Hull v. Kyler

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

8-25-1999

Hull v. Kyler

Precedential or Non-Precedential:

Docket 97-7551

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Filed August 23, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-7551

LARRY GENE HULL, Appellant

v.

KENNETH KYLER, Superintendent;

PA ATTORNEY GENERAL

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civ. No. 97-cv-00353)

District Judge: Honorable Malcolm Muir

Argued: July 13, 1999

Before: BECKER, Chief Judge, ROTH, and RENDELL,

Circuit Judges.

(Filed: August 23, 1999)

JAMES V. WADE, ESQUIRE

(ARGUED)

Federal Public Defender

Middle District of Pennsylvania

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

JOHN F. NELSON, ESQUIRE

(ARGUED)

Office of District Attorney

Franklin County Court House

157 Lincoln Way East

Chambersburg, PA 17201

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This habeas corpus case is before us for the third time.

Twenty years ago, petitioner Larry Gene Hull was convicted

of first-degree murder in a Pennsylvania state court and

sentenced to life imprisonment. For the past thirteen years,

Hull has sought to have that conviction overturned on the

ground that he received ineffective assistance of counsel at

a pretrial competency hearing. Although the state courts

have rejected his ineffectiveness claim, we have held that

his counsel's performance was constitutionally deficient.

See Hull v. Freeman, 932 F.2d 159, 168-69 (3d Cir. 1991)

["Hull I"]. However, we have also held that Hull procedurally

defaulted this claim. See Hull v. Freeman, 991 F.2d 86, 90

(3d Cir. 1993) ["Hull II"]. The primary issues in the present

appeal are whether the Pennsylvania courts have waived

Hull's procedural default, and whether, if they have, he has

demonstrated that his counsel's deficient performance was

prejudicial under Strickland v. Washington, 466 U.S. 668

(1984).

For the reasons that follow, we conclude that the

Pennsylvania courts have waived Hull's procedural default

and that he thus may bring his claim in federal court. We

also conclude that Hull was prejudiced by his counsel's

failure to present any of the numerous pieces of available

evidence regarding his competency or to challenge the

government's single witness at his short competency

hearing. We will therefore reverse the judgment of the

District Court and remand the case with directions to issue

a writ of habeas corpus conditioned on Hull's being retried

2

by the Commonwealth. Of course, before new criminal

proceedings may be commenced against Hull, the

Pennsylvania courts must determine that he has regained

his competency to be tried.

I. Procedural History

The procedural history of this case is long and

convoluted. We recite it in detail, given its importance to

the first issue before us--procedural default.

A. The Initial State Proceedings

On February 26, 1975, Hull was charged with murder in

Franklin County, Pennsylvania. On March 7, 1975, he was

found incompetent to stand trial by the Franklin County

Court of Common Pleas. At that time, a defendant who

asserted his incompetence to stand trial in Pennsylvania

was required to demonstrate by a preponderance of the

evidence that he was incompetent. See Commonwealth v.

Kennedy, 305 A.2d 890, 892 (Pa. 1973). Hull was

committed to Farview State Hospital until a second

competency hearing was held on July 31, 1979. By that

time, the state legislature had altered the burden for a

defendant asserting his incompetency to proof by"clear and

convincing evidence." See Pa. Stat. Ann. tit. 50, S 7403(a)

(West Supp. 1996), amended by Act of July 2, 1996, No.

77, S 2, 1996 Pa. Laws 481, 482 (requiring proof by a

preponderance). However, as Hull had already been found

incompetent in 1975, the burden to prove that he had

regained his competency was most likely on the

Commonwealth. See id. S 7403(e) (West Supp. 1999)

(providing that, after an initial finding of incompetency,

criminal proceedings will resume only "[w]hen the court . . .

determines that such person has regained his competence

to proceed").

At the July 31, 1979, competency hearing, the

government presented a single witness, Dr. Harry C.

Stamey, a court-appointed psychiatrist who had examined

Hull. Dr. Stamey was asked only eleven questions. The first

nine were preliminary questions regarding Dr. Stamey's

background, qualifications, and the foundation for his

3

opinion. He was then asked what his opinion was"as to

whether Mr. Hull would be able to understand the nature

or object of the proceedings against him." App. at 422. He

answered, "I feel that he could." Id. at 423. The final

question posed to Dr. Stamey asked his opinion "as to

whether or not Mr. Hull would be able to participate and

assist in his defense." Id. He answered, "At that time I felt

that he could do so." Id. Presumably, "that time" referred to

the date of his examination of Hull, April 20, 1979, more

than three months before the competency hearing. Then,

when the court asked Hull's counsel to cross-examine Dr.

Stamey, he responded, "We have no questions, Your

Honor." Id.

The record does not disclose if the state court considered

the report that Dr. Stamey had produced, although the

doctor sent it to the court about three months before the

hearing. See id. at 441. As we discuss in more detail infra

Part IV.D.1, eight different doctors at Farview had found

Hull mentally ill and incompetent on numerous occasions

leading up to the competency hearing. Hull's counsel did

not present any evidence from these examinations nor did

he call any of these doctors as witnesses on Hull's behalf.

Nor did his counsel argue to the trial court that Hull was

incompetent, despite the prior finding of incompetence in

1975 and the strong evidence in this regard.

At the conclusion of the short competency hearing, and

with the consent of Hull's counsel, the court found Hull

competent to stand trial. On August 3, 1979, Hull entered

a general guilty plea to murder. Following a degree-of-guilt

hearing, the trial court found Hull guilty of first-degree

murder and imposed a life sentence. Hull appealed his

conviction, claiming that he could not be guilty offirst-

degree murder because "he was intoxicated and acting

under the influence of a mental illness at the time of the

shooting." Commonwealth v. Hull, 435 A.2d 1204, 1204 (Pa.

1981). In a one-paragraph per curiam opinion, the

Pennsylvania Supreme Court rejected his appeal.

B. The Initial State Post-Conviction Proceedings

Hull filed a premature state post-conviction petition in

January 1981. Following the denial of his motion for

4

modification of his sentence, he filed a new state post-

conviction petition, on July 18, 1986. This petition was

consolidated with his prior, premature petition. Hull raised

four issues in his state petition, including the one he

presses in the current habeas petition--that his trial

counsel was ineffective for failing adequately to contest the

issue of his competency to stand trial in 1979. On February

22, 1988, following two days of hearings in July and

November of 1987, the Court of Common Pleas rejected all

of the claims in Hull's post-conviction petition. See

Commonwealth v. Hull, Crim. No. 101-1975 (Pa. C.P. Ct.

Feb. 22, 1988). Hull's appeal to Pennsylvania Superior

Court from the denial of post-conviction relief raised only a

single issue, the current ineffectiveness claim. On

September 30, 1988, the Superior Court affirmed the denial

of relief on this claim. See Commonwealth v. Hull, No. 215

Harr. 1988 (Pa. Super. Ct. Sept. 30, 1988).

The Superior Court was the last state court to reach the

merits of Hull's ineffective-assistance claim. In rejecting this

claim, the court "reviewed the colloquy which followed the

guilty plea and [was] impressed with appellant's ability to

recount in detail his actions and emotions at the time of

the murder." Id., slip op. at 3-4. The court held that this

"ability" demonstrated that Hull was able to assist his

counsel and to understand the proceedings against him,

making his ineffectiveness claim meritless. See id. at 4. The

court added that Hull's trial counsel testified that he failed

to cross-examine the government's witness or to offer

independent evidence of Hull's incompetence because of

"the findings of the court-appointed psychiatrist, his own

observation of appellant, and appellant's expressed wish to

be found competent and enter a guilty plea"--and the court

held that this constituted a reasonable basis for counsel's

actions. Id. The court did not directly address the single

substantive issue before us, i.e., whether Hull was

prejudiced by his counsel's deficient performance.

Following issuance of the Superior Court order, Hull's

counsel failed to timely file a petition for allowance of

appeal with the Pennsylvania Supreme Court.1 When he

_________________________________________________________________

1. The petition for allowance of appeal is sometimes referred to as a

petition for allocatur. We use the terms interchangeably.

5

learned of his counsel's actions (or lack thereof), Hull filed

a pro se petition for allowance of appeal nunc pro tunc. The

Pennsylvania Supreme Court denied Hull's petition, without

comment, on February 21, 1989. See Commonwealth v.

Hull, No. 4 M.D. Misc. Dkt. 1989 (Pa. Feb. 21, 1989).

C. The Initial Federal Habeas Petition

On May 8, 1989, Hull filed a pro se petition for a writ of

habeas corpus in the District Court for the Middle District

of Pennsylvania, pursuant to 28 U.S.C. S 2254. He raised a

number of issues, including the ineffective-assistance

claim. Following appointment of counsel and a magistrate

judge's initial report and recommendations on the other

(non-competency related) issues, the district court

remanded for consideration of the ineffectiveness/

competency claim. The magistrate judge found that Hull

had exhausted his state remedies, but that the claim did

not have merit. Hull filed objections to the magistrate

judge's report, and on July 13, 1990, the district court

(following de novo review) held that Hull had received

ineffective assistance of counsel at the 1979 competency

hearing. The district court issued an order on September

11, 1990, granting Hull the writ of habeas corpus, and

remanding the case to the state trial court for a hearing to

determine Hull's competency to stand trial as of 1979. The

Commonwealth timely appealed this ruling.

