Jacob Alan Powers v. Jon Noble

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2134
J ACOB A LAN P OWERS ,
Petitioner-Appellant,
v.
J ON NOBLE ,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:10-cv-01127-WED — William E. Duffin, Magistrate Judge.
____________________
A RGUED J ANUARY 14, 2025 — D ECIDED MARCH 25, 2025
____________________
Before R IPPLE , BRENNAN, and K OLAR , Circuit Judges.
BRENNAN, Circuit Judge. A Wisconsin jury in 2006 found
Jacob Powers guilty of enticing and twice sexually assaulting
a 13-year-old girl. Powers unsuccessfully challenged those
convictions in state court, raising various claims on both di-
rect and collateral review. Powers now seeks federal habeas
corpus review, claiming he lacked competency at his trial and
that his lawyer was ineffective for not raising this issue.

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2 No. 24-2134
The district court denied his petition, so Powers appeals.
Looking back almost two decades—and considering three
posttrial evaluations of Powers’s competency, his demeanor
at trial, and that his appellate attorney spoke with his trial
counsel and chose not to pursue an incompetency claim—we
agree with the district court and affirm.
I
A
Powers is no stranger to life’s difficulties. He was physi-
cally and psychologically abused as a child, and though he
has significant learning challenges, he graduated from high
school. His criminal record, however, is extensive. He has
been arrested many times, several of which were for violent
offenses. He was charged in 1999 with felony child abuse for
battering his newborn son, but he was found not guilty by
reason of mental disease or defect. See WIS . STAT . § 971.15.
In 2005, Powers was charged with two counts of second-
degree sexual assault of a child and one count of child entice-
ment. At trial in 2006, the jury heard conflicting accounts of
the events that led to those charges.
Powers testified in his own defense. He recounted he was
living in the central Wisconsin town of Ripon at the time.
Early in the day, Powers saw his neighbor, Trista Beek. Walk-
ing with Beek was K.B., a 13-year-old whom Powers did not
recognize. Later that night, K.B. entered Powers’s apartment
without knocking. Despite not knowing her, Powers “did not
think anything of it,” gave her a soda, and they talked about
her depression. A friend of Powers, Matt Galica, was also
there. At some point, Galica and K.B. were left alone, and
Powers later caught them kissing in their underwear. He told

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No. 24-2134 3
Galica, “Don’t get caught,” and went to bed. In the morning,
Beek came over and took K.B. to Beek’s home.
K.B.’s trial testimony contradicted Powers’s testimony.
She testified she met him earlier in the day, and he told her
she could come to his apartment if she needed anything. K.B.
went there late that night wanting to talk about her problems,
and they talked for about an hour and a half. Galica then
walked into Powers’s apartment. Soon after, Powers and
Galica went outside to talk. According to K.B., they came back
in and sat on each side of her. They told K.B. they loved her,
to go to the bedroom, and to take off her clothes. Powers, then
Galica, then Powers again, sexually assaulted K.B.
The jury also heard from other witnesses, including
Galica, who gave a similar account as K.B., and Beek, who
said Powers later told her he had sexual intercourse with K.B.
The jury found Powers guilty on all three counts. The court
sentenced him to 33 years in prison.
B
1
Powers appealed his conviction and sentence. An appel-
late attorney was appointed, and in April 2007, she moved the
court to have his competency evaluated. Two experts exam-
ined Powers, filed their conclusions, and testified at an Octo-
ber 2007 competency hearing held in state court.
First, Dr. Nathan Glassman interviewed Powers and con-
cluded he was “moderately impaired” and read at about a
5th-grade level. The doctor also had serious concerns whether
Powers could retain complex information.

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4 No. 24-2134
But Dr. Glassman noted that Powers could think strategi-
cally about his trial. For example, Powers believed his testi-
mony hurt his case and maintained that testimony from his
then-girlfriend would have buttressed his defense. Also, Dr.
Glassman reported that “insufficient effort” and distractions
could explain why Powers performed poorly in the
evaluation. The doctor’s report was inconclusive as to compe-
tency on appeal, but he later testified at the competency hear-
ing that he believed Powers lacked competency at that time.
In a second evaluation, Dr. Craig Schoenecker concluded
differently. He interviewed Powers and examined his trial
records and Dr. Glassman’s report. Dr. Schoenecker found
Powers “was able to consistently understand questions and
provide accurate answers.” Powers was “calm and coopera-
tive” and “readily understandable.” He did not “express any
delusional beliefs or exhibit any paranoia.” Dr. Schoenecker
noted that, at trial, Powers knew he could ask his attorney
questions. In Dr. Schoenecker’s opinion, Powers was compe-
tent.
The state trial court found Dr. Schoenecker’s conclusion
more persuasive. It concluded Powers was competent and
could proceed with his appeal. His appellate attorney then in-
vestigated whether there were any issues of arguable merit.
Pertinent to her consideration, she “reviewed the time sheets
submitted by [trial counsel] to the State Public Defender for
payment and discussed” Powers’s competency with his trial
counsel.1 His appellate attorney then filed a no-merit report
with the Wisconsin Court of Appeals—a brief that summa-
rizes the record, highlights legal arguments, and explains
1 ECF No. 22-3 at 22.

