Barnett v. HargettBarnett v. Hargett
TENTH CIRCUIT
KELLY, Circuit Judge.
*On appeal, Respondent contends that the district court erred in (1) granting relief on an issue not raised by the Petitioner in his federal petition, and (2) failing to afford the state district court‘s determinations about a competency hearing a presumption of correctness,
Background
We discuss the facts briefly as they relate to the State‘s appeal. In a two-stage jury trial, Petitioner was convicted of assault and battery with intent to kill after former conviction of two or more felonies and sentenced upon the jury‘s recommendation to one hundred years imprisonment. See Aplt. Aрp. at 98. The jury trial and sentencing were not continuous; apparently, Petitioner achieved competency for his trial in March 1989, was determined to be incompetent thereafter, see id. at 93-96, and was not sentenced until August 1989 when he regained competency. An appeal was taken and the judgment and sentence were affirmed. See id. at 99.
The treatment records from the state hospital indicate a discharge diagnosis prior to trial of organic delusional syndrome and seizure disorder. See id. at 96. The competency restoration effort for the trial confirmed the presence of bone defects relating to a head injury. Id. The psychiatric evaluation shortly after trial indicates that Petitioner was over-sedated, delusional and not oriented—he could not walk without assistancе and was incapable of self care. See id. at 93-
The federal petition contains a claim that Petitioner‘s appellate counsel was ineffective for failing to file a petition for rehearing in his direct appeal, and that this ineffective assistance rendered the appellate proceeding unreliable. See id. at 8. Petitioner‘s theory mirrors that unsuccessfully asserted in stаte post-conviction proceedings. Petitioner maintains that he had proper grounds for a rehearing petition based upon the lack of a record order memorializing his competency hearing, and that a new trial is necessary because a post-examination competency hearing is not feasible. See id. at 28-32, 67-83. He also contended that he was denied the right to counsel because his appellate indigent defender had resigned during the pendency of his appeal and no counsel was available to represent him during the appellate process and file a petition for rehearing. See id. at 29 (citing Evitts v. Lucey, 469 U.S. 387 (1985)) & 67. Both the state district court and the Oklahoma Court of Criminal Appeals rejected the ineffective assistance claim on the merits. See id. at 35-42.
This is not a case where counsel failed to pursue a competency determination. See Williamson v. Ward, 110 F.3d 1508, 1519 (10th Cir. 1997). Whether a competency hearing had been held before trial was squarely at issue in Petitioner‘s direct appeal. See Aplt. App. at 108-09. There, appellate counsel argued that Petitioner should receive a new trial because, although the record
By that time, it appears that the lawyer handling Petitioner‘s appeal, a deputy appellate indigent defender, was no longer with the Oklahoma Indigent Defense Systеm. Petitioner contends that he learned of this based upon a March 19, 1997 letter to another inmate informing him that the deputy appellate indigent defender had resigned. See Aplt. App. 206, 213. Nothing in the record before us indicates that Petitioner was represented during the remand proceedings; indeed, it appears that Petitioner did not know of the findings and conclusions entered by
In those remand proceedings, the state district court found that in fact a competency hearing had been held on the date set and that the trial judge had determined that Petitioner was competent and ordered the trial resumed. See id. at 237. The state district court further found that Petitioner “was present with counsel and was afforded an opportunity to present evidеnce concerning his competency and argue as to inferences therefrom.” Id. The original trial judge had no personal recollection of the event and only an unsigned minute order was located in another file in the district attorney‘s office. The state district court relied upon several sources for its findings. A report from a forensic psychologist determining Petitioner was competent was submitted two weeks prior to the scheduled hearing, see id. at 235, although that report is not part of the appendix on appeal. An affidavit of the prosecutor indicated that the hearing was held and that defense counsel in consultation with Petitioner stipulated to the findings by the forensic psychologist. See id. at 239-41. An affidavit of the defense attorney indicated that Petitioner was eventually found cоmpetent by the treating hospital, although the attorney could not recall whether a hearing had been held. See id. at 242.
Discussion
The district court did not abuse its discretion in attempting to ascertain the nature of Petitioner‘s claim. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). When a defendant contends that appellate counsel was ineffective for failing to raise an issue on appeal or here, on rehearing, an examination of the merits of the omitted issue is usually necessary See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995).
