UNITED STATES of America, Plaintiff-Appellee, v. Gwen BERGMAN, Defendant-Appellant.
No. 08-1472.
United States Court of Appeals, Tenth Circuit.
March 25, 2010.
[t]he OCCA‘s decision qualifies for AEDPA deference as an adjudication on the merits ... because it was not a procedural ruling in which the court dismissed the claim as improperly before it. Rather, the state court‘s decision was a substantive determination that the claim was unsupported by any evidence, competent under that state‘s rules of evidence.
Id. at 1182 (brackets and internal quotation marks omitted).
Thus, the question before us is whether the OCCA‘s decision on the jurorbias issue was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Mr. Richie‘s sole criticism of the OCCA decision is that it refused to consider the affidavit evidence of juror bias. But that refusal did not violate any rights of Mr. Richie under clearly established federal law. Our decision in Matthews compels that conclusion. As previously noted, Matthews reviewed the OCCA‘s application of
We accordingly affirm the district court‘s denial of relief on Mr. Richie‘s jurobias claim.
III. CONCLUSION
We AFFIRM (1) the district court‘s grant of Mr. Richie‘s application for a writ of habeas corpus on his conviction for first-degree murder, subject to the state‘s right to retry him within a reasonable time; and (2) the district court‘s denial of his application with respect to his other convictions.
Alleen VanBebber, of McDowell, Rice, Smith & Buchanan, P.C., Kansas City, MO, for Defendant-Appellant.
John Hutchins, Assistant United States Attorney (David M. Gaouette, Acting United States Attorney, David M. Conner, Assistant United States Attorney, and Gregory Holloway, Assistant United States Attorney, with him on the brief), CO, for Plaintiff-Appellee.
Before HOLMES, BALDOCK, and SILER,* Circuit Judges.
Gwen Bergman has had a long and complicated history before this court and the District of Colorado. Upon remand after she successfully appealed her original conviction based on a plea agreement, the district court found her incompetent to stand trial. She then retained Howard O. Kieffer who had never been a licensed attorney. He represented Bergman when the court declared that she was competent and during her bench trial, after which she was convicted of solicitation to commit murder and criminal conspiracy, in violation of
I. Background
In April 2004, Bergman pleaded guilty to a two-count information alleging the following: (1) a violation of the Travel Act,
Bergman appealed her conviction and sentence, arguing that she had not admitted facts sufficient to establish a violation of
At the competency hearing in February 2007, the court determined that Bergman was incompetent to stand trial and remanded her to the custody of the Attorney General to be hospitalized for treatment. Bergman then filed a pro se notice of appeal. While her appeal was pending, the government filed a motion to authorize involuntary administration of psychotropic medication. Before a hearing on that motion was held, Kieffer entered his appearance on Bergman‘s behalf, and Pluss withdrew. Kieffer appeared telephonically at the hearing regarding forced medication. The court indicated it had received a re-
In December 2007, the government filed a superceding indictment, charging three counts based on the same facts, under
Eskesen never filed a motion for new trial. However, she did file an amended motion seeking a sentencing hearing and requesting a correction of the record to reflect that an earlier motion to dismiss the forfeiture count was not filed pro se and should not have been stricken. The court granted that motion, scheduled a sentencing hearing, and reinstated the motion to dismiss the forfeiture count. It later dismissed the forfeiture account and accordingly amended the verdict. Bergman was sentenced in December 2008 to 108 months’ imprisonment for each count, to be served concurrently, and three years’ supervised release.
Bergman timely appeals her conviction and sentence, with the aid of counsel appointed under the CJA. She argues that her conviction should be overturned because she was denied her Sixth Amend-
II. DISCUSSION
A. Sixth Amendment Right to Counsel
Bergman first argues that Kieffer‘s representation of her at the October 2007 hearing, at which the district court determined she was competent to stand trial, violated her Sixth Amendment right to counsel.
