Double Deference Reaffirmed: Showing Strickland Prejudice on Competency Claims Requires Proof of Likely Incompetence, Not Just Eligibility for a Competency Trial

Case: Lizcano v. Guerrero

Court: United States Court of Appeals for the Fifth Circuit (per curiam; not designated for publication)

Date: September 11, 2025

Panel: King, Smith, and Douglas, Circuit Judges

Disposition: District court’s denial of § 2254 habeas relief affirmed

Introduction

This appeal tests how steep AEDPA’s “double deference” is when a state prisoner claims ineffective assistance of counsel based on trial counsel’s decision not to press competency proceedings. Juan Lizcano, a Texas capital defendant convicted of murdering a Dallas police officer, alleged that his trial counsel rendered ineffective assistance by withdrawing a pretrial competency motion and by failing to sufficiently investigate and litigate his competence to stand trial. After the state courts rejected his claim and a federal district court denied § 2254 relief (and, out of caution, rejected the claim on de novo review as well), the Fifth Circuit granted a limited certificate of appealability on whether counsel were ineffective for failing to continue competency proceedings. The Fifth Circuit now affirms, holding that under AEDPA and Strickland, Lizcano failed to demonstrate prejudice—i.e., a reasonable probability that he would have been found incompetent to stand trial—particularly in light of a neutral court-appointed expert’s contemporaneous opinion of competence and the deference owed to the state habeas court’s factual findings and credibility determinations.

Summary of the Opinion

The Fifth Circuit affirms the denial of federal habeas relief. Applying AEDPA’s relitigation bar (28 U.S.C. § 2254(d)), the court concludes that Lizcano did not show the state habeas court’s rejection of his ineffective-assistance claim was based on an unreasonable determination of the facts or an unreasonable application of clearly established federal law. The court resolves the appeal at Strickland’s prejudice prong without reaching performance deficiency.

Key to the decision are these points:

Under AEDPA, federal habeas courts must defer to the state court’s decision unless no fairminded jurist could agree with it (on law) or unless the decision rests on an unreasonable determination of the facts.
To show prejudice on an ineffective-assistance claim premised on failure to pursue competency, a petitioner must show a reasonable probability he was actually incompetent to stand trial—more than just that a competency trial would have been convened.
Although the trial court initially found “some evidence” warranting a competency trial (a low threshold under Texas law), that does not establish a reasonable probability of ultimate incompetency by a preponderance.
The state habeas court reasonably credited a neutral, court-appointed expert’s competence finding, discounted retrospective and methodologically limited defense opinions, and found no persuasive indicia of incompetency such as recent severe mental illness, moderate intellectual disability, or truly bizarre acts.
Even if one discrete state finding (“no evidence”) was overstated, the overall decision survived § 2254(d)(2) because the remaining supported findings sustain the ultimate conclusion that prejudice was not shown.

Detailed Analysis

Procedural Posture and Factual History

After jury selection, Lizcano’s bilingual defense team moved for a competency evaluation based on counsel’s doubts and neuropsychological testing indicating very low IQ scores. The trial court first appointed Dr. Antoinette McGarrahan, who found competence, but replaced her due to a potential conflict with one of the State’s experts. The court appointed Dr. William Flynn, who evaluated Lizcano with a Spanish-language interpreter, concluded Lizcano did not meet criteria for intellectual disability on adaptive functioning grounds, and opined that he was competent to stand trial (understanding proceedings, penalties, defenses, outcomes, and able to consult with counsel).

Defense expert Dr. Gilbert Martinez had reported marked cognitive limitations and opined Lizcano lacked a rational or factual understanding of proceedings and the present ability to consult with counsel. At an in-chambers conference, the trial judge explained that proceeding to a competency trial with Dr. Martinez would require disclosure of underlying expert materials (including mitigation work product) consistent with Rule 705 practice. After conferring with Lizcano and experts—and learning of Dr. Flynn’s competence opinion—defense counsel withdrew the competency motion, citing strategic concerns that the State would gain early access to mitigation evidence and that they would face two court-appointed experts (McGarrahan and Flynn) opining competence against a single retained expert.

The jury convicted, and the trial court imposed the death penalty. On initial state habeas, Lizcano claimed counsel were ineffective for withdrawing the competency motion and for failing to discover additional competence evidence (including statements from a consular official and the mitigation specialist). The state habeas court—presided over by the same judge—denied relief, making extensive credibility findings that favored the State and concluded both no deficiency and no prejudice. The Texas Court of Criminal Appeals adopted those findings. Later, in separate proceedings, Texas courts found Lizcano intellectually disabled and reformed his sentence to life without parole, but that intellectual-disability relief did not resolve the competence/IAC claim concerning the guilt-phase trial.

