ANDERSON v. USA

Filing 111

ENTRY - GRANTING PETITIONER'S MOTION TO VACATE CONVICTION AND DIRECTING ENTRY OF FINAL JUDGMENT. To be clear, the Court declines to determine whether Anderson was in fact competent at the time he pled guilty and was sentenced. Instead, the C ourt's decision is based on the fact that this Court had bono fide reasons to doubt Anderson's competency and should have held a competency hearing before entering final judgment. Pate, 383 U.S. at 387 (discussing importance of a contemp oraneous competency hearing). Accordingly, Anderson's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is GRANTED because his due process rights were violated. The Judgment in Case No. 1:11-cr-00201-TWP-TAB-1 is vacated and the case is reopened, subject to further proceedings. Judgment consistent with this Entry shall now issue. The United States shall have thirty (30) days from the date of this Entry in which to notify this Court of its intention t o prosecute Anderson. At that time, Anderson's present competency can be addressed. This outcome is consistent with the Supreme Court's view that there are inherent difficulties in making a nunc pro tunc determination of competency under the most favorable circumstances. The Clerk shall also enter this Entry on the docket in the underlying criminal action, Case No. 1:11-cr-00201-TWP-TAB-1. The Motion to Vacate filed in the underlying criminal action (Crim. Dkt. 82 ) shall also be terminated. (See Entry.) Signed by Judge Tanya Walton Pratt on 12/19/2018.(NAD) Modified on 12/19/2018 - Edited for administrative purposes (NAD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DENNY RAY ANDERSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:13-cv-01734-TWP-MJD

ENTRY GRANTING PETITIONER’S MOTION TO VACATE CONVICTION
AND DIRECTING ENTRY OF FINAL JUDGMENT
This matter is before the Court on Petitioner Denny Ray Anderson’s (“Anderson”) Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”) (Dkt.
1). Anderson filed the present motion alleging that his guilty plea was not “intelligent, knowing,
or voluntary in violation of” the Due Process Clause and that his trial counsel rendered
constitutionally ineffective assistance by permitting him to plead guilty despite knowledge of his
mental health problems. Id. Following an evidentiary hearing, and after considering the record in
both this case and the underlying criminal action, the Court makes findings of fact and conclusions
of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. 1 For the reasons set forth
below, the Court concludes that it had bona fide reasons to doubt Anderson’s competence during
his criminal proceedings and thus, should have ordered a competency hearing. Anderson’s Motion
is granted, and the Judgment entered in Case No. 1:11-cr-00201-TWP-TAB is vacated. The
United States shall have thirty (30) days from the date of this Entry to notify the Court of its intent

1

Certain issues of fact cannot be resolved in this case without determining which version of the pivotal events was
more credible. In making this and other determinations as to contested issues, the Court has considered the customary
factors associated with credibility–e.g., demeanor, detail, consistency, opportunity to observe or perceive the events
testified to, etc. It has not relied solely on the number of witnesses who related a particular event or on any other
single factor.

to retry Anderson in the criminal case. If the United States elects to retry Anderson, he may raise
the question of his competence to stand trial at that time and request a hearing on the issue.
I. LEGAL STANDARD
The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[h]abeas
corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is
“constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete
miscarriage of justice.” Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations
omitted).
II. FINDINGS OF FACT
A.

Procedural Background
On October 19, 2011, Anderson was charged by Indictment with being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Anderson was initially
represented by an Indiana Federal Community Defender counsel and beginning February 24, 2012
he was represented by CJA counsel Jessie A. Cook (“Cook”).
Anderson was scheduled for trial by jury on August 27, 2012; however, on August 16,
2012, he filed a Petition to Enter a Plea of Guilty. (Crim. Dkt. 50). 2 That same day the parties
filed a fully executed Plea Agreement (Crim. Dkt. 51). The Plea Agreement, pursuant to Fed. R.
Crim. P. 11(c)(1)(C), stated that Anderson would plead guilty to the charge alleged in the
Indictment and be sentenced to the statutory minimum term of 180 months’ imprisonment. The

2

Citations to “Crim. Dkt. __” are to Anderson’s criminal proceedings, Case No. 1:11-cr-00201-TWP-TAB.

