KENNETH L. WILSON, Petitioner-Appellant, v. FRED W. GREENE, Warden, Mecklenburg Correctional Center, Respondent-Appellee.
No. 98-2
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 27, 1998
PUBLISHED. Argued: June 2, 1998. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (CA-96-1133-AM)
Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Niemeyer joined. Judge Michael wrote an opinion concurring in part and concurring in the judgment.
COUNSEL
ARGUED: Charles William Gittins, LAW OFFICES OF CHARLES W. GITTINS, Alexandria, Virginia, for Appellant. Robert Quentin Harris, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Michele
OPINION
WILKINSON, Chief Judge:
Kenneth L. Wilson raises various claims regarding his mental capacity at the time of Jacqueline Stephens’ murder. Wilson was sentenced to death for that offense. He appeals the district court‘s dismissal of his amended petition for a writ of habeas corpus. We affirm the district court‘s judgment.
I.
On March 27, 1993, Jacqueline Stephens was found naked, bound in a spread-eagle fashion to her bed, with multiple stab wounds in her chest, neck, cheek, eyebrow, and arm. The events that led to this tragedy began at approximately 3:00 a.m. that morning when Wilson entered Stephens’ home in Newport News, Virginia. At knifepoint, he forced Stephens, her twelve year-old daughter Altomika, and fourteen year-old Takeshia Banks upstairs. Wilson ordered Altomika and Takeshia into a bedroom and took Jacqueline into her own bedroom. While Wilson and Jacqueline were in her bedroom, Altomika heard her mother say “Kenny, why you doing this to me? I go with Pinkey [Altomika‘s father], why you doing this to me?” Approximately twenty-five minutes later, Wilson and Jacqueline returned to the bedroom where the girls were. At Wilson‘s request, Jacqueline told the girls not to say anything; she then took a shower. While Jacqueline was showering, Wilson ordered Takeshia to disrobe, tied both girls to a bed, and blindfolded them. Wilson, while naked, proceeded to stab both girls, cutting them in the neck.
After Takeshia screamed, Jacqueline confronted Wilson in the hallway. A struggle between Wilson and Jacqueline then ensued, and
A few hours later, police found Wilson in a trash dumpster, acting “peculiar.” Blood tests taken at a hospital the next day revealed cocaine and opiates in his system. He also was experiencing rhabdomyolysis, a condition involving the breakdown of muscle tissue produced by severe intoxication with certain drugs, including cocaine.
Wilson was charged with murder during the commission of attempted rape, attempted rape, grand larceny, and several counts of abduction and malicious wounding. Wilson‘s original trial counsel requested a psychological evaluation to determine both Wilson‘s competency to stand trial and his sanity at the time of the offense. On May 10, 1993, Dr. Don Killian, a court-appointed clinical psychologist, reported that Wilson was competent to stand trial. In a separate report, with the heading “for defense attorney only,” Dr. Killian also reported that Wilson was sane at the time of the offense. In late October, Wilson‘s new trial counsel filed a “Motion for Neurological, Psychological, Psychiatric and Physical Evaluation of the Defendant.” The trial court granted the motion on October 27 and appointed Dr. Killian to conduct the evaluation. Dr. Killian again met with Wilson on November 5, but this time Wilson declined to discuss “his thoughts, feelings, or actions” around the time when the crime occurred and stated that his attorneys had advised him not to “discuss the details of these activities with anyone.” At a November 15 hearing, Wilson confirmed that he did not want to speak to Dr. Killian.
After the trial, at which Wilson testified, a jury convicted him on all counts. Following the sentencing phase, the jury recommended a
II.
Wilson alleges several trial errors relating to his mental health. He attributes these errors to two parties: his court-appointed mental health expert and his trial counsel. Wilson claims that Dr. Killian performed an inadequate evaluation of his sanity at the time of the offense. He also blames trial counsel for not developing evidence of his insanity and for not requesting a confidential mental health evaluation before trial. In support of these claims, Wilson relies primarily on the report of Dr. Brad Fisher, a clinical forensic psychologist appointed by the district court to assist with the preparation of Wilson‘s federal habeas petition. Dr. Fisher met with Wilson, examined Wilson‘s medical and family history, and reviewed portions of the transcript from Wilson‘s trial. Dr. Fisher found “the evidence is suggestive but not conclusive about the existence of a temporary condition that might have led to a plea of insanity.” However, he concluded there was “little evidence of a permanent major thought disorder, psychosis, or major organic impairment.”1
A.
