Fernandez v. Pfister
Filing
133
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 7/14/2011:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES ex rel. GEORGE
FERNANDEZ (#B70201),
Petitioner,
v.
RANDY PFISTER,1 Acting Warden,
Pontiac Correctional Center,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
Case No. 07 C 2843
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On April 11, 2011, the Court held a competency hearing to determine whether habeas
petitioner George Fernandez is competent to assist his counsel in the present habeas proceeding.
For the following reasons, Fernandez is not presently competent to assist his counsel in the
instant habeas proceeding, and therefore, the Court grants Fernandez’s request for a temporary
stay of up to one year.
LEGAL STANDARD
In Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), the Supreme
Court held that when determining a habeas petitioner’s mental competence to forego judicial
proceedings, the court must ask “whether he has [the] capacity to appreciate his position and
make a rational choice with respect to continuing or abandoning further litigation.” In Holmes v.
1
Randy Pfister replaced Guy Pierce as the Acting Warden of the Pontiac Correctional
Center, where Fernandez is currently incarcerated. The Court, therefore, substitutes Pfister as
the proper Respondent in this habeas case. See Rule 2(a) of the Rules Governing Section 2254
Cases in the United States District Courts; Fed. R. Civ. P. 25(d).
Buss, 506 F.3d 576, 578-79 (7th Cir. 2007), the Seventh Circuit adopted the Ninth Circuit’s
holding in Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), for the proposition
that “in a capital case a petitioner for federal habeas corpus must be competent to assist his
counsel; if not, the proceeding must be stayed.” Holmes, 506 F.3d at 578. The Seventh Circuit
has not addressed whether the Holmes decision extends to non-capital habeas cases,
nevertheless, the Holmes decision teaches that “[w]hatever the nature of the proceeding, the test
should be whether the defendant (petitioner, appellant, etc.) is competent to play whatever role in
relation to his case is necessary to enable it to be adequately presented.” Id. at 579. Further, the
Court’s application of this standard depends on the circumstances of the case, including “not
only the litigant’s particular mental condition but also the nature of the decision that he must be
competent to make.” Id.
PROCEDURAL BACKGROUND
In 2001, after a trial in the Circuit Court of Cook County, a jury convicted Fernandez of
aggravated vehicular hijacking. Thereafter, the Circuit Court sentenced Fernandez to eighteen
years imprisonment. Fernandez appealed and the Illinois Appellate Court affirmed his
conviction and sentence on September 24, 2002. Fernandez did not file a petition for leave to
appeal (“PLA”) in the Supreme Court of Illinois nor did he file a petition for a writ of certiorari
in the United States Supreme Court.
On November 14, 2002, Fernandez filed a pro se post-conviction petition pursuant to the
Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook
County. On May 4, 2004, Fernandez filed a supplemental petition. On May 13, 2004, the
Circuit Court denied Fernandez’s post-conviction petition and the Illinois Appellate Court
2
affirmed this denial on November 7, 2005. Thereafter, Fernandez filed a post-conviction PLA
that the Supreme Court of Illinois denied on May 24, 2006.
In May 2007, Fernandez filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254(d). Construing his pro se habeas petition liberally, see McGee v. Bartow, 593
F.3d 556, 565-66 (7th Cir. 2010), Fernandez brought the following habeas claims: (1) his
appellate counsel was constitutionally ineffective for failing to raise on direct appeal that the trial
court erred in giving jury instruction IPI Criminal 4th No. 3.15; (2) his right to a fair trial was
violated when (a) the State misstated evidence in closing arguments in a manner that eased the
government’s burden of proof, and (b) the State asserted as fact something that had not been
proven or testified to at trial; and (3) his trial counsel was constitutionally ineffective for failing
to (a) object to the prosecutor’s misstatement of the evidence and closing arguments, (b) present
Fernandez’s facial tattoos as proper non-testimonial evidence, and (c) object to the trial court’s
erroneous jury instruction.
