Coe v. BellCoe v. Bell
- Reporters:
- , ,
- Before:
- Karen Nelson Moore, Boggs, Norris
ON BRIEF: Henry B. Martin, Paul R. Bottei, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Gordon W. Smith, Michael E. Moore, Glenn R. Pruden, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, for Appellee.
KAREN NELSON MOORE, Circuit Judge. Robert Glen Coe appeals the denial of habeas relief regarding the Tennessee state courts’ determination that he is competent to be executed pursuant to Ford v. Wainwright, 477 U.S. 399 (1986). Because we conclude that the Tennessee state courts’ proceedings assessing Coe’s Ford claims satisfy the requirements of due process and do not involve an unreasonable application of Supreme Court precedent, we AFFIRM the district court’s denial of Coe’s application for a writ of habeas corpus.
I. FACTS AND PROCEDURE
In 1981, Robert Glen Coe received the death sentence after a Tennessee jury convicted him of first-degree murder. Once Coe had exhausted all of his state and federal appeals of his conviction and sentence, the Tennessee Attorney General filed a motion before the Tennessee Supreme Court requesting an execution date. On December 15, 1999, the Tennessee Supreme Court set Coe’s execution date for March 23, 2000, and ordered a remand of the case to the Tennessee trial court that had presided over Coe’s conviction for a determination of his competency to be executed under Ford. Coe v. State, 11 S.W.3d 118, 119-20 (Tenn. 1999). The trial court determined that Coe was entitled to a hearing on this issue because he had satisfied a threshold showing that there existed a genuine disputed issue regarding his competency to be executed. The hearing was held from January 24 to January 28, 2000. The trial court then issued a finding on February 2, 2000 that Coe is competent to be executed. The Tennessee Supreme Court affirmed this finding on March 6, 2000. Coe v. State, No. W1999-01313-SC-DPE-PD, 2000 WL 246425 (Tenn. Mar. 6, 2000), cert. denied, -- S. Ct. --, 2000 WL 295230 (Mar. 22, 2000).
After we requested and received briefs from the parties on April 3, 2000, we granted a stay of execution to evaluate fully the merits and to prevent Coe’s scheduled April 5, 2000 execution from mooting his appeal. We directed the district court to make its record available for our review and asked the parties to designate particular parts of the record pertinent to this appeal. Because of the ample briefing and record and because of the inherent need for expedited review and resolution of a Ford claim, further briefing and an appellate oral argument are not necessary. See
II. ANALYSIS
A. Adequacy of State Procedures
1. Ford v. Wainwright
This circuit has never been presented with the opportunity to examine the adequacy of a state’s procedures to determine whether a death-row prisoner is competent to be executed pursuant to Ford v. Wainwright, 477 U.S. 399 (1986). In Ford, the Supreme Court held that the Eighth Amendment prohibits a state from executing a prisoner who is insane. See 477 U.S. at 409-10. A majority of the Justices did not reach the issues of what constitutes insanity in this context or what state procedures would adequately address a prisoner’s Ford claim. Therefore, this court must look to the position taken by Justice Powell, who concurred in the judgment on the most narrow grounds, for the Court’s holding on these issues. See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
First, Justice Powell concluded that prisoners will be considered insane for the purposes of competency to be executed when they “are unaware of the punishment they are about to suffer and why they are to suffer it.” Ford, 477 U.S. at 422 (Powell, J., concurring). In Ford, a psychiatrist’s findings showed that the death-row prisoner believed that he would not be executed but rather understood the death penalty to have been invalidated. This led Justice Powell to conclude that “[i]f this assessment is correct, petitioner cannot connect his execution to the crime for which he was convicted” as required under the competency standard. Id. at 422-23 (Powell, J., concurring). It appears that the Supreme Court has accepted this competency standard as the Ford holding. See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that “under Ford v. Wainwright, someone who is ‘unaware of the punishment they are about to suffer and why they are to suffer it’ cannot be executed” (citation omitted)).