“The Sixth Amendment entitles a defendant to the assistance of counsel at every critical stage of a criminal prosecution.” United States v. Collins, 430 F.3d 1260, 1264 (10th Cir.2005) (citing Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). A critical stage is one that holds “significant consequences” for the defendant. Id. “[A] defendant is entitled to counsel at any proceeding where an attorney‘s assistance may avoid the substantial prejudice that could otherwise result from the proceeding.” Id. A competency hearing is a critical stage at which a defendant is entitled to counsel. Id. Although it appears from the record that the October 2007 hearing was not a full competency hearing, the court declared Bergman competent at that hearing. Additionally, the government does not contend that this was not a “critical stage” in the proceedings, such that Bergman was not entitled to counsel. Accordingly, the October 2007 hearing was a “critical stage” at which Bergman‘s right to counsel applied. Thus, we must determine whether Bergman‘s Sixth Amendment rights were violated because she was represented by phoney counsel. Bergman argues that we should adopt a per se rule of ineffectiveness applicable where a defendant‘s counsel has not been admitted to any bar; the government urges us to apply the standard for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
This is a case of first impression in our circuit. In United States v. Stevens, 978 F.2d 565 (10th Cir.1992), we rejected a per se ineffectiveness rule and applied the Strickland standard in a case where a criminal defendant was represented by an attorney whose bar membership was unknowingly revoked before his trial. Id. at 566-68. Relying on cases from our sister circuits, we concluded that “where a licensed attorney is disbarred without notice, the attorney‘s representation is not per se ineffective.” Id. at 568 (citing United States v. Hoffman, 733 F.2d 596 (9th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984); Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir.1988)). In doing so, we recognized that in Waterhouse, the Second Circuit distinguished its earlier case, Solina v. United States, 709 F.2d 160 (2d Cir.1983), “which established a per se ineffectiveness rule where the defective counsel had never been admitted to practice in any state.” Stevens, 978 F.2d at 567-68 (citing Waterhouse, 848 F.2d at 378).
Here, however, we are not simply faced with an attorney who had satisfied the substantive requirements and was later disbarred or whose admission to the bar was improper based on a technicality. Instead, we are faced with a situation where a criminal defendant was represented by a man claiming to have been successfully admitted to the bar, but who never attended law school or even graduated from college. The Second Circuit adopted a per se rule of ineffectiveness under similar facts in Solina, in which a convicted felon petitioned for habeas corpus, alleging that his Sixth Amendment right to counsel was violated because his attorney never passed a bar exam. 709 F.2d at 161. The court reasoned that “counsel,” as used by “Con-
We agree with the reasoning of the Second Circuit and adopt a narrow per se rule of ineffectiveness where a defendant is, unbeknownst to him, represented by someone who has not been admitted to any bar based on his “failure to ever meet the substantive requirements for the practice of law.” Id. at 167. Thus, Bergman was denied counsel at the October 2007 hearing, in violation of her Sixth Amendment right, regardless of her ability to prove prejudice.
Having concluded that her right to counsel was violated, we must determine the proper remedy. Although Bergman asks us to reverse her conviction, “[a] Sixth Amendment violation requires automatic reversal only when the constitutional violation pervades the entire criminal proceeding.” Collins, 430 F.3d at 1266. Deprivation of the right to counsel at a competency hearing affects the entire proceeding only if the defendant stands trial while incompetent. Id. at 1267. Thus, we must determine whether Bergman‘s Sixth Amendment violation resulted in the district court erroneously concluding that she was competent to stand trial. Id.
Although generally disfavored, id. (citing Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)), retrospective competency hearings are not forbidden. To determine whether retrospective competency hearings are permissible, courts should consider the following factors:
- the passage of time,
- the availability of contemporaneous medical evidence, including medical records and prior competency determinations,
- any statements by the defendant in the trial record, and
- the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial.
Id. (quoting McGregor v. Gibson, 248 F.3d 946, 962-63 (10th Cir.2001) (en banc)). In order to determine whether the Sixth Amendment violation here contaminated the remainder of Bergman‘s criminal proceeding, we remand this case to the district court for an evidentiary hearing to determine whether it can make a retro-
Although Bergman alternatively argues she was denied effective assistance of counsel at trial, we decline to reach that claim. Generally, “[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995). As we
explained in Beaulieu v. United States, 930 F.2d 805 (10th Cir.1991), overruled on other grounds by Galloway, 56 F.3d at 1241, ineffective assistance of counsel claims are more appropriate for collateral attack under
Further development of the record is required before we address Bergman‘s in-
B. Sentencing
If the district court decides not to vacate Bergman‘s conviction and conduct a new trial, we affirm her sentence of 108 months. We review sentencing challenges for reasonableness, which, in the sentencing context, is an abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (“Our explanation of ‘reasonableness’ review ... made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.“); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“[A]ppellate ‘reasonableness’ review merely asks whether the trial court abused its discretion.“). We begin by noting that to the extent Bergman is attempting to seek appellate review of the district court‘s denial of her request for a downward departure under Chapter Five of the Guidelines, we lack “jurisdiction ... to review a district court‘s discretionary decision to deny a motion for downward departure on the ground that a defendant‘s circumstances do not warrant the departure.” United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir.2005). “[We] may review a denial of a downward departure only if the denial is based on the sentencing court‘s interpretation of the Guidelines as depriving it of the legal authority to grant the departure.” United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir.2007) (emphasis added). Bergman never argued that the district court concluded it did not have the authority to grant the departure, and our review of the record indicates that it acknowledged it did have such authority. Accordingly, we lack jurisdiction to review the district court‘s denial of Bergman‘s request for downward departure. Nonetheless, we may consider her departure arguments in considering the overall reasonableness of her sentence. United States v. Chavez-Diaz, 444 F.3d 1223, 1228 (10th Cir.2006).