In Hull I, we reviewed essentially the same two issues

before us now: whether Hull's ineffectiveness claim was

procedurally defaulted, and (if it was not) whether he had

received ineffective assistance of counsel at the 1979

competency hearing. First, we held that Hull's failure to file

a timely petition for allowance of appeal from the Superior

Court's 1988 decision did not constitute a procedural

default: "Absent a clear and express statement that the

Pennsylvania Supreme Court based its denial [of Hull's

petition for allowance of appeal] on a procedural default (to

wit, untimeliness), we must assume that the Court denied

Hull's appeal on the merits." Hull I, 932 F.2d at 167

(emphasis omitted).

Regarding Hull's substantive claim, we agreed with the

district court that the first prong of the Strickland

6

ineffectiveness test had been met, as his " `counsel's

representation fell below an objective standard of

reasonableness.' " Id. at 169 (quoting Strickland, 466 U.S.

at 688). However, we were unable to discern whether the

district court had reached the second Strickland prong, i.e.,

that Hull was prejudiced by his counsel's deficient

performance. We therefore remanded the case to the district

court for a determination whether Hull had been prejudiced

by his counsel's failure to cross-examine the government's

witness or to present a case at the 1979 competency

hearing. See id. at 170. We also made clear that, if the

district court found that Hull was prejudiced, the proper

remedy would not be a state hearing to determine Hull's

competency as of 1979. Rather, the appropriate remedy

would be the granting of a writ of habeas corpus

conditioned on the state retrying Hull after it established

that he had regained his competency to be tried.

On remand, the district court held two days of hearings,

in September and October of 1991, on the issue of

prejudice. On October 18, 1991, the district court issued an

opinion and order in which it held that the outcome of

Hull's 1979 competency hearing would not have been

different if his counsel's performance had not been

deficient. See Hull v. Freeman, Civ. No. 89-0681 (M.D. Pa.

Oct. 18, 1991). It therefore denied his petition for a writ of

habeas corpus. Hull timely appealed to this court.

In Hull II, we declined to reach the merits of Hull's

ineffectiveness claim because we concluded, contrary to our

holding in Hull I, that the claim had been procedurally

defaulted. We reasoned that two U.S. Supreme Court

decisions handed down less than two months after Hull I

compelled the finding that "the Pennsylvania Supreme

Court's denial without comment of Hull's untimely appeal

of his state petition was based on procedural default." Hull

II, 991 F.2d at 90 (citing Coleman v. Thompson, 501 U.S.

722 (1991), and Ylst v. Nunnemaker, 501 U.S. 797 (1991)).

After holding that Hull's claim was procedurally defaulted,

we noted that he could still bring his claim in federal court

if he established cause and prejudice for his procedural

default. The "cause" that Hull put forth was his post-

conviction counsel's ineffectiveness in failing tofile a timely

7

appeal to the state supreme court, as well as his own

illiteracy and mental retardation. We rejected these as

insufficient for establishing "cause" under controlling

Supreme Court precedent. See id. at 91. However, we held

that "Hull's mental deficiencies, combined with post-

conviction counsel's failure to file the appeal and failure to

notify Hull until after the deadline passed, create a

colorable claim for waiver [of the procedural default] under

Pennsylvania law." Id. We therefore remanded the case to

the district court with directions to dismiss Hull's habeas

petition without prejudice, so that he could "attempt to

establish a basis for waiver in state court, after which he

may obtain federal habeas review if the Pennsylvania

Supreme Court rejects his claim on the merits." Id. at 92.

Because it is important to our analysis of the waiver

issue, see infra Part III.B, we rescribe our reasoning in Hull

II regarding Hull's attempt to establish waiver in state

court:

Accordingly, we will dismiss Hull's petition without

prejudice so he may file a state post-conviction petition

to assert his claim of ineffective assistance of post-

conviction counsel as a ground for his untimely

petition for allocatur on his ineffective assistance of

trial counsel claim. If the Pennsylvania Supreme Court

rejects Hull's ineffective assistance of post-conviction

counsel claim, we presume it will deny his petition for

permission to appeal nunc pro tunc on this basis. It will

then have ruled based on procedural default and,

under Coleman, Hull will be barred from federal habeas

review . . . .

By contrast, if the Pennsylvania Supreme Court

upholds Hull's ineffective assistance of post-conviction

counsel claim, we presume it will grant his petition for

permission to appeal nunc pro tunc on his ineffective

assistance of trial counsel claim. The court will then

either deny or grant Hull's petition for allocatur on his

ineffective assistance of trial counsel claim. In either

scenario, the court will be considered to have reached

the merits of Hull's ineffective assistance of trial counsel

claim, and thus to have waived his procedural default

with respect to this claim. If the Pennsylvania Supreme

8

Court grants Hull's petition for allocatur, it will in fact

reach the merits of the ineffective assistance of trial

counsel claim. If the court denies Hull's petition for

allocatur, it will be deemed, under the Ylst "look-

through" rule, to have decided the ineffective

assistance of trial counsel claim on the same ground as

the Pennsylvania Superior Court, which rejected it on

the merits. Thus, in either event, Hull will have

obtained a determination on the merits of his

ineffective assistance of trial counsel claim by the

Pennsylvania Supreme Court, and, necessarily, a ruling

by that court that it waived Hull's procedural default of

this claim on the ground he received ineffective

assistance of post-conviction counsel.

If the Pennsylvania Supreme Court denies Hull's

ineffective assistance of trial counsel claim either by

denying allocatur or by granting allocatur and rejecting

it on the merits, he may re-file his federal habeas

petition.

Id. at 93-94 (footnote omitted) (emphasis added). On May

21, 1993, following our directive, the district court

dismissed Hull's habeas petition without prejudice. See Hull

v. Freeman, Civ. No. 89-0681 (M.D. Pa. May 21, 1993).

D. The Second State Post-Conviction Proceedings

On March 16, 1995, Hull returned to the Franklin

County Court of Common Pleas, and sought leave tofile a

petition for allowance of appeal nunc pro tunc to the

Pennsylvania Supreme Court. Finding the issue of hisfirst

post-conviction counsel's ineffectiveness "rather

straightforward," the court granted Hull the relief he

sought, on August 30, 1995. See Commonwealth v. Hull,

Crim. No. 101-1975 (Pa. C.P. Ct. Aug. 30, 1995). The

specific relief granted to Hull was as follows:

[D]efendant is granted leave to file a petition for appeal

nunc pro tunc to the Supreme Court of Pennsylvania

from the decision of the Superior Court of Pennsylvania

dated September 30, 1988, conditioned upon the relief

granted herein not being inconsistent with the order of

the Supreme Court dated February 21, 1989.

9

Id., slip op. at 7.

On September 28, 1995, the Commonwealth filed a

notice of appeal to the Pennsylvania Superior Court from

the Common Pleas Court's order. The following day, the

Common Pleas Court filed an order directing the

Commonwealth to serve the court with a statement of the

matters complained of on appeal, pursuant to Pennsylvania

Rule of Appellate Procedure 1925(b). On October 23, 1995,

fifty-four days after the Common Pleas Court had issued its

original order granting Hull the relief he sought, the

government filed the statement requested by the court. On

the next day, the Common Pleas Court filed a supplemental

opinion and order, denying Hull his requested relief, which

it had granted him fifty-five days before. See Commonwealth

v. Hull, Crim. No. 101-1975 (Pa. C.P. Ct. Oct. 24, 1995).

Hull filed a notice of appeal from the Common Pleas

Court's second order. This appeal and the Commonwealth's

appeal of the initial Common Pleas Court order were

consolidated. The parties stipulated that the

Commonwealth would be designated the appellant for

purposes of the appeal. The Commonwealth failed tofile its

brief before the Superior Court, and on January 23, 1996,

the Superior Court dismissed the consolidated appeal. See

Commonwealth v. Hull, Nos. 735 & 848 Harr. 1995 (Pa.

Super. Ct. Jan. 23, 1996). As far as the present record

reveals, the Commonwealth did not seek reconsideration of

this dismissal order nor seek review of the dismissal by the

Pennsylvania Supreme Court.

Meanwhile, on September 20, 1995, on the basis of the

initial Common Pleas Court order, Hull filed a petition for

allowance of appeal nunc pro tunc to the state supreme

court, in which he raised the ineffective-assistance claim

that is before us now. On February 29, 1996, the

Pennsylvania Supreme Court denied without comment

Hull's petition for allowance of appeal from the Superior

Court's 1988 decision. See Commonwealth v. Hull, 673 A.2d

332 (Pa. 1996).

E. The Second Federal Habeas Petition

Hull filed his present petition for a writ of habeas corpus

on March 6, 1997. After referral, the Magistrate Judge

10

found that Hull's ineffective-assistance claim remained

procedurally defaulted and that, for the reasons stated in

the district court's 1991 opinion, Hull had not

demonstrated that he was prejudiced by his counsel's

deficient performance at the 1979 competency hearing. On

October 2, 1997, following Hull's filing of objections (and

the Commonwealth's failure to file a response), the District

Court rejected the Magistrate Judge's recommendation

regarding procedural default, but denied Hull's petition on

the merits, "for the reasons set forth in [its] opinion and

order dated October 18, 1991." Hull v. Kyler, No. 4:CV-97-

353, slip op. at 7 (M.D. Pa. Oct. 2, 1997). Hull filed a timely

notice of appeal. We have jurisdiction under 28 U.S.C.

SS 1291 & 2253.

II. Standard of Review

Our review of the procedural default issue is plenary. See

Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). We

review the District Court's findings of fact regarding Hull's

substantive claim for clear error. See Government of V.I. v.