Moreover, the mandated liberal construction afforded to pro se pleadings “means that if the court can reasonably read the pleadings to state a valid claim on which the [petitioner] could prevail, it should do so despite the [petitioner‘s] failure to cite proper legal authority, his confusion of various lеgal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (footnote omitted). At the same time, a district court should not “assume the role of advocate for the pro se litigant,” id., and may “not rewrite a petition to include claims that were never presented,” Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), cert. denied, 119 S. Ct. 1053 (1999). The district court in this case looked carefully at the facts and the pleadings in an effort to asсertain what occurred in prior state proceedings and the true nature of Petitioner‘s claims. Although the language and syntax of the petition, together with an emphasis on
B. Petitioner‘s Procedural Competency Claim
Competency сlaims are based either upon substantive due process or procedural due process, although sometimes there is overlap. A competency claim based upon substantive due process involves a defendant‘s constitutional right not to be tried while incompetent. See Sena v. New Mexico State Prison, 109 F.3d 652, 654 (10th Cir. 1997). Competence to stand trial requires that a defendant “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.” Dusky v. United States, 362 U.S. 402, 402 (1960) (internal quotations omitted); see United States v. Williams, 113 F.3d 1155, 1159 (10th Cir. 1997). A substantive competency claim is not subject
A competency claim based upon procedural due process involves a defendant‘s constitutional right, once a bona fide doubt has been raised as to competency, to an adequate state procedure to insure that he is in fact competent to stand trial. See Walker v. Attorney General for the State of Okla., 167 F.3d 1339, 1345 (10th Cir. 1999). A defendant‘s irrational behavior, demeanor at trial, and prior medical opinion may create that bona fide doubt. See Drope v. Missouri, 420 U.S. 162, 180 (1975); Castro v. Ward, 138 F.3d 810, 818 (10th Cir.), cert. denied, 119 S. Ct. 422 (1998). Unlike a substantive competency claim, one based upon procedural due process is subject to procedural bar. See Nguyen, 131 F.3d at 1346 n.2.
Petitioner consistently has claimed that counsel was ineffective for not pursuing essentially a procedural competency claim on rehearing, specifically, that the evidence was insufficient for the state district court to have found a competency hearing. The district court construed the claim to encompass whether any competency hearing was conducted in accordance with the proper legal
C. Exhaustion and Procedural Bar
Normally, before habeas relief may be granted a Petitioner is required to exhaust his remedies in state courts.
Respondent conceded that Pеtitioner had exhausted his ineffective assistance claim as presented, and argued on the merits that the failure to file a
In determining whether a state procedural bar rule is an adequate and independent ground to bar federal review of a constitutional claim, a federal habeas court must apply the state‘s rule in effect at the time of the purported procedural default. See Rogers, 1999 WL 203188, *9; Walker, 167 F.3d at 1344-45. No argument that an incorrect standard was used to determine competency was made at the time of Petitioner‘s direct appeal (1992-93) which occurred prior to Cooper.
In support of its conclusion that the state courts would find the claim
D. Presumption of Correctness
Central to Petitioner‘s ineffectiveness claim is whether a post-examination competency hearing was held. Respondent forcefully argues that the State court findings that such a hearing occurred, despite any contemporaneous record, are “presumed to be correct,” with the burden on Petitioner “of rebutting the presumption of correctness by clear and convincing evidence.”
First, given the Cooper claim now in the case, we recently held that a state-court competency determination arrived at with an incorrect standard of proof is nоt entitled to a presumption of correctness, and is analogous to no competency
The State admits that the standard for competency at the time was determined to be unconstitutional, but argues that the parties’ stipulation as to the forensic psychologist‘s findings was tantamount to a stipulation concerning competency. See Aplt. Br. at 15. However, these findings alone are not dispositive; such a view would displace the role of the trial judge. See Pate v. Robinson, 383 U.S. 375, 386 (1966); United States ex rel. Lewis v. Lane, 822 F.2d 703, 704-05 (7th Cir. 1987). “Only after concluding that a state court used the proper standard does a habeas court turn to the issue of thе presumption of correctness.” Lafferty v. Cook, 949 F.2d 1546, 1551 n.4 (10th Cir. 1991). Given Petitioner‘s history of severe mental problems, the need for him to regain competency on at least two occasions, and the expressed belief of counsel at sentencing that Petitioner was not competent, see Aplt. App. at 108, the Petitioner has established a bona fide doubt as to his competency.
Second, the presumption оf correctness, even for the purely historical fact as to whether a hearing occurred, see Thompson v. Keohane, 516 U.S. 99, 109-10 (1995), does not apply when “some reason to doubt the adequacy or the accuracy
Although Petitioner focused his petition on the claim that counsel was ineffective for failing to seek rehearing after the state appellatе court affirmed his conviction and sentence on the strength of the remand determination, he has always maintained that he had no appellate counsel commencing with the remand. This lack of counsel is attributable to the state. See Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). We have repeatedly emphasized the important professional and institutional obligation inherent in assuring that only those who are competent be tried. Seе United States v. Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998), cert. denied, 119 S. Ct. 828 (1999); Sena, 109 F.3d at 655. In this instance, a procedural competency issue was raised, but not pursued by counsel during or after the remand, a time when critical facts about a proceeding that may or may not have occurred were being developed. For the remand proceedings to be fair, Petitioner needed counsel to evaluate and test (through cross-examination) the
AFFIRMED.
I concur in the disposition of this case. As I understand it, the basic holding of the majority opinion deals with the right to counsel, intertwined with a procedural competency claim, in a very unusual situation which we will probably not see again.