“Reasonableness review is a two-step process comprising a procedural and a substantive component.” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.2008) (citing Gall, 128 S.Ct. at 597). Procedural review requires us to consider whether the district court committed any “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [
Because Bergman does not argue that the district court incorrectly calculated her Guidelines range of 121 to 151 months, we presume she is challenging the substantive reasonableness of the sentence, rather than its procedural reasonableness. Under the abuse-of-discretion standard, we “must now afford substantial deference to district courts.” United States v. Smart, 518 F.3d 800, 806 (10th Cir.2008). We may reverse Bergman‘s sentence only if the district court‘s sentencing decision was “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir.2008) (quotation omitted). She argues that her sentence was unreasonable, given her mental condition, Kieffer‘s fraudulent representation, and the fact that she may not have been competent to stand trial. She points to the fact that she was sentenced to only sixty months after her plea to the information, compared to 108 months under the superceding indictment, as evidence of the unreasonableness of her sentence.
Bergman‘s 108-month sentence, which fell below the advisory Guidelines range, was reasonable. First, Bergman‘s arguments regarding her competency to stand trial have already been addressed and were not relevant at sentencing. Second, the district court did consider Bergman‘s mental health in formulating her sentence. Although the court denied her request for downward departure based on her mental status, it stated that “her mental-health condition is a consideration to be made in [its] ultimate decision under the sentencing factors.” In fact, the district court granted a downward variance from the Guidelines range of 121 to 151 months to a sentence of 108 months.
Finally, although Bergman was sentenced twice as long for her conviction under the superceding indictment than she was when she pled guilty under the information, her sentence was not unreasonable. She was convicted of the crimes charged under the superceding indictment, and the penalties for those crimes were more substantial than those charged under the information. Thus, it was not unreasonable to impose a greater sentence for her conviction under the superceding indictment. Overall, the sentencing transcript indicates that the district court carefully considered and applied the
III. CONCLUSION
We REMAND this case to the district court for further proceedings consistent with this opinion.
HOLMES, Circuit Judge, concurring in part and dissenting in part.
I write separately because I disagree with the majority‘s use of a disfavored remedy to redress the constitutional violation in this case. Although I endorse the majority‘s conclusion that Ms. Bergman‘s Sixth Amendment right to counsel was violated when the district court found her to be restored to competency while she was represented by someone who was not an attorney, I cannot agree with the majority‘s chosen remedy for this violation. I believe that it is inappropriate to remand
I. Background
In order to fully understand the constitutional violation in this case and appropriateness vel non of the majority‘s chosen remedy, a recitation of the somewhat unusual facts is necessary. Defendant-Appellant Gwen Bergman originally pleaded guilty to a two-count information alleging a violation of the Travel Act,
violation pursuant to
The mandate from that appeal issued on September 13, 2006. That same day, Ms. Bergman was charged by a second indictment with two counts of violating
Due to the conflict between Ms. Bergman‘s expressed desire to represent herself and defense counsel‘s assertion that he had reasonable cause to believe that she was incompetent, the district court appointed an attorney, Martha Eskesen, as special counsel to represent Ms. Bergman‘s interests in connection with the competency motion. The court ordered a psychiatric or psychological examination of Ms. Bergman and scheduled a competency hearing.
Two psychiatrists evaluated Ms. Bergman and submitted separate reports to the district court. Dr. Susan Bograd and Dr. Karen Fukutaki both opined that Ms.
gested that the district court should first determine her competency. Defense counsel contemporaneously filed a Motion to Withdraw as Attorney and Motion to Allow Defendant to Proceed Pro Se Or in the Alternative for Appointment of CJA Counsel. The district Bergman was suffering from a mental disease or defect that rendered her incapable of understanding the nature and course of the proceedings against her, of participating or assisting in her defense, or of cooperating with defense counsel.