We disagree. The Constitution does not entitle a criminal defendant to the effective assistance of an expert witness. To entertain such claims would immerse federal judges in an endless battle of the experts to determine whether a particular psychiatric examination was appropriate. See Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir. 1990); Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir. 1990). Furthermore, it would undermine the finality of state criminal convictions, which would constantly be subject to psychiatric reappraisal years after the trial had ended. Harris, 949 F.2d at 1517-18; Silagy, 905 F.2d at 1013.
This circuit consistently has “rejected the notion that there is either a procedural or constitutional rule of ineffective assistance of an expert witness, rather than ineffective assistance of counsel.” Pruett v. Thompson, 996 F.2d 1560, 1573 n.12 (4th Cir. 1993); see also Poyner v. Murray, 964 F.2d 1404, 1418 (4th Cir. 1992); Waye v. Murray, 884 F.2d 765, 766-67 (4th Cir. 1989) (per curiam). For example, the defendant in Waye claimed that his psychiatrist had not performed adequately because he had failed to emphasize Waye‘s diminished capacity in his trial testimony. We rejected this claim and observed:
[i]t will nearly always be possible in cases involving the basic human emotions to find one expert witness who disagrees with another and to procure an affidavit to that effect from the second prospective witness. To inaugurate a constitutional or procedural rule of an ineffective expert witness
in lieu of the constitutional standard of an ineffective attorney, we think, is going further than the federal procedural demands of a fair trial and the constitution require.
Waye thus squarely forecloses Wilson‘s argument to the extent that he grounds it in a right to effective assistance from Dr. Killian. Wilson‘s attempt to locate such a right in the Ake decision also fails. Although Ake refers to an “appropriate” evaluation, we doubt that the Due Process Clause prescribes a malpractice standard for a court-appointed psychiatrist‘s performance. Rather, the decision in Ake reflects primarily a concern with ensuring a defendant access to a psychiatrist or psychologist, not with guaranteeing a particular substantive result. See Parker v. Norris, 64 F.3d 1178, 1185 (8th Cir. 1995); Harris, 949 F.2d at 1516-17; Henderson v. Dugger, 925 F.2d 1309, 1316 & n.23 (11th Cir. 1991); Granviel v. Lynaugh, 881 F.2d 185, 192 (5th Cir. 1989). The defendant in Ake, unlike Wilson, did not receive any evaluation of his sanity at the time of the offense. 470 U.S. at 72. The Court distinguished Ake‘s situation from two earlier decisions where the defendants, like Wilson, had received such evaluations and, thus, were not deprived of due process. Id. at 85 (distinguishing United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953), and McGarty v. O‘Brien, 188 F.2d 151 (1st Cir. 1951)). In this context, the precise holding in Ake was simply that the failure to provide any evaluation did not comport with the Due Process Clause. See, e.g., id. at 74 (describing holding as requiring a state to “provide access to a psychiatrist‘s assistance“) (emphasis added); id. at 83 (describing the Court‘s concern “that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed“) (emphasis added); cf. Tuggle v. Netherland, 516 U.S. 10, 12 (1995) (per curiam) (describing holding in Ake as requiring the “assistance” of a psychiatrist).
The above comments serve to illuminate our differences with the partial concurring opinion. That opinion would hold that the Due Process Clause guarantees Wilson the right to a thorough psychiatric examination that meets “the minimum standard of care set by the clinical psychology profession.” Post at 20 (Michael, J., concurring in part and concurring in the judgment). Drawing from psychiatric texts,
We cannot accept this position. As an initial matter, it reads more into the phrase “appropriate [psychiatric] examination” in Ake, 470 U.S. 68, 83 (1985), than that decision will bear. Significantly, there is no mention in Ake of the critical language advanced by the partial concurrence, namely the entitlement to some federally supervised standard of psychiatric care.
Moreover, although the partial concurrence purports to distinguish between “an appropriate examination from the psychiatrist” and a “general right to effective assistance of a psychiatrist,” post at 30, they turn out to be one and the same. Indeed, the partial concurrence acknowledges that the basic inquiry is a malpractice determination. See post at 29 (“[T]he right to counsel deals with lawyer malpractice while the right to a psychiatrist deals with psychiatrist malpractice.“) (emphasis omitted). It is easy to see where this position would lead. “The ultimate result would be a never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist‘s diagnosis.” Harris, 949 F.2d at 1517 (emphasis omitted) (quoting Silagy, 905 F.2d at 1013). Indeed, the partial concurrence‘s use of Dr. Fisher‘s report to pick at Dr. Killian‘s earlier conclusions demonstrates the psychiatric quagmire in which the recognition of this new constitutional claim would immerse us.