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No. 24-2134 5
why they are frivolous. See WIS . STAT . § 809.32. She analyzed
a possible ineffective assistance of counsel claim against Pow-
ers’s trial counsel for not raising competency, but she con-
cluded that to appeal on that ground would be frivolous.
In May 2008, the state court of appeals accepted the no-
merit report and affirmed Powers’s convictions. It concluded
Powers’s trial counsel was not ineffective for failing to pursue
competency. The state court of appeals acknowledged that
despite Powers’s low IQ and mental health problems, his trial
testimony gave no indication that he lacked competency.
Powers did not ask for review by the Wisconsin Supreme
Court, so his convictions became final in June 2008. He then
filed for state postconviction relief, which the state trial court
and state court of appeals denied.2 In 2010, he sought review
by the Wisconsin Supreme Court of his direct appeal and
postconviction appeals. That court denied his request for re-
view in each case.
2
Turning to the federal courts, Powers petitioned for a writ
of habeas corpus in December 2010. He sought relief on sev-
eral grounds, including that he was not competent at the time
of trial and that his trial counsel was ineffective. We highlight
several decisions and filings during that period.
First, Powers’s habeas petition had several problems. A
petition must be filed within one year after the conviction be-
comes final, 28 U.S.C. § 2244(d)(1)(A), but he waited over two
2 Powers did not argue to the Wisconsin Court of Appeals that he
lacked competency at his criminal trial. But on direct review, he argued
incompetency at the time of his appeal to that court. Incompetency on ap-
peal and during trial are different claims.

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6 No. 24-2134
years to do so—from June 2008 to December 2010. The peti-
tion included claims that had not been presented to the state
court, violating a prerequisite for federal habeas review. The
state moved to dismiss for procedural default. In response,
Powers withdrew all claims except the two he argues here,
effectively amending his petition. The state withdrew its mo-
tion to dismiss and waived its procedural defense, although if
the state had maintained that defense, Powers’s claim could
not have been heard.3
But Powers still filed his habeas petition too late. He
claimed his mental defects impeded him from filing on time
and requested a mental health evaluation. A third expert, Dr.
Sheryl Dolezal, evaluated Powers, first in 2013 and again in
2015. Initially, Powers asked her to opine on whether he could
read, understand, and reply to information the courts sent to
him. She concluded he would have difficulty without assis-
tance. Powers then sought a full competency opinion from Dr.
Dolezal. In her second report, she concluded Powers had a
basic understanding of legal concepts, the roles of individuals
in the court system, and the “consequences associated with
the judicial process,” but he had some difficulty with reading
and comprehension. Dr. Dolezal also suggested Powers was
“feigning or over-exaggerating” his symptoms. She found
him competent to proceed.
In August 2015, almost five years after filing his federal ha-
beas petition, Powers amended his petition again, adding two
new claims. In June 2016, the district court stayed proceedings
for exhaustion of the new claims in state court. The state
3 The parties disputed this in their briefs in our court, but the state
conceded waiver before oral argument.

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No. 24-2134 7
courts evaluated those claims, and after seven years of litiga-
tion, they rejected them.
The district court lifted the stay on Powers’s federal ha-
beas case in May 2023. But in November 2023, he amended
his petition again. He withdrew those two new claims, so his
habeas petition effectively reverted to where it had been seven
years earlier: a petition asserting a due process violation as
well as ineffective assistance of counsel. His case was ripe for
resolution.
The district court denied relief, concluding “at no point
was Powers incompetent.” Powers v. Noble, No. 10-CV-1127,
2024 WL 2367988, at *8 (E.D. Wis. May 23, 2024).4 The court
based this conclusion on the three competency evaluations
and Powers’s trial testimony, among other evidence. Id. at *6–
8. The court also concluded it was not unreasonable for trial
counsel not to raise the issue of competency. Still, the district
court certified an appeal to our court because “reasonable ju-
rists could debate” its conclusions. Id. at *8.
II
Powers claims he lacked competency at his state criminal
trial as well as that his trial lawyer was ineffective for not rais-
ing competency. But Powers defaulted his claim that he
lacked competency to stand trial. Because the state waived its
procedural default argument, we review it de novo, as no
state court has resolved the claim. Cone v. Bell, 556 U.S. 449,
472 (2009). Likewise, the district court’s decision is reviewed
de novo. McMullen v. Dalton, 83 F.4th 634, 641 (7th Cir. 2023).
4 Both parties consented to the magistrate judge deciding this case.