After the Court lifted the stayed in the present matter – that was pending while Fernandez
exhausted his state court remedies in the Illinois courts – the Court appointed Fernandez counsel
on December 8, 2009. In February 2010, Fernandez’s appointed counsel filed a motion for a
fitness examination for the purposes of determining whether Fernandez was mentally competent
to assist and direct counsel in the present habeas proceeding. On February 12, 2010, the Court
entered the following unopposed order:
The State of Illinois shall promptly make available to Petitioner’s counsel for
copying (at the expense of Petitioner’s counsel) all medical and related records
respecting George Fernandez, #B70201, in the possession of the State of Illinois
Department of Corrections, which Petitioner’s counsel shall in turn make
available to each psychiatrist who will examine George Fernandez;
3
Petitioner’s counsel shall promptly make available to the State of Illinois for
copying (at the expense of the State of Illinois) all medical and related records
respecting George Fernandez that are currently in the possession of George
Fernandez and/or his mother, Valerie Beesley, including any records that are
obtained from third parties;
All medical and related records in the possession of the State of Illinois and
Petitioner’s counsel shall be made available to the qualified forensic psychiatrist
hired by Petitioner’s counsel to examine George Fernandez, as well as to any
qualified forensic psychiatrist that the State of Illinois may engage to examine
George Fernandez;
Each forensic psychiatrist who examines George Fernandez shall prepare a brief
report summarizing the psychiatrist’s examination, diagnosis, and conclusions
regarding George Fernandez’s current mental competence to assist in and direct
his attorneys in the present habeas proceeding brought under 28 U.S.C. § 2254(d),
and if George Fernandez is found to be incompetent, providing recommendations
as to whether his competency is likely to be restored with appropriate treatment
and medication within a reasonable period of time, and providing any appropriate
recommendations as to what treatment and medication should be provided to
George Fernandez to stabilize his condition and restore his mental competency;
and
The parties shall promptly file with the Court any report prepared in accordance
with the preceding paragraph, and in light of such report or reports, recommend to
the Court a proposed course of action in this proceeding.
(R. 79, 2/12/2010, Minute Order.)
On March 19, 2010, Fernandez filed a motion for an extension of time to amend his
petition for a writ of habeas corpus that the Court granted on March 22, 2010. In his motion for
an extension of time, Fernandez explained that two experts, Dr. Keenan Ferrell, a licensed
clinical psychologist, and William Woods, a psychological examiner, would perform a fitness
examination pursuant to the Court’s February 12, 2010, Minute Order.
During the week of July 26, 2010, Fernandez’s counsel received a letter from Fernandez
suggesting that he was currently in danger to himself due to his mental condition. Counsel then
arranged a teleconference in which Dr. Ferrell participated and during which Fernandez came
4
across as extremely agitated and anxious describing acts of self-mutilation that he had performed
on himself. Following the call, counsel conferred with Dr. Ferrell, who concluded that
Fernandez posed an imminent danger to his own health and safety. Counsel then contacted
Respondent to ascertain whether Respondent would object to having an outside psychiatrist
prescribe anti-anxiety medication for Fernandez. Respondent rejected appointed counsel’s
request. Shortly thereafter, on August 5, 2010, Fernandez’s counsel filed an Emergency Motion
to Request Immediate Medical and Psychiatric Care. On August 6, 2010, the emergency judge
denied Fernandez’s motion because the court concluded that it lacked authority to order the
requested relief. Fernandez then filed a motion for reconsideration on August 18, 2010.
On November 29, 2010, the Court denied Fernandez’s motion for reconsideration, but
directed the parties to file an agreed upon proposed course of action for this habeas proceeding.
On December 20, 2010, the parties filed a joint status report and requested a fitness hearing. The
parties filed a joint pre-hearing brief on February 28, 2011. The Court conducted Fernandez’s
fitness hearing on April 11, 2011.
HEARING TESTIMONY
Fernandez attended his fitness hearing pursuant to a writ of habeas corpus ad
testificandum. Dr. Keenan Ferrell, a licensed clinical psychologist, and William Woods, a
psychological examiner, testified at the fitness hearing on Fernandez’s behalf. Respondent did
not present any witnesses at the fitness hearing.
