Xengxai Yang v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2777
X ENGXAI Y ANG,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 21-cv-1281 — William C. Griesbach, Judge.
____________________
A RGUED A PRIL 18, 2024 — DECIDED A UGUST 16, 2024
____________________
Before S YKES , Chief Judge, and BRENNAN and S CUDDER , Cir-
cuit Judges.
BRENNAN , Circuit Judge. We face for the first time the ques-
tion whether procedural default bars a competency claim ini-
tially raised on collateral review.
Xengxai Yang robbed a credit union in Appleton, Wiscon-
sin. Given his medical history and some strange aspects of his
offense behavior, Yang raised an insanity defense. After a

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2 No. 23-2777
bench trial, the district court rejected Yang’s insanity defense,
found him guilty, and sentenced him to 168 months’ impris-
onment. Yang did not directly appeal his conviction. Instead,
he moved to vacate his conviction and sentence under 28
U.S.C. § 2255. Following an evidentiary hearing and post-
hearing briefing, the district court denied Yang’s motion, and
he appeals.
After review of Supreme Court precedent on competency,
our court’s caselaw, and the decisions of other circuits, we
conclude that procedural default bars Yang’s competency
claim. His request for special treatment of competency claims
on collateral review does not persuade us otherwise. So, we
affirm the district court’s denial of Yang’s § 2255 motion.
I
A
Wearing a black mask, a black sweatshirt, and sunglasses,
and armed with a sawed-off, semiautomatic .22 caliber rifle,
Yang robbed the Community First Credit Union in Appleton,
Wisconsin. Law enforcement arrested Yang a block away. Af-
ter being advised of his Miranda rights and while being ques-
tioned, Yang admitted to the robbery. When asked why he did
it, Yang responded, “I decided to try something new today, so
I robbed the bank.”
A federal grand jury indicted Yang for armed bank rob-
bery (Count One), brandishing a firearm during a crime of vi-
olence (Count Two), and unlawful possession of a firearm
(Count Three). Yang retained an attorney, Kevin Musolf, and
pleaded not guilty at his arraignment.
Less than a month before his trial date, Yang filed a Notice
of Insanity Defense under Federal Rule of Criminal Procedure

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No. 23-2777 3
12.2(a). Though the notice was untimely, the district court
found good cause for the delay and ordered Dr. Kent Berney
to examine Yang to opine on whether Yang was insane at the
time of the charged offenses. Neither Yang, the government,
nor the court raised the issue of Yang’s competency.
Based on his examination of Yang and review of available
records, Dr. Berney noted “a well documented history of neu-
rocognitive limitations.” But Dr. Berney believed Yang was
“malingering memory deficits” as indicated by the inconsist-
encies in his ability to recall information about the robbery
during his psychological examination, in contrast with his re-
call during the post-arrest interview and in a pretrial service
report interview. Dr. Berney ultimately opined “that Mr.
Yang, at the time of the alleged crime … did not experience a
severe mental disease that resulted in Mr. Yang being unable
to appreciate the nature and quality or the wrongfulness of
his acts.” Rather, at the time of the crime, Yang experienced
“a depressive disorder due to other medical conditions with
mixed features as a result of a closed head injury.” Due to
Yang’s malingering, however, Dr. Berney was “not able to de-
finitively rule in or out Mr. Yang’s possible neurological
anomaly which would be consistent with a severe mental de-
fect.”
Following Dr. Berney’s report, Yang withdrew his insanity
defense and entered into a plea agreement under which he
would be convicted of Counts One and Two.
The district court then held a change of plea hearing. Con-
cerned about Yang’s competency, the court asked Yang’s
counsel if he had any doubts about Yang’s ability to proceed.
Musolf had none. After placing Yang under oath, the court en-
gaged in a lengthy colloquy with him, explaining the purpose

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4 No. 23-2777
of the hearing, eliciting some basic biographical information,
and asking whether Yang had read and discussed the plea
agreement with Musolf before signing it. The court also asked
Yang if he was taking any medications at that time that might
affect his ability to understand the proceedings or to make de-
cisions. Yang responded “[n]o, I didn’t take anything.” At the
same time, Yang said he had stopped receiving his medication
and that the voices were “still here and there but not any-
more.” But he responded “no” when asked if the voices inter-
fered with his ability to communicate with his attorney.
Throughout the hearing, the district court frequently asked
Yang if he understood what was being described or explained.
Yang said he understood, and he asked no questions.
At one point the district court asked Yang to explain a jury
trial in his own words. Yang responded, “[j]ury trial is when
there’s people from the outside that comes in and testifies or
like to see if you’re guilty or not guilty.” The district court then
provided a thorough explanation of a jury trial and the rights
Yang would give up by pleading guilty. Yang had no ques-
tions and answered “no” when asked if anyone had made any
promises or threats in connection with his plea. He affirmed
that he was pleading guilty because he was guilty.
In establishing the factual basis for Yang’s plea, the district
court read a description provided by the government and
asked Yang if he agreed. Yang responded:
I was – that day I was playing a video game. So
after my head injury, I wasn’t sure what was go-
ing on. I was confused of everything, and I just
thought that things that was wrong were right.
After playing the video game, I just thought that