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8 No. 24-2134
A
We begin with Powers’s competency claim. The Due Pro-
cess Clause of the Fourteenth Amendment prohibits prosecut-
ing a defendant who is not competent to stand trial. Medina v.
California, 505 U.S. 437, 439 (1992). Competency turns on
whether a defendant reasonably understands what is happen-
ing at trial and the charges against him to assist his lawyer in
his defense. Dusky v. United States, 362 U.S. 402, 402 (1960) (per
curiam); see also Yang v. United States, 114 F.4th 899, 906–09
(7th Cir. 2024). But the defendant need not understand every-
thing, “that’s why they need lawyers, after all.” Timberlake v.
Davis, 409 F.3d 819, 823 (7th Cir. 2005).
Though a competency inquiry at trial is preferable to an
inquiry after trial, especially one many years later, courts can
reach a conclusion with “evidence of a defendant’s irrational
behavior, his demeanor at trial, and any prior medical opin-
ion.” Drope v. Missouri, 420 U.S. 162, 180 (1975). Especially in-
sightful is the defendant’s demeanor at trial—how he acts,
speaks, and presents himself. Eddmonds v. Peters, 93 F.3d 1307,
1314 (7th Cir. 1996).
Addressing Powers’s competency at a trial two decades
ago is a challenge. To do so, we consider certain facts preced-
ing trial, evidence at trial, and the posttrial record.
1
The evaluators agreed that Powers’s IQ hovers between 60
and 75, which is considered to be in the “Borderline Intellec-
tual Functioning/Mild Mental Retardation” range and about
two standard deviations below the mean IQ of 100. McManus
v. Neal, 779 F.3d 634, 646 n.3 (7th Cir. 2015). Though his low
IQ provides pause, it is only one factor in the inquiry.

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No. 24-2134 9
Eddmonds, 93 F.3d at 1314 (citing Medina v. Singletary, 59 F.3d
1095, 1107 (11th Cir. 1995)). This is because even a defendant
with a low IQ can assist his lawyer at trial. The Supreme Court
has recognized that individuals with a low IQ often know
right from wrong. Atkins v. Virginia, 536 U.S. 304, 318 (2002).
Powers’s deficiency does not necessarily warrant “exemption
from criminal sanction.” Id.
Notable too is the charge against Powers for abusing his
infant child in 1999. The state trial court found him not guilty
by reason of mental disease or defect. Powers argues this find-
ing shows he lacked competency at his sexual assault trial
about seven years later.
But incompetency and the lack of mental responsibility
defense are separate legal concepts, as the district court ob-
served. Compare WIS . STAT . § 971.13 with WIS . STAT . § 971.15.
An accused can insist he lacked mental responsibility when
committing a crime, yet at trial understand the proceedings
and assist his lawyer. See Medina, 505 U.S. at 449. Indeed, as-
serting the lack of mental responsibility defense presupposes
competency. Id. (“The entry of a plea of not guilty by reason
of insanity … presupposes that the defendant is competent to
stand trial.”). So, Powers can be presumed to have been com-
petent in 1999.
These facts cut both ways. Powers has a low IQ, and he
suffers from some mental deficiencies. But he was competent
at his 1999 trial.