Weatherwax, 77 F.3d 1425, 1430 (3d Cir. 1996). In the

1997 order from which Hull appeals, the District Court

incorporated the findings of fact from its 1991 order

denying Hull's initial petition. See Hull v. Kyler, No. 4:CV-

97-353, slip op. at 7. None of the facts relevant to the

prejudice issue appear disputed. See Hull v. Freeman, Civ.

No. 89-0681, slip op. at 3-9 (M.D. Pa. Oct. 18, 1991). We

exercise plenary review over the question whether the facts

found by the District Court demonstrate prejudice under

Strickland. See Parrish v. Fulcomer, 150 F.3d 326, 328 (3d

Cir. 1998).

III. Procedural Default

A. Background

It is well established that a state prisoner may not seek

habeas relief in federal court if he has failed to raise the

alleged error in state court. If state proceedings remain

available, the claim is not yet exhausted, and the habeas

petition must be dismissed. See 28 U.S.C. S 2254(b)(1), (c)

11

(1994 & Supp. II 1996); Rose v. Lundy, 455 U.S. 509, 518-

19 (1982) ("A rigorously enforced total exhaustion rule will

encourage state prisoners to seek full relief first from the

state courts, thus giving those courts the first opportunity

to review all claims of constitutional error."). If state

avenues of relief, including post-conviction proceedings,

have been exhausted, but the petitioner has failed to raise

the alleged grounds for error, the claim is procedurally

defaulted and may not be raised in federal court. See

Coleman, 501 U.S. at 729-30; Wainwright v. Sykes, 433

U.S. 72, 81-87 (1977).

Recently, the Supreme Court made clear that a petitioner

procedurally defaults a claim if he fails to raise it in a

discretionary state appeal. See O'Sullivan v. Boerckel, 119

S. Ct. 1728, 1734 (1999). In Boerckel, the Court

acknowledged that the Illinois Supreme Court was not

obligated to hear an appeal in a criminal case, but relied on

the fact that it might take such an appeal to hold that

failure to petition for such review constituted procedural

default. Therefore, Hull's failure to timely petition the state

supreme court for allowance of appeal on his ineffectiveness

claim constitutes procedural default.

A petitioner with a defaulted claim may nonetheless raise

this claim in federal habeas proceedings if either (1) he can

demonstrate a valid cause for the default and prejudice

from the alleged violation of his constitutional rights, see

Coleman, 501 U.S. at 750; Sykes, 433 U.S. at 87, or (2) the

state has waived (or declined to rely on) the procedural

default, see Ylst, 501 U.S. at 801; Harris v. Reed, 489 U.S.

255, 262-63 (1989). We have already held that Hull cannot

meet the first prong of the cause-and-prejudice exception.

See Hull II, 991 F.2d at 93. Therefore, Hull can only bring

his current claim in federal court if the Pennsylvania courts

have waived the procedural default of failing to timely file

an appeal to the state supreme court from the Superior

Court's denial of his post-conviction claim. As we outlined

in detail supra Part I.C, our decision in Hull II gave Hull the

opportunity to return to state court to seek such a waiver.

The first question we must answer in this case is whether

12

he obtained this relief in his second trip to state post-

conviction court.2

B. Waiver of Hull's Procedural Default

1.

We briefly review the relevant events from Hull's two state

post-conviction proceedings, as these events furnish the

answer to the initial question. First, on September 30,

1988, the Pennsylvania Superior Court rejected Hull's

ineffective-assistance claim on the merits. Hull's counsel

then failed to timely file a petition for allowance of appeal

to the state supreme court. Almost seven years later, Hull

sought, and received, from the Franklin County Court of

Common Pleas leave to file a petition for allowance of

appeal nunc pro tunc to the state supreme court from the

Superior Court's 1988 decision. The leave was granted on

the basis of his post-conviction counsel's ineffectiveness in

failing to timely file such a petition originally or to notify

Hull of this failure in a timely fashion. See Commonwealth

v. Hull, Crim. No. 101-1975, slip op. at 5-6 (Pa. C.P. Ct.

Aug. 30, 1995). This leave to file a nunc pro tunc appeal,

granted by the state court, constituted a waiver of the

_________________________________________________________________

2. Before denying Hull's claim on the merits, the District Court rejected

the Magistrate Judge's finding that there had been no state waiver of

Hull's procedural default. The Commonwealth did not appeal this

decision of the District Court, nor do we believe it could have. See

Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333 (1980) ("Ordinarily,

only a party aggrieved by a judgment or order of a district court may

exercise the statutory right to appeal therefrom. A party who receives all

that he has sought generally is not aggrieved by the judgment affording

the relief and cannot appeal from it."). However, "[i]t is well accepted .

. .

that without filing a cross-appeal or cross-petition, an appellee may rely

upon any matter appearing in the record in support of the judgment

below." Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982). The

Commonwealth has raised the procedural-default issue in its brief, and

we therefore find it appropriate to reach this issue. Cf. Smith v. Horn,

120 F.3d 400, 408 (3d Cir. 1997) (noting that the court of appeals may

raise procedural default sua sponte), cert. denied, 118 S. Ct. 1037

(1998).

13

procedural default that arose when Hull failed originally to

timely appeal from the Superior Court's 1988 decision.

If the Commonwealth wished to avoid the state court's

waiver of the procedural default, it was incumbent upon it

to appeal this order of the Common Pleas Court. Initially, it

did so. However, after the Commonwealth failed tofile a

brief, the Superior Court dismissed its appeal. As a result,

the Common Pleas Court's (initial) order granting Hull the

relief he sought, i.e., a waiver of his procedural default so

that he could file a petition for allowance of appeal to the

Pennsylvania Supreme Court, remained in effect. Following

the trial court's granting of this relief, Hull timely filed his

petition for allowance of appeal nunc pro tunc, seeking

review of the Superior Court's 1988 decision. The state

supreme court denied the appeal without comment.

2.

While the Common Pleas Court qualified its order

granting Hull leave to file his nunc pro tunc petition by

providing that it was doing so only on the condition that

the state supreme court not consider such a petition

untimely, the state supreme court, in silently denying

Hull's petition, gave no indication that it was invoking this

"qualifier." It could have done so by either dismissing

(rather than denying) Hull's second petition, or by clearly

stating that Hull's petition remained untimely and that his

procedural default remained effective. It did neither, but

instead followed the trial court's granting of relief to Hull

with a denial of his second nunc pro tunc petition, without

comment. Therefore, we read the state supreme court's

unexplained denial of Hull's most recent nunc pro tunc

petition as "a determination on the merits of his ineffective

assistance of trial counsel claim by the Pennsylvania

Supreme Court, and, necessarily, a ruling by that court

that it waived Hull's procedural default of this claim on the

ground he received ineffective assistance of post-conviction

counsel." Hull II, 991 F.2d at 94.

In Hull II, we did not anticipate that Hull would obtain

the waiver he sought from a lower state court and then be

unable to have this relief ratified (or overturned) by the

14

state supreme court. We assumed that one of three things

would happen after Hull returned to state court. First, the

state supreme court could reject Hull's waiver argument,

and he would be procedurally barred from bringing his

federal habeas claim. Second, the state supreme court

could accept his waiver argument, then grant his petition

for allowance of appeal nunc pro tunc from the 1988

Superior Court decision, and rule on (and reject) the merits

of his ineffective-assistance claim, in which case he would

be able to raise his ineffective-assistance claim in federal

habeas court. Third, the state supreme court could accept

his waiver argument, but deny his petition for allowance of

appeal nunc pro tunc from the Superior Court's decision, in

which case he also would be able to raise his ineffective-

assistance claim in federal habeas court. See Hull II, 991

F.2d at 93-94 & n.6. Because the Commonwealth failed to

pursue its appeal from the state post-conviction court's

granting of a waiver of Hull's procedural default, the state

supreme court never had the formal opportunity, through

no fault of Hull's, to fulfill one of these three scenarios by

expressly accepting or rejecting Hull's waiver argument.

The actual course of events in state court was essentially

that outlined in Hull II's final scenario, i.e., acceptance of

Hull's waiver argument, and then denial of his petition for

allowance of appeal nunc pro tunc. However, it was the

state trial court, and not the state supreme court, that

accepted Hull's waiver argument, after which the state

supreme court denied the petition for allowance of appeal

from the Superior Court's 1988 decision. Although we did

not foresee, in Hull II, a scenario in which Hull's waiver

claim would never get past the state trial court, Hull only

needed a waiver from "the Pennsylvania courts," not

necessarily from the state's highest court. See id. at 93

("Hull can only obtain federal habeas review if the

Pennsylvania courts waive his procedural default."

(emphasis added)); cf. Ylst, 501 U.S. at 801 ("State

procedural bars are not immortal, however; they may expire

because of later actions by state courts." (emphasis added)).

Once a lower state court granted Hull a waiver, and the

Commonwealth failed to appeal from this order (and the

state supreme court did not indicate that the waiver was

improperly granted when it denied Hull's petition for

15

allowance of appeal), Hull had done what federal law and

our decision in Hull II required of him. To hold otherwise

would allow states to circumvent the waiver exception to

the procedural-default rule by failing to appeal from lower

state court decisions holding that a procedural default is

waived.

In short, our holding in Hull II compels the result in the

present case: We expressly held in Hull II that the state

courts would be deemed to have waived Hull's procedural

default if he was given permission to file a petition for

allowance of appeal nunc pro tunc (which he was) and the

state supreme court then denied that petition (which it did).