Finally, we are reluctant to permit the purely hypothetical horror story advanced by the partial concurrence to establish a broad, free-standing constitutional claim to the effective assistance of a psychiatrist. The Due Process Clause does not require this further transfer of function from its traditional state court locus to federal collateral review. “A conclusion to the contrary would require . . . federal courts to engage in a form of ‘psychiatric medical malpractice’ review . . . of state court judgments.” Harris, 949 F.2d at 1517 (emphasis omitted) (quoting Silagy, 905 F.2d at 1013). It is clear that Wilson committed the acts which resulted in his capital conviction. The path lit
Even if Ake‘s use of the term “appropriate” suggests that an examination must satisfy some minimal level of professional competence, Dr. Killian has clearly satisfied it here. In May 1993, he interviewed Wilson for approximately ninety minutes to determine his competency to stand trial and his sanity at the time of the offense. At this meeting, he explored Wilson‘s educational background, medical history, and criminal record. Dr. Killian also evaluated Wilson‘s cognitive processes and understanding of the legal proceedings against him. Based on Wilson‘s criminal records and this interview, Dr. Killian concluded that Wilson was competent to stand trial and was not suffering from a significant mental disease or defect at the time of the offense. In November 1993, Dr. Killian again met with Wilson and discussed his general psychiatric condition, background, and current status. Though Dr. Fisher reviewed more records than Dr. Killian and explored Wilson‘s mental state in greater detail, his deeper exploration into Wilson‘s past does not demonstrate that Dr. Killian‘s examination was inappropriate.
Finally, Wilson himself appears to have been partly responsible for the difficulties that Dr. Killian encountered in conducting a more complete examination. During the November 1993 meeting, according to Dr. Killian, Wilson refused to discuss “any of his thoughts, feelings, or actions during the time frame which contained the events which ultimately led to charges against him.” At a hearing shortly before trial, Wilson again made clear to the court that he did not desire an evaluation. During the hearing, the following colloquy took place between Wilson and the judge:
THE COURT: Do you desire the psychiatric or psychological evaluation which you originally indicated to your lawyers that you did desire? Are you giving that up now?
THE DEFENDANT: Yes, sir.
Following this exchange, in an abundance of caution the trial court declared a brief recess so that Wilson could consult with his attorneys
THE COURT: All right, Mr. Wilson. What is your pleasure with respect to the psychiatric or psychological evaluation?
THE DEFENDANT: I do not want to speak to him.
THE COURT: You do not want to speak to Doctor Killian, correct?
THE DEFENDANT: Correct.
Dr. Killian can hardly be faulted for not conducting a more thorough evaluation when Wilson repeatedly, and after consultation with his lawyers, declined to discuss matters further with him. Thus even if Ake provided some standard for an appropriate evaluation, Dr. Killian‘s evaluation of Wilson satisfied it.
B.
Wilson also attributes the failure to develop a more complete mental health defense to his trial counsel. Wilson alleges two basic errors constituting ineffective assistance. First, he claims that trial counsel inadequately investigated possible defenses that Wilson was insane or lacked the requisite mens rea to commit the crimes. Second, he argues that trial counsel‘s October 1993 request for a mental health evaluation was delinquent and deprived him of the benefit of a confidential report. Like the district court, we find both of these claims to be meritless.