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10 No. 24-2134
2
Next we turn to the trial record to assess Powers’s conduct
and consider whether he assisted in his defense, which is
“[h]ighly relevant.” Eddmonds, 93 F.3d at 1317.
Nothing about Powers’s actions during trial suggests he
lacked competency. See Drope, 420 U.S. at 181 (explaining a
defendant should be observed “in the context of the trial”).
The record conveys that Powers behaved appropriately. He
did not act erratically, but seemingly he was polite and non-
confrontational.
This court has ruled that a defendant’s “detailed and co-
herent testimony” points toward competency. Eddmonds, 93
F.3d at 1319. At trial Powers testified in great detail about the
events of that night, even after more than 11 months had
passed. He recalled street addresses, described the clothes
people wore, recalled that he gave K.B. a Mountain Dew, and
remembered that Galica requested a Kid Rock song. His testi-
mony gave a play-by-play of the night with precise time
stamps, like that he woke up at 7:30 the following morning.
The trial record also shows that Powers recognized right
from wrong. For example, he denied knowing K.B. was un-
derage. And he recalled telling Galica, “Don’t get caught,”
when he saw Galica and K.B. kissing in the bedroom in their
underwear.5 These statements show a “factual understanding
of the proceedings against him,” namely that sexual inter-
course with someone of K.B.’s age is forbidden. Yang, 114
F.4th at 907 (quoting Dusky, 362 U.S. at 402).
5 ECF No. 129-2 at 16, 17, 34.

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No. 24-2134 11
Even more revealing are his statements on cross-examina-
tion. Powers testified to a witness’s apparent motivations
against him. He said he reported his neighbor Beek to the po-
lice for keeping an unsafe house, which could have motivated
Beek to accuse him.6 In addition, Powers thought it “very un-
usual” that somebody he did not know, K.B., walked into his
apartment. According to Powers, “she walked in … just
opened the door, and … asked me for a can of pop. I gave her
a can of soda, and she sat down on my couch, and I’m sitting
there in wonder.”7 So, along with recognizing right from
wrong, Powers understood social conventions. He also
acknowledged and tried to explain inconsistencies in his
story, like why he lied to police about speaking with Galica.
What is more, the trial record suggests Powers understood
the nature of the proceedings. His statements show clear
memory, strategic thinking about his case, and recognition of
right from wrong from the downright unusual. He acted as
an accused is expected to, helping his lawyer develop evi-
dence to confront and answer the case against him.
Also consider the actions of Powers’s trial counsel. There
was no competency evaluation before or at trial, and twenty
years have passed since then. As an officer of the court, en-
trusted to advocate for his client, trial counsel is in the best
position to know whether a defendant’s competency is at is-
sue, as he witnesses firsthand his client’s mental state. See
Drope, 420 U.S. at 176–77 (“judges must depend to some ex-
tent on counsel to bring issues into focus.”). After conferring
with Powers’s trial counsel, his appellate attorney, when
6 ECF No. 129-2 at 37–38.
7 Id. at 31–32.

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12 No. 24-2134
filing her no-merit report, did not pursue competency.8 From
this, we can reasonably infer that trial counsel thought Powers
was competent during trial.
3
We next consider the various posttrial competency evalu-
ations of Powers. In their reports, Dr. Schoenecker in 2007 and
Dr. Dolezal eight years later both concluded Powers was com-
petent when he was examined. Dr. Glassman also evaluated
Powers in 2007 and testified six months later at a competency
hearing that Powers lacked competency at that time. Their
findings offer some insight into his competency at trial. See
Timberlake, 409 F.3d at 823. The first two evaluations, per-
formed about a year after trial, gave conflicting accounts.
Start with Dr. Glassman’s report. Powers had told him the
“Judge just looked at his file and decided he was Guilty.” But
this statement does not necessarily show that Powers misun-
derstood the jury’s role. It could also reflect his frustration
with the legal system, something common among criminal
defendants. Timberlake, 409 F.3d at 823 (“Comments similar to
those Timberlake made are common, sometimes because of
suspiciousness … .”). Dr. Glassman concluded Powers had
low intellectual functioning, but he had “some understand-
ing” of the jury’s role.
Dr. Glassman opined it would have been reasonable for
Powers’s trial counsel to raise competency at the time of trial.
Powers urges us to view this as a retrospective assessment of
his competency at trial. We do not agree. An opinion that an
attorney should have raised competency at the time of trial is
8 ECF No. 22-3 at 22.