In fact, we held that, "as a matter of federal law," if the

state supreme court denied Hull's petition for allowance of

appeal under these circumstances, it would be deemed a

decision on the merits. See Hull II, 991 F.2d at 94 n.5; see

also Coleman, 501 U.S. at 739 ("It remains the duty of the

federal courts . . . to determine the scope of the relevant

state court judgment."). We are of course bound by Hull II

but, at all events, agree that on these facts when the

Pennsylvania courts granted Hull the right to file a petition

for allowance of appeal nunc pro tunc, the subsequent

denial of that petition was on the merits.

3.

Despite the foregoing, the Commonwealth argues that the

state courts have not waived Hull's procedural default

because the second post-conviction court issued a

supplemental opinion and order rejecting Hull's waiver

argument, fifty-five days after issuing its initial opinion and

order granting him relief. We agree that, if this is a valid

order regarding Hull's request for waiver of the procedural

default, and if he failed to adequately appeal from this

order, his federal habeas claim remains procedurally

barred. We reject the Commonwealth's argument, however,

because once an appeal was filed, state law clearly

precluded the post-conviction court from issuing a

"supplemental" order that completely reversed the effects of

its initial, valid order.

It is settled law in Pennsylvania that the timely filing of

a notice of appeal divests the trial court of jurisdiction to

16

take any further action in a case. See Pa. R. App. P.

1701(a). A court may grant reconsideration of its order if an

application for reconsideration is filed and granted within

the time provided for filing a notice of appeal (thirty days).

See Pa. R. App. P. 1701(b)(3). In this case, however, there

is no indication that the Commonwealth filed (or that the

trial court granted) such an application for reconsideration

within thirty days. Therefore, the court had no authority to

"reconsider" the merits of its initial order.

In issuing its "supplemental" order, the state court in this

case purported to rely on Pennsylvania Appellate Rule

1925, which allows a lower court to "enter an order

directing the appellant to file of record in the lower court

and serve on the trial judge a concise statement of the

matters complained of on the appeal." Pa. R. App. P.

1925(b). The purpose of the rule, as seen most clearly by

subsection (a), is to allow the lower court to clarify the

basis of its initial order to ensure meaningful appellate

review. See Pa. R. App. P. 1925(a) ("Upon receipt of the

notice of appeal the judge who entered the order appealed

from, if the reasons for the order do not already appear of

record, shall forthwith file of record at least a brief

statement, in the form of an opinion, of the reasons for the

order, or for the rulings or other matters complained of, or

shall specify in writing the place in the record where such

reasons may be found."); see also Commonwealth v. Stilley,

689 A.2d 242, 247 (Pa. Super. Ct. 1997); Franklin S. Van

Antwerpen et al., Plugging Leaks in the Dike: A Proposal for

the Use of Supplemental Opinions in Federal Appeals, 20

Cardozo L. Rev. 1233, 1235-36 (1999).

Nothing in Rule 1925, which involves only "clarification"

of lower court orders for the purpose of appeal, gives a trial

court authority to issue a supplemental opinion in which it

completely reverses its prior holding, more than thirty days

after entry of the original order and without an order

granting reconsideration of the original order. See

Pennsylvania Indus. Energy Coalition v. Pennsylvania Pub.

Util. Comm'n, 653 A.2d 1336, 1346 (Pa. Commw. Ct. 1995)

(holding that a lower tribunal that "made substantive

changes to its earlier decision" had effectively granted

reconsideration, not clarification, of that prior decision, and

17

it did not have authority to do so more than thirty days

after the prior decision was filed), aff'd per curiam, 670

A.2d 1152 (Pa. 1996); Commonwealth v. McMillan, 545 A.2d

301, 305 (Pa. Super. Ct. 1988) ("[I]t is well-settled that the

trial court loses all power to alter its orders,final or

interlocutory, thirty days from entry of judgment of

sentence unless an order granting reconsideration is

granted within that thirty day period."), aff'd per curiam,

567 A.2d 1043 (Pa. 1990).

Under Pennsylvania's rules of appellate procedure and its

unequivocal caselaw, the trial court's "supplemental"

decision had no effect on this case. Indeed, "it was a

nullity." Commonwealth v. Hairston, 470 A.2d 1004, 1006

(Pa. Super. Ct. 1984). Once the post-conviction court

granted Hull the relief he sought and thirty days passed

without the granting of a motion for reconsideration, the

trial court's order was final, and was alterable only by a

state appeals court. Cf. 42 Pa. Cons. Stat. Ann. S 5505

(West 1981) (permitting modification of a court order

"within 30 days after its entry . . . if no appeal from such

order has been taken").3 The Commonwealth abandoned its

_________________________________________________________________

3. The Pennsylvania Supreme Court recently addressed the issue of

"supplemental" orders indirectly. See Commonwealth v. Lantzy, ___ A.2d

___, No. 66 W.D. 1988, 1999 WL 455695 (Pa. July 7, 1999). In Lantzy,

a defendant's counsel failed to inform him that a trial court's

modification of his sentence was a nullity because it was entered more

than thirty days after imposition of the original sentence and without an

express grant of reconsideration. See id. at *1. Because the defendant

withdrew the appeal from his original (and only valid) sentence, and the

appeal from the modified (invalid) sentence was quashed, he lost any

opportunity to directly appeal his sentence. See id. The court held that

the advice (or lack thereof) that led to this scenario constituted

ineffective assistance of counsel. See id. at *7 ("As counsel lacked a

reasonable basis for failing to advise Lantzy that the sentence

modification would be invalid, counsel's representation was deficient.").

This implies that the state of the law in this area is quite well-settled.

The court additionally noted that it was questionable whether the

defendant "would have been able to compel the Department of

Corrections to honor the [modified] order had its validity been

challenged," citing a case that held that "mandamus does not lie to

compel the Department of Corrections to honor a facially invalid order."

18

only avenue of relief, however, when it failed tofile a brief

with the Superior Court. Therefore, the Pennsylvania courts

definitively waived Hull's procedural default when the order

granting such relief became final and not subject to further

appeal.4

_________________________________________________________________

Id. at *7 n.9 (emphasis added) (citing Fajohn v. Commonwealth, 692 A.2d

1067, 1068 (Pa. 1997)). In our view, this recent case confirms that a

supplemental or modified order, entered more than thirty days after an

initial order and unaccompanied by an express grant of reconsideration,

is a "nullity," is "facially invalid," and should be given no effect.

4. The post-conviction court issued its supplemental order reversing its

prior order because it found that the initial order was based on an

incorrect interpretation of state law. However, it is not clear that state

law would have precluded Hull from raising the issue of his trial

counsel's ineffectiveness in a second post-conviction petition.

Pennsylvania courts will entertain a post-conviction claim that has been

waived or that is contained in a second (or later) post-conviction

petition

if the petitioner makes "a strong prima facie showing . . . that a

miscarriage of justice may have occurred." Commonwealth v. Lawson,

549 A.2d 107, 112 (Pa. 1988). This condition is met when a petitioner is

actually innocent or when "the proceedings resulting in his conviction

were so unfair that a miscarriage of justice occurred which no civilized

society can tolerate." Commonwealth v. Szuchon, 633 A.2d 1098, 1100

(Pa. 1993); see also Lawson, 549 A.2d at 112 (Papadakos, J., concurring)

(defining miscarriage of justice as an error that is "so serious that it

undermined the reliability of the outcome of the proceeding," as when "a

conviction can be shown to result from a breakdown in the adversary

process").

The Pennsylvania courts, including the state supreme court, have

frequently considered the merits of petitioners' claims in second post-

conviction petitions, and have held that no miscarriage of justice

occurred because the underlying claims had no merit. For example, in

Commonwealth v. Jermyn, 709 A.2d 849 (Pa. 1998), the state supreme

court entertained a petitioner's claim, in a second post-conviction

petition, that "his prior counsel were ineffective for failing to raise"

the

issue of his competency to stand trial. Id. at 860. The court noted that

"Jermyn points to nothing which occurred during trial . . . to establish

that he was incompetent to stand trial and that the trial court should

have held a hearing on that issue." Id. at 862. It then observed that the

second post-conviction court had "concluded that there was no merit to

Jermyn's contentions" regarding his competency and had "ruled that

Jermyn failed to show that a miscarriage of justice occurred in this

19

4.

Finally, we choose to address the facial tension between

our conclusion today that the Pennsylvania Supreme

Court's silent denial of Hull's second petition for allowance

of appeal constituted a decision on the merits and our

determination in Hull II that the court's silent denial of

Hull's first petition was based on procedural default. The

primary basis for our decision in Hull II was the holding by

_________________________________________________________________

regard." Id. It concluded: "We agree with the PCRA court." Id. Chief

Justice Flaherty dissented, concluding that the failure of Jermyn's

counsel to raise the incompetency issue was "a miscarriage of justice

sufficient to warrant PCRA relief." Id. at 871 (Flaherty, C.J.,

dissenting).

The majority took issue with the Chief Justice's view of the merits, but

not with his assertion that such ineffectiveness of trial counsel would

constitute a miscarriage of justice. See id. at 862 n.34.