In federal habeas, the district court rejected the ineffective-assistance claim under AEDPA and, alternatively, on de novo review. The Fifth Circuit granted a COA limited to whether counsel were ineffective “when [they] failed to continue to pursue competency proceedings.” The panel affirms.

Precedents Cited and Their Role

Strickland v. Washington, 466 U.S. 668 (1984): Establishes the two-pronged ineffective assistance test—deficient performance and prejudice. The Fifth Circuit resolves solely on prejudice, consistent with Strickland’s instruction that courts may dispose of claims on either prong.
Harrington v. Richter, 562 U.S. 86 (2011): Defines AEDPA’s “relitigation bar” and the “no fairminded jurist” threshold, and emphasizes “double deference” when reviewing Strickland claims on habeas. Central to the panel’s analytical frame.
Cullen v. Pinholster, 563 U.S. 170 (2011): Reinforces AEDPA’s deference and limits on relitigating claims; also cited for the “substantial, not just conceivable” likelihood standard (via Strickland prejudice cases).
Shinn v. Kayer, 592 U.S. 111 (2020); Schriro v. Landrigan, 550 U.S. 465 (2007): Emphasize that incorrect or even clearly erroneous state-court decisions are not enough—unreasonableness is required.
Brown v. Davenport, 596 U.S. 118 (2022); Brumfield v. Cain, 576 U.S. 305 (2015): Clarify AEDPA’s standards for factual reasonableness—if reasonable minds could disagree, habeas relief is unavailable.
Miller-El v. Cockrell, 537 U.S. 322 (2003); Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001); Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011): Explain § 2254(d)(2) versus § 2254(e)(1) interplay. The panel leans on Valdez’s n.17: even if one factual finding falters under (e)(1), the state court’s ultimate decision can still be reasonable under (d)(2).
Woodford v. Visciotti, 537 U.S. 19 (2002): Reinforces that federal courts may not issue the writ simply because they disagree with how a state court applied Strickland.
Bose Corp. v. Consumers Union, 466 U.S. 485 (1984); Rice v. Collins, 546 U.S. 333 (2006); Baldree v. Johnson, 99 F.3d 659 (5th Cir. 1996): Stress deference to state-court credibility determinations, especially when the same judge presides over trial and habeas.
Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990); Huricks v. Thaler, 416 F. App’x 423 (5th Cir. 2011): In competency-based IAC claims, prejudice requires a reasonable probability that the defendant was incompetent to stand trial, sufficient to undermine confidence in the outcome.
Dusky v. United States, 362 U.S. 402 (1960) (per curiam): States the competence test—sufficient present ability to consult with counsel with a reasonable degree of rational understanding and a rational and factual understanding of the proceedings.
Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999): Texas authority on the “bona fide doubt” threshold and indicia of incompetence (recent severe mental illness, moderate intellectual disability, or truly bizarre acts). Used to explain the gap between getting a competency trial and proving incompetence.
Atkins v. Virginia, 536 U.S. 304 (2002): Recognizes that many individuals with intellectual disabilities remain competent to stand trial—critical to separating intellectual disability from competence.
Andrew v. White, 145 S. Ct. 75 (2025) (quoting White v. Woodall): Reiterates the fairminded jurist standard for unreasonable applications under § 2254(d)(1).

Legal Reasoning

1) AEDPA’s framework and the “double deference” overlay. The court begins by restating AEDPA’s § 2254(d) relitigation bar and the layered deference that applies when a Strickland claim is relitigated in federal habeas. Under § 2254(d)(1), a petitioner must show the state court applied clearly established Supreme Court law in a way that no fairminded jurist would accept. Under § 2254(d)(2), a petitioner must show the decision was based on an unreasonable determination of the facts in light of the state record. Meanwhile, § 2254(e)(1) presumes each factual finding correct, rebuttable only by clear and convincing evidence. The panel tracks Valdez and Miller-El: (e)(1) applies to discrete findings; (d)(2) governs whether the ultimate decision rests on an unreasonable factual determination.

2) Strickland prejudice controls the outcome. Without deciding performance deficiency, the panel holds Lizcano cannot show prejudice. To prevail, he needed to prove a reasonable probability—meaning a substantial, not just conceivable likelihood—that he would have been found incompetent to stand trial if counsel had pursued competency proceedings. That standard, drawn from Strickland, Richter, Pinholster, Kayer, and Bouchillon, is demanding.