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No. 24-2134 13
not an expert witness’s conclusion that a defendant lacks com-
petency at trial. Even more, Powers’s appellate attorney hired
Dr. Glassman and questioned him on the witness stand. Yet,
she concluded it was frivolous to argue that Powers’s trial
counsel was ineffective for failing to raise competency at trial.
She could have pursued that argument if she had been per-
suaded to the contrary.
In his report, Dr. Schoenecker agreed with Dr. Glassman
that Powers has mental health issues and a low IQ. But Dr.
Schoenecker also reported Powers “readily discussed roles of
court participants and court proceedings in his earlier trial.”
Powers also relayed ongoing issues in his appeal, recounted
his defense, and expressed his wish for a new trial. Dr. Schoe-
necker concluded that Powers was competent to proceed with
his appeal, though Powers needed “simplified explanations
and clarification of more complicated concepts.”
In January 2015, nearly a decade after Powers’s trial, Dr.
Dolezal evaluated Powers as to his competency. Though she
offered some insight into his competency at trial, the substan-
tial time gap presents “inherent difficulties.” See Drope, 420
U.S. at 183. Dr. Dolezal concluded Powers was competent at
that time, and that he understood basic legal concepts and the
parties’ roles. The results even suggested Powers may have
feigned mental health symptoms.
The sum of the evidence supports a conclusion of compe-
tency. Powers’s successful mental disease or defect defense in
1999 necessitated the conclusion that he was competent al-
most seven years before this criminal trial. See Medina, 505
U.S. at 449. Further, as detailed above, his testimony and de-
meanor at his criminal trial show him to be competent. Dr.
Schoenecker found him competent less than a year after trial.

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14 No. 24-2134
And importantly, Powers’s trial attorney—who closely ob-
served him and discussed legal and factual questions with
him—did not raise competency concerns at trial. Even more,
Powers’s appellate attorney, after speaking with his trial
counsel, believed pursuing the issue of competency would be
frivolous. Last, Dr. Dolezal also concluded Powers was com-
petent.
Moreover, all three experts agreed that Powers could un-
derstand complex topics if sufficient time was spent explain-
ing them to him.9 Powers argues his trial lawyer did not
spend enough time with him to ensure he understood what
was happening. But the standard requires that the client must
know enough to understand the nature of the proceedings
against him, Drope, 420 U.S. at 171, and his core trial rights.
Anderson v. United States, 865 F.3d 914, 919–20 (7th Cir. 2017);
Newman v. Harrington, 726 F.3d 921, 935 (7th Cir. 2013).
The record shows that Powers did. The evaluators con-
cluded he knew what the judge, jury, and prosecutor did, and
the basic charges against him.10 Nor must he have understood
every legal complexity. Timberlake, 409 F.3d at 823. Indeed,
many people struggle to understand complex legal concepts,
necessitating legal representation.
If we discounted the three evaluations as too attenuated
from trial, that would place more emphasis on the other evi-
dence of Powers’s competency. His trial testimony, and his
trial lawyer’s decision not to raise competency before, during,
or after trial, are persuasive proof of his competency.
9 ECF No. 129-8 at 7, 16; ECF No. 103-2 at 12.
10 ECF No. 129-8 at 7, 15–16; ECF No. 103-2 at 3,12.

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No. 24-2134 15
Last, Powers directs us to his history of various mental
health issues. He points to his past suicide attempts, psychi-
atric hospitalizations, and antipsychotic medications. But
mental illness is not always linked with incompetency. “Not
every manifestation of mental illness demonstrates incompe-
tence to stand trial.” Eddmonds, 93 F.3d at 1314 (quoting United
States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.
1984)). True, in certain cases, we have connected them. See
McManus, 779 F.3d at 638–39, 657 (agreeing a defendant was
entitled to a competency hearing after his severe symptoms
resulted in hospitalizations and treatment with medications
that turned his brain into “soup”). But mental illness is one
factor among many when determining competency and is
neither sufficient nor necessary. See Drope, 420 U.S. at 181 n.16.
Although Powers suffers from mental afflictions, they did
not render him unable to understand the proceedings and as-
sist his lawyer at trial. The great amount of record evidence of
his competency supports this conclusion.
B
Powers makes one last argument. He claims the Wisconsin
Court of Appeals, in its no-merit review, unreasonably con-
cluded that his trial counsel was not ineffective for failing to
raise competency at the time of trial. Because we conclude that
Powers was competent at trial, his trial lawyer cannot be
faulted for not pursuing the issue. Matheney v. Anderson, 377
F.3d 740, 749 (7th Cir. 2004) (“Because we agree with the state
courts’ finding that Matheney was competent to stand trial, it
follows that the state courts did not err in concluding that
Matheney’s trial attorneys provided effective assistance.”).
And any other challenges to the Wisconsin Court of Appeals
no-merit procedure would be outside the scope of the

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16 No. 24-2134
certificate of appealability. See Moreland v. Eplett, 18 F.4th 261,
268 (7th Cir. 2021).
III
The record as a whole supports the conclusion that Powers
was competent at his 2006 criminal trial. Accordingly, his trial
counsel was not ineffective for failing to raise competency. We
thus A FFIRM the district court’s denial of the petition for a writ
of habeas corpus.

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