Woods testified that he first met with Fernandez in June 2010 and that he had met with
him on three separate occasions. (Hr’g Tr. at 20.) He stated that he met with Fernandez to
conduct psychological testing, whereas Dr. Ferrell met with Fernandez to conduct a clinical
5
interview. (Id.) Woods explained that the tests he administered were used to assess Fernandez’s
emotional, cognitive, and intellectual functioning. (Id. at 25.) Further, Woods testified that he
reviewed the results as an examiner after which Dr. Ferrell reviewed the data and conclusions.
(Id. at 27.) Woods elucidated that he conducted the assessments to provide a professional
opinion as to Fernandez’s functioning level, namely, how Fernandez was coping with and
managing his mental illness. (Id. at 35.)
Thereafter, Woods discussed his and Dr. Ferrell’s July 2010 evaluation report, which was
admitted into evidence without objection. (Id. at 34-42.) In discussing Fernandez’s personality
testing, the report states:
Although Mr. Fernandez’s cognitive functioning is at the lower end of the High
Average range, his paranoia and generally distraught emotional state prevents him
from effectively utilizing his cognitive strengths in any consistent and effective
way. Thus, on an apparent daily basis, Mr. Fernandez struggles to cope with a
distraught state related to significant paranoid fears.
(Ex. B, July 2010 Report, GF 000875.) Also, the Summary and Recommendations section of the
report states in relevant part: “Given Mr. Fernandez’s prominent paranoid delusions, it is this
examiner’s opinion that he is unable to effectively assist in his own defense.” (Id. at GF 000876;
Tr. at 40.) At the fitness hearing, Woods clarified that he understood that the present case did
not involve a criminal prosecution, but was a habeas proceeding. (Tr. at 41.)
Woods also discussed Fernandez’s short-term and long-term memory explaining that
Fernandez has severe paranoia “so he may remember something accurately that occurred, but
may overrule that memory and tell himself that he is not remembering it correctly and put a
paranoid aspect to it that’s not reality based.” (Id. at 60.) Woods further testified that depending
on the day and Fernandez’s functioning at the time, Fernandez could recall facts of his
6
underlying criminal case. (Id. at 61.)
Next, Dr. Ferrell testified that he co-authored the July 2010 report with Woods. (Id. at
79.) He further testified that after he completed this initial report, he spoke to Fernandez in
August 2010 and November 2010. (Id. at 80-81.) Dr. Ferrell then explained his diagnoses in the
July 2010 report that are based on the DSM-IV – the Diagnostic and Statistical Manual – used by
practitioners in his field. (Id. at 85.) More specifically, he testified that Axis I is the clinical
skill implying the most severe and prominent illness that needs treatment. (Id.) With respect to
the July 2010 report, Axis I states “R/0 296.7, Bipolar 1 Disorder, most recent episode
unspecified.” (Id.) Dr. Ferrell explained that this implies that “there was significant evidence to
suggest a bipolar disorder, which indicates a depressive disorder with a manic – hypermanic or
hypomanic – element or variable that is not specified at that point for lack of evidence.” (Id. at
86.)
Dr. Ferrell also discussed his second report entitled “Mental Status Update” from
November 2010, which was entered into evidence without objection. Dr. Ferrell noted that the
psychological evaluation result for Axis I had changed to “296.4, Bipolar 1 Disorder, with severe
paranoid features.” (Id. at 87.) He explained that this “indicates that at that point there was
significant data to formulate and make the diagnosis and to specify the specific features of the
diagnosis, based on meeting those very specific criteria of the DSM-IV.” (Id.) Dr. Ferrell
testified that after his most current visit with Fernandez in March of 2011, he did not change
Fernandez’s Axis I diagnosis, and so the final Axis I diagnosis is “296.4, Bipolar 1 Disorder,
with severe paranoid features.” (Id.)
In addition, Dr. Ferrell discussed Fernandez’s Axis II diagnosis, namely, 301.83,
7
Borderline Personality Disorder. (Id. at 88.) He elucidated that “borderline style indicates that
there is a pervasive mistrust of others, as well as severe difficulty in engaging in conflictual
information or challenging emotional stimuli, as well as the inability to remain reality focused.”
