263 F. Supp. 613 | D.D.C. | 1967
OPINION
Petitioner was convicted after trial by a jury on nine counts of narcotics violations and was sentenced by this Court to the mandatory minimum of ten years for a second offender with the recommendation that he be committed to .the United States Public Health Service Hospital in Lexington, Kentucky. His conviction was affirmed by a panel of the United States Court of Appeals.
The matter now at hand arose on January 26, 1966, when petitioner filed a pro se motion for vacation of sentence under 28 U.S.C. § 2255. Petitioner’s motion made' the single allegation that he had been deprived of his constitutional right to effective assistance of counsel with particular reference to the trial presentation of the insanity defense. After consideration of the motion and the files and records of the case, this Court denied the motion on May 16, 1966, without a hearing. On July 16, 1966, the Court of Appeals issued an order granting petitioner leave to appeal in forma pauperis and appointing counsel to prosecute the appeal on his behalf. Thereafter that court issued a further order, dated September 1, 1966, remanding the matter to this court to permit amendment of petitioner’s § 2255 motion.
On remand, petitioner has reasserted the issue of ineffective assistance of trial counsel in the preparation of the insanity defense. Also, through appointed counsel, petitioner has raised for the first time the question of his right to a competency hearing at or during trial, despite the absence of any request therefor by petitioner or his trial counsel at the proper time.
Petitioner’s present allegation of ineffective assistance of trial counsel in the preparation of the insanity defense is successive in the sense that the issue has been heard and determined previously. It is unquestionable that under Sanders v. United States
“The majority of this court do not, however, share Judge Bazelon’s view that trial counsel’s performance was deficient.”7
Judge Wright’s dissent in Thornton v. United States
“There appears to be no reason in principle to distinguish between the finality effect of determinations of grounds made at trial or on appeal and determinations made on earlier § 2255 applications, or to give less significance to abuse of federal process generally than is given to abuse of the § 2255 remedy.”9 Emphasis added)
So, applying the Sanders
II.
Appointed counsel, in the diligent discharge of his duty to petitioner, raised, by means of amendment of the earlier pro se motion, a new issue which has not been determined directly on appeal, nor in any previous collateral attack on the original conviction. However, this issue questions the exercise by the trial court of its discretion, which means the movant carries the burden of proffering substantial evidence to show an abuse of judicial discretion. The amended motion claims that, in view of petitioner’s “recognized addiction to narcotics and other indications of mental aberration appearing in the records of St. Elizabeth’s Hospital”, he had a right to an independent judgment by the trial court on the issue of his competence to stand trial, irrespective of the absence of any request for a hearing by petitioner or trial counsel. In other words, petitioner asserts that it was the duty of the trial court, sua sponte, to order a competency hearing when the hospital certification of petitioner was “conclusionary”. Further, petitioner claims that a nunc pro tunc hearing held some three and one-half years after trial would be insufficient to protect his constitutional right to a fair trial because of the compelling need for concurrent determination as a practical matter. The authorities clearly hold that a nunc pro tunc hearing in these circumstances would be inadequate.
The fact that neither the petitioner nor the Government objected at trial to the court’s acceptance of the
Subsequent to the Whalem decision, the Supreme Court handed down its ruling in Pate v. Robinson,
In the final analysis, petitioner’s reliance rests exclusively on the bare fact of his recognized addiction to narcotics over a long period of years and certain nebulous allegations that his behavior at trial evidenced ineompetency. The burden weighs upon petitioner to present sufficient evidence of mental incompetency to raise a bona fide doubt requiring the trial judge sua sponte to order a hearing. The legal standard of competency has been succinctly stated
“test must be 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.”
At trial, petitioner submitted to his attorney, and subsequently to the judge, a list of doctors whom he desired to subpoena. This action demonstrated a reasonable degree of rational understanding both as to the proceedings against him and as to the tactical presentation of an insanity defense.
Petitioner’s motion attaches great importance to the accusation made by him in open court outside the presence of the jury that his trial counsel “was telling the jury I was guilty to this charge contrary to my wishes.”
Finally, petitioner relies on his recognized addiction to narcotics as sufficient evidence of mental incompetency to raise a bona fide doubt requiring a hearing to be ordered sua sponte. The issue here relates primarily to the period after the trial begins — questionable actions of defendant during trial. The cases cited by petitioner on this point are factually distinguishable from our case. In Pouncey v. United States,
In Hansford
This court holds that insufficient evidence of mental incompetency existed at
. Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43 (1964).
. Ibid, p. 42, 348 F.2d p. 49.
. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
. Habeas Corpus No. 424-65, denied October 8, 1965.
. Sanders v. United States, supra, p. 15, 83 S.Ct. p. 1077.
. The petition for rehearing en tone was denied.
. Heard v. United States, supra, 121 U.S. App.D.C. p. 40, 348 F.2d p. 46.
. Thornton v. United States, 125 U.S.App. D.C.-, 368 F.2d 822. Decided October 6, 1966, dissent of Judge Wright.
. Thornton v. United States, supra, dissent p. 833.
. Sanders v. United States, supra, 373 U.S. p. 15, 83 S.Ct. p. 1077.
. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Pate v. Robinson, 383 U.S. 375, 386, 387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Hans-ford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920, 930-931.
. Taylor v. United States, 282 F.2d 16, 23 (C.A.8th Cir. 1960).
. D.C.Code, Title 24, Sec. 301(a) and (b).
. Whalem v. United States, 120 U.S.App.D.C. 331, 334, 346 F.2d 812, 815 (1965).
. Ibid, p. 333, 346 F.2d p. 814.
. 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
. D.C.Code, Title 24, Section 301(a) and (b).
. Pate v. Robinson, supra, p. 385, 86 S.Ct. p. 842.
. Whalem v. United States, supra, 120 U.S.App.D.C. p. 336, 346 F.2d p. 817.
. 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
. Transcript of Trial Proceedings, p. 90.
. 121 U.S.App.D.C. 264, 266, 349 F.2d 699, 701 (1965).
. Hansford v. United States, supra.