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No. 23-2777 5
I was in the video game, and I went to go rob a
bank.
Attorney Musolf was then asked about the validity of Dr.
Berney’s report. He responded, “[w]e do acknowledge the re-
port, and I guess we agree it doesn’t rise to the level of a legal
insanity defense despite the fact that there are some issues.”
The court accepted Yang’s guilty plea.
His plea did not last long, though. Just over a month later,
Yang wrote the court asking for a new attorney and seeking
to withdraw his guilty plea. In the letter, Yang complained
that Musolf had not reviewed Dr. Berney’s report with him
and generally ignored his questions. At a hearing, Musolf said
that he did review the report with Yang but that he did not
provide Yang with a copy. He explained he “was concerned
about [Yang] having a copy of the report” in jail because it
contained confidential information.
The court granted Yang’s request for new counsel and ap-
pointed Thomas Phillip, a federal public defender. Phillip ar-
ranged for a second psychological evaluation. Dr. Denver
Johnson conducted that evaluation and concluded “to a rea-
sonable degree of certainty that the multiple mental condi-
tions that Mr. Yang was experiencing at the time of the crime
seriously impaired his judgment and the ability to appreciate
the nature and quality of as well as the wrongfulness of his
acts.” Yang then moved to withdraw his guilty plea and to
reassert the insanity defense, which the court granted.
Before trial, the court had another opportunity to observe
Yang at a hearing on Yang’s requests to waive his right to a
jury trial and elect a bench trial. Phillip explained that he and
Yang had discussed what a bench trial is, the differences

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6 No. 23-2777
between a bench trial and a jury trial, and the benefits and
drawbacks of each. After consideration, Yang decided that he
wanted a bench trial. The court explained to Yang how a
bench trial would work, which party had the burdens of
proof, and that the judge would decide the law and the facts.
Yang said he understood. The district court also described
what Yang would give up in passing on a jury trial, and Yang
again expressed his understanding. Yang had no additional
questions. And when the judge asked Yang how he was feel-
ing, Yang remarked that he felt good that day. He also said,
“[t]hroughout my time in the trial, I’ve recovered a little bit
and I’m starting to feel like myself more.”
The court then asked Phillip if he had any concerns about
Yang’s competency to proceed. Phillip responded:
No, I believe that he’s competent to make this
decision, and we’ve discussed it at length over
several meetings and we’ve discussed the pos-
ture of the case at length over several meetings,
so I think he’s making a knowing decision and
a voluntary decision to waive the jury.
The court accepted Yang’s jury trial waiver.
The only issue at the bench trial was Yang’s insanity de-
fense, and Dr. Berney and Dr. Johnson testified.1 After hear-
ing this testimony, the district court concluded that Yang did
not meet his burden to prove his insanity at the time of the
1 The parties stipulated to the surveillance video capturing the rob-
bery and the video of law enforcement’s post-arrest interview of Yang.
When Yang was asked whether he understood that a stipulation meant he
admitted those facts as true, and whether he made the decision to stipulate
after careful discussion with his attorney, he answered, “yes.”

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No. 23-2777 7
bank robbery. The “most powerful evidence” in the district
court’s eyes was the video interview conducted after Yang
was arrested. During that interview, Yang was able to com-
municate with the detective and said he understood his
rights. The court explained this demonstrated that “whatever
intellectual deficits Mr. Yang has, they are not significant as a
functional matter.” The court viewed the evidence of a mental
defect as “very suspicious,” as there was “no record other
than [Yang’s] say so.” The court then found Yang guilty on all
three counts.
The district court held a sentencing hearing. Yang ac-
cepted the opportunity to allocute. He apologized for his ac-
tions as well as to the employees of the credit union, and he
recognized that he affected the lives of those employees and
his own family. Yang said he had plans to further his educa-
tion, and he acknowledged that, as a father, duties and re-
sponsibilities awaited him following his incarceration. In
fashioning a sentence, the district court noted “how bizarre
this crime was and is” and reiterated its reasons for rejecting
Yang’s insanity defense. The Court imposed a sentence of 168
months’ imprisonment.
Neither defense counsel nor the government raised any
concerns as to Yang’s competency during the bench trial or at
sentencing.
B
Yang did not directly appeal his conviction. Instead, he
moved to vacate his sentence under 28 U.S.C. § 2255. In that
motion, he claimed his second attorney, Phillip, provided in-
effective assistance of counsel. The court concluded that the
motion warranted an evidentiary hearing and appointed

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8 No. 23-2777
counsel. Yang’s new counsel then filed a second amended pe-
tition, withdrawing Yang’s ineffective assistance claim and as-
serting that the court’s failure to hold a competency hearing
during his criminal proceedings violated due process.
The court held an evidentiary hearing in which the court
began by asking Yang’s counsel why Yang’s claim had not
been procedurally defaulted. Yang’s counsel responded that
procedural default did not apply. Because the claim “re-
quire[d] evidence that is outside the record to fully deter-
mine” it, counsel asserted the claim fell within the category of
claims that could not be brought first on direct appeal. Miss-
ing, counsel specified, was the testimony of Yang’s probation
officer, Brian Koehler, and the “helpful opinion of a psycholo-
gist who can explain to us what was missed the first time
around.” The district court was inclined to find that Yang’s
claim was procedurally defaulted. But it permitted Yang to
put on evidence as to its merits “to make a full record here so
the Court of appeals or even this Court can decide on the basis
of what else is there.”
The court observed that Yang, in framing his § 2255 claim
as a competency claim, “essentially shielded from the Court
the best evidence as to what his competency actually was at
the time in question … leav[ing] the Court kind of and even
[the] appellate court in the dark as to key evidence surround-
ing the issue.” That best evidence was from attorney Phillip,
whom the district court ordered to testify. Yang’s counsel re-
quested a stay of that order based on attorney-client privilege,
pending appeal. The court granted the stay, so Phillip did not
testify.
Yang called probation officer Koehler and Dr. Johnson to
testify at the evidentiary hearing. Koehler described one of his

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No. 23-2777 9
interviews with Yang following the change of plea hearing.
He testified that Yang’s memory issues so pervaded the inter-
view that he had to cut it short. On cross-examination, Koeh-
ler admitted that in another pretrial study performed by the
probation office, Yang recalled many more personal details.
Dr. Johnson testified about the psychological examination
he performed to evaluate Yang’s sanity at the time of the of-
fense. Though not called upon to evaluate Yang’s compe-
tency, Dr. Johnson testified he believed then that Yang “would
not be competent to give a true accounting of what happened,
to reason properly about it.” He opined it was “very likely
that [Yang] was incompetent to stand trial,” but because he
couldn’t say for sure, “we would want to do a competency
evaluation to establish that.” The court elicited that Dr. John-
son never raised concerns about Yang’s competency with
Phillip. At the close of the hearing, the court granted Yang’s
counsel permission to file further briefing.
In post-hearing briefing, Yang argued against a finding of
procedural default. Seventh Circuit precedent, he asserted,
prohibited the application of procedural default to compe-
tency claims. Yang also turned to caselaw from the Eleventh
Circuit to resist the application of procedural default. That
court divides postconviction competency claims into proce-
dural and substantive claims, holding that the former but not
the latter may be procedurally defaulted.
The district court denied Yang’s § 2255 motion. The
court—relying on Seventh Circuit and Eleventh Circuit
caselaw—agreed with the government:
[B]y failing to raise the issue of his competency
to stand trial in court or on direct appeal, and

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10 No. 23-2777
now by withdrawing his ineffective assistance
of counsel claim and barring crucial evidence on
the issue by asserting his attorney-client privi-
lege, Yang has procedurally defaulted both his
procedural and substantive competency claims.
Even if not procedurally defaulted, Yang’s claims failed on the
merits, the court explained, because the court did not believe
it erred by “failing to sua sponte order a competency evalua-
tion” and because “Yang was competent at the time of the
proceedings.” The district court issued a certificate of appeal-
ability.
II
On appeal, Yang challenges the district court’s procedural
default determination, its merits findings, and its stayed order
requiring attorney Phillip to testify at the evidentiary hearing.
We examine only the procedural default question. Supreme
Court precedent on competency, our court’s caselaw, and the
decisions of other courts convince us that procedural default
may bar a competency claim. Applying that doctrine to the
facts here, Yang defaulted his claim and is barred from raising
it.
A
Three Supreme Court cases form the foundation for the
law on a defendant’s competency. In Dusky v. United States,
the Court set forth the seminal test for determining a criminal
defendant’s competency: “whether he has sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding—and whether he has a rational as
well as factual understanding of the proceedings against
him.” 362 U.S. 402, 402 (1960).

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No. 23-2777 11
In Pate v. Robinson, 383 U.S. 375 (1966), the Court added to
this law. There, the Court ruled that the habeas petitioner
“was constitutionally entitled to a hearing on the issue of his
competence to stand trial.” Id. at 377. In so concluding, the
Court announced additional rules safeguarding a criminal de-
fendant’s right to a fair trial in the context of a defendant’s
competency. First, criminal defendants cannot waive compe-
tency Id. at 384. This is because waivers of rights must be
knowing and intelligent. And if a defendant is incompetent,
then the defendant cannot meet that waiver standard. Id. Sec-
ond, where the evidence calls into question a defendant’s
competency, the trial court’s failure to inquire into the de-
fendant’s competency abridges the constitutional right to a
fair trial. Id. at 385. Applying these rules, the Court reasoned
that the petitioner’s history of “pronounced irrational behav-
ior” should have triggered the state courts to invoke Illinois’
statutory procedures designed to protect a defendant’s right
to a fair trial. Id. at 385–86.
Drope v. Missouri, further shaped this area of law. 420 U.S.
162 (1975). Like in Pate, the Court held that the Missouri state
courts failed to give proper weight to record evidence that
should have prompted further inquiry into the defendant’s
competency to stand trial. Id. at 179. The Court noted that “a
person whose mental condition is such that he lacks the ca-
pacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in prepar-
ing his defense may not be subjected to a trial.” Id. at 171. Ad-
ditionally, the Court in Drope described Pate’s holding as “the
failure to observe procedures adequate to protect a defend-
ant’s right not to be tried or convicted while incompetent to
stand trial deprives him of his due process right to a fair trial.”
Id. at 172. The import of Pate, the Court added, is “that

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12 No. 23-2777
evidence of a defendant’s irrational behavior, his demeanor at
trial, and any prior medical opinion on competence to stand
trial are all relevant in determining whether further inquiry is
required … .” Id. at 180. Moreover, because a defendant may
flit in-and-out of competency, “a trial court must always be
alert to circumstances suggesting a change that would render
the accused unable to meet the standards of competency to
stand trial.” Id. at 181.
Dusky, Pate, and Drope have served as the wellspring for
resolving other competency issues addressed by the Supreme
Court. See Medina v. California, 505 U.S. 437, 442 (1992) (hold-
ing that a state may place the burden on a defendant to prove
incompetency by a preponderance of the evidence); Godinez
v. Moran, 509 U.S. 389, 391 (1993) (holding that the standard
of competency for pleading guilty or waiving the right to
counsel is the same as that for standing trial); Indiana v. Ed-
wards, 554 U.S. 164, 169–70 (2008) (noting that Dusky and
Drope help to frame the question of whether it is constitution-
ally permissible to find a defendant competent to stand trial
but not so competent that he must be represented by counsel).
This court has built on those cases. In this circuit, the com-
petency inquiry, generally, “focuses on ‘whether [the defend-
ant] has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of
the proceedings against him.’” Burt v. Uchtman, 422 F.3d 557,
564 (7th Cir. 2005) (quoting Dusky, 363 U.S. at 402). The com-
petency requirement “at its core, preserves the right to a fair
trial,” but also safeguards fairness throughout criminal pro-
ceedings, as it also applies to pleas and sentencing proceed-
ings. Anderson v. United States, 865 F.3d 914, 919 (7th Cir. 2017)

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No. 23-2777 13
(citing Godinez, 509 U.S. at 391, and United States v. Garrett, 903
F.2d 1105, 1115 (7th Cir. 1990)). Thus, courts have a role in
promoting “the fundamental principle that it is unjust to pun-
ish a person who lacks the mental capacity to understand the
proceedings against him and participate in his own defense.”
McManus v. Neal, 779 F.3d 634, 656 (7th Cir. 2015)
Congress has also codified a procedure for raising compe-
tency issues. See 18 U.S.C. § 4241. The parties have a role in
that procedure:
At any time after the commencement of a pros-
ecution for an offense and prior to the sentenc-
ing of the defendant, or at any time after the
commencement of probation or supervised
release and prior to the completion of the sen-
tence, the defendant or the attorney for the Gov-
ernment may file a motion for a hearing to de-
termine the mental competency of the defend-
ant.
Id. § 4241(a). Congress has provided the district courts with
the authority—in conjunction with and independent of the
parties—to sua sponte raise the issue of competency:
The court shall grant the motion [for a hearing],
or shall order such a hearing on its own motion,
if there is a reasonable cause to believe that the
defendant may presently be suffering from a
mental disease or defect rendering him men-
tally incompetent to the extent that he is unable
to understand the nature and consequence of
the proceedings against him or to assist
properly in his defense.

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14 No. 23-2777
Id. We evaluate the parties’ arguments under these bodies of
law.
B
Neither the Supreme Court nor our court has resolved
whether the doctrine of procedural default bars competency
claims raised for the first time on collateral review. But the
majority of our fellow circuits have, doing so by bifurcating
competency claims into procedural and substantive claims.
See United States v. Basham, 789 F.3d 358, 379 (4th Cir. 2015);
United States v. Flores-Martinez, 677 F.3d 699, 705–06 (5th Cir.
2012); Hodges v. Colson, 727 F.3d 517, 540 (6th Cir. 2013); Vogt
v. United States, 88 F.3d 587, 590–91 (8th Cir. 1996); Williams v.
Woodford, 384 F.3d 567, 603–610 (9th Cir. 2004); Lay v. Royal,
860 F.3d 1307, 1314–15 (10th Cir. 2017); Raheem v. GDCP War-
den, 995 F.3d 895, 928–29 (11th Cir. 2021). Because the parties’
arguments and the district court’s order rely on this bifurca-
tion, we consider whether our court should recognize it as
well.
Our companion circuits derive the procedural claim from
Pate’s holding that the due process right to a fair trial is de-
prived by a trial court’s failure to inquire into a defendant’s
competency when required by applicable procedures. 383
U.S. at 385; see also, Drope, 420 U.S. at 172 (describing Pate’s
holding). Procedural competency claims typically arise where
the trial court fails to hold a competency hearing or comply
with Congress’s directives in 18 U.S.C. § 4241. See Flores-Mar-
tinez, 677 F.3d at 705–06; see also, Basham, 789 F.3d at 379 (de-
scribing a procedural claim as when “the movant contends
that the trial court failed to properly ensure that the accused
was competent to stand trial, as required by 18 U.S.C.
§ 4241”); Vogt, 88 F.3d at 591 (noting “the issue in a procedural

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No. 23-2777 15
competency claim is whether the trial court should have con-
ducted a competency hearing”); James v. Singeltary, 957 F.2d
1562, 1571 (11th Cir. 1992) (same). To succeed on a procedural
competency claim, a petitioner must point to evidence before
the trial court that should have raised a bona fide doubt as to
his competency. See Flores-Martinez, 677 F.3d at 706; Williams,
384 F.3d at 603–04 (citing Pate, 383 U.S. at 385).
On the other hand, our fellow circuits derive substantive
claims from the Supreme Court’s language in Dusky and
Drope. At bottom, that language means criminal defendants
should not be tried while incompetent. See Basham, 789 F.3d
at 379; Flores-Martinez, 677 F.3d at 705; Vogt, 88 F.3d at 590;
McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001); James,
957 F.2d at 1571. Therefore, to succeed on a substantive claim,
“an accused must prove an inability either to comprehend or
participate in the criminal proceedings.” Flores-Martinez, 677
F.3d at 706 (citation omitted). That is, a defendant “must show
that, at the time of trial, he lacked either sufficient ability to
consult with his lawyer with a reasonable degree of rational
understanding, or a rational and factual understanding of the
proceedings against him.” Williams, 384 F.3d at 608 (citing
Dusky, 362 U.S. at 402).
In our circuit, some previous cases described separate sub-
stantive and procedural rights in the competency context. See
United States ex rel. Rivers v. Franzen, 692 F.2d 491, 495 (7th Cir.
1982) (describing Dusky and Pate as the Supreme Court’s de-
lineation of separate substantive and procedural due process
rights), abrogated in part on other grounds recognized in United
States ex rel Mireles v. Greer, 736 F.2d 1160, 1168 n.4 (7th Cir.
1984); Greer, 736 F.2d at 1165 (discussing Franzen); Woods v.
McBride, 430 F.3d 813, 819–20 (7th Cir. 2005) (addressing both

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16 No. 23-2777
the ”procedural matter” and “substantive matter” of peti-
tioner’s due process competency argument). But since Woods,
our court has not referenced the distinction. See United States
v. Savage, 505 F.3d 754, 758–60 (7th Cir. 2007) (holding on di-
rect appeal that district court did not err in declining to sua
sponte order a competency hearing under 18 U.S.C. § 4241);
Anderson, 865 F.3d at 920–22 (7th Cir. 2017) (concluding dis-
trict court erred in failing to hold a § 2255 evidentiary hearing
to explore whether petitioner was incompetent when he
pleaded guilty and at sentencing); United States v. Wessel, 2
F.4th 1043, 1059 (7th Cir. 2021) (holding on direct appeal that
district court did not err in finding defendant competent to
stand trial).
Given this state of the law and the parties’ arguments in
the collateral proceedings before the district court and on ap-
peal, we now take the opportunity to clarify competency law
in our circuit.
Competency pertains to a singular due process right to a
fair trial under the Fifth Amendment. See Anderson, 865 F.3d
at 919 (7th Cir. 2017) (citing Drope, 420 U.S. at 171–72). In the
context of a fair trial and a defendant’s competency, we look
to whether a defendant “has sufficient present ability to con-
sult with his lawyer with a reasonable degree of rational un-
derstanding—and whether he has a rational as well as factual
understanding of the proceedings against him.” Drope, 420
U.S. at 172 (quoting Dusky, 362 U.S. at 402). And Drope ex-
plains how Pate relates to Dusky: Pate tells us that “the failure
to observe procedures adequate to protect a defendant’s right
not to be tried or convicted while incompetent to stand trial
deprives him of his due process right to a fair trial.” Drope, 420
U.S. at 172. Our court’s earlier references to separate

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No. 23-2777 17
“substantive” and “procedural” rights are confusing. We do
not see a bifurcation between procedural competency and
substantive competency rights.
C
The question for us to answer, then, is whether procedural
default doctrine bars a competency-based due process claim
when a petitioner raises that claim for the first time on collat-
eral review.
Our fellow circuits—tying the analysis to the bifurcation
of competency claims—have reached disparate answers to the
question. The Eighth and Ninth Circuits hold that a petitioner
may procedurally default both procedural and substantive
competency claims. See Lyons v. Luebbers, 403 F.3d 585, 593
(8th Cir. 2005); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306–
07 (9th Cir. 1996). The Fourth and Sixth Circuits hold that sub-
stantive competency claims are subject to procedural default.
See Basham, 789 F.3d at 379 n.10 (citing Smith v. Moore, 137 F.3d
808, 819 (4th Cir. 1998); Hodges, 727 F.3d at 540. The Fifth Cir-
cuit has reached the same conclusion in an unpublished case.
Green v. Lumpkin, 2023 WL 2941470, at *3 (5th Cir. Apr. 13,
2023).2 The Tenth and Eleventh Circuits, however, hold that
procedural default doctrine bars only procedural competency
claims, but not substantive competency claims. See Lay, 860
F.3d at 1315; Raheem, 995 F.3d at 928–29. These courts reason
that procedural competency claims must be raised first on di-
rect appeal “because an appellate court hearing the claim
‘may consider only the information before the trial court
2 We could not locate any decision from the Fourth, Fifth, or Sixth Cir-
cuits speaking to whether procedural competency claims may be proce-
durally defaulted.

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18 No. 23-2777
before and during trial.’” Medina v. Singeltary, 59 F.3d 1095,
1106 (11th Cir. 1995) (quoting James, 957 F.2d at 1572). But sub-
stantive competency claims cannot be subject to procedural
default because of the Supreme Court’s determination that
criminal defendants may not waive the right to be tried only
while competent. See, e.g., Adams v. Wainwright, 764 F.2d 1356,
1359 (11th Cir. 1985) (citing Pate, 383 U.S. at 384), abrogated on
other grounds as recognized in Granda v. United States, 990 F.3d
1272, 1294 (11th Cir. 2021).
We align ourselves with the emerging consensus that pro-
cedural default may apply to a competency-based due pro-
cess claim. As seen in our discussion above, supra II.B., our
circuit does not adopt a distinction between substantive and
procedural competency claims, but we reach the same conclu-
sion as those that hold competency claims can be barred un-
der procedural default doctrine.
Yang presents three arguments to the contrary. He analo-
gizes procedural default and waiver, compares competency
claims on collateral review to ineffective assistance of counsel
claims in the same context, and asserts that our decision in
Anderson v. United States, 865 F.3d 914, previously concluded
that procedural default doctrine cannot bar competency
claims on collateral review. None of these arguments are per-
suasive.
First, he contends that procedural default does not apply
because competency is not waivable. But this contention is un-
convincing because it conflates waiver and procedural de-
fault. See Hodges, 727 F.3d at 540. Waiver is the intentional re-
linquishment of a known right. See United States v. Flores, 929
F.3d 443, 447 (7th Cir. 2019). As Pate recognizes, waiver cannot
be applied to competency in the original trial proceedings

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No. 23-2777 19
because the potentially incompetent defendant cannot know-
ingly and voluntarily relinquish his rights. 383 U.S. at 384. De-
fault, however, is a different animal. It is a “failure to act when
action is required.” Default, GARNER ’ S DICTIONARY OF LEGAL
U SAGE (3d ed. 2011).
Yang argues that Pate’s recognition of a defendant’s inabil-
ity to waive competency implies that procedural default can-
not apply. In his view, it is contradictory to prohibit waiver
but to permit procedural default. But the law can prohibit a
defendant from waiving competency before a trial court,
while still subjecting competency claims to default for failing
to observe the proper procedures in a collateral attack. Nearly
fifty years ago, in the § 2254 context, the Supreme Court re-
jected as “sweeping” a rule that “would make federal habeas
review generally available to state convicts absent a knowing
and deliberate waiver of the federal constitutional conten-
tion.” Wainwright v. Sykes, 433 U.S. 72, 87–88 (1977). And the
comparison of default to waiver is particularly unavailing in
the § 2255 arena where default roots itself in finality and pro-
cedural efficiency. See United States v. Frady, 456 U.S. 152, 164–
65 (1982) (“Our trial and appellate procedures are not so un-
reliable that we may not afford their completed operation any
binding effect beyond the next in a series of endless postcon-
viction collateral attacks. To the contrary, a final judgment
commands respect.”). We thus reject Yang’s argument that
procedural default does not apply because competency is not
waivable.
Second, Yang analogizes his competency claim to an inef-
fective assistance of counsel claim. He asserts these claims are
similar because both are poorly situated for direct review in
the first instance—they both “involve evidence outside the

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20 No. 23-2777
record” and a “reviewing court on direct appeal is limited to
the record of trial and cannot consider any extrinsic evidence
that may be necessary to support” them. Appellant’s Brief at
20, quoting Galbraith v. United States, 313 F.3d 1001, 1007–08
(7th Cir. 2002).
This court has been reluctant to broaden the exception to
the procedural default doctrine beyond ineffective assistance
of counsel. In Delatorre v. United States, we held that a prose-
cutorial misconduct claim raised for the first time in a § 2255
motion was procedurally defaulted. 847 F.3d 837, 844 (7th Cir.
2017). In doing so, we rejected an argument that prosecutorial
misconduct claims were like ineffective assistance of counsel
claims—“so inextricably linked to extrinsic evidence that it
could not have been properly considered on direct appeal.”
Id. That is because “prosecutorial misconduct claim[s] … do[]
not, by [their] very nature, require augmentation of the rec-
ord.” Id. In contrast, ineffective assistance of counsel claims
“are almost invariably doomed on direct review because they
often require augmentation of the record with extrinsic evi-
dence, which cannot be considered.” Id. (internal quotation
marks omitted).
But competency claims are not “invariably doomed,” id.,
on direct review because of a lack of record evidence. Defend-
ants regularly raise, and this court addresses, competency
claims on direct review of criminal convictions and sentences.
See United States v. Anzaldi, 800 F.3d 872, 877–80 (7th Cir. 2015)
(holding district court did not abuse its discretion in declining
to order a competency evaluation); United States v. Stoller, 827
F.3d 591, 596 (7th Cir. 2016) (holding a district court did not
abuse its discretion in declining to hold a hearing on defend-
ant’s competency); United States v. Ewing, 494 F.3d 607, 622-23

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No. 23-2777 21
(7th Cir. 2007) (same). Moreover, analogizing competency
claims to ineffective assistance claims and permitting Yang
(and future petitioners) to avoid procedural default counte-
nances the gamesmanship that the district court feared was
playing out in the proceedings before it. As that court noted,
there is one witness who can testify directly as to whether
Yang was competent—attorney Phillip. But because Yang
does not assert an ineffective assistance of counsel claim, he
may assert attorney-client privilege to shield Phillip’s
thoughts on competency.
Ultimately, Yang wants a special procedural default
exemption for competency claims. We see no reason to recog-
nize one, especially when our court consistently applies the
procedural default doctrine to other claims raised for the first
time in § 2255 motions. See Conley v. United States, 5 F.4th 781,
799 (7th Cir. 2021) (holding that due process claim rooted in
unrecognized “outrageous government conduct” theory was
otherwise procedurally defaulted); McCoy v. United States, 815
F.3d 292, 295–96 (7th Cir. 2016) (holding defendant defaulted
claim that magistrate judge exceeded authority under Federal
Magistrates Act and Article III by failing to raise issue on di-
rect appeal or in § 2255 motion); Theodorou v. United States, 887
F.2d 1336, 1341 (7th Cir. 1989) (holding that defendant’s fail-
ure to raise his constitutional claim of a due process violation
on direct appeal precluded him from raising the issue in a
§ 2255 proceeding). Constitutional claims in the collateral re-
view context (save for ineffective assistance of counsel claims)
are almost always tethered to arguments regarding depriva-
tion of a due process right to a fair trial. We routinely apply
procedural default doctrine to those claims, and Yang does
not convince us to depart from that general rule.