(Id.) In the meantime, Dr. Ferrell discussed his conclusion in the July 2010 report that based on
Fernandez’s prominent paranoid delusions, Fernandez was unable to assist counsel in this
proceeding. (Id. at 92.) More specifically, Dr. Ferrell testified:
[Fernandez’s] cognitive functioning is so dominated by paranoid delusions and
they are so pervasive that any attempt to communicate with him about his own
best interests would also be diluted by his ongoing cognition that he’s being under
attack, unfairly scrutinized, spied upon and in some way victimized.
(Id.)
Dr. Ferrell testified that Fernandez’s “retrospective memory contained several elements
that appeared to be somewhat delusional in manner and appeared to be unreliable in terms of
clarity and accuracy.” (Id. at 96.) He also stated that because bipolar disorder contains the
elements of depression it could affect Fernandez’s “ability to concentrate and to clearly and
accurately take in the environmental stimuli.” (Id. at 97-98.)
Next, Dr. Ferrell discussed his March 2011 report – that was admitted into evidence
without objection – in which Dr. Ferrell noted that Fernandez is taking medication for his bipolar
disorder and anxiety. (Id. at 101-02.) Despite the fact that Fernandez is taking these
medications, Dr. Ferrell noted in the March 2011 report that Fernandez continued to have
difficulty concentrating. (Id. at 102.) Dr. Ferrell specifically testified that there was no
significant material difference in Fernandez’s mental condition while he was taking the
medications. (Id. at 103.) Dr. Ferrell further opined that he considered whether Fernandez was
malingering and came to the conclusion that he was not. (Id. at 106.)
8
In sum, Dr. Ferrell concluded that Fernandez’s prognosis is guarded at best due to the
longevity of his mental illness and the probability that there may be an organic brain disorder.
(Id. at 106-07.) Dr. Ferrell explained that although medication and therapy may decrease
Fernandez’s symptoms, the symptoms will not completely go away. (Id. at 107.)
ANALYSIS
As the Holmes decision instructs, in determining whether a habeas petitioner can assist
counsel, the Court must consider “not only the litigant’s particular mental condition but also the
nature of the decision that he must be competent to make.” Id. at 579. To this end, Fernandez
must have the ability to recall facts and circumstances, concentrate on the relevant issues, and
communicate with his counsel in the context of his ineffective assistance of counsel and fair trial
claims. See id. at 580 (“The petitioner was at his trial; his current lawyers were not. He may – if
mentally competent – be able to convey to his lawyers a better sense of the alleged misbehavior
of the prosecutor and of defense counsel than the trial transcript and other documentation
provide.”); see also Rohan, 334 F.3d at 818 (petitioner “is in a unique position to testify about
the extent of his trial counsel’s efforts”); Nash v. Ryan, 581 F.3d 1048, 1057 (9th Cir. 2009)
(petitioner must have “the ability to understand and communicate rationally with counsel when
necessary”).
Here, Respondent admits that Fernandez “suffers from a mental illness as he has received
varying diagnoses throughout his life, including bipolar disorder, borderline personality disorder,
and paranoid personality disorder.” (R. 130, Post-Trial Brief at 1-2.) Nonetheless, Respondent
argues that despite the fact that Fernandez has demonstrated “unusual and troubling behavior”
since filing his habeas petition, evidence in the record reveals that Fernandez is capable of
9
recalling the details of his criminal case and communicating with his appointed counsel. In
support of this argument, Respondent argues that Dr. Ferrell’s and Woods’ hearing testimony to
the contrary is unconvincing.