The February 22, 2007 competency hearing was held pursuant to
court agreed that it first needed to determine whether Ms. Bergman was competent, since the question of whether she may waive counsel would require the court to determine, inter alia, that she was competent to do so.
Dr. Bograd testified that she believed Ms. Bergman would have “some substantial difficulty” assisting in her own defense as a result of a mental disease or defect. Id. at 41-43. Although Dr. Bograd believed it was possible that Ms. Bergman suffered from a personality disorder, she definitively diagnosed Ms. Bergman as having a delusional disorder of the persecutory type that left her “not able to face the reality of the charges against her.” Id. at 42-44. Dr. Bograd testified that Ms. Bergman‘s inability to appreciate the nature of the charges against her was “of psychotic proportions. ... And I think that that makes it where she is unable to effectively assist an attorney to defend her against those charges.” Id. at 44; see also id. at 50. Dr. Bograd opined that she did not think Ms. Bergman would agree with the diagnosis that she suffers from a mental disease or defect because Ms. Bergman believed that she was fine. Both doctors opined that Ms. Bergman‘s ability to assist in her own defense would not be restored were she to be given a different attorney. At the hearing, defense counsel and Special Counsel Eskesen each had the opportunity to cross-examine the doctors and were able to question their conclusions and to determine what methods and evidence that the doctors used to reach their assessments. The district court also asked its own questions of each witness.
After a brief recess, the competency hearing resumed and Ms. Bergman took the stand. Ms. Bergman testified as to her disagreement with the doctors’ reports, her wish to be represented by Ms. Eskesen rather than current defense counsel, and her understanding of the proceedings against her. She then briefly was cross-examined by the government. Finally, each attorney was allowed to present arguments to the court on the issue of competency.
At the conclusion of the competency hearing, the district court found by a preponderance of the evidence that Ms. Bergman was incompetent under
The government filed a motion with the district court on July 31, 2007, asking the
Howard O. Kieffer of Santa Ana, California, entered an appearance as retained defense counsel for Ms. Bergman on October 9, 2007. As a result, Ms. Bergman‘s public defender was permitted to withdraw. Mr. Kieffer would represent Ms. Bergman from October 9, 2007 until July 9, 2008, when it became apparent that he was not qualified to practice law. Indeed, he had never been to law school or graduated from college and was a convicted felon.6
The government thereafter filed a notice to withdraw its motion regarding involuntary medication because it learned, from discussions with BOP staff, that staff now believed that Ms. Bergman was “competent to proceed without forced medication.” R., Vol. I., Doc. 250, at 2 (Government‘s Notice to Withdraw Previous Motion to Force Medicate Defendant, filed Oct. 16, 2007). The motion hearing nevertheless went forward as scheduled on Oc-
After the recess, Mr. Kieffer tendered a copy of the voluntary dismissal of the No-
tice of Appeal to the court. Then there was some “[d]iscussion on how the court should proceed.” Id. The government “indicate[d] [it was] prepared to [sic] the competency hearing and request[ed] the Court take judicial notice to [sic] the report from [FMC] Carswell and for the Court to rule on the issue of competency.” Id. The minute entry reflects that “Mr. Kieffer join[ed] Mr. Conner‘s comments.” Id. There is no indication from the minute entry (or the record at large) that the district court ever formally found by a preponderance of the evidence that Ms. Bergman had been restored to competency, but it is obvious from the court‘s subsequent actions that the court must have concluded that Ms. Bergman was now competent to stand trial. At the same hearing, the court arraigned Ms. Bergman for a second time and apparently then attempted to take Ms. Bergman‘s guilty plea. More specifically, the minute entry indicates that the district court “inquire[d] if the defendant admit[ted] essential elements of the crimes in counts 1 and 2 and determine[d] that she [wa]s unable to do so.” Id. at 3. After a second recess, the court “further inquire[d] of the defendant ... regarding excepting [sic] responsibility to the crimes she [wa]s pleading guilty to.” Id. The court did not accept Ms. Bergman‘s guilty plea and set the case for trial.