Second, Justice Powell determined that in evaluating a prisoner’s competency-to-be-executed claim, the state must comply with the Due Process Clause and that, under these particular circumstances, the clause requires the state to provide the prisoner with a “fair hearing.” Ford, 477 U.S. at 424 (Powell, J., concurring). In Ford, the Governor of Florida was responsible for deciding a prisoner’s competency to be executed and for appointing a panel of three psychiatrists to evaluate the prisoner. The prisoner was not given the opportunity to present any material for the Governor to consider in making a competency determination. Justice Powell noted that the opportunity to be heard is a “fundamental requisite” of due process. Id. (Powell, J., concurring). The prisoner was not given this fundamental opportunity to be heard, and the decision on his competency
Justice Powell cautioned, however, that he “would not require the kind of full-scale ‘sanity trial’” he thought implied in Justice Marshall’s opinion. Id. at 425 (Powell, J., concurring).1 Although a prisoner is entitled to due process on a Ford claim, “[d]ue process is a flexible concept” and its procedural protections may vary depending on the context of a particular situation. Id. (Powell, J., concurring). A competency-to-be-executed claim only raises the issue of when a prisoner will be competent for execution and does not challenge the validity of the prisoner’s conviction or sentence. Although an important question, “it is not comparable to the antecedent question whether [the prisoner] should be
Accordingly, Justice Powell concluded that a state need not carry out a formal trial to determine a prisoner’s competency. At a minimum, he stated, “[t]he State should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination.” Id. at 427 (Powell, J., concurring). However, “[b]eyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake” as long as the states observe the requirements of “basic fairness” under the Due Process Clause. Id. (Powell, J., concurring).
2. Tennessee’s Ford Procedures
Invoking its inherent supervisory authority and with the Ford decision as guidance, the Tennessee Supreme Court recently adopted and set forth the procedures that a death-row
Next the court established the procedures to be used in Tennessee. After the State Attorney General moves the Tennessee Supreme Court to set an execution date, the prisoner must raise the issue of competency in his response to the motion within the ten-day period for response. If such a motion is made, and the Tennessee Supreme Court sets an execution date, the prisoner’s competency claim will be remanded to the trial court where the prisoner was originally tried and sentenced. Within three days of the entry of the remand order, the prisoner must file a petition with the trial court setting forth the factual allegations of incompetence along with supporting affidavits, records, or other materials and a list of any mental health professionals who would be available and willing to testify on the prisoner’s behalf. See id. at 267-68. The district attorney general must file a response within three days. Within four days the trial court then must decide whether the prisoner has made the required threshold showing of incompetence in order to receive a hearing as suggested by the opinions of Justice Powell and Justice Marshall. See id. at 268 (citing Ford, 477 U.S. at 417 (Marshall, J., plurality opinion); 477 U.S. at 426 (Powell, J., concurring)). Noting that the Supreme Court did not indicate what would satisfy the threshold showing, the Tennessee Supreme Court looked to Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985), cited favorably in Justice Powell’s concurring opinion, in which the Court concluded that a defendant must make a substantial showing of his insanity before due process requires the state to appoint a defense psychiatrist at its expense. It also examined its own cases, applying Ake, which require that before a mental health expert will be appointed to evaluate a defendant’s competency to stand trial, the defendant must point to the facts and circumstances of his
If the prisoner satisfies this threshold showing for a hearing, the trial court must appoint “at least one, but no more than two, mental health professionals from each list submitted by the respective parties.” Id. The experts then must submit written reports to the trial court. Within ten days after the filing of the mental health professionals’ reports, the trial court is required to hold a hearing to determine competency. No jury is impaneled. At the hearing, the prisoner has the burden of proving by a preponderance of the evidence his incompetency to be executed. See id. at 270-71. Adopting the more stringent requirements in Justice Marshall’s opinion in Ford, the Tennessee Supreme Court “emphasize[d] that the strictures of due process must be observed at the hearing.” Id. at 271. A “prisoner must be given notice that an evidentiary hearing will be held” and “must be afforded an opportunity to be heard and to present evidence relevant to the issue of competency at an adversarial proceeding at which the prisoner is entitled to cross-examine the State’s witnesses.” Id. In order to satisfy Justice Marshall’s determination that a prisoner should not be barred from presenting relevant material for the factfinder’s consideration, the court stated that “the rules of evidence should not be applied to limit the admissibility of reliable evidence that is relevant to the issue of the prisoner’s competency.” Id.