2

Plea Agreement further provided that in exchange for concessions made by the United States,
Anderson expressly waived his right to a direct appeal of the conviction and sentence imposed.
He did not, however, waive his right to collaterally attack the conviction and sentence via 28
U.S.C. § 2255. The Court vacated the trial and set the change of plea hearing for August 27, 2012.
B.

The Change of Plea Hearing
Anderson appeared before the Court for his change of plea hearing on August 27, 2012.

At the beginning of the hearing, Anderson and his counsel were asked to come to the lectern for
the plea colloquy. Anderson was wearing shackles on his ankles and his hands were cuffed. On
the lectern is a microphone which the speaker must utilize for the benefit of the court reporter.
When Anderson stepped away from the middle of the lectern, the Court stated, “Come right here.
Where are you going, Mr. Anderson?” The court reporter then recorded someone (not Anderson)
as saying “ready to run around for a while” at the same time as Anderson moved closer to the
microphone and center of the lectern. The Court responded, “Okay. You have to stay in here.”
(Crim. Dkt. 75 at 4.) During the hearing, the following colloquy took place:
COURT: Have you been treated recently for any mental illness or addictions to
alcohol or narcotic drugs of any kind?
DEFENDANT: I’m on psychotropic drugs right now.
COURT: Okay. What’s your diagnosis?
DEFENDANT: Paranoid schizophrenia and a few other things. I don’t know
exactly everything.
COURT: So, are you currently under the influence of any drugs or medication?
DEFENDANT: Medication.
COURT: Okay. Does your medication affect your ability to understand today’s
proceedings?
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DEFENDANT: Not that I know of, Your Honor.
COURT: Okay. So, right now you’re thinking clearly, and you understand what’s
going on?
DEFENDANT: Right. I mean, as good as I can, yeah.
(Crim. Dkt. 75 at 5.)
Also, during the hearing, the Court asked if Anderson understood that his guilty plea would
deprive him of valuable civil rights:
COURT: Mr. Anderson, do you understand that the offense to which you are
pleading guilty, because it's a felony offense, if the plea is accepted, you will be
adjudged guilty of that offense, and this adjudication may deprive you of valuable
civil rights, such as the right to vote, the right to hold public office, the right to
serve on a jury, and the right to possess any kind of firearm. Do you understand?
DEFENDANT: Yeah.
COURT: Okay. Knowing –
DEFENDANT: That’s pretty good.
COURT: I’m sorry?
DEFENDANT: That’s pretty good.
COURT: Knowing all of these factors, do you still wish to enter into this plea of
guilty?
DEFENDANT: Yes.
Id. at 9-10. At the end of the hearing the Court accepted Anderson’s plea, adjudged him guilty,
ordered a presentence investigation report (the “PSR”) and scheduled a sentencing hearing.
C.

The Sentencing Hearing
The final PSR was filed by the United States Probation officer on October 29, 2012. Under

the section titled Mental and Emotional Health, the report stated:
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The defendant has been diagnosed with antisocial personality disorder and
hyperkinetic syndrome through Wishard Hospital. He states he has also been
diagnosed with bipolar disorder, schizophrenia, chronic depression and attention
deficit hyperactivity disorder (ADHD). He has reportedly been prescribed Ritalin
for ADHD, thorazine for schizophrenia, and Artane for side effects of his other
medication. Medical notes from IU Medical Center indicate when he was released
from prison in 2011, he was prescribed thorazine for anxiety and Artane, although
it does not state the reason for this medication, and was referred to Midtown Mental
Health. Although requested, no records were received from Midtown Mental
Health.
(Crim. Dkt. 56 at 17). On November 1, 2012, the sentencing hearing was conducted. Anderson
received a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. He was
an Armed Career Criminal under 18 U.S.C. § 924(e). His total offense level was 31 and his
criminal history category was VI (based on both his criminal history points and his status as an
Armed Career Criminal). His guideline range was 188 to 235 months’ imprisonment. The Court,
in conformity with the Plea Agreement, sentenced Anderson to a term of imprisonment of 180
months (the statutory minimum) to be followed by five years of supervised release. Anderson
was also fined $500.00 and assessed the mandatory assessment of $100.00. No competency
hearing was ever requested or held. Judgment of conviction was entered on November 5, 2012.
D.