To prevail on his claims of ineffective assistance, Wilson must satisfy two well-established requirements. First, he “must show that counsel‘s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984); see also Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir.), cert. denied, 118 S. Ct. 595 (1997). Our review of counsel‘s performance in this regard is highly deferential. Strickland, 466 U.S. at 689; Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998). Second, Wilson also must demonstrate
Wilson‘s trial counsel was not ineffective in declining to investigate his mental health defenses or to develop them at trial. The decision not to pursue this line of defense more fully was a reasonable one. In May, counsel had received Dr. Killian‘s report concluding that Wilson was not mentally ill at the time of the offense. To be reasonably effective, counsel was not required to second-guess the contents of this report. See Pruett, 996 F.2d at 1574; Poyner, 964 F.2d at 1419; Washington v. Murray, 952 F.2d 1472, 1482 (4th Cir. 1991). Having received Dr. Killian‘s report, counsel understandably decided “not to spend valuable time pursuing what appeared to be an unfruitful line of investigation.” Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir. 1991). Indeed, Wilson told counsel that someone from a neighborhood crack house had committed the murder, and counsel made every effort to locate and interview any witness that might have assisted with such a defense. Counsel thus made a diligent effort to pursue promising lines of investigation, and Wilson‘s present attempt to challenge his counsel‘s decision not to investigate mental health issues more fully is “a product of hindsight and fails to address the facts reasonably relied upon by counsel at the time.” Roach v. Martin, 757 F.2d 1463, 1478 (4th Cir. 1985) (citation omitted).2
Counsel also reasonably chose not to develop a mental health defense at trial. Decisions about what types of evidence to introduce “are ones of trial strategy, and attorneys have great latitude on where
Furthermore, even if counsel‘s investigation or presentation had been deficient in some regard, it was not prejudicial. Dr. Fisher‘s report offers only limited support for Wilson‘s present theory that he was insane at the time of the offense or lacked the requisite mens rea to commit an intentional crime. Dr. Fisher concluded that “there is little evidence of a permanent major thought disorder, psychosis, or major organic impairment.” In this respect, his opinion tracks the May 1993 opinion of Dr. Killian, who found that Wilson “was not suffering from a significant mental disease or defect, psychosis, major organic impairment” or other similar malady at the time of the offense. Even where Dr. Fisher‘s opinions vary from Dr. Killian‘s, his endorsement of Wilson‘s present theory is qualified at best. Though Dr. Fisher believed that Wilson‘s abusive upbringing and his use of intoxicants around the time of the offense may have contributed to a temporary psychosis, he found such evidence to be merely “suggestive but not conclusive.” In light of Dr. Fisher‘s partial agreement with Dr. Killian and his inconclusive judgment about whether Wilson was temporarily insane, counsel‘s failure to introduce this evidence is hardly “sufficient to undermine confidence in the outcome” of Wilson‘s trial. Strickland, 466 U.S. at 694; see Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir. 1995); Poyner, 964 F.2d at 1420-21; Washington, 952 F.2d at 1482.3
III.
Claims of actual innocence, whether presented as freestanding ones, see Herrera v. Collins, 506 U.S. 390, 417 (1993), or merely as gateways to excuse a procedural default, see Schlup v. Delo, 513 U.S. 298, 317 (1995), should not be granted casually. The Supreme Court recently emphasized “the narrow scope” of this type of claim. Calderon, 118 S. Ct. at 1503 (quoting Sawyer v. Whitley, 505 U.S. 333, 340 (1992)) (other citation omitted); see also Turner v. Jabe, 58 F.3d 924, 931-32 (4th Cir. 1995). The claim “must be based on reliable evidence not presented at trial.” Calderon, 118 S. Ct. at 1503 (citing Schlup, 513 U.S. at 324). A reviewing court must evaluate the new evidence alongside any other admissible evidence of the defendant‘s guilt, see Bousley v. United States, 118 S. Ct. 1604, 1611-12 (1998), and may grant relief only where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Evaluated under this “demanding” standard, see Calderon, 118 S. Ct. at 1503, Wilson‘s claims of actual innocence must fail.