We view the discussion and holding in Jermyn (and in many similar

state cases) as implicitly recognizing that a due process claim such as

Hull's--i.e., that he was convicted of first-degree murder while

incompetent to stand trial--is potentially one in which "a miscarriage of

justice occurred which no civilized society can tolerate." As we discuss

infra Part IV.E, we believe that Hull's underlying claim is meritorious

and

that there is a reasonable probability that he was convicted while

incompetent to stand trial. Therefore, under state law, the post-

conviction court may have been correct in initially determining that Hull

was entitled to the relief he sought, which would allow him to raise his

claim before the Pennsylvania Supreme Court. Cf. Doctor v. Walters, 96

F.3d 675, 682 (3d Cir. 1996) (concluding that the Pennsylvania courts

might find a "miscarriage of justice" occurred, justifying waiver of a

procedural default, when a trial court "entered a verdict against

[petitioner] without convening any proceedings in open court and

without any semblance of resuming adversary proceedings").

More importantly, as we noted in Hull II,"the concept of federal-state

comity underlying federal habeas review entitles Hull to a state court

adjudication of his claim for waiver." Hull II, 991 F.2d at 91. Hull

sought

and obtained such an "adjudication of his claim for waiver," and

prevailed on that claim. The Commonwealth may not now allege error in

the trial court's initial (and only valid) ruling, from which it failed to

adequately appeal. When comity compels us to leave adjudication of an

issue to a state court, see id. at 91-93, it likewise requires us to

respect

that court's determination of the issue, despite the losing party's claim

that the determination was contrary to state law.

20

the Supreme Court in Ylst that an unexplained order of a

state court upholding a prior judgment of a lower court is

presumed to be based upon the same ground as that relied

upon by the lower court. See Ylst, 501 U.S. at 803. If the

lower court rejected a claim on the merits, a silent denial of

an appeal is presumed to be on the merits; if the lower

court relied on a procedural default, an unexplained order

affirming that judgment is presumed to similarly rely on

procedural default. Although neither of these situations--

which were the central focus of Ylst--accurately described

Hull's procedural posture, we looked, in Hull II , to the

Supreme Court's additional observation that the

presumption could be rebutted in certain situations, such

as when a lower court reached the merits of a federal claim,

but the appeal to the higher court "that issued the

unexplained order was plainly out of time," Ylst, 501 U.S.

at 804, as was the case here. On the basis of this

observation in Ylst, we concluded that the state supreme

court's denial of Hull's first untimely petition was based on

procedural default. See Hull II, 991 F.2d at 90-91.

The Court in Ylst, however, made clear that "procedural

bars are not immortal," as "later actions by state courts"

may lift them. Ylst, 501 U.S. at 801. While rejecting the

petitioner's argument in Ylst that his claim was not barred

because the state courts might waive his procedural

default, the Court acknowledged that "they could do so," id.

at 806, but found no evidence that they had. In this case

(unlike in Ylst), the petitioner did obtain such a waiver of

his procedural default from the state courts.5 Therefore, as

_________________________________________________________________

5. In Ylst, the Court explained that a procedural default would be lifted

if a state court presented with a federal constitutional claim reached the

merits of that claim after the procedural default had arisen in a lower

court. See Ylst, 501 U.S. at 801. We acknowledge that the Common

Pleas Court did not reach the merits of Hull's underlying claim in his

second post-conviction petition, but only granted Hull leave to file a

nunc pro tunc appeal to the state supreme court. Ylst, however, does not

address the precise situation here, as no court expressly rejected Hull's

claim on the basis of procedural default (as the state courts did in Ylst

and Coleman). Rather, in Hull II, we interpreted the state supreme

court's silent denial of Hull's untimely petition as being based on

procedural default. Because the Common Pleas Court and the Superior

21

Hull II contemplated, Hull obtained a waiver of his

procedural default, presented his substantive claim to the

one state court yet to hear that claim (the state supreme

court), and had the claim rejected.

Based on the foregoing, we hold that Pennsylvania has

waived Hull's procedural default that occurred when he

failed to file a timely petition for allowance of appeal to the

state supreme court from the Superior Court's 1988

decision rejecting his ineffective-assistance claim. We

therefore turn to the merits of this claim.

IV. Hull's Ineffective-Assistance Claim

A. Applicability of AEDPA

We must initially determine whether the Antiterrorism

and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L.

No. 104-132, 110 Stat. 1214, applies to Hull's ineffective

assistance claim. If it does, our review will be somewhat

different than theretofore because 28 U.S.C. S 2254(d)(1), as

amended by AEDPA, requires us to give heightened

deference to state court adjudications of habeas claims.

Hull argues that AEDPA does not apply to his claim

because the Supreme Court has held that petitionsfiled

before AEDPA's enactment on April 24, 1996, are governed

by the pre-AEDPA version of S 2254, see Lindh v. Murphy,

521 U.S. 320, 336 (1997), and his initial petition was filed

well before AEDPA's enactment. We disagree.

Hull's initial petition was dismissed without prejudice,

and it is only his present petition that is relevant for

_________________________________________________________________

Court had already addressed the merits of Hull's claim, they did not

need to do so again to excuse his procedural default.

The Supreme Court has never squarely addressed how a petitioner

may have a procedural default such as the present one excused by a

state court. It has only addressed the issue of"waiver" of procedural

default when one court has rejected a claim on the basis of procedural

default, and a higher court later addressed the merits of the claim. This

is not something Hull could have sought, as no state court explicitly

rejected his claim on the basis of procedural default, but rather we did

(in Hull II), based on our reading of Ylst and Coleman.

22

purposes of analyzing his ineffectiveness claim. His present

petition was filed almost a year after AEDPA's enactment,

and is therefore governed by the amended S 2254. See In re

Minarik, 166 F.3d 591, 598 (3d Cir. 1999) (interpreting

Lindh as holding that the post-AEDPA S 2254 applies to

petitions filed after April 24, 1996); cf. Matteo v.

Superintendent, SCI Albion, 171 F.3d 877, 884-85 (3d Cir.

1999) (en banc) (applying post-AEDPA S 2254(d)(1) to a

petition filed after AEDPA's enactment, although the

petitioner had filed a prior, dismissed petition before 1996),

petition for cert. filed, 68 U.S.L.W. 3008 (U.S. June 22,

1999) (No. 98-2050).

Given our holding in Minarik, it is only because Hull filed

a petition before AEDPA's enactment that he can even

plausibly argue that his claim is not governed by the

AEDPA amendments. Yet his pre-AEDPA petition was

dismissed without prejudice. Typically, when a complaint

(or habeas petition) is dismissed without prejudice, that

complaint or petition is treated as if it never existed. See,

e.g., Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997)

(holding that a habeas petition filed after a prior one was

dismissed without prejudice is considered the petitioner's

first habeas petition); cf. Cardio-Medical Assocs. v. Crozer-

Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983) ("It is a

well recognized principle that a statute of limitations is not

tolled by the filing of a complaint subsequently dismissed

without prejudice. As regards the statute of limitations, the

original complaint is treated as if it never existed.").

Therefore, the fact that Hull filed a prior (since dismissed)

petition is irrelevant to such issues as the law that applies

to his present petition.

We recently held, dealing with a cognate issue, that a

district court did not abuse its discretion in disallowing an

amendment to a S 2255 motion, when the amendment was

sought after the AEDPA limitations period had run. See

United States v. Duffus, 174 F.3d 333, 337 (3d Cir. 1999).

We reasoned that allowing the amendment would have

"frustrated the intent of Congress that claims under 28

U.S.C. S 2255 be advanced within one year after a judgment

of conviction becomes final." Id. If a petitioner cannot

amend a timely petition after a limitations bar has risen, we

23

think it unlikely that a petitioner could reach back to a

prior petition to avoid the effect of AEDPA's passage, which

occurred after the prior petition had been completely

dismissed and before the current petition had beenfiled.

While applying AEDPA's stricter standard to Hull's claim

may appear unfair, given his attempt to bring his current

claim to federal court well before AEDPA's enactment, he

did not have a cognizable federal habeas claim until

February 29, 1996, when his procedural default was waived

and his state post-conviction remedies exhausted. His

activity before that date, including the filing of a federal

habeas petition in 1989, is simply irrelevant for purposes of

determining which law applies to the present claim,

because it was only after February 29, 1996, that Hull

could petition a federal court for habeas relief on his

exhausted and non-defaulted claim. Once AEDPA became

effective approximately two months later, it governed all

new habeas petitions filed after that date, including Hull's

current petition, which was filed on March 6, 1997.

B. Standard of Review (Under AEDPA)

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

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States . . . .

28 U.S.C. S 2254(d)(1) (Supp. II 1996). Our recent en banc

decision in Matteo provides the post AEDPA standard for

reviewing a claim under S 2254(d)(1). Under Matteo, a

habeas writ should not be granted "unless the state court

decision, evaluated objectively and on the merits, resulted

in an outcome that cannot reasonably be justified under

existing Supreme Court precedent." Matteo, 171 F.3d at

890. We noted in Matteo that Congress clearly intended

24

federal habeas courts to defer to reasonable state court

adjudications of prisoners' claims: "Congress intended to

restrict habeas relief to cases in which the state court

judgment rested upon an objectively flawed interpretation

of Supreme Court precedent." Id. We also held in Matteo

that "federal habeas courts are [not] precluded from

considering the decisions of the inferior federal courts when

evaluating whether the state court's application of the law

was reasonable." Id. With this standard in mind, we

proceed to the merits of Hull's ineffective-assistance claim.

C. General Legal Principles

1. Ineffective Assistance of Counsel

The requirements for establishing ineffective assistance of

counsel are well-known, and we need not belabor the

general Strickland jurisprudence here. Hull must establish

two elements to succeed on his claim: (1) that his counsel's

performance regarding the competency issue was deficient,

and (2) that the deficient performance prejudiced him by

producing an unreliable result. See Strickland, 466 U.S. at

687. We have already held that Hull demonstrated thefirst

prong, see Hull I, 932 F.2d at 168-69, and we see no reason

to revisit that holding here. We thus confine our discussion

to the issue of prejudice.

Before considering whether the deficient performance of

Hull's trial counsel was prejudicial, we will briefly outline

the relevant law regarding competency to stand trial. We do

so not because we are deciding the underlying issue of

whether Hull was competent to stand trial in 1979, but

because the issue of prejudice is necessarily bound up in

the law of competency: Whether Hull was prejudiced by his

counsel's failure to cross-examine the government's single

witness or to present any evidence of his possible

incompetence is largely a function of whether Hull was in

fact incompetent at the time. See, e.g., Eddmonds v. Peters,

93 F.3d 1307, 1317 (7th Cir. 1996) (framing the issue in a

similar case as whether "there is a reasonable probability

that [petitioner] was not fit [to stand trial], calling into

question the integrity of the adversarial process"), cert.

25

denied, 520 U.S. 1172 (1997); Felde v. Butler, 817 F.2d

281, 282 (5th Cir. 1987) (noting that a petitioner would

satisfy Strickland's prejudice prong "only if he demonstrates

that there is a reasonable probability that but for[his

counsel's] failure to seek a competency hearing, he would

have been found incompetent to stand trial" (internal

quotation omitted)).

Regardless of Hull's guilt or innocence, his constitutional

right to effective counsel would be violated if he were

convicted of first-degree murder when there was a

reasonable probability that he was incompetent to stand

trial. We reiterate also that, under the recent amendments

to S 2254, we are not undertaking simply an independent

analysis of this question. Rather, when a habeas petitioner

presents a claim that has been "adjudicated on the merits

in State court proceedings," 28 U.S.C. S 2254(d), the writ

should not be granted "unless the state court decision,

evaluated objectively and on the merits, resulted in an

outcome that cannot reasonably be justified under existing

Supreme Court precedent." Matteo, 171 F.3d at 890.

2. Competence to Stand Trial

The basic rule for competency to stand trial is that a

defendant must (1) have "sufficient present ability to

consult with his lawyer with a reasonable degree of rational

understanding" and (2) possess "a rational as well as

factual understanding of the proceedings against him."

Dusky v. United States, 362 U.S. 402, 402 (1960) (per

curiam) (internal quotation omitted); see also Pate v.

Robinson, 383 U.S. 375, 385 (1966) (holding that failure to

provide adequate procedures to ensure that the Dusky test

is met deprives a defendant of his constitutional right to a

fair trial).

Following Dusky and Robinson, the Supreme Court held

in Drope v. Missouri, 420 U.S. 162 (1975), that a habeas

petitioner's due process rights had been violated when a

state court failed to determine his competency,

notwithstanding his suicide attempt during trial, his wife's

testimony at trial regarding his strange behavior, and a

pretrial psychiatric evaluation that contained equivocal

26

evidence of incompetence. See id. at 175-80. A defendant

presenting similar evidence of incompetency would

presumably be prejudiced by either the trial court's failure

to grant a competency hearing or his counsel's failure to

request one.

Moreover, a defendant's right to be tried only when

competent would presumably be violated if his counsel's

conduct at a competency hearing was the virtual equivalent

of failing to request a competency hearing in a case in

which the indications of incompetency were as strong as

they were in Drope. See also United States ex rel. McGough

v. Hewitt, 528 F.2d 339, 342-43 (3d Cir. 1975) (relying on

Drope and Robinson to hold that a petitioner was

improperly denied "the opportunity to interrogate and

cross-examine the psychiatrists" who had found him

competent to stand trial, given that they reported his

history of commitment in a state hospital "as a result of

bizarre activities at his home," and his " `obsessive thinking

and antisocial forms of behavior' "). Although the Superior

Court did not cite any of these cases, this was the state of

the law at the time of its 1988 decision denying Hull's state

post-conviction petition, as well as at the time of the 1979

competency hearing.6

D. The Facts Regarding Hull's Incompetence

We emphasize that our task is not to determine whether

there is a reasonable probability that Hull would not have

been convicted, absent his counsel's errors. Rather, we are

assessing whether there is a reasonable probability that he

would have been found incompetent to stand trial if not for

the deficient performance of his attorney. Therefore, it is

_________________________________________________________________

6. In 1983, when the Supreme Court overturned a court of appeals' grant

of habeas relief in a competency case, it noted that"[t]here is no dispute

as to the proper legal standard to be applied for determining the

correctness of the trial court's actions" regarding the petitioner's

competency. Maggio v. Fulford, 462 U.S. 111, 116 (1983) (per curiam)

(citing Robinson and Drope). Therefore, at the time of the Superior

Court's decision on Hull's ineffective-assistance claim, Robinson and

Drope remained the leading cases interpreting the requirements for

competency to stand trial.

27

important to outline the relevant facts available to Hull's

counsel at the time of his competency hearing. See Buehl v.

Vaughn, 166 F.3d 163, 172 (3d Cir.) ("It isfirmly

established that a court must consider the strength of the

evidence in deciding whether the Strickland prejudice prong

has been satisfied."), cert. dismissed, 119 S. Ct. 2418

(1999).

1. The Medical Evaluations of Hull

In 1975, shortly after his arrest, Hull was found

incompetent to stand trial. He was committed to Farview

State Hospital, and given an initial medical diagnosis of

borderline mental retardation and schizophrenia (chronic,

undifferentiated type). In the first medical evaluation in the

record, which occurred in March 1976, almost a year after

Hull was committed to Farview, Dr. B.J. Willis reported:

The staff was of the opinion that this patient continues

to show clear signs of a disabling and dangerous

mental condition that makes him a considerable risk.

The staff was of the opinion that the patient is not now

competent to stand trial and that he should be

retained in the hospital for further treatment. It was

the opinion of the staff that only the firm control and

structure of this institution keeps the patient's

behavior within bounds.

App. at 426.

Hull was evaluated again approximately five months

later, on August 4, 1976, by Dr. Arthur D. Boxer. Dr. Boxer

found that Hull still was not competent to go to trial. See

id. at 427. Five months later, on January 12, 1977, Hull

was evaluated by nine Farview staff members. Reporting on

their evaluation, Dr. John P. Lesniak concluded that Hull

"cannot participate in his own defense," that he was

"potentially dangerous," and that he "still[was] not

competent to stand trial." Id. at 428. Later that month, Dr.

Donald N. Twaddell concluded that Hull "is hardly in a

position to be considered competent to stand trial, to

consult adequately with counsel, or to testify in his own

defense." Id. at 429. Dr. Twaddell described Hull as

"frequently and quite actively hallucinatory and disturbed

28

in both the auditory and visual areas with morbid thoughts

of death." Id.

Five staff members evaluated Hull in May 1977, and

concluded that Hull, "although improved, continues to be

incompetent to stand trial at this time." Id. at 432. On

February 15, 1978, Dr. Lawrence Chang reported:

History indicates that [Hull] gives a picture of a mental

defective who has been unable to read or write. He

went as far as only the fourth grade at the age of 15.

. . . He remains to be psychotic throughout his

hospitalization here with the repeated episode of

hearing voices telling him to kill someone and that

God's voice tells him not to do harm to anyone . . ..

His inability to comprehend the nature of his act is a

product and manifestation of his mental illness and

mental retardation. Therefore, he is not considered to

be mentally competent to stand trial at this time. It is

also further recommended that due to his both

homicidal and suicidal tendencies, he should continue

to be in a setting of maximum security for his own

protection and of others.

Id. at 433. Dr. Chang evaluated Hull four more times

during 1978, in April, June, August, and October. See id.

at 434-37. Each time he concluded that Hull remained

incompetent to stand trial due to "his chronic mental

illness and limited mental capacity." Id. at 437. In

November 1978, Dr. J. Michael Shovlin suggested that Hull

might be having "a psychotic depressive reaction" to

Lithium Therapy, and concluded that Hull was still

incompetent to stand trial. Id. at 438. Dr. Chang evaluated

Hull again in January 1979 and found his condition

unchanged, noting that "he has been undergoing numerous

psychotropic drug therapies, without noticeable

improvement," since his admission to Farview. Id. at 439.

On April 9, 1979, less than two weeks before the court-

appointed psychiatrist, Dr. Stamey, evaluated Hull (and

later testified that he was competent to stand trial), Dr.

Kenneth Detrick reported that Hull's condition "does not

seem to be appreciably different from any of the other

examinations." Id. at 440. He concluded that "his mental

29

incapacity continues to be so severe that he remains

incompetent to stand trial for his crime and should

continue at Farview State Hospital for further treatment."

Id.

On April 20, 1979, at the request of the Franklin County

Court of Common Pleas, Dr. Stamey evaluated Hull, and on

May 4, 1979, the doctor sent his report to the court. In his

report, Dr. Stamey noted that Hull's "thoughts were logical

and coherent and goal directed, and somewhat forceful." Id.

at 443. He also found Hull's affect "appropriate, but

shallow." Id. Dr. Stamey did not find Hull to be suicidal.

See id. He reported that Hull had "some [insight], but not

much," and that Hull was "a relatively simple soul, not a

deep thinker or feeler." Id. at 444. Dr. Stamey found that

Hull's judgment was "good within his intellectual limits,"

but that "under increased stress it might break down." Id.