3) The trial court’s “bona fide doubt” finding does not establish prejudice. Texas’s threshold to convene a competency trial is low—“some evidence” (more than a scintilla) tending to show incompetence, with the court disregarding contrary evidence of competence at that stage. But once a competency trial is convened, the defendant bears the burden to prove incompetence by a preponderance. Therefore, the trial court’s willingness to hold a competency trial (before the defense withdrew its motion) does not prove a reasonable probability of ultimate success. The prejudice inquiry is outcome-focused; Lizcano needed to show he probably would have been found incompetent, not merely that a jury could have been empaneled.

4) Competing expert evidence and credibility determinations. The state habeas court credited Dr. Flynn, a neutral court-appointed expert who performed a competency evaluation consistent with Texas law, and found that Lizcano understood the courtroom proceedings, potential penalties, and could consult with counsel. The court discounted the defense evidence for multiple reasons: Dr. Martinez’s opinion was characterized (and credited) as “shaky” or, at minimum, as not tied to the statutory competency framework; Dr. Puente’s and Dr. Llorente’s contributions did not include contemporaneous forensic competency evaluations; and Dr. Llorente’s retrospective assessment relied on tools not designed for retroactive use. The habeas court also found lay affiants (a consular official and the mitigation specialist) lacked credibility due to delay and lack of specificity. These are classically fact-intensive assessments to which federal courts owe heightened deference.

5) Addressing two disputed factual findings.

“No evidence” of incompetence. The panel acknowledges this phrasing is too sweeping—there was some defense evidence. But even crediting some evidence, the state court’s ultimate decision survives § 2254(d)(2) review because reasonable jurists could agree that the neutral, statutory-compliant evaluation outweighed defense showings, and thus there was no reasonable probability of a finding of incompetence.
Whether Dr. Flynn and counsel believed Lizcano was competent. The record showed Dr. Flynn distinguished his skepticism about an intellectual-disability diagnosis from his competence conclusion. Counsel’s on-the-record statements, after conferral and upon learning of Flynn’s findings, expressed a contemporaneous belief in competence “at this time.” The panel deems the state court’s finding supported, noting that “competency is a fluid issue,” and counsel’s earlier doubts do not negate their later position based on updated information.

6) Use of “Moore factors.” The habeas court noted the absence of “recent severe mental illness, moderate intellectual disability, or truly bizarre acts.” While not dispositive, Texas law treats these as indicia probative of competence. The Fifth Circuit finds this reliance reasonable and not contrary to clearly established federal law, particularly given that competence turns on the Dusky capacity standard, and these background indicia correlate with (though do not control) that capacity.

7) Intellectual disability vs. competence. The panel underscores Atkins: many with intellectual disability are competent to stand trial. Therefore, the later grant of state habeas relief on intellectual disability did not retroactively establish incompetence at the time of trial. Flynn’s separation of the two constructs and his competence finding undercut the prejudice showing.

Key Holdings and Clarifications

An ineffective-assistance claim premised on failure to pursue competency fails at Strickland’s prejudice prong unless the petitioner shows a reasonable probability that he was, in fact, incompetent at the time of trial. Showing only that the defendant could have obtained a competency trial is insufficient.
Under AEDPA, even if a state habeas court’s discrete “no evidence” statement is overstated, habeas relief is unavailable so long as the decision, taken as a whole, rests on reasonable factual determinations supported by the record.
Federal courts must defer to state credibility determinations, especially when the same judge presided over the trial and habeas proceedings and heard live testimony.
Neutral, court-appointed competency evaluations performed in accordance with state statute carry significant weight in AEDPA review when compared to retrospective or clinically oriented opinions not keyed to the statutory competence standard.
Competency and intellectual disability are analytically distinct; a later intellectual-disability finding does not by itself undermine a contemporaneous competence determination.
COA scope: Although the State suggested the COA covered only in-court litigation decisions (not investigation), the panel noted it did not need to resolve that issue because the claim failed on prejudice and, in any event, the phrase “competency proceedings” plausibly encompasses both litigation and investigation.

