Greene v. Norris

Filing 150

ORDER granting in part and denying in part 143 Motion for Discovery; granting in part and denying in part 144 Motion for Order; denying 148 Motion for Order. Signed by Judge Susan Webber Wright on 5/23/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

JACK GORDON GREENE
Petitioner

VS.

LARRY NORRIS
Respondent

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NO: 5:04CV00373 SWW

ORDER
This is a capital habeas proceeding under 28 U.S.C. § 2254 by Petitioner Jack Gordon
Greene (“Greene”). Before the Court are (1) Greene’s supplemental motion for discovery
(docket entry #143), Respondent’s response in opposition (docket entry #145), and Greene’s
reply (docket entry #147); (2) Greene’s third motion for a psychological examination (docket
entry #148) and Respondent’s response in opposition (docket entry #149); and (3) Greene’s
motion for a scheduling order (docket entry #144). After careful consideration, and for reasons
that follow, the supplemental motion for discovery will be granted in part and denied in part, the
motion for a psychological examination will be denied, and the motion for a scheduling order
will be granted in part and denied in part.
I.
During a hearing held in this case on February 24, 2010, Petitioner Greene testified, over

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habeas counsels’1 objections, that he desired to withdraw his claim pursuant to Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). Habeas counsel maintains that Greene lacks the
capacity to appreciate his position and make a rational choice with respect to pursuing or
abandoning an Atkins claim and that he is incompetent to proceed with any aspect of this
litigation. Finding the issue of Greene’s competency sufficiently raised, the Court ordered that
he be transferred to a federal medical facility for evaluation. Following an evaluation, Dr.
Christina A. Pietz of the United States Medical Center in Springfield, Missouri issued a report
stating her conclusion that Greene is competent to make a rational decision regarding withdrawal
of his Atkins claim.
In anticipation of a competency hearing, the Court has permitted habeas counsel to
depose Dr. Pietz and Arkansas Department of Correction (“ADC”) personnel involved in
identifying and treating mentally ill death row inmates. Additionally, the Court permitted Dr.
George W. Woods, a psychiatrist retained by habeas counsel, to meet with Greene for the
purpose of a psychological evaluation and to interview inmates who reside near Greene and
correctional officers who interact with Greene.
Habeas counsel now asks the Court to permit additional discovery, including (1) “the same
discovery” conducted by a long-term confinement expert in Dansby v. Norris, No. 4:02CV04141

HFB (W.D. Ark), (2) depositions of physicians and nurses who have provided Greene medical
care; (3) production of documents pursuant to subpoenas duces tecum, and (4) an additional

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The Court appointed the Arkansas Federal Public Defender to represent Greene in this
case. For purposes of this order, the Court will refer to Greene’s attorneys of record--Federal
Public Defender Jenniffer Horan and Assistant Federal Public Defenders Scott W. Braden and
Joshua R. Lee--as “habeas counsel.”
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psychological evaluation.
II.
Discovery in Dansby v. Norris
Dansby v. Norris, No. 4:02CV04141 HFB (W.D. Ark), is a capital habeas case pending
in the United States District Court for the Western District of Arkansas, assigned to United
States District Judge Harry F. Barnes. Like Greene, Petitioner Dansby is represented by the
Arkansas Federal Public Defender’s Office and his petition includes a claim that he is mentally
retarded and thus ineligible for the death penalty. Six years after Dansby filed his habeas
petition, habeas counsel moved to stay the proceedings on the ground that Dansby is
incompetent to assist counsel regarding his Atkins claim. See Dansby, docket entry #75.
Judge Barnes denied a stay but permitted a psychological evaluation. See Dansby,
docket entry #94. Subsequently, Dansby refused or was unable to communicate with his
attorneys and retained experts, and Judge Barnes held a hearing in which Dansby indicated that
he would not cooperate and wished to withdraw his Atkins claim. See Dansby, docket entry
#124. Finding the issue of Dansby’s competency sufficiently raised, Judge Barnes transferred
Dansby to a federal medical center for a competency evaluation. See id.
Following Dansby’s evaluation at a federal medical facility, Judge Barnes scheduled a
hearing regarding Dansby’s “competency to proceed.” See Dansby, docket entry #140. In
anticipation of the hearing, Judge Barnes granted habeas counsel’s motion to permit Dr. Craig
William Haney, an expert on the subject of long-term confinement, to tour the ADC Varner
Supermax Unit and evaluate Dansby. See Dansby, docket entry #153. And in response the
ADC’s concern that public disclosure of Dr. Haney’s report would pose a security risk, Judge