Although Hull's schizophrenia appeared to Dr. Stamey to be

"in a degree of remission" at that time, he found the

remission "fragile," and noted that Hull "has very little in

the way of coping mechanisms, still harbors a good bit of

suspicion, and is very defensive in many areas." Id. at 445.

In conclusion, Dr. Stamey opined that Hull was

"competent to stand trial and probably would remain so

throughout the trial if it is not overly stressful." Id. He

thought it "worth a try," though he cautioned that Hull

should be watched closely for "signs of regressing." Id.

Specifically regarding the two requirements of competency,

Dr. Stamey noted that Hull had "some intellectual and

emotional understanding of the charges, what might

happen to him because of them, and what the alternatives

are," and that Hull "could help his lawyer within the limits

of his intelligence." Id. However, he qualified his opinion by

noting that Hull "could regress very quickly and become

incompetent" under even a small amount of stress. Id.

On May 3, 1979, Hull was evaluated again, and found

incompetent to stand trial by Farview staff. See id. at 446-

53. In the final medical evaluation prior to the competency

hearing, on July 23, 1979, Dr. Norman E. Wenger expressly

disagreed with Dr. Stamey's conclusion regarding Hull's

competency to stand trial, and recommended that Hull

30

"receive another period of in-patient, psychiatric

hospitalization at this facility." Id. at 454.

Following the court's adjudication of Hull as competent to

stand trial on July 31, 1979, see infra Part IV.D.2, and

Hull's general guilty plea on August 3, 1979, his trial

counsel requested (and the court apparently ordered) a

psychiatric evaluation of Hull in preparation for the degree-

of-guilt hearing. As a result, on August 15, 1979, Dr.

Robert L. Sadoff evaluated Hull. The focus of Dr. Sadoff 's

evaluation appears to have been on Hull's state of mind at

the time of the crime, not at the time of the competency

hearing. See App. at 456-60. Dr. Sadoff concluded that Hull

had acted with diminished mental capacity at the time of

the shooting, and closed his report with these words:

Whatever the final determination by the court about

the degree of homicide, it is my strong recommendation

that Mr. Hull be treated intensively in a hospital setting

for a prolonged period of time. The combination of his

illness, borderline mental retardation and poor impulse

control, with alcoholism is a potentially explosive and

violent combination which requires security measures

as well as medication and a therapeutic environment.

At one level Mr. Hull is aware of the situation in which

he is involved to the point that he wants to be put to

death by the State for what he says he has done. He

says, "I don't deserve to live." On the other hand, he

wants to live and wants to engage in constructive

rehabilitative efforts. However, these efforts will be

long-term and his recovery will be slow and the

remission is fragile at the present time. Moderate

degrees of stress will be sufficient to cause further

decompensation and deterioration in Mr. Hull's

condition. He will require continued medication as well

as security treatment.

Id. at 460-61.

As for Hull's then-current state of mind, Dr. Sadoff noted

that Hull "believes that he is competent" and"believes that

he should be found guilty and should be given the death

penalty for what he did." Id. at 455. Dr. Sadoff concluded

that "Hull is mentally competent to proceed in this legal

31

situation. He understands the nature and consequences of

his legal condition and can work with counsel in preparing

a rational defense." Id. at 459. At this point, however, Hull

had already been adjudicated competent (as his counsel

had requested, see id. at 424), and his guilty plea to

murder had been accepted.

2. The Competency Hearing

The competency hearing was held on July 31, 1979.

Despite the 1975 finding that Hull was incompetent, and

the veritable phalanx of medical reports that Hull remained

incompetent, the entire hearing took less than an hour and

is reproduced in only four pages of transcript. See id. at

421-24. As noted above, only one witness, Dr. Stamey,

testified. Because of its central importance in this case, we

include in the margin the entire transcript from the

competency hearing.7

(Text continued on page 34)

_________________________________________________________________

7. The competency hearing began with the government calling Dr.

Stamey to the stand:

BY MR. WALKER [the District Attorney]:

Q Dr. Stamey, what is your occupation?

A I am a physician, psychiatrist.

Q Are you associated with any hospital?

A A senior vice president and medical director of the Geisinger

Medical Center in Danville.

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

A At George Washington University.

Q Where did you do your medical training?

A Also at George Washington University.

MR. MARTIN [Hull's trial counsel]: Your Honor, we will

stipulate to Dr. Stamey as being a psychiatrist.

THE COURT: Very well.

BY MR. WALKER:

Q Dr. Stamey, going back to April 20, 1979, did you have

occasion to evaluate Larry Gene Hull?

32

A Yes, sir.

Q Is Larry here in the courtroom today?

A Yes.

Q Where is he seated?

A Right there (indicating.)

Q Where was that evaluation at?

A At the Farview State Hospital in Waymart.

Q From your evaluation of Mr. Hull on that date, were you able

to form an opinion as to whether Mr. Hull would be able to

understand the nature or object of the proceedings against him?

A Yes, sir.

Q What is that opinion?

A I feel that he could.

Q What is your opinion as to whether or not Mr. Hull would be

able to participate and assist in his defense?

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

MR. WALKER: I have no further questions.

THE COURT: Cross examine.

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

THE COURT: Do you understand, Mr. Hull, t hat your attorney

has the right to cross examine the doctor to find out what it was

that formed the basis of the doctor's opinion as he has reported

it.

Do you understand that?

THE WITNESS [Hull]: Yes, I do.

THE COURT: And understanding that, had yo u told your

attorney that you do not request him to cross examine the witness?

THE WITNESS: Yes.

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

seated.

MR. WALKER: Your Honor, that is all that we have for the

Commonwealth's case.

33

At the hearing, the government asked Dr. Stamey only

two substantive questions: Whether he believed "Hull would

be able to understand the nature or object of the

proceedings against him," id. at 422, and whether "Hull

would be able to participate and assist in his defense," id.

at 423. To the first question, Dr. Stamey answered, "I feel

that he could." Id. In response to the second question,

regarding Hull's assisting in his defense, Dr. Stamey

apparently referred to his evaluation of Hull approximately

three months earlier: "At that time I felt that he could do

so." Id. Dr. Stamey did not elaborate on either answer, and

was asked no further questions by the district attorney.

Hull's counsel, when asked by the court to cross-examine

Dr. Stamey, responded, "We have no questions, Your

Honor." Id.

The Commonwealth presented no other evidence of Hull's

competence. There is also no indication in the record that

the government introduced Dr. Stamey's report into

evidence. When the government stated that it had no

additional evidence or witnesses to present, the court asked

Hull's counsel if he had any evidence to present. He

responded, "No, we have none." Id. At this point, the court

_________________________________________________________________

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

MR. MARTIN: No, we have none.

THE COURT: All right, we will make an ord er. Mr. Martin, is

there any objection to our making an order finding Mr. Hull

competent to stand trial?

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

to it.

THE COURT: You request it?

MR. MARTIN: Yes.

App. at 421-24.

The record reflects that the court then entered an order. Following a

sidebar discussion off the record, the court set a trial date of September

10, 1979, and remanded Hull to Franklin County Prison pending trial.

See id. at 424.

34

entered an order finding Hull competent to stand trial,

which Hull's counsel expressly "agreed to." Id. at 424.

E. Prejudice to Hull

Initially, we reiterate that under AEDPA and Matteo, we

must look at the last state court decision on the merits of

a petitioner's claim to determine if that decision,"evaluated

objectively and on the merits, resulted in an outcome that

cannot reasonably be justified under existing Supreme

Court precedent." Matteo, 171 F.3d at 890. The last state

court decision on the merits of Hull's ineffective-assistance

claim is the Superior Court's 1988 decision. That decision,

"evaluated objectively and on the merits," reveals little

discussion of the issue before us--prejudice under

Strickland. The only aspect of the court's opinion that

appears to refer to this issue is its determination that the

colloquy at Hull's guilty plea on August 3, 1979,

demonstrated his "ability to recount in detail his actions

and emotions at the time of the murder," Commonwealth v.

Hull, No. 215 Harr. 1988, slip op. at 3-4 (Pa. Super. Ct.

Sept. 30, 1988), which established both his ability to assist

his counsel and his understanding of the proceedings

against him, see id. at 4.8

Under Strickland, a petitioner alleging prejudice from his

counsel's deficient performance "must show that there is a

reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would

have been different." Strickland, 466 U.S. at 694. "A

reasonable probability is a probability sufficient to

_________________________________________________________________

8. The Common Pleas Court's decision on this issue, included in its

opinion and order of February 22, 1988, contains a similar analysis. See

Commonwealth v. Hull, Crim. No. 101-1975, slip op. at 9 (Pa. C.P. Ct.

Feb. 22, 1988) ("We have independently reviewed defendant's testimony

at the guilty plea proceeding . . ., and note that defendant testified in

a

cogent, coherent manner, giving no indication whatever of incompetency

at the time of such testimony."). We note incidentally that the Common

Pleas Court assumed--incorrectly in our view--that the burden remained

on Hull to rebut the presumption of competence with clear-and-

convincing evidence, despite the earlier adjudication that found him

incompetent to stand trial. See id. at 9-10; cf. supra Part I.A.