Impact and Implications

For defendants and habeas practitioners: Lizcano illustrates how exacting the prejudice showing is when alleging that counsel inadequately pursued competency. Petitioners must present persuasive, contemporaneous, and forensically grounded evidence that would likely have led a jury to find incompetence by a preponderance at the time of trial—not simply evidence that raised doubts or would have justified convening a competency trial. Retrospective opinions, clinical assessments not tied to statutory criteria, and lay impressions of confusion will seldom suffice under AEDPA deference, especially when countered by a neutral court-appointed expert who performed a competency evaluation consistent with state law.

For trial counsel: The decision validates strategic choices to withdraw or forego competency trials when doing so would expose mitigation materials or other sensitive defense work product under Rule 705 disclosure practices. It also suggests that if defense counsel intend to litigate competence, it is critical to retain experts to perform a formal forensic competency evaluation aligned with the jurisdiction’s statutory requirements, ideally in the defendant’s native language and with appropriate cultural and linguistic tools.

On the law of AEDPA and Strickland: The case reinforces that courts may affirm on Strickland’s prejudice prong alone, and that AEDPA’s double deference is formidable: even arguable factual overstatements by the state court will not warrant relief if the overall decision is reasonable. The opinion also offers a useful, practitioner-friendly restatement of the § 2254(d)(2) and § 2254(e)(1) interplay, which frequently confuses litigants.

On competence law and intellectual disability: Litigants should be careful not to conflate the two. A later determination of intellectual disability (for Eighth Amendment sentencing purposes) does not automatically undermine the validity of a prior competence finding focused on the defendant’s understanding and ability to consult with counsel at the time of trial.

Complex Concepts Simplified

AEDPA (28 U.S.C. § 2254): A federal law that greatly limits when federal courts can overturn state criminal convictions on habeas. Relief is barred unless the state court’s decision was (a) contrary to or an unreasonable application of Supreme Court precedent, or (b) based on an unreasonable determination of the facts.
§ 2254(d)(1): Focuses on legal unreasonableness—no fairminded jurist could agree with the state court’s application of Supreme Court law.
§ 2254(d)(2): Focuses on factual unreasonableness—based on the state-court record, the decision relies on an unreasonable view of the facts.
§ 2254(e)(1): Presumes state factual findings are correct; petitioner must rebut with clear and convincing evidence.
Strickland prejudice: The claimant must show a substantial likelihood that, but for counsel’s errors, the outcome would have been different—in competency cases, that he likely would have been found incompetent at the time of trial.
Competency to stand trial (Dusky standard): The defendant must have (1) sufficient present ability to consult with counsel with a reasonable degree of rational understanding and (2) a rational and factual understanding of the proceedings.
Texas “bona fide doubt” threshold (Moore): A low bar requiring “some evidence” tending to show incompetence, which merely triggers a competency trial; it does not prove incompetence.
Rule 705 disclosure: In Texas practice, when an expert testifies to an opinion, the underlying facts/data may have to be disclosed, potentially exposing defense mitigation work product if a defense expert testifies pretrial.
Intellectual disability vs. competence: Intellectual disability impacts eligibility for the death penalty but does not necessarily preclude trial; many individuals with intellectual disability are competent.

Practice Notes for Defense and Habeas Counsel

When litigating competence, retain a forensic examiner to perform a statutory-compliant competency evaluation in the defendant’s language; clinical IQ testing alone is insufficient.
Create a clear record linking observed deficits to the Dusky elements (ability to consult rationally; rational/factual understanding), not merely to global cognitive limitations.
Anticipate Rule 705 issues; consider protective orders or staged disclosure strategies to avoid early exposure of mitigation theories if competency will be litigated pretrial.
If a motion is withdrawn for strategic reasons, articulate the basis on the record, including the comparative strength of expert opinions and discovery risks.
For habeas, assemble contemporaneous competence evidence (medical records, jail observations, interpreter notes), and, if retrospective evaluations are unavoidable, candidly address methodological limits.
In COA applications, frame issues to encompass both the investigative and litigation components of “competency proceedings.”

Conclusion

Lizcano v. Guerrero is a robust reaffirmation of AEDPA’s double deference in the context of Strickland claims tied to competence. The Fifth Circuit clarifies that prejudice requires more than eligibility for a competency trial; it requires a substantial likelihood that the defendant would have been found incompetent at the time of trial. Credibility determinations favoring a neutral, statutory-compliant competence evaluation, and the analytical separation of intellectual disability from competence, proved decisive. For future litigants, the opinion underscores the necessity of contemporaneous, forensically grounded evidence addressing the precise Dusky criteria and the practical importance of strategic decision-making regarding expert disclosures in pretrial competency litigation.