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Barnes issued a protective order barring Dr. Haney “from using information obtained during the
tours for any purpose beyond the litigation [in Dansby].” Dansby, docket entry #164, at 3.
Habeas counsel urged Judge Barnes to permit disclosure of Dr. Haney’s investigation for use in
this case, but he denied the request, finding that he “must leave other courts to their own sound
discretion to determine the scope of discovery in each case . . . . ” Dansby, docket entry #164, at
2.
Habeas counsel now asks this Court to “find under Habeas Rule 6 that . . . counsel has
good cause to conduct the same discovery in this case that was conducted in the Dansby case.”
Docket entry #143, ¶ 4. Additionally, habeas counsel seeks “to discover information about the
conditions of Arkansas’s death row and the psychological effects of those conditions, uncovered
by Dr. Craig Haney during his work in the Dansby v. Hobbs case.” Docket entry #147, at 6.
According to habeas counsel, “a finding of good cause pursuant to Rule 6 would ameliorate the
concerns expressed by the Dansby Court . . . . ” Docket entry #143, ¶ 5.
This Court will not impair or contradict the protective order in Dansby, which Judge
Barnes entered in response to the ADC’s security concerns. Furthermore, the Court finds no
cause for conducting similar discovery in this case.

The Court has permitted Dr. George

Woods to conduct a psychological evaluation of Greene and interview inmates and correctional
officers at the prison. The Court finds that Dr. Wood’s investigation is an adequate source for
information regarding the conditions of Greene’s confinement.
Depositions of Treating Physicians and Nurses
Habeas counsel seeks leave to depose four health care professionals, who have provided
Greene treatment during his incarceration at the ADC. Although Respondent initially objected

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to this request, habeas counsel now states that Respondent has no objection to the proposed
depositions. Without opposition from Respondent, the Court will permit the requested
depositions of four health care professionals.
Subpoenas Duces Tecum
Habeas counsel asks the Court to permit issuance of twenty-five subpoenas duces tecum.
Among the proposed subpoenas are (a) six directed to hospitals located in North Carolina
requiring production of “all records” regarding Greene’s family members; (b) one directed to
the North Carolina Division of Social Services requiring production of “all records” regarding
Greene, his parents, grandparents, siblings and children; (c) one directed to the Federal Bureau
of Investigation requiring production of “all records related to” Greene; (d) six directed to North
Carolina agencies requiring the production of “records regarding” Greene and Greene’s brother,
son, daughter, and grandfather; (e) two directed to North Carolina courts requiring the
production of all court files for Greene’s son and daughter and all commitment records for
Greene’s sister and grandfather; and (f) four directed to Arkansas and North Carolina agencies
requiring the production of “all records related to any complaint filed by Mr. Greene.” Counsel
also seeks a subpoena directed to the Arkansas Department of Correction requiring the
production of “all records related to Mr. Greene.”
Habeas counsel asserts that the records sought under the proposed subpoenas are directed
at “evidence to further support counsel’s claim that Mr. Greene is indeed seriously mentally ill.”2

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Although the presence of mental illness is certainly relevant to whether Greene is
competent to withdraw his Atkins claim, resolution of the competency issue does not hinge on
the presence or absence of a mental illness but whether mental illness substantially affects
Greene’s present capacity to appreciate his options and make a rational choice among them. See
Smith v. Armontrout, 812 F.2d 1050, 1056 (8th Cir.1987)(quoting Rees v. Peyton, 384 U.S. 312,
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Docket entry #143, at 7(emphasis added). According to the affidavit of Dr. Woods filed in this
case on February 15, 2010, he has examined “substantial evidence” regarding the history of
Greene and his family members, which reveals factors that predict a psychotic disorder.3 The
Court finds that the probative value, if any, of similar information sought under the proposed
subpoenas is significantly outweighed by the time and resources required to comply with habeas
counsel’s broad document requests.
Psychological Evaluation
Habeas Counsel seeks an order permitting Dr. Dale Watson, Ph.D., a neuropsychologist,
to conduct an in-person psychological evaluation of Greene. Dr. Watson met with Greene for
two and one-half hours on May 20, 2009 and administered several tests, but he was unable to
conduct further testing in days that followed because Greene reported that he was physically
incapable of participating in further testing. See docket entry #61, Ex. #1 (Watson Dec). By
declaration dated August 20, 2009, Dr. Watson opines, as set forth below, that Greene suffers
from somatic delusions associated with a psychiatric disorder, and he states that an evaluation by
a psychiatrist is required:
Additionally, in light of the well-known genetic component of many psychiatric
disorders, the extensive history of mental illness on both sides of Mr. Greene’s
biological family further suggests that he is suffering from a major mental disease.