35

undermine confidence in the outcome." Id. This standard

"is not a stringent one." Baker v. Barbo, 177 F.3d 149, 154

(3d Cir. 1999) (citing Nix v. Whiteside, 475 U.S. 157, 175

(1986)). It is less demanding than the preponderance

standard. See id. Therefore, to prove that he was prejudiced

by his counsel's performance, Hull need not demonstrate

that he definitely was incompetent in 1979. Rather, he

must only establish that there was a reasonable probability

that he was.

Applying this standard from Strickland and our

interpretation of S 2254(d)(1) from Matteo, we conclude that

it was objectively unreasonable for the Superior Court to

implicitly find that there was no "reasonable probability"

that the outcome of Hull's competency hearing would have

been different if not for his counsel's failure to cross-

examine Dr. Stamey or to present evidence in support of

Hull's incompetence.

Supreme Court precedent as of 1988 clearly required

more of a state court than the summary conclusion that

the Superior Court drew from the plea colloquy. 9 Pate v.

Robinson, decided more than a decade before Hull's

competency hearing, required states to provide adequate

procedures to ensure that only competent defendants were

tried (and convicted). Drope v. Missouri, also decided before

the competency hearing and well before the Superior

Court's 1988 decision, held that a habeas petitioner's due

process rights were violated when a state court did not

consider evidence of his incompetence, even though his

incompetence was far from certain. Indeed, in 1975, we

relied on these two cases in McGough to find that a habeas

petitioner's constitutional rights were violated when he was

not given the opportunity to cross-examine psychiatrists

who deemed him competent to stand trial--one of the bases

on which we have found that Hull's trial counsel was

deficient. See Hull I, 932 F.2d at 168; cf. Matteo, 171 F.3d

at 890 ("[F]ederal habeas courts are [not] precluded from

considering the decisions of the inferior federal courts when

_________________________________________________________________

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

cases discussed supra Part IV.C.2, were decided before the Superior

Court's consideration of Hull's ineffective-assistance claim in 1988.

36

evaluating whether the state court's application of the law

was reasonable.").

These cases unequivocally provide that a criminal

defendant is entitled to adequate procedures, including the

opportunity to present evidence and to cross-examine

government witnesses, when his competency is at issue.

When a defendant has not only already been found

incompetent to stand trial, as Hull was before the 1979

competency hearing, but when numerous evaluations of his

mental condition indicate that he remains incompetent, his

competency to stand trial must be carefully considered by

the court before a trial may be held or a guilty judgment

entered. Under these circumstances, when a defendant's

own attorney fails to effectively use the procedures to

determine competency that are mandated by Supreme

Court precedent, we believe that the prejudice to the

possibly still-incompetent defendant is manifest.

The state courts did not discuss at length the evidence

regarding Hull's competence. The District Court did outline

Dr. Stamey's findings, and observed that the many doctors

who found Hull incompetent "addressed Hull's past

condition and not his condition as of the date of the

hearing." Hull v. Freeman, Civ. No. 89-0681, slip op. at 14-

15 (M.D. Pa. Oct. 18, 1991). However, four of the

evaluations occurred in 1979, within six months of the

competency hearing, and fifteen different evaluations

between 1976 and 1979 found Hull incompetent while only

the single evaluation of Dr. Stamey resulted in afinding of

competency. Dr. Stamey's opinion, moreover, was not based

on Hull's condition on the date of the hearing, but on his

evaluation of Hull more than three months earlier. Even a

short, simple cross-examination could have highlighted this

fact, as well as Dr. Stamey's own concessions that Hull

"could regress very quickly and become incompetent," and

that his putative remission was "fragile" (and might have

already shattered in the three months since the doctor's

observation of Hull).

The District Court acknowledged that "Dr. Stamey's

written report was not admitted into evidence at the

competency hearing," id. at 5, though it discussed the

report at length before rejecting Hull's claim, see id. at 11-

37

13. However, when determining whether there is a

"reasonable probability" that the Common Pleas Court

would have reached a different conclusion in the absence of

counsel's inadequate performance, we should not assume

that it considered Dr. Stamey's report in reaching its actual

conclusion. Cf. Meyers v. Gillis, 142 F.3d 664, 669 (3d Cir.

1998) ("[W]e cannot go beyond the record to refute

[petitioner's] assertion of prejudice."). In fact, the record

does not reveal that the Common Pleas Court considered

any of the reports on Hull's competency and arguably it

would have had no reason to do so once Hull's counsel

"agreed" at the competency hearing that Hull was

competent to stand trial. We note, however, that Hull was

found incompetent on three different occasions in mid-

1979, including twice after Dr. Stamey's evaluation and

before the competency hearing.

It is not certain that the state court would have found

Hull incompetent on the basis of this evidence from the

mid-1979 evaluations (or even on the basis of the twelve

previous evaluations that found him incompetent, and the

detailed descriptions of his psychosis and mental illness in

all of the evaluations). But we have no troublefinding that

there is a reasonable probability that the court would have

determined that Hull had not regained his competence to

stand trial if this evidence had been presented by Hull's

counsel, and if Dr. Stamey had been pressed even slightly

on the qualified and equivocal nature of his report's

conclusions.

At the juncture of the dual constitutional requirements of

effective assistance of counsel and a defendant's

competency, the Supreme Court has implied that defense

counsel has a special role in effectively ensuring that a

client is competent to stand trial. See Drope, 420 U.S. at

177 n.13 ("Although we do not, of course, suggest that

courts must accept without question a lawyer's

representations concerning the competence of his client, an

expressed doubt in that regard by one with `the closest

contact with the defendant,' is unquestionably a factor

which should be considered." (citations omitted)). Defense

counsel's special role arises not only from the typical

attorney-client relationship, but from the very fact that the

38

defendant may be unable to appreciate the proceedings or

to assist his attorney (or to make an intelligent decision on

challenging his competency). Cf. Robinson, 383 U.S. at 384

("[I]t is contradictory to argue that a defendant may be

incompetent, and yet knowingly or intelligently`waive' his

right to have the court determine his capacity to stand

trial."). Hull would clearly appear to have been prejudiced

by his counsel's failure to "express[ ] doubt" regarding his

competency by cross-examining the government's single

witness or presenting any of the large body of evidence in

support of Hull's incompetence to stand trial.

In Strickland, the Court noted that the "benchmark for

judging any claim of ineffectiveness must be whether

counsel's conduct so undermined the proper functioning of

the adversarial process that the trial cannot be relied on as

having produced a just result." Strickland, 466 U.S. at 686.

We think it abundantly clear that counsel's conduct at the

competency hearing in this case, given the demonstrated

and overwhelming evidence of Hull's incompetence,

"undermined the proper functioning of the adversarial

process" of a competency hearing, which was required (in

1979) by Supreme Court precedent and the Due Process

Clause, so that we cannot say that a just result--i.e., the

conviction of a competent and guilty defendant--occurred.

This certainly is not a case in which we can say that

prejudice did not result from counsel's failure to act

because counsel took sufficient alternative steps to ensure

that defendant was adequately represented. Cf. Hess v.

Mazurkiewicz, 135 F.3d 905, 909 (3d Cir. 1998) (holding

that a defendant suffered no prejudice from counsel's

failure to call certain alibi witnesses because his counsel

had "presented a plausible, if ultimately unsuccessful, alibi

defense" through other witnesses).

Finally, we note that prejudice to a defendant is

presumed when his counsel's performance is so deficient as

to effectively constitute a denial of the right to counsel. See

Strickland, 466 U.S. at 692. In this case, despite the strong

evidence of Hull's incompetence (evidence that could

presumably be presented only by counsel), Hull's trial

counsel "agreed" at the conclusion of the competency

hearing that Hull was competent to stand trial. This is

39

essentially tantamount to "constructive denial of the

assistance of counsel altogether[, which] is legally

presumed to result in prejudice." Id. The order of the

District Court must therefore be reversed and the case

remanded with instructions to grant the writ.

V. Conclusion

When Hull was first granted the writ by the district court

in 1990, that court appeared to believe that the state court

should readjudicate Hull's competency to stand trial as of

1979, effectively redoing the flawed competency hearing.

However, in Hull I, we explained that if Hull's ineffective-

assistance claim was not procedurally defaulted and if he

proved prejudice from his counsel's deficient performance,

the writ should be granted conditioned on his being retried

--not conditioned on his competency in 1979 being

readjudicated. We believe this remains the proper

disposition of Hull's successful habeas petition.

The state may retry Hull if it chooses, and the writ will be

granted conditioned on his retrial within 120 days. Because

he was found incompetent to stand trial at his last valid

competency hearing (in 1975), the state must first establish

that Hull has presently regained his competency to stand

trial before retrying him. At this point, his actual

competency as of 1979 is irrelevant to any criminal

proceedings against him. See Dusky, 362 U.S. at 403

(remanding to the trial court "for a new hearing to ascertain

petitioner's present competency to stand trial," given "the

. . . difficulties of retrospectively determining the

petitioner's competency as of more than a year ago"); see

also Drope, 420 U.S. at 183 (same, when competency

hearing was held six years before writ was granted);

Robinson, 383 U.S. at 387 (same).

For the foregoing reasons, the judgment of the District

Court will be reversed and the case remanded for the

granting of a writ of habeas corpus conditioned on Hull's

being retried within 120 days, with the understanding that,

if Hull cannot be tried within this period because he is

found incompetent to stand trial, the state has at its

disposal procedures for treating Hull, see Pa. Stat. Ann. tit.

40

50, SS 7401-7407 (West Supp. 1999), and it may retry him

within 120 days of his regaining his competency to stand

trial should he do so.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

41