Post-Conviction Proceedings
On October 28, 2013, Anderson filed a motion for post-conviction relief pursuant to 28

U.S.C. § 2255 (Crim. Dkt. 82). In his § 2255 motion, Anderson argued that his plea was not
intelligent, knowing, or voluntary because he was suffering mental problems and his attorney was
ineffective for failing to seek a competency examination prior to allowing him to plead guilty.
Anderson’s arguments were rejected, his § 2255 motion was denied without a hearing and final
judgment was entered. Anderson appealed. The Seventh Circuit Court of Appeals reversed,
stating: “[b]ecause the district court lacked a full picture of Anderson’s mental health, its finding
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that Anderson had the capacity to plead guilty rests on a flawed factual foundation that must be
explored in a hearing.” (Dkt. 37 at 14.) The Seventh Circuit remanded this action for an
evidentiary hearing to determine whether Anderson had the capacity to be sentenced and to enter
a knowing and voluntary plea. (Id. at 17.) On July 24, 2018, Anderson filed a Prehearing Brief
(Dkt. 84) which set forth two grounds for relief: (1) Anderson was denied his due process right to
plead guilty while competent, and (2) trial counsel rendered ineffective assistance by failing to
seek a competency evaluation and failing to request a competency hearing.
E.

The Evidentiary Hearing
An evidentiary hearing was held on August 2 and 3, 2018. Anderson was represented by

by counsel Gregory M. Boyle, Joshua M. Parker, and Reanne Zheng. 3 The United States appeared
by Assistant United States Attorneys Brian L. Reitz and Steven D. DeBrota. Anderson presented
several witnesses–three fact witnesses: attorney’s Bobbie Sierzputowski, Lindsay P. Schneider and
his trial counsel Jessie A. Cook, and, and two expert witnesses: Dr. Bhushan Agharkar and
Professor Jeffrey Urdangen. The Court also viewed the videotaped testimony of Robert Dugan
(“Dugan”), taken by deposition because he was an unavailable fact witness. The United States did
not present any witnesses. 4
Cook has been a criminal defense attorney since 1980 and has represented a large number
of clients with mental health issues or serious mental health issues. She met with Anderson at least

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The Court is grateful for Jenner & Block attorneys’–Barry Levenstam, Gregory M. Boyle, Joshua M. Parker, and
Reanne Zheng–representation of Anderson. Jenner & Block represented Anderson before the Seventh Circuit and
graciously agreed to continue its pro bono appointment on remand. Counsels’ thorough preparation was of great
benefit to the Court.

4

The Court denied the Government’s motion to call Anderson as a witness finding the Government’s failure to
disclose Anderson as a witness until two days prior to the evidentiary hearing was without substantial justification and
would prejudice Anderson. (Dkt. 88.)