314 (1966)).
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Dr. Woods’s affidavit sets forth extensive and detailed information regarding the social,
mental health, and criminal history of Greene and his family members. See docket entry #84,
Ex. #1. Dr. Woods testifies that “in light of substantial evidence,” Greene’s history reveals risk
factors that predict a psychotic disorder. Id., ¶ 83. Dr. Woods further testifies: “The extensive
history that I have for Mr. Greene is necessary, but it is not sufficient. A skilled and careful
exploration of the information that only Mr. Greene himself can provide is required.” Id.
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In order to accurately assess and diagnose Mr. Greene’s disorder, an evaluation by
a psychiatrist is required. Further testing (by a psychologist), which is a lengthy
process, examining his personality and psychiatric functioning is unlikely to be
successful given Mr. Greene’s current level of functioning. On the other hand, a
psychiatrist, relying on their skills with diagnostic interviewing, should be able to
establish the diagnosis.
Watson Dec. ¶ 20(emphasis added).
Counsel’s request for a second evaluation by Dr. Watson is denied. It is the duty of the
Court to make a judicial determination as to whether Greene is competent to withdraw his Atkins
claim. To that end, the Court has subjected Greene to psychiatric examination at a federal medical
facility and has permitted a second evaluation by Dr. Woods. Especially in light of Dr. Watson’s
opinion that an accurate assessment of Greene’s disorder requires an evaluation by a psychiatrist and
that further testing by him would most likely be unsuccessful, the Court finds that the psychiatric
evaluations conducted thus far are sufficient and that further testing will only serve to delay a
determination of whether Greene is competent to waive his Atkins claim.
II.
By order entered February 15, 2011, the Court notified the parties as follows:
The Court intends to set a date for an evidentiary hearing regarding Greene’s
competency, and will contact counsel regarding possible dates. Additionally, unless
the parties agree to different deadlines, the Court will set expert disclosure deadlines
according to the 90-30 day sequence set forth under Fed. R. Civ. P. 26(a)(2)(D) and
require that pretrial disclosures be made and discovery be concluded 30 days prior
to the scheduled hearing.
Docket entry # 142.
Following entry of the February 15 order, the Court contacted counsel by email and
offered two hearing dates: June 17 and June 24, 2011. Habeas counsel responded that the
proposed dates were unworkable because Dr. Woods’s evaluation had not been scheduled and it

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would be impossible to submit an expert report ninety days prior to the hearing.
Now before the Court is habeas counsels’ motion for entry of a scheduling order. The
motion is accompanied by a proposed schedule, which provides a 30-day period for discovery
motions and motions for psychiatric evaluations and an additional 60 day period for completion
of discovery. The Court finds that additional discovery and psychiatric evaluations, beyond that
previously permitted and granted in this order, is unwarranted.4 Additionally, in light of
discovery conducted since the Court’s initial attempt to set a hearing date,5 the Court finds that
an additional 90 days to complete discovery is unnecessary.
Together with this order, the Court will enter a scheduling order. The parties are advised
that any request for a continuance of the hearing date must be made by written motion.
III.
IT IS THEREFORE ORDERED that Petitioner’s supplemental motion for discovery
(docket entry #143) is GRANTED IN PART AND DENIED IN PART. The motion is granted
to the extent that Petitioner’s unopposed request to depose four health care providers is granted,

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The proposed scheduling order provides that (1) motions for discovery and psychiatric
evaluations shall be due 30 days after entry of the scheduling order; (2) discovery shall be
completed 60 days after expiration of the discovery motions deadline; (3) disclosures of expert
testimony and reports shall be due 30 days after expiration of the discovery deadline; (4)
disclosure of rebuttal expert testimony and reports shall be due 30 days after expiration of the
expert disclosure deadline; and (5) pretrial disclosures shall be due 30 days after expiration of
expert rebuttal disclosures deadline; (6) proposed findings of fact and conclusions of law shall be
filed 10 days after the deadline for pretrial disclosures, and (7) an evidentiary hearing “shall be
set for the earliest dates amenable to the Court that are at least twenty (20) days thereafter . . . . ”
Docket entry #144.
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The record reflects that habeas has conducted depositions and Dr. Woods has conducted
a cell-side evaluation of Greene.
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and the motion is denied in all other respects.
IT IS FURTHER ORDERED that Petitioner’s third motion for a psychological
evaluation (docket entry #148) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s motion for entry of a scheduling order
(docket entry #144) is GRANTED IN PART AND DENIED IN PART. The motion is granted
to the extent that the Court will enter a scheduling order, and the motion is denied in that the
Court declines to adopt habeas counsels’ proposed schedule.
IT IS SO ORDERED THIS 23rd DAY OF MAY, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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