As the majority accurately indicates, the district court found Ms. Bergman to be restored to competency solely based on the BOP‘s report. See Maj. Op. at 1145-46. Although the minute entry reveals that the “Court h[ad] received a report indicating the defendant would be competent to proceed,” R., Vol. I, Doc. 255, at 1, there is no
After the district court determined that Ms. Bergman had been restored to competency, Ms. Bergman was charged in a three-count superceding indictment on December 3, 2007, with: (1) using and causing another to use the mail and a facility in interstate commerce (cell phones and wire transfers) with the intent that a murder-for-hire be committed in violation of
Before Ms. Bergman was sentenced, Mr. Kieffer‘s fraud was exposed. The district court issued an order stating:
It has been suggested that Howard O. Keiffer [sic] who entered his appearance as Defendant‘s counsel is not a licensed attorney. He has now been suspended and removed from the rol[l] of attorneys authorized to practice before this Court by the Court‘s Disciplinary Panel. Given the fact that Mr. Keiffer [sic] represented the Defendant in a trial to this court without a jury which concluded with a guilty verdict, I am considering ordering a mistrial and vacating the verdict. Pursuant to
Fed.R.Crim.P. 26.3 , the parties shall file their comments regarding the propriety of such an order on or before July 18, 2008.
R., Vol. II, Doc. 364, at 1-2 (Dist. Ct. Order, filed July 8, 2008). The next day, Mr. Kieffer filed a Notice of Withdrawal of Counsel. Although the government requested a hearing on the issue, one was never held. At a status conference on September 15, 2008, the district court stated that “I am proceeding with the basic premise that [Mr. Kieffer] tried this case as a non-lawyer with Mr. Hurst‘s help.” R., Vol. XX, Tr. at 4 (Status Conference, dated Sept. 15, 2008). Neither Mr. Hurst nor Ms. Eskesen, who was subsequently appointed as defense counsel when Mr. Hurst was permitted to withdraw from his representation of Ms. Bergman, requested a mistrial.11
Ms. Bergman timely appealed and we have jurisdiction over this appeal pursuant to
II. Discussion
On appeal, Ms. Bergman contends that her Sixth Amendment right to counsel was violated: (1) when she was found competent to stand trial, and (2) when she stood trial while represented by someone fraudulently posing as an attorney. She also argues that the sentence imposed was unreasonable under the circumstances. I would find that Ms. Bergman‘s Sixth Amendment right to counsel was violated when the district court found her to be restored to competency while she was not represented by an attorney. To remedy the Sixth Amendment violation, rather than remand for the district court to determine if a retrospective competency determination is possible, I would vacate Ms. Bergman‘s convictions and remand the case for a new trial.
A. Sixth Amendment Violation
The Sixth Amendment entitles a defendant to the assistance of counsel at every critical stage of a criminal prosecution, which includes a competency hearing. Collins, 430 F.3d at 1264; cf.
It must logically follow that, if a competency hearing is a critical stage, then the motion hearing held on October 23, 2007, was also a critical stage. Although the October 23, 2007 motion hearing was not a true competency hearing held pursuant to the statutory framework governing such hearings, it was at this hearing that the district court ultimately resolved the issue of Ms. Bergman‘s competency. That hearing therefore must be considered a critical stage because a competency determination carries significant potential consequences for a criminal defendant. “It is well-settled that the ‘criminal trial of an incompetent defendant violates due process.‘” McGregor v. Gibson, 248 F.3d 946, 951 (10th Cir.2001) (en banc) (quoting Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)). “This ‘prohibition is fundamental to an adversary system of justice.‘” Id. (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). In making a competency determination, a court must consider “whether [the 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, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam) (internal quotation marks omitted); see also McGregor, 248 F.3d at 952.
Moreover, I agree with the majority‘s determination that Ms. Bergman‘s Sixth Amendment right to counsel was violated because she was represented at the hearing solely by “phoney counsel.” Maj. Op. at 1147. I reach this conclusion pursuant to United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), because Ms. Bergman was denied the assistance of counsel altogether, regardless of counsel‘s efficacy vel non. See Wright v. Van Patten, 552 U.S. 120, 124-25, 124 n. * (2008) (”Cronic, not Strickland, applies when counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding” or when “counsel entirely fails to subject the prosecution‘s case to meaningful adversarial testing.” (internal quotation marks omitted)); Collins, 430 F.3d at 1264-66 (finding a constructive denial of counsel under Cronic because counsel failed to subject prosecution‘s assertion of competency to adversarial testing, saying that he would “not comment“). Under Cronic, Ms. Bergman need not show that she suffered any prejudice as a result of not being represented by an attorney at the October
12. I do, however, predicate my joinder in the majority‘s conclusions as to the Sixth Amendment violation on the understanding that the majority has reached those conclusions pursuant to Cronic.
