UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOUGLAS A. SPITZNAS,

Petitioner-Appellant,

v.

BOBBY BOONE,

Respondent-Appellee.	No. 99-6158

(D.C. No. 98-CV-133-L)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and LUCERO, Circuit Judges.

Petitioner-Appellant Douglas A. Spitznas petitioned the United States District Court for the Western District of Oklahoma for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied his claims and declined to grant a Certificate of Appealability ("COA") on any issue. We granted COA on four issues and ordered responsive pleadings from Respondent/Appellee Bobby Boone. Those issues are: (1) Whether, after previously having been declared incompetent but capable of achieving competency, Appellant was afforded a second determination of competency prior to entering his guilty plea; (2) Whether Appellant was legally insane at the time he committed the acts in question; (3) Whether Appellant received ineffective assistance of trial counsel; and (4) Whether Appellant received ineffective assistance of appellate counsel.

Upon consideration of the pleadings submitted to this court as well as an examination of the record, we find that there does not exist a sufficient evidentiary basis to satisfactorily resolve these issues. We are concerned with the ambiguity of the record regarding whether Appellant received a second determination of competency before entering his guilty plea. Despite Appellee's contentions to the contrary, Appellant steadfastly asserts that a proper hearing was not held. The record before us does not clearly answer this question. A document titled "Order to Resume Criminal Proceedings" was entered by the state district judge, indicating that Appellant had regained competency to stand trial. It appears from that document, however, that only the state's attorney was present before the court that day, and that a hearing on the issue was scheduled but apparently did not commence. Appellant's trial counsel later signed the document as "OK," but it is unclear whether he was attempting to waive the hearing.

We are also concerned that the record does not allow adequate consideration of Appellant's claim that his trial counsel misled him into entering a guilty plea. Appellant's assertions directly contradict those of his counsel, and presumably Appellant would have been able to pursue an insanity defense had he gone to trial. Trial counsel's self-serving affidavit is not sufficient under these circumstances to resolve this question. Furthermore, the uncertainty surrounding both Appellant's competency claim and his alleged inability to pursue his chosen defense necessarily impact his claims of ineffective assistance of trial and appellate counsels.

The federal district court denied Appellant's request for an evidentiary hearing, but reviewed affidavits from Appellant's trial and appellate counsels as well as a transcript of Appellant's guilty plea proceedings. Appellant objected to the court's reliance on these affidavits and again requested an evidentiary hearing. The court denied this request.

We hold that the record is insufficient to resolve these claims on appeal. Whether Appellant did, in fact, receive a second determination of competency cannot be determined from the record, nor can we evaluate Appellant's claim that by deceiving him into entering a guilty plea, his trial counsel prevented him from asserting an insanity defense. These potential errors necessarily bear on whether Appellant's counsel were ineffective at trial or on appeal. Accordingly, we remand this case to the Western District of Oklahoma with instructions to hold an evidentiary hearing regarding these matters and allowing Appellant to present all proper evidence.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge