April 3, 2025 – The 19-year appeal odyssey of Jacob Alan Powers may have ended last week when the U.S. Court of Appeals for the Seventh Circuit decided in Powers v. Noble, No. 24-2134 (March 25, 2025) that Powers was competent at his 2006 trial.

The result of the federal habeas corpus review stretched out because of changes in the arguments Powers made. But the final arguments ended where they began, arguing that he was not competent to stand trial and his counsel was ineffective because he didn’t raise the issue.

Retrospective Competency Evaluation

The trial is now distant, given the extensive post-conviction matters, but the facts in the underlying crime stick out. They involve a 13-year-old girl who came to Powers’ apartment after meeting him earlier and whether Powers participated in enticing and sexually assaulting her.

After hearing two versions of the events, the jury found Powers guilty on all three counts. The circuit court sentenced him to 33 years in prison.

The first evaluations of Powers competency began a year after sentencing. The challenge involved to what degree was Powers competent or suffered from low IQ – coupled with physical and psychological abuse as a child.

Powers’ appellate attorney moved to have Powers’ competency evaluated. The first evaluation indicated Powers was “moderately impaired.” Although “Powers could think strategically about his trial,” distractions at trial may have affected him. The examining doctor testified that he believed Powers lacked competency at trial.

A second evaluation noted that Powers was able to “consistently understand questions and provide accurate answers” – no sign of delusions or paranoia. This doctor decided Powers was competent at trial.

The circuit court agreed and allowed Powers’ appeal. After reviewing the case, appellate counsel filed a no-merit report with the Wisconsin Court of Appeals under Wis. Stat. section 809.32. The report summarizes the record, considers legal arguments, and explains why appeal on those arguments would be frivolous.

In the no-merit report, Powers’ lawyer analyzed whether the trial lawyer’s counsel was ineffective by failing to raise the issue of competency at trial. “She concluded that to appeal on that ground would be frivolous,” the federal court explained.

The court of appeals in 2008 accepted the report. Although it recognized that Powers had “low IQ and mental health problems, his trial testimony gave no indication that he lacked competency.” Powers did not seek appeal.

Powers began his federal habeas petition in December 2010. The petition had problems, and Powers changed his claims over time, which at one point required a return to state court, but in November 2023, his final amendment to the petition left where he started in 2010.

The net result left two claims, raising the issue of competency at trial – a due process issue – and ineffective assistance of counsel. The U.S. District Court for the Eastern District of Wisconsin denied relief, stating “at no point was Powers incompetent.”

The court, nonetheless, certified the case for appeal because “reasonable jurists could debate” its conclusions.

Competency at Trial

At trial, “the defendant need not understand everything, ‘that’s why they need lawyers, after all,’” wrote Circuit Judge Michael B. Brennan for the unanimous panel that included Judges Kenneth F. Ripple and Joshua P. Kolar.

Although Powers has a low IQ in the range of mild mental disability, “individuals with a low IQ often know right from wrong,” the appeals court said, quoting U.S. Supreme Court precedent.

In 1999, in an earlier case, Powers was charged for abusing his infant child. The circuit court found him “not guilty by reason of mental disease or defect.” But that verdict is different from incompetency. In fact, the assertion at trial “presupposes competency,” the appeals court said.

Similarly, at his 2006 trial, Powers demonstrated competency, the appeals court explained. He “behaved appropriately,” “did not act erratically,” and remained polite. Powers testified in detail about a night 11 months earlier, a virtual “play-by-play.”

His testimony demonstrated a sense of right from wrong. Even on cross-examination, he “testified to a witness’s apparent motivations” and “understood social conventions,” the court said. He thought strategically about his case.

“[T]rial counsel is in the best position to know whether a defendant’s competency is at issue, as he witnesses firsthand his client’s mental state,” the court said. Powers’ appellate attorney, after meeting with trial counsel, chose not to pursue the claim on appeal.

The three evaluations, too, show a pattern of competency. Both 2007 reports showed competency, although one of the doctor’s testimony six months later opened that “Powers lacked competency at the time.”

Maybe it would have been reasonable to raise the competency claim at trial, but the appellate attorney concluded to claim insufficient counsel for failing to raise the claim was “frivolous.”

“[A]ll three experts agreed that Powers could understand complex topics if sufficient time was spent explaining them to him,” but all one needs for competency at trial is to “know enough to understand the nature of the proceedings against him.” At trial he showed that he did, the appellate court said.

Although Powers points out his mental health issues and suicide attempts, the court explained that “mental illness is not always linked with incompetency.” In total, the evidence showed Powers was competent at trial.

That Powers was competent at trial demolishes the claim that his counsel was ineffective for not raising the defense. As the appellate court said, “Because we conclude that Powers was competent at trial, his trial lawyer cannot be faulted for not pursuing the issue.”

As a result, the Court of Appeals affirmed the District Court denial of a petition for habeas corpus.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.