After the hearing, the trial court must file an order with detailed findings of fact and conclusions of law granting or denying the prisoner’s Ford petition. The Tennessee
In setting forth the procedures for handling a Ford claim, the Tennessee Supreme Court properly followed the narrow concurring opinion of Justice Powell in establishing the standard for competency to be executed and by placing the burden of proof on the prisoner to make a threshold showing of incompetence for a hearing. The court then chose to implement the views in the opinion of Justice Marshall, which argued for more procedural protections than Justice Powell’s opinion, to mandate an adversarial hearing in which the prisoner is able to present all relevant material regarding his competency and to cross-examine the state’s expert witnesses. Therefore, the procedures identified in Van Tran are generally adequate to protect a prisoner’s right to a fair hearing of his Ford competency claim as required by due process. To the extent that Coe challenges specific aspects of the Van Tran procedures, we discuss them below in Part II.C.
B. Habeas Review
Coe filed his habeas application challenging the Tennessee courts’ determination of his competency under Ford on
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Coe contends that AEDPA does not apply to his claims, because applying AEDPA would impose impermissible retroactive effects and thus violate this court’s decision in In re Hanserd, 123 F.3d 922 (6th Cir. 1997). More specifically, in response to the district court’s conclusion that Hanserd only applies to AEDPA’s bar on second and successive applications, he asserts:
Indeed, Hanserd makes clear that any impermissible retroactive effect of the AEDPA, if not specifically authorized by Congress, cannot apply to bar relief. It does not seem plausible to conclude that Hanserd allows the application of pre-AEDPA to allow consideration of a claim, only to have the claim denied under the new law.
The whole point of retroactivity analysis is that Robert Coe has been unfairly trapped by a change in the law. If he knew that the AEDPA would cut off his right to relief on a Ford claim, he certainly would have raised the claim in his first petition, which clearly would have been governed by the pre-AEDPA law. Lindh v. Murphy, 521 U.S. 320 (1997). It is for this reason that the AEDPA does not apply, because the retroactive effect which has occurred is the new effect of Robert Coe’s filing of claims in his first petition – not only the cutting off of his right to file the claim, but the prospect of being denied relief under the new standards of the AEDPA.
Petitioner’s Memorandum in Support of Motion for Stay at 70-71.
In Hanserd, we concluded that where AEDPA’s gatekeeping provision prohibiting second or successive habeas applications prevents a prisoner from bringing a Bailey claim under
In reviewing Coe’s challenge to the Tennessee courts’ determination of his competency to be executed, we are faced with the question of whether competency is a question of fact or a mixed question of fact and law. In Van Tran, the Tennessee Supreme Court concluded that the determination of competency to be executed is a question of fact. See 6 S.W.3d at 271. Although this court has never examined the nature of this type of competency determination, we have treated a defendant’s competency to plead guilty and to be recommitted as a mixed question of fact and law. See Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995), cert. denied, 516 U.S. 1096 (1996); Levine v. Torvik, 986 F.2d 1506, 1514 (6th Cir.), cert. denied, 509 U.S. 907 (1993). If competency to be executed is a question of fact, under
For purposes of our review, we will apply the standard of review that is most favorable to Coe, without deciding if that standard of review is mandatory. Because the state courts’ decision is entitled to a presumption of correctness under the standard of review for questions of fact, we will apply the more lenient standard for mixed questions of fact and law.3 Where a mixed question is fact-intensive and the Supreme Court has not established a clear “rule” requiring a certain result, this court has concluded that the “unreasonable application” prong of
C. Coe’s Habeas Application
1. Entitlement to Relief Under Ford
Coe argues that the Tennessee courts erred in deciding his competency to be executed because they evaluated his present competency rather than determining his future competency at the moment of execution. The thrust of Coe’s argument is that, he claims, he suffers from Dissociative Identity Disorder (“DID”), which causes him to dissociate under stress, and that he will thus dissociate as his execution grows near and will not have the requisite competency at the time of his execution.