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twice a month and spoke with him over the telephone, regarding less substantive matters. She was
able to discuss all aspects of the case with him, and she “had no reason to disbelieve what he told
[her] or to question his ability to understand and respond to the factual allegations.” (Dkt. 108 at
89, 90. 97.) She was aware that Anderson was prescribed Thorazine and that he frequently refused
to take it. Anderson informed Cook that sometimes “he would pocket the medication and give it
to other inmates.” Cook was able to work with Anderson regardless and she never suspected that
he was incompetent. Id. Anderson did not appear to be psychotic and if she “had thought he was
not competent, [she] would have asked for an evaluation.” (Dkt. 108 at 101.) Cook never asked
for a competency evaluation or hearing.
Sierzputowski and Schneider had previously represented Anderson in state court matters.
They each interacted with Anderson around the time the charges were filed in 2011 or during the
2012 proceedings. Dugan was confined in the same cell block as Anderson for over a year,
following the November 2012 sentencing. All three were aware that Anderson suffers from mental
illness and during their interactions with him, Anderson was usually pleasant, “good natured” and
“humorous.” They each observed that Anderson often found it difficult to remain focused.
Dr. Agharkar is a medical doctor board certified in adult and forensic psychiatry. After
reviewing Anderson’s medical, mental health, and administration records, conducting a clinical
examination interview of Anderson, reviewing the change of plea and sentencing transcripts,
observing the testimonies of all the fact witnesses, and viewing the deposition videotape of Dugan,
Dr. Agharkar determined that there were “serious red flags” as to Anderson’s competence that
warranted further inquiry at the time he pled guilty in 2012. He also explained the “powerfully
sedating” effects of Thorazine and the effects of intermittently taking this medication.
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Anderson’s standard of care expert, Urdangen, is a clinical professor at the Northwestern
Pritzker School of Law and director of the Bluhm Legal Clinic’s Center for Criminal Defense and
has extensive criminal trial experience. Urdangen noted that Cook was aware of several red flags
as to Anderson’s competence, including his serious mental health issues and diagnoses, his potent
psychotropic medication regimen, and issues with inconsistently taking those medications. In his
opinion, trial counsel was deficient in her representation of Anderson and her conduct fell below
an objective level of reasonableness for two reasons: (1) she failed to adequately investigate
Anderson’s competence; and (2) she failed to request a competency hearing despite her awareness
of facts that should have given her a bona fide reason to doubt Anderson’s competence.
Anderson’s mental health progress notes from the jail were admitted into evidence at the
hearing. (Tr. Exhibit 1.) In the 19 days prior to the hearing, Anderson did not refuse his Thorazine
and his last refusal occurred on August 8, 2012. (See Tr. Exhibit. 1, pp. 47, 48.) Ten days before
the change of plea hearing, Anderson had an appropriate affect, coherent thought form, appropriate
thought content, an intact memory, and average intelligence. (Tr. Exhibit 1, p. 180.) Ten days
after the hearing, a mental health progress report indicates that Anderson was functioning well.
(Tr. Exhibit 1, p. 179.) In the days leading up to the sentencing hearing, including the two days
before the hearing, Anderson refused Thorazine. (Tr. Exhibit 1, pp.20-36.)
III. DISCUSSION AND CONCLUSIONS OF LAW
Anderson argues that his due process rights were violated by this Court’s failure to hold a
competency hearing sua sponte during the 2012 proceedings because this Court had facts before
it that should have given it a bona fide reason to doubt his competence. He also argues that his
trial counsel rendered ineffective assistance, violating the Sixth Amendment, by failing to ask the
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Court to conduct a competency hearing at the time he pled guilty, despite having evidence before
her that should have given her a bona fide reason to doubt his competence.
In response, the Government asserts that although Anderson suffers from mental illness,
that fact alone does not mean that he is incompetent to stand trial and Anderson only needed to be
able to follow the proceedings and provide the information that his lawyer needs to conduct an
adequate defense, and to participate in critical decisions. During the 2012 proceedings, the
contemporaneous participants uniformly believed that Anderson was competent. The Government
asserts that Cook, as Anderson’s lawyer, was best-positioned to know the extent that he understood
the proceedings and her belief that his mental illness did not “impact his ability to understand the
case” is sufficient evidence to deny the motion for relief. The Government argues the evidence
shows that Anderson was competent and if this Court were to find otherwise, it would “be the first
court to find Anderson incompetent – despite Anderson having being [sic] a defendant on 19
separate occasions over 30 years time.” (See Dkt. 100 at 3.)
“A criminal defendant may not be tried unless he is competent, and he may not ... plead
guilty unless he does so ‘competently and intelligently.’” Godinez v. Moran, 509 U.S. 389, 396
(1993) (citation omitted) (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). This requirement
“has a modest aim: It seeks to ensure that [the defendant] has the capacity to understand the
proceedings and to assist counsel.” Godinez, 509 U.S. at 402. The United States Supreme Court
has “approved a test of incompetence which seeks to ascertain whether a criminal 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

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against him.’” Drope v. Missouri, 420 U.S. 162, 172 (1975) (quoting Dusky v. United States, 362
U.S. 402, 402 (1960)).
Further, “a trial court must always be alert to circumstances suggesting a change that would
render the accused unable to meet the standards of competence to stand trial.” Drope, 420 U.S. at
181. “Where the evidence before a trial court raises a bona fide doubt as to the defendant’s
competency, due process requires the court sua sponte to order a competency hearing.” Burt v.
Uchtman, 422 F.3d 557, 564 (7th Cir. 2005) (citing Pate v. Robinson, 383 U.S. 375, 385 (1966)).
See also 18 U.S.C. § 4241. To safeguard this constitutional guarantee, a court must, on either
party’s motion or sua sponte, order a competency hearing “if there is reasonable cause to believe
that the defendant may presently be suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to understand the nature and consequences of
the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a).
There is no prejudice component to this due process inquiry. “[T]he analysis for the due
process claim focuses only on events that happened in court that should have alerted the trial judge
to the need for a competency hearing.” Burt, 422 F.3d at 570. Thus, if this Court finds there was
a “bona fide reason to doubt” Anderson’s competence based on what the Court should have known
during his 2012 criminal proceedings, then the failure to further evaluate Anderson’s competence
violated his due process rights.
Whether a competency hearing is warranted is necessarily an individualized determination.
McManus v. Neal, 779 F.3d 634, 656 (7th Cir. 2015). “Relevant factors include any evidence of
irrational behavior, the defendant’s demeanor in court, and any medical opinions on the defendant's
competency to stand trial.” Sturgeon v. Chandler, 552 F.3d 604, 612 (7th Cir. 2009). The Seventh
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Circuit has also considered evidence that a defendant: (a) has been diagnosed with a severe
psychiatric illness, see, e.g., Burt, 422 F.3d at 564-65; McManus, 779 F.3d at 657; (b) had been
receiving large dosages of psychotropic medications, see, e.g., Burt, 422 F.3d at 565-66;
McManus, 779 F.3d at 657, and (c) possesses substandard intelligence. See, e.g., Newman v.
Harrington, 726 F.3d 921, 930 (7th Cir. 2013); Burt, 422 F.3d at 565-66.
A.

The Change of Plea Hearing
As noted above, during his change of plea hearing on August 27, 2012, Anderson responded

to the Court’s questions regarding his mental health and advised that he was “on psychotropic
drugs right now” for “[p]aranoid schizophrenia and a few other things. I don’t know exactly
everything.” (Crim. Dkt. 75 at 5.) When asked whether he was thinking clearly and understood
what was going on, he responded: “Right. I mean, as good as I can, yeah.” Id. Later, when asked
whether he “fully underst[ood] th[e] plea agreement,” Anderson stated, “Yes, to the best of my
ability, I do.” Id. at 16. These qualified answers were reasonably understood to reflect Anderson’s
attempt to be precise.
Anderson’s physical action of stepping away from the middle of the lectern was not
unusual or “peculiar.” At no time was Anderson running around or wandering around the
courtroom. He simply stepped away from the lectern, a situation that had to be corrected in order
to support the court reporter’s transcription. Defendants are often nervous and confused about
where they should stand and remain during the plea colloquy. The Court’s directions were
understood by those present in the courtroom and Anderson’s actions were not uncommon.
Later in the hearing, Anderson was asked by this Court if he understood that his guilty plea
would deprive him of valuable civil rights, Anderson responded “Yeah … That’s pretty good.” (Id.
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at 9-10.) This response was understood to be a glib remark from Anderson given the fact that he
had not enjoyed the civil rights that had just been referenced for years. For example, Anderson was
convicted of felony burglary in Marion County, Indiana, in 1980 at the age of 22. (See Crim. Dkt.
56. at 6, ¶ 32.) His glib response was not alarming or indicative of misunderstanding as he was just
told that he would no longer have the right to own a firearm, when he was facing charges for being
a felon in possession of a firearm.
The undersigned takes every change of plea hearing seriously. Anderson’s plea hearing was
no exception. As noted by the witnesses at the evidentiary hearing, Anderson’s personality is
friendly and talkative and that is how he presented at the change of plea hearing. The Court
observed no peculiar behaviors or equivocation in his statements or answers to raise a “red flag”.
However, “it is nevertheless true that judges must depend to some extent on counsel to bring issues
into focus.” Drope, 420 U.S. at 176–77. At the change of plea hearing, the Court had only a general
knowledge of Anderson’s mental health condition and no knowledge of his other conditions,
including what medications he had been prescribed, how the medications affected his mental
functioning, or his irregularities in taking prescribed medications; and his counsel did not raise any
such concerns with the Court. The Court concludes that it simply did not have sufficient
information to question the purported competency of Anderson at the time of the change of plea
hearing. Consistent with this conclusion is that Anderson’s experienced trial counsel, Jesse Cook,
testified that she believed Anderson “sounded rational and able to understand what was going on
during the plea colloquy.” (Dkt. 108 at 93.)
B.