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22 No. 23-2777
Third, Yang relies on Anderson to argue that our court does
not apply procedural default doctrine to competency claims.
He submits that, “as the Seventh Circuit’s most recent opinion
applying the Due Process competency framework, [Anderson]
should have supplied the roadmap for the district court’s de-
cision here.” Anderson pleaded guilty to being a felon in pos-
session of a firearm. 865 F.3d at 916. As this court described it,
though the district court had some “general knowledge of An-
derson’s mental health problems,” it was unaware of the ill-
nesses he suffered, the medication he was prescribed, and
how the medication affected him. Id. In the underlying crimi-
nal proceeding, neither the court, Anderson’s counsel, nor the
government raised the issue of Anderson’s competency. Id.
Anderson’s plea agreement foreclosed a direct appeal, so fol-
lowing his conviction and sentence he sought § 2255 relief, ar-
guing (1) that he was not competent at the time of his plea and
(2) that his counsel was constitutionally defective in failing to
raise the issue of his competency. Id. The district court rejected
Anderson’s petition without holding an evidentiary hearing.
Id.
This court’s decision in Anderson addressed only whether
the district court should have held an evidentiary hearing be-
fore ruling on the petition. Id. The court concluded that an ev-
identiary hearing was needed: “Because the district court
lacked a full picture of Anderson’s mental health, its finding
that Anderson had the capacity to plead guilty rests on a
flawed factual foundation that must be explored in a hear-
ing.” Id. at 920. Informing this conclusion were facts that “the
district court knew Anderson was a paranoid schizophrenic”
and that “Anderson disclosed his use of unspecified psycho-
tropic drugs” in the underlying proceedings. Id.

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No. 23-2777 23
Anderson does not support Yang’s argument that our court
would not apply procedural default to his § 2255 competency
claim. Though Anderson certainly sketches out the general
principles governing competency and due process, it does so
while resolving a narrow issue: the necessity of a § 2255 evi-
dentiary hearing. That issue is not pertinent here because the
district conducted an evidentiary hearing.
Although neither our court nor the district court deter-
mined that Anderson’s competency claim was procedurally
defaulted, that was because no party addressed procedural
default. Additionally, though not discussed by the court in
Anderson, a different procedural background may have coun-
seled a different result on the issue of procedural default had
it been raised. Unlike here, where Yang was free to seek the
direct appeal of his conviction and sentence, Anderson was
foreclosed from seeking any direct appeal by the terms of his
plea agreement. 865 F.3d at 916. These differences make An-
derson distinguishable.
D
Having determined that the doctrine of procedural default
applies to competency claims, we apply it here. “A claim not
raised on direct appeal generally may not be raised for the
first time on collateral review and amounts to procedural de-
fault.” White v. United States, 8 F.4th 547, 554 (7th Cir. 2021).
Usually, when confronted with procedural default, a peti-
tioner can overcome that hurdle by showing “either cause for
the default and actual prejudice from the alleged error, or that
he is actually innocent.” Id.
Application of these principles is straightforward here and
requires denial of Yang’s motion. Neither Yang nor his

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24 No. 23-2777
counsel raised the issue of competency before the trial court.
In fact, at two different times, both attorney Musolf and attor-
ney Phillip said they saw no impediment to proceeding based
on Yang’s competency.
And Yang did not directly appeal his conviction and sen-
tence, electing instead to move under § 2255 to vacate his sen-
tence. At first, Yang’s motion raised the ineffective assistance
of counsel issue. Only after the court concluded that an evi-
dentiary hearing was warranted and appointed counsel did
Yang, through his new counsel, withdraw his ineffective as-
sistance claim and raise the competency claim at issue here.
Yang did not attempt to make the traditional showing of cause
and prejudice or of actual innocence in bringing his claim.
Nor has he asserted those exceptions here on appeal to over-
come procedural default. Therefore, Yang’s petition must be
dismissed.3
III
Yang is not entitled to collateral relief under § 2255 be-
cause he procedurally defaulted his competency claim in his
second amended petition. The district court concluded the
same after presiding over Yang’s criminal trial and conduct-
ing a complete inquiry into Yang’s claim on collateral review.
Therefore, we A FFIRM the denial of Yang’s § 2255 motion.
3 In its thoroughness, the district court addressed the merits of Yang’s
§ 2255 motion. As stated above, because we conclude that Yang procedur-
ally defaulted his claim, we decline to address the merits. For the same
reason we need not resolve Yang’s challenge to the district court’s order
that attorney Phillip testify at the evidentiary hearing.

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