In Ford, the Supreme Court held that the Eighth Amendment prohibits the execution of a prisoner who is insane. See 477 U.S. at 409-10. If taken to its logical extreme, as suggested by Coe, a state would be obligated to determine whether a prisoner is competent to be executed at the exact moment of execution in order to comply with Ford. Justice O’Connor acknowledged that this problem is due to the nature of a competency-to-be-executed claim in her opinion in Ford:
By definition, [a Ford claim] can never be conclusively and finally determined: Regardless of the number of prior adjudications of the issue, until the very moment of execution the prisoner can claim that he has become insane sometime after the previous determination to the contrary.
Id. at 429 (O’Connor, J., concurring in the result in part and dissenting in part).
We do not believe that the Supreme Court in Ford meant to require a state to determine a prisoner’s competency at the exact time of his execution. It would be impossible to follow
In the present case, on December 15, 1999, the Tennessee Supreme Court remanded the issue of Coe’s competency to the Tennessee trial court after setting Coe’s execution for March 23, 2000. The trial court held an evidentiary hearing on Coe’s competency in late January 2000 and issued its decision on February 2, 2000. The Tennessee Supreme Court affirmed the trial court’s decision on March 6, 2000. We conclude that the Tennessee courts’ determination was made while Coe’s execution, less than two months away, was imminent. The Tennessee courts’ use of the phrase “present competency” did not constitute a misunderstanding of the proper issue under Ford of whether Coe is competent to be executed at his imminently scheduled execution date.
We acknowledge Coe’s argument that, due to the special nature of his claimed DID affliction, he will degenerate as the execution looms and his condition will significantly worsen. The Tennessee Supreme Court expressly set forth a procedure in Van Tran to deal with this type of situation. The court stated,
If a prisoner is found to be competent, subsequent Ford claims will be disallowed unless the prisoner, by way of motion for stay, provides this Court with an affidavit from a mental health professional showing that there has been a substantial change in the prisoner’s mental health
since the previous determination of competency was made and the showing is sufficient to raise a substantial question about the prisoner’s competency to be executed.
Van Tran, 6 S.W.3d at 272. This state procedure adequately addresses the situation in which a prisoner’s competency changes after the Tennessee state courts make their competency determination by requiring the prisoner to establish a substantial change in his competency. In light of the fact that two state courts have already made a determination of Coe’s competency to be executed, we conclude that Tennessee’s requirement that he make a threshold showing of a “substantial change” comports with notions of basic fairness.
In sum, because the procedures followed by the Tennessee courts in this case satisfy the requirements of due process, we cannot conclude that they represent an unreasonable application of the Ford opinion.
2. Standard of Competency
Coe also asserts that the Tennessee courts applied an improper standard of competency in deciding his competency to be executed. As discussed above in Part II.A.2 supra, in Van Tran the Tennessee Supreme Court adopted the competency standard advocated by Justice Powell’s concurring opinion in Ford. In determining the proper standard, Justice Powell looked for guidance in the common law tradition and in the modern practice of prohibiting the execution of the insane. He noted that there were differing justifications at common law for not executing insane criminals. One justification, also applied in the context of competency to stand trial, was that a prisoner must be competent to be executed so that he may assist in his defense. See Ford, 477 U.S. at 419 (Powell, J., concurring) (“‘if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory he might allege somewhat in stay of judgment or execution’”) (quoting 1 M. HALE, PLEAS OF THE CROWN 35 (1736)). Justice Powell, however, concluded that this justification does not make
We agree that a prisoner’s ability to assist in his defense is not a necessary element to a determination of competency to be executed. Moreover, Coe has not shown how a prisoner could assist his counsel, a mental health professional, or the trial judge in deciding on his competency when the prisoner’s very competency is the matter at issue.