13. In adopting that rule, the majority relies upon the Second Circuit‘s holding in Solina v. United States, 709 F.2d 160, 167 (2d Cir. 1983), which preceded both Cronic and Strickland. However, as the Second Circuit later made clear, Solina and its progeny are consistent with Cronic rather than Strickland because “[w]hen the accused has been deprived of representation by counsel, he is entitled to relief without proving that he was prejudiced by the deprivation.” United States v. Novak, 903 F.2d 883, 886 (2d Cir.1990).
23, 2007 hearing, despite the government‘s repeated insistence that she must demonstrate prejudice. Rather, “where there has been a ‘complete absence of adversarial testing,’ a Sixth Amendment violation is established under Cronic without the showing of prejudice that is otherwise required under Strickland.” Collins, 430 F.3d at 1265 (citing Cronic, 466 U.S. at 654; Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also Cronic, 466 U.S. at 659 (“The presumption that counsel‘s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.“).
Although the majority does not make this point explicitly, I understand the majority to have followed Cronic and I write on this issue only for clarification.12 The majority must have followed Cronic because it adopted a per se rule of ineffectiveness without requiring Ms. Bergman to prove prejudice. Maj. Op. at 1148. More specifically, the majority states that it
adopt[s] a narrow per se rule of ineffectiveness where a defendant is, unbeknownst to him, represented by someone who has not been admitted to any bar based on his failure to ever meet the substantive requirements for the practice of law. Thus, Bergman was denied counsel at the October 2007 hearing, in violation of her Sixth Amendment right, regardless of her ability to prove prejudice.
Id. (citation omitted) (internal quotation marks omitted).13 The majority could not
Accordingly, pursuant to Cronic, the Sixth Amendment‘s guarantee to representation by counsel cannot be satisfied by a non-attorney who has failed to meet the substantive requirements for admission to practice law before any bar. See Novak, 903 F.2d at 886-88; Solina, 709 F.2d at 161, 167-69. Mr. Kieffer never attended law school, or even obtained a college degree, all of which would bar him from the legitimate practice of law. When Mr. Kieffer falsely purported to be an attorney, he deceived Ms. Bergman, the government, and the district court, and singlehandedly caused Ms. Bergman to be deprived of her Sixth Amendment right to be represented by counsel.
B. Remedy
Having concluded that Ms. Bergman‘s Sixth Amendment right to counsel was violated, we must determine the proper remedy to redress that constitutional injury. Ms. Bergman has argued that we should reverse her conviction, a remedy rejected by the majority. I disagree with the majority‘s decision to remand this matter to the district court for it to hold a hearing to determine whether it is possible to make a retrospective competency determination. That course of action is inappropriate in this case because: (1) the government has failed to request that remedy or to make any affirmative showing that we should not reverse Ms. Bergman‘s conviction and remand for a new trial as we did under analogous circumstances in Collins, 430 F.3d at 1267-68, and (2) there are no extraordinary circumstances present in this case that warrant our sua sponte application of a disfavored remedy, particularly in light of the paucity of evidence in the record on this issue.
It is well established that retrospective competency determinations are a disfavored remedy permitted “only in limited circumstances.” Collins, 430 F.3d at 1267 (citing Drope, 420 U.S. at 183; McGregor, 248 F.3d at 962-63); see also Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky, 362 U.S. at 402-03; Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir.1999). Its disfavored status arises from the inherent difficulties in conducting such a determination. A retrospective competency determination necessarily must focus on “a defendant‘s psychological state of mind at a specific [antecedent] point in time,” Collins, 430 F.3d at 1267, which in Ms. Bergman‘s case would be her mental state as it existed three years ago. “A defendant may be competent to stand trial today, even though incompetent to assist in [her] defense six months ago.” Id. The retrospective focus of that determination, and the passage of time, make such a determination difficult even “under the most favorable circumstances,” Drope, 420 U.S. at 183, and is particularly inappropriate in this case, as I shall explain.
First, we should not choose to apply a disfavored remedy in this case because the government did not request that remedy and made no affirmative showing that a retrospective competency determination was warranted. The government did not indicate what remedy this court should apply were we to find, as we have, that Ms. Bergman‘s Sixth Amendment right to counsel was violated. Rather, the government chose to place all of its proverbial
As with other disfavored remedies, the government bears a heightened burden to demonstrate that a particular case falls within the “limited circumstances” under which a retrospective competency determination is warranted. Collins, 430 F.3d at 1267. In this respect, a retrospective competency determination may be analogized to another well-known category of disfavored remedies in this circuit—specifically, three types of injunctions that we have found to be “specifically disfavored.”14 See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004) (en banc) (citing, affirming in part, and modifying in part SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir.1991)), aff‘d and remanded sub nom. on other grounds, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006); see also Schrier v. Univ. of Colo., 427 F.3d 1253, 1259-62 (10th Cir.2005). Because they are disfavored, “if a movant seeks a preliminary injunction that falls into one of th[ose] three categories ... the movant must satisfy a heightened burden.” O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d at 975. When a disfavored injunction is sought, a court must “more closely scrutinize[] [the requested in-
junction] to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” Id.; see also CBS, Inc. v. Davis, 510 U.S. 1315, 1316-17, 114 S.Ct. 912, 127 L.Ed.2d 358 (1994) (staying a state court‘s preliminary injunction that amounted to a prior restraint on the media because prior restraints are “particularly disfavored” that are acceptable only in “exceptional cases” and because the party seeking the injunction had not met its burden in demonstrating that “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures” (internal quotation marks omitted)); Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir.1976) (“Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.“).
This holds true for other types of remedies and legal devices that possess a disfavored status in the law—viz., there is a higher burden on the potential beneficiary to show that its application is warranted. Cf. Pressman-Gutman Co. v. First Union Nat‘l Bank (In re Pressman-Gutman Co.), 459 F.3d 383, 398-403 (3d Cir.2006) (discussing high burden on petitioner seeking writ of mandamus, a disfavored “extraordinary remedy” and denying the writ because petitioner could not demonstrate that it possessed a right to mandamus that was “‘clear and indisputable‘“); Tamko Roofing Prods., Inc. v. Smith Eng‘g Co., 450 F.3d 822, 830-31 (8th Cir.2006) (discussing prima facie tort claim, disfavored under Missouri law, as a “particular and limited theory of recovery” and finding
Moreover, even if we were to overlook the government‘s failure to meet its burden, and choose to apply this disfavored remedy sua sponte, there must be some extraordinary justification for our doing so. Cf. Univ. of Pittsburgh v. Varian Med. Sys., Inc., 569 F.3d 1328, 1334-35 (Fed.Cir.2009) (holding that “[b]ecause dismissal with prejudice is a harsh sanction that is disfavored under Third Circuit law and is not justified on this record, the dismissal should have been without prejudice” and stating that “dismissal [with prejudice] is a drastic sanction and should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff” (internal quotation marks omitted)); United States v. Michael, 17 F.3d 1383, 1386 (11th Cir.1994) (“Although federal courts possess the authority to dismiss an indictment for governmental misconduct, dismissal is an extreme sanction which should be infrequently utilized.... Dismissal is only favored in the most egregious cases.” (alteration in original) (internal quotation marks omitted)). There is no extraordinary justification apparent from the record in this case. Indeed, the facts of this case indicate quite the opposite.
As in Collins, due to the paucity of the record before us on this issue, we cannot answer the question of “whether the deprivation of [Ms. Bergman‘s] Sixth Amendment right to counsel resulted in the district court erroneously finding [her] competent to stand trial.” Collins, 430 F.3d at 1267. The four factors enumerated in Collins and McGregor for assessing whether a retrospective competency determination can be made in a way that is meaningful and consistent with a defendant‘s due process rights all weigh against the application of that remedy in this case. “A ‘meaningful’ [retrospective competency] determination is possible where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant‘s condition at the time of the original proceedings.” Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir.1999) (internal quotation marks omitted). As we discussed in Collins,
[f]our factors are considered in assessing whether a meaningful retrospective competency determination can be made consistent with a defendant‘s due process rights:
“(1) [T]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial.”
Collins, 430 F.3d at 1267 (second alteration in original) (quoting McGregor, 248 F.3d at 962-63).
In Collins, we found that the factors weighed against a retrospective competency determination: three years had passed since the competency evaluation and hearing; the defendant had indicated at his
[t]his lack of contemporaneous medical evidence regarding Mr. Collins‘s competency at his competency hearing three years ago, coupled with [counsel‘s] serious and detailed questions regarding Mr. Collins‘s competency immediately before trial and the paucity of record evidence on the subject, lead us to conclude that a new hearing on the limited issue of competency will not ensure that Mr. Collins was indeed competent to stand trial in 2003.
Id. Consequently, we held that these facts did not constitute the appropriate “limited circumstances” that would justify a retrospective competency hearing. Id. Rather, “[b]ecause evidence could have been introduced and arguments made that likely could have affected the outcome of Mr. Collins‘s competency hearings, it is impossible to say that the violation of his Sixth Amendment rights did not pervade his entire trial.” Id. at 1268. Accordingly, the Collins court reversed the defendant‘s conviction and ordered a new trial, directing that “[i]f a question as to Mr. Collins‘s competency again arises, the district court should order a psychological evaluation of
15.
