Gonzales now asserts that no adequate conclusion as to his competency in 2009
was possible.     But the district court afforded him every opportunity,




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                                 No. 18-70026
particularly in light of its erroneous holding on procedural bar, to develop his
claims.
      In any event, he did not make this argument on inadequacy to the
district court, and it is therefore waived. See Martco Ltd. P’ship v. Wellons,
Inc., 

, 877 (5th Cir. 2009). Moreover, this court lacks jurisdiction
to entertain an issue for a COA on which no request for a COA has been made
in the district court. Black v. Davis, 

, 545 (5th Cir. 2018) (citing
Brewer v. Quarterman, 

, 255 (5th Cir. 2006)).
                               CONCLUSION
      For the foregoing reasons, we DENY the application for a COA.




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