In arguing that the common law standard governing the modern standard for competency to stand trial, which includes the “assistance” inquiry, also applies in a competency-to-be-executed proceeding, Coe asserts that the Supreme Court has held that the standard for competency does not change depending on the stage of the criminal proceedings. He cites to Godinez v. Moran, 509 U.S. 389, 398 (1993), in which the Supreme Court concluded that the competency standard for
Moreover, the Supreme Court seems to have accepted Justice Powell’s competency standard as the Ford holding. See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that “under Ford v. Wainwright, someone who is ‘unaware of the punishment they are about to suffer and why they are to suffer it’ cannot be executed” (citation omitted)). Therefore, we conclude that the Van Tran opinion’s adoption of Justice Powell’s standard, that “only those who are unaware of the punishment they are about to suffer and the reason they are to suffer it are entitled to a reprieve,” satisfies due process and is not an unreasonable interpretation of Supreme Court precedent. Van Tran, 6 S.W.3d at 266 (adopting the “cognitive” test).
We note that Coe also challenges the Tennessee trial court’s application of the Van Tran standard in his case. In its ruling on Coe’s competency, the trial court stated, “Petitioner realizes he is facing execution, and that he knows it is because he has been convicted of murdering a little girl.” Coe v. State, No. B-73812, slip op. at 27 (Tenn. Crim. Ct. Feb. 2, 2000) (emphasis added). Coe argues that the trial court impermissibly relied on Coe’s knowledge that he is to be executed for his murder conviction rather than Coe’s comprehension of the sentence and its implications. See Petition for Writ of Habeas Corpus / Complaint for Relief
3. Burden of Proof
Coe also argues that the Tennessee courts erred in following Van Tran’s placement of the burden of proof on Coe to prove his incompetency to be executed by a preponderance of the evidence rather than placing this burden on the state of Tennessee. To support his argument, Coe asserts that “the burden of proof must reflect the allocation of error under the circumstances” and cites to Addington v. Texas, 441 U.S. 418 (1979), and Mathews v. Eldridge, 424 U.S. 319 (1976) for support. Memorandum of Law in Support of Stay at 82. He also states that because his “mental state fluctuates, it is not proper to require him to bear the burden of proof.” Id. The Addington decision, however, dealt with the proper standard for a civil commitment proceeding not for a competency determination. See 441 U.S. at 425.
In accordance with the Supreme Court’s holding in Medina, we conclude that the placement of the burden of proof on Coe to prove by a preponderance of the evidence that he is incompetent to be executed does not violate due process. We recognize that determining the competency of a criminal defendant facing trial involves different interests than determining the competency of a prisoner facing execution. In light of the fact that a prisoner on death row has previously been found competent to stand trial and has been convicted
4. Other Procedural Claims
Finally, Coe raises a number of other challenges to the procedures used by the Tennessee courts in deciding his competency. Given Justice Powell’s opinion in Ford, we believe that “[as] long as basic fairness is observed” in a prisoner’s competency-to-be-executed determination, a state has “substantial leeway to determine what process best balances the various interests at stake.” Ford, 477 U.S. at 427 (Powell, J., concurring). Accordingly, we must give the Tennessee courts substantial discretion in fashioning the procedures employed in Coe’s competency proceedings. Where Coe was given an extensive hearing over several days and was given the opportunity to present evidence and to cross-examine the state’s mental health experts, it is not our role to second guess all of the procedural decisions made by the Tennessee courts. Moreover, we note that the district court ably addressed Coe’s claims in a thorough 42-page opinion denying habeas relief. It would serve no jurisprudential purpose to discuss these claims any further.
III. CONCLUSION
Based on the foregoing, we AFFIRM the district court’s denial of Coe’s application for a writ of habeas corpus. We hereby lift the stay of execution.