Mr. Collins‘s current mental state and conduct a new competency hearing, at which Mr. Collins is represented by counsel.” Id.
In my view, the factors in Collins that weighed against conducting a retrospective competency determination are not only present in this case, they are heightened. The motion hearing of October 23, 2007 was in every way an inadequate proceeding by which to determine the state of Ms. Bergman‘s competency. Perhaps the best way to illustrate the hearing‘s inadequacy is to compare the competency hearing that took place on February 22, 2007 to the skeletal proceedings on October 23, 2007, for which we do not even have a transcript. At the February 22, 2007 hearing, the two examining doctors testified and were questioned by the government, defense counsel, and the court. Their testimony lasted for at least two hours. Ms. Bergman was also given an opportunity to testify and counsel presented arguments on the issue of competency. Moreover, the doctors’ reports were both admitted into evidence as sealed documents and form part of the record before us on appeal. By contrast, on October 23, 2007, the BOP staff‘s opinion that Ms. Bergman had been restored to competency did not, as far as we can tell, become part of the record. That opinion also was not subjected to any adversarial testing—no expert testified and Ms. Bergman had no opportunity to cross-examine any expert.
Furthermore, the statutory framework for a competency hearing was not followed.
the attorney for the Government. The court shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to determine the competency of the defendant. If, after the hearing, the court finds by a preponderance of the evidence that the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against
The sparse record leaves us with several crucial and unanswerable questions. For example, we do not know the precise contents of the BOP staff‘s report opining that Ms. Bergman had been restored to competency. Because we cannot locate the report in the record in this case, we do not know whether the report even still exists to be reexamined in the context of a retrospective competency hearing. Perhaps more importantly, because there was no adversarial testing or formal competency hearing on October 23, 2007, we also do not know (and, indeed, cannot know) if there would have been any contrary evidence that may have shown that Ms. Bergman in fact had not been restored to competency on October 23, 2007. See Collins, 430 F.3d at 1267. There simply is nothing in the record to cause me to believe that a
him and to assist properly in his defense, the court shall order his immediate discharge from the facility in which he is hospitalized and shall set the date for trial or other proceedings. Upon discharge, the defendant is subject to the provisions of chapters 207 and 227.
retrospective competency determination would be meaningful or even possible in this case. In providing an adequate and effective remedy for a constitutional violation, we should not dwell in the realm of conjecture, especially when choosing a disfavored remedy sua sponte.
Accordingly, I concur in part as to the majority‘s conclusion regarding the violation of Ms. Bergman‘s Sixth Amendment right to counsel and respectfully dissent in part as to the majority‘s choice of a disfavored remedy to redress that constitutional violation. As was the case in Collins, “[b]ecause evidence could have been introduced and arguments made that likely could have affected the outcome of [Ms. Bergman‘s] competency hearings, it is impossible to say that the violation of [her] Sixth Amendment rights did not pervade [her] entire trial.” Id. at 1268. I would remand this matter to the district court, directing it to vacate Ms. Bergman‘s convictions and to proceed with a new trial, provided that she is currently competent to participate in one. If there is some question as to Ms. Bergman‘s present competency, I would direct the district court to order a psychological evaluation of Ms. Bergman‘s current mental state and conduct a new competency hearing, at which she should be represented by counsel. For the foregoing reasons, therefore, I respectfully write separately.
Notes
The scheme was rather obvious: dupe a number of courts and lawyers into thinking the Defendant was a lawyer, solicit clients based upon his admission to several courts and representations that he was a lawyer, represent them, and collect fees for having done so. Several lawyers, court officials, and clients testified as to the Defendant‘s conduct and representations. The quality of work performed is irrelevant, although described as good by one Government witness. The Defendant could never have secured admittance to the bar if he had been truthful and he could not have secured any clients if he had not fraudulently held himself out as an attorney. The intent to defraud was plain and may be rightly inferred from the Defendant‘s repeated false statements. He collected money for his legal services despite having no formal legal training and while holding himself out as an attorney.Id. at *2. The American Bar Association (“ABA“) reported that Mr. Kieffer had been admitted to practice pro hac vice in almost twenty federal cases across the country. ABA Law Journal, Catch Me If You Can, (April 2009), available at http://www.abajournal.com/magazine/catch_me_if_you_can/ (last visited Mar. 22, 2010). The ABA also reported that Mr. Kieffer previously had been convicted of multiple felonies. Id.