First, it is undisputed that Dr. Ferrell and Woods were qualified to testify as experts
regarding Fernandez’s mental capacity. (Hr’g Tr. at 19, 70.) Further, Dr. Ferrell’s and Woods’
opinions are support by their extensive research and review of the relevant mental health records
and materials in this matter, along with their interviews and testing of Fernandez. Meanwhile,
Respondent’s argument that Dr. Ferrell’s testimony was unconvincing based on his testimony
regarding Fernandez’s ability to speak Spanish – an issue involving Fernandez’s defense to the
aggravated vehicular hijacking charge – is irrelevant to the Court’s analysis of Fernandez’s
mental competency. Respondent’s further attempt to discredit Woods’ and Dr. Ferrell’s
testimony by arguing that they misunderstood the purpose of Fernandez’s evaluation is equally
unavailing. To clarify, Respondent argues that Woods and Dr. Ferrell thought this was a
criminal proceeding. Not only did Woods acknowledged that this proceeding was not a criminal
prosecution at the fitness hearing, whether Woods or Dr. Ferrell understand that this is a federal
habeas proceeding is irrelevant to their conclusions pertaining to Fernandez’s mental capacity.
See Holmes, 506 F.3d at 579 (“[w]hatever the nature of the proceeding, the test should be
whether the defendant (petitioner, appellant, etc.) is competent to play whatever role in relation
to his case is necessary to enable it to be adequately presented.”).
Moreover, there is abundant evidence in the record that Fernandez does not have the
ability to assist his counsel in this habeas proceeding because he has memory problems and does
not have the ability to concentrate. Dr. Ferrell, for example, testified that Fernandez’s
10
“retrospective memory contained several elements that appeared to be somewhat delusional in
manner and appeared to be unreliable in terms of clarity and accuracy.” (Hr’g Tr. at 96.) He
further testified that because bipolar disorder contains the elements of depression it could affect
Fernandez’s “ability to concentrate and to clearly and accurately take in the environment.” (Id. at
97-98.) In addition, in the March 2011 report, Dr. Ferrell noted that despite the fact that
Fernandez was taking medications, he continued to have difficulty concentrating. (Id. at 102.)
And, although Woods testified that depending on the day and Fernandez’s functioning at the
time, Fernandez could recall facts of his underlying criminal case, he also explained in the
context of Fernandez’s short-term and long-term memory that Fernandez “may remember
something accurately that occurred, but may overrule that memory and tell himself that he is not
remembering it correctly and put a paranoid aspect to it that’s not reality based.” (Id. at 60.)
There is also evidence in the record that Fernandez does not have the ability to coherently
communicate with his counsel. As Dr. Ferrell testified:
[Fernandez’s] cognitive functioning is so dominated by paranoid delusions and
they are so pervasive that any attempt to communicate with him about his own
best interests would also be diluted by his ongoing cognition that he’s being under
attack, unfairly scrutinized, spied upon and in some way victimized.
(Id. at 92.) Dr. Ferrell’s conclusion is corroborated by appointed counsel’s affidavit filed under
seal. (See Ex. 8, Peel Aff. ¶¶ 9, 19.) In addition, Dr. Ferrell testified that when Fernandez
recalled information about his criminal defense, Fernandez’s interpretation of the defense was
“so diluted that it was difficult to establish the accuracy or clarity of the information.” (Hr’g Tr.
at 122.)
Furthermore, although Fernandez obtained documents pertinent to his medical history for
counsel and followed the directions and completed the tests that Woods administered,
11
Fernandez’s ability to assist counsel under the circumstances is intermittent at best. See Holmes
v. Levenhagen, 600 F.3d 756, 759 (7th Cir. 2010). Dr. Ferrell, for example, testified that
although Fernandez could remember very specific and obsessive details of his criminal case, the
accuracy of these details was dubious at best. (Hr’g Tr. at 140.) He further explained:
[T]here was additional information provided that made no sense and was illogical
and not verifiable. And there were many stories that although he would report an
accurate situation, he would then add on something that was completely psychotic
to it, like he’d use information based on the technobugs that roll in his head and
tells him these things.
(Id.)
Based on the evidence in the record, including the fitness hearing testimony, the Court
concludes that Fernandez is not presently competent to assist his counsel in this habeas
proceeding. The Court grants Fernandez’s request to stay these proceeding for up to one year.
CONCLUSION
For these reasons, Fernandez is not presently competent to assist his counsel in the
instant habeas proceeding and grants Fernandez’s request for a temporary stay of up to one year.
Dated: July 14, 2011
ENTERED
AMY J. ST. EVE
United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?