We cannot accept Wilson‘s claim that he is actually innocent because his voluntary intoxication caused him to become temporarily
Wilson‘s claim that he lacked the mens rea to commit an intentional crime is equally unavailing. Virginia does recognize that “when a person voluntarily becomes so intoxicated that he is incapable of deliberation or premeditation, he cannot commit a class of murder that requires proof of a deliberate and premeditated killing.” Wright v. Commonwealth, 363 S.E.2d 711, 712 (Va. 1988) (citations omitted). Nonetheless, a reasonable juror aware of Dr. Fisher‘s assessments still could have found Wilson guilty beyond a reasonable doubt. The jury heard Altomika and Takeshia testify how Wilson demanded that they go upstairs, how he separated them from Jacqueline, how he threatened to kill Jacqueline if the girls did not open the door after escaping their bindings, and how he ordered Jacqueline to find her car keys. The jury also heard testimony that Wilson drove away in Jacqueline‘s car. A reasonable juror surely could find this course of conduct to be the product of a mind capable of deliberation and premeditation. See Mathenia v. Delo, 99 F.3d 1476, 1481-82 (8th Cir. 1996) (rejecting actual innocence claim that defendant was incapable of deliberation), cert. denied sub nom. Mathenia v. Bowersox, 117 S. Ct. 2518 (1997); Nave v. Delo, 62 F.3d 1024, 1033 (8th Cir. 1995) (same). Furthermore, the jury already was aware of Wilson‘s intoxication. It heard a police officer, who found Wilson shortly after the crime, testify that Wilson was acting peculiar and suggest that Wilson might have been “high.” It also heard Wilson testify that he had been at a bar with his brother before the offense and had gone to Jacqueline‘s home to smoke some Kooleys -- cigarettes laced with cocaine. In light of the fact that the jury found Wilson guilty despite its awareness of his intoxication, Wilson has failed to show that, even with Dr. Fisher‘s report, it is more likely than not that no reasonable
IV.
Wilson next claims that there was insufficient evidence to convict him of attempted rape. Since Wilson‘s indictment listed attempted rape as the predicate offense to capital murder, Wilson uses this claim indirectly to attack his death sentence as well. Finding ample evidence to support the conviction for attempted rape, both the Virginia Supreme Court on direct appeal and the federal district court on collateral review rejected this claim.
Though claims of insufficient evidence are cognizable on collateral review, a federal court‘s review of such claims is “sharply limited.” Wright v. West, 505 U.S. 277, 296 (1992) (plurality opinion); see also Evans-Smith v. Taylor, 19 F.3d 899, 905 (4th Cir. 1994) (“The standard is obviously rigorous.“). Federal review of the sufficiency of the evidence to support a state conviction is not meant to consider anew the jury‘s guilt determination or to replace the state‘s system of direct appellate review. Wright, 505 U.S. at 292. Thus, a defendant is entitled to relief only if “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979) (footnote omitted); see also George v. Angelone, 100 F.3d 353, 357 (4th Cir. 1996), cert. denied, 117 S. Ct. 854 (1997).
The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. In Virginia, the elements of attempted rape include a direct but ineffectual act toward its consummation and an intent to engage in sexual intercourse. E.g., Fortune v. Commonwealth, 416 S.E.2d 25, 27 (Va. Ct. App. 1992); Chittum v. Commonwealth, 174 S.E.2d 779, 781 (Va. 1970). In this case, Wilson has failed to show that no rational trier of fact could find him guilty of attempted rape.
Sufficient evidence supported the jury‘s conclusion that Wilson took an overt act toward consummation of the rape. On direct appeal, the Virginia Supreme Court found that Wilson‘s nudity, his isolating Jacqueline Stephens from the young girls, his forcibly binding Jac-
Moreover, such physical evidence is not even necessary to show that Wilson took a direct act toward raping Jacqueline. See Fortune, 416 S.E.2d at 28; Granberry v. Commonwealth, 36 S.E.2d 547, 548 (Va. 1946). In Fortune, for example, the court found sufficient evidence of an overt act when the defendant removed his pants, exposed himself, forced the victim into a bedroom, and touched her breast during a struggle. 416 S.E.2d at 28. On this record, a jury could find that Wilson, like the defendant in Fortune, removed his clothes, exposed himself, forced Jacqueline into the bedroom and touched her at some point during the encounter, thereby committing a direct but ineffectual act in furtherance of raping her.
Sufficient evidence likewise supported the jury‘s finding that Wilson had formed the requisite intent to rape. The Virginia Supreme Court concluded that Wilson‘s actions along with Jacqueline‘s statement “Kenny, why you doing this to me? I go with Pinkey, why you doing this to me?” supported a finding of intent to rape. 452 S.E.2d at 674. Wilson essentially argues that this circumstantial evidence does not support a finding of intent to rape but, instead, shows only an intent to commit murder. We disagree. “In cases involving an attempt to commit a crime, the fact finder is often allowed broad latitude in determining the specific intent of the actor.” Fortune, 416 S.E.2d at 27 (citing Ridley v. Commonwealth, 252 S.E.2d 313, 314 (Va. 1979)). A defendant‘s intent to commit rape may be shown
Wilson argues that, under Virginia law, when the state‘s proof of intent is entirely circumstantial, it must exclude every reasonable hypothesis of innocence. See Rogers v. Commonwealth, 410 S.E.2d 621, 627 (Va. 1991). But we have expressly declined to “adopt Virginia‘s stricter standard of review for sufficiency of the evidence” on collateral attack and held that the state was not required to exclude every reasonable hypothesis of innocence. Inge, 758 F.2d at 1014; see also Jackson, 443 U.S. at 326 (noting that prosecution not “under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt“). Thus, Wilson has failed to show that no rational trier of fact could have found proof that he was guilty of attempted rape beyond a reasonable doubt, and the district court properly rejected this claim. See Hawkins v. Lynaugh, 844 F.2d 1132, 1136 (5th Cir. 1988) (sufficient evidence of attempted rape); cf. Holdren v. Legursky, 16 F.3d 57, 62-63 (4th Cir. 1994) (sufficient evidence of sexual assault).
V.
Lastly, Wilson argues that the trial court should have instructed the jury about the actual effects of his life sentence. Specifically, he maintains the jury should have known that he would not be eligible for parole for twenty-five years. He claims that both the Eighth Amendment‘s guarantee against cruel and unusual punishment and
We previously rejected this precise argument in Peterson v. Murray, 904 F.2d 882 (4th Cir. 1990). Peterson held that a defendant was not constitutionally entitled to inform the jury that he would have been ineligible for parole for twenty years. Id. at 886-87. The plaintiff in Peterson, like Wilson, pressed this argument under both the Cruel and Unusual Punishment and Due Process Clauses. Peterson extended our earlier holding in Turner v. Bass, 753 F.2d 342, 353-54 (4th Cir. 1985), rev‘d on other grounds sub nom. Turner v. Murray, 476 U.S. 28 (1986), which had rejected a similar argument based solely on the Due Process Clause.
Wilson attempts to evade the ruling in Peterson by arguing that the legal landscape fundamentally changed after the Supreme Court‘s decision in Simmons v. South Carolina, 512 U.S. 154 (1994). In Simmons, the Supreme Court held that a capital defendant, as a matter of due process, should be permitted to inform the jury that he is parole ineligible if the state argues that he presents a future danger. See id. at 171 (plurality opinion); id. at 178 (O‘Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in the judgment); see also O‘Dell v. Netherland, 117 S. Ct. 1969, 1971 (1997). The plurality opinion in Simmons repeatedly stressed the central importance of a defendant‘s parole ineligibility to its holding. See, e.g., 512 U.S. at 163-64. And Justice O‘Connor‘s concurring opinion, which was joined by two other justices and “provid[ed] the dispositive votes necessary to sustain [the judgment],” O‘Dell, 117 S. Ct. at 1974, observed that the Constitution did not require an instruction for parole-eligible defendants. See Simmons, 512 U.S. at 176 (“In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact.“).
Simmons, thus, has not altered our decisions in Peterson and Turner to the extent they held that the Constitution does not entitle defendants to an instruction about when they would become eligible for parole. Simmons did not address whether the Eighth Amendment required an instruction on parole ineligibility, see 512 U.S. at 162 n.4, so it can hardly be read to require such an instruction for parole-eligible defendants. With respect to the Due Process Clause, this cir-
VI.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
KENNETH L. WILSON, Petitioner-Appellant, v. FRED W. GREENE, Warden, Mecklenburg Correctional Center, Respondent-Appellee.
No. 98-2
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 27, 1998
MICHAEL, Circuit Judge, concurring in part and concurring in the judgment:
I concur in the result the majority opinion reaches, and I join in its reasoning, except for parts II and V. I disagree with the majority‘s suggestion in part II.A. that the Due Process Clause does not provide an indigent criminal defendant with the right to a court-appointed psychiatrist (or clinical psychologist) who does not commit malpractice when examining the defendant. I also have an uneasy feeling that part II.B., which holds that counsel was not ineffective for failing to second-guess the conclusions of the defense psychologist, might be misinterpreted to mean that counsel is not required to seek a second opinion when a court-appointed psychologist conducts a wholly inadequate mental examination. Further, although I agree with the majority‘s conclusion in part V that the petitioner in this case had no due process right to inform the sentencing jury when he would become
I.
I have no quarrel with the majority‘s observation that “[t]he Constitution does not entitle a criminal defendant to the effective assistance of a [court-appointed] expert [psychiatric] witness,” ante at 5. That is a correct statement of the law in this circuit. See Waye v. Murray, 884 F.2d 765, 766-67 (4th Cir. 1989); see also Pruett v. Thompson, 996 F.2d 1560, 1573 n.12 (4th Cir. 1993); Poyner v. Murray, 964 F.2d 1404, 1418-19 (4th Cir. 1992). However, the petitioner, Kenneth Wilson, does not say that he was entitled to “effective assistance” from his court-appointed clinical psychologist, Dr. Don Killian. Wilson‘s argument is more circumscribed. He does not claim that he can challenge every aspect of Dr. Killian‘s performance as “ineffective.” Rather, Wilson maintains only that Dr. Killian was required to provide him an “appropriate” examination. This rule, Wilson argues, is compelled by Ake v. Oklahoma, 470 U.S. 68 (1985), which held that an indigent defendant has a due process right to psychiatric assistance. See id. at 83 (“[T]he State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination . . . .“). According to Wilson, Ake required Dr. Killian to provide him with a sanity examination that met the minimum standard of care for clinical psychologists.1 Wilson also
claims that his evidence shows that Dr. Killian‘s examination failed to meet that standard. I agree with both arguments.2 However, I would deny Wilson‘s claim for other reasons.
The majority expresses some doubt about (but does not squarely reject) Wilson‘s claim that he was entitled to an appropriate examination, see ante at 5-6. The majority‘s doubt is based on the point that Ake does not “guarantee[ ] a particular substantive result,” ante at 6. Of course, Ake does not require that a state provide an indigent defendant with a psychiatrist who will come to a favorable conclusion, cf. Poyner, 964 F.2d at 1419, or look for evidence of specific psychiatric afflictions, see Pruett, 996 F.2d at 1573, or make the “correct” diagnosis, see, e.g., Washington, 952 F.2d at 1482. But Wilson does not claim that Dr. Killian should have provided more favorable results, or looked for specific mental disorders, or rendered the “correct” conclusion regarding his (Wilson‘s) sanity. Wilson argues only that Ake guaranteed him an examination that was not so flawed that it constituted malpractice. I agree with Wilson‘s reading of Ake. Due process required Dr. Killian to give Wilson a thorough examination that met the minimum standard of care set by the clinical psychology profession.3
I cannot agree with the majority that Dr. Killian performed an “appropriate” examination. This is fact-finding, and the record does not support it. Dr. Killian‘s ninety-minute interview of Wilson (in which Dr. Killian did not perform a single diagnostic test or consult any of Wilson‘s medical records) and Dr. Killian‘s half-page “report” (which
Of course, we have the discretion to address issues not raised below to prevent a miscarriage of justice. However, I am convinced that no injustice would result from the refusal to address Wilson‘s Ake claim. First, as the majority ably explains, Wilson failed to make out a claim of actual innocence. See ante at 12-13. Thus, the failure to address the claim would not result in the execution of an innocent man. Second, as the majority correctly concludes, the violation of Wilson‘s Ake right was harmless beyond a reasonable doubt. Even if Dr. Killian had provided Wilson with an appropriate mental examination, there is no reason to believe that the doctor would have made a different assessment of Wilson‘s sanity. See ante at 10-11. Third, Wilson has not convinced me that he would have avoided a death sentence if Dr. Killian‘s first examination had been appropriate. Dr. Killian was charged with assessing Wilson‘s sanity in that examination, not with finding mitigating evidence. An appropriate examination might have unearthed some mitigating evidence, but Wilson has not said what that might be or how it might have affected his sentence. Therefore, I see no injustice in applying the normal waiver rule to bar Wilson from claiming, for the first time on appeal, that his procedural default was excused.
II.
As an alternative to his Ake claim, Wilson argues that his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing to (1) explore adequately an insanity defense and (2) file a timely request for a second mental examination (to develop mitigation evidence in anticipation of sentencing). The
A.