Presentence Investigation Report And Psychiatric Diagnoses
Anderson’s PSR was filed with restrictions in the criminal case on October 29, 2012.
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(Crim. Dkt. 56.) For the first time, the Court became aware of the extent of Anderson’s mental
health history. The PRS reported that Anderson had been diagnosed with schizophrenia, antisocial
personality disorder, hyperkinetic syndrome, bipolar disorder, chronic depression, and attention
deficit hyperactivity disorder. (Id. at 17, ¶ 78.) The PSR listed Thorazine and Tegretol among the
medications he had been prescribed. (Id. at 16-17, ¶¶ 77, 78.) Thorazine is an anti-psychotic
medication. Tegretol is “used to prevent and control seizures which is sometimes used to treat
bipolar disorder and schizophrenia.” Anderson v. United States, 865 F.3d 914, 918 (7th Cir. 2017).
Upon seeing the names of the medications listed, the Court had bono fide concerns. The
evidence adduced at the hearing demonstrates that those concerns were legitimate. For example,
Dr. Agharkar testified that Thorazine is a “powerfully sedating” antipsychotic and because of this
“heavy” side effect, it is not prescribed “so much anymore.” (Dkt. 109 at 25.) Either dosage “can
really subdue a person, to the point where they’re not necessarily thinking very straight.” Id. at
26. While Thorazine treats outward manifestations of psychosis, such as hallucinations and
delusions, it “doesn’t do so well” with treating cognitive symptoms such as problems with memory
and concentration; nor does it do well in treating disorganized thinking because of its sedative
effects. Id. at 25. Other side effects of Thorazine include impaired concentration in judgment and
thinking. Id. at 27. Dr. Agharkar explained that intermittently taking Thorazine both decreases its
effectiveness in treating the symptoms of schizophrenia and amplifies its side effects, including
sedation. Id. at 28-29.
During the 2012 proceedings, Anderson was also prescribed Tegretol to treat his seizure
disorder that resulted from past head injuries. Id. at 44. Dr. Agharkar explained that Tegretol is also
prescribed as a mood stabilizer for bipolar disorder and has a “major” sedating effect “just like
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Thorazine”; it dampens brain activity to stop seizures from occurring. (Id. at 45.) The PSR also
noted that the Probation Officer requested, but did not receive, relevant mental health records from
Midtown Mental Health, where Anderson was a patient in 2011. (Crim. Dkt. 56 at 17, ¶ 78.) The
Probation Officer also requested, but did not receive, relevant mental health records from Progress
House and Richmond State Hospital. (Crim. Dkt. 56 at 17-18, ¶ 87.)
The PSR reflects Anderson’s long history of substance abuse. (Id. ¶¶ 79-87.) It also
highlighted Anderson’s educational difficulties, stating that he ranked near the bottom of his high
school class and that Anderson attributed his poor academic performance to his mental health
issues. Id. at 18, ¶ 88. The PSR noted that Anderson reported he had been unable to obtain his
medications since he was released earlier that year but was “thinking more clearly” since he had
been confined in Marion County Jail. Id. at 4, ¶ 16.
C.

The Sentencing Hearing
Anderson’s mental health problems were discussed during the November 1, 2012,

sentencing hearing. When this Court asked Anderson’s trial counsel why this Court should
accept a sentence slightly below the United States Sentencing Guidelines range, trial counsel
responded that “[i]t looks like [Anderson] has been afflicted with some very serious mental
health problems since he was quite young, including diagnoses of paranoid schizophrenia, all of
which requires medication.” (Crim. Dkt 72 at 16.) Counsel then described Anderson’s “long
history of mental health problems,” noting that “he doesn’t have a history of having received
serious treatment for these problems.” (Id. at 18.) In addition, trial counsel reported that
Anderson takes “some really serious psychotropic medication, including Thorazine in large
dosage amounts that the DOC recommended for him.” ( Id. at 19.)
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Trial counsel also explained to this Court that periodically during her representation,
Anderson did not receive his required medications:
Even in the time that I have spent with him, when he’s moved from one cell block
to another – which seems