While I would recognize a right to an appropriate mental examination under Ake, the majority has studiously avoided doing that here. The majority seems to say that any Ake right can only be enforced through a claim of ineffective assistance of counsel. The majority goes on to hold that the failure of Wilson‘s trial counsel to second-guess Dr. Killian‘s sanity evaluation was not constitutionally ineffective. Ante at 9-10. I read the majority‘s holding to be based solely on the facts of this case: since Dr. Killian‘s examination was appropriate, see ante at 8, there was no reason for defense counsel to second-guess the doctor‘s methods or his conclusion that Wilson was sane at the time of the offense.9 Therefore, I do not read the majority opinion as creating a general rule that defense counsel is never required to second-guess the court-appointed psychiatrist‘s mental evaluation of the defendant. Such a holding would, if there was no independent Ake right to an appropriate examination, effectively insulate a psychiatrist‘s poor performance from review and leave an indigent defendant with no recourse when he received an inappropriate mental examination. And that is not the law. Even if I am incorrect to assert (in part I) that Ake grants indigent defendants an independent right to an
Lawyer oversight is unlikely to result in full effectuation of Ake‘s mandate, however. Ake held that due process requires an indigent defendant be provided with “access to a competent psychiatrist who will [1] conduct an appropriate examination and [2] assist in evaluation, preparation and presentation of the defense.” Ake v. Oklahoma, 470 U.S. 68, 83 (1985). But a lawyer usually can be expected to guarantee only the second half of this mandate. As a trained advocate a criminal defense lawyer is expected to know how to defend an accused in a competent manner, by (for example) planning an insanity
The majority does not distinguish between the lawyer‘s role and the psychiatrist‘s role, however. Rather, the majority would place the full burden of spotting psychiatrist malpractice on defense counsel by putting counsel in charge of ensuring that the Ake right is protected. This is a questionable arrangement. The Ake right, derived from the
The majority apparently recognizes that, due to lack of medical and technical expertise, defense counsel often will have difficulty finding fault in a court-appointed psychiatrist‘s examination or in challenging its conclusions. Cf. ante at 11 (citing Washington, 952 F.2d at 1482). However, the majority seems content to leave the entire burden of protecting the Ake right on counsel. If protection of the Ake right does fall entirely on defense counsel, then counsel will be expected to do better than I have just described in evaluating the court-appointed psychiatrist‘s mental examination. In order to be effective, counsel will have to do some homework and know much more than any layman about the symptoms and effect of various mental disorders. Counsel also will have to study the psychiatrist‘s report carefully (and ask follow-up questions if necessary) to make sure he understands its conclusions and the doctor‘s reasons therefor (just as counsel would if he were using the report to put on an insanity defense). Further, counsel will have to request a second opinion when he has any reason to believe that the psychiatrist bungled the job. Only such heightened vigilance will allow counsel to ensure that the psychiatrist has conducted an appropriate mental examination of the defendant. In my view such heightened vigilance is necessary for counsel to discharge his duty to effectively represent his client.
Since I would place the brunt of the burden of ensuring that a court-appointed psychiatrist‘s examination was appropriate on the psychiatrist (or clinical psychologist), not on counsel, I do not agree that the central question before us here is whether counsel was reasonable to rely on Dr. Killian‘s report, see ante at 9-10. The key question we should ask is whether Dr. Killian‘s first examination was appropriate. It was not, assuming that the facts alleged in Wilson‘s petition are true. See part I, above.
Our inquiry does not end there, however. As I have said, in some cases defense counsel‘s failure to recognize a court-appointed psychiatrist‘s obvious malpractice and request a second opinion can constitute ineffective assistance of counsel.10 Further, counsel can be ineffective for causing the psychiatrist to perform an appropriate examination, by (for example) failing to provide the psychiatrist with
B.
I would hold that counsel erred by waiting to move for a second examination until two days after notifying the trial court that the defense planned to use mental health evidence at trial. Counsel‘s delay was error because under Virginia law the report from any second examination was discoverable by the prosecution as soon as the defense notified the court of its intent to use mental health evidence. See
The majority concludes that counsel‘s failure to obtain a confidential second examination was harmless, however, because “counsel
Despite the merit of Wilson‘s ineffective assistance of counsel claim, I would hold that it is procedurally barred. In his state habeas petition, Wilson raised a substantive claim that he was denied a second examination, but he made no allegation that his problem arose due to bad lawyering. And, Wilson fails to convince me that this default is excused because the “state corrective processes” were either absent or inadequate to vindicate his right, see
III.
Notes
I also am not concerned that allowing a defendant to challenge his psychiatrist‘s performance will lead to “an endless battle of ... experts,” ante at 5. Since there is no right to the effective assistance of counsel on habeas review, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), there surely would be no right under Ake to an appropriate examination on habeas review. Also, the limitations on successive habeas petitions will ensure that defendants do not try to raise this claim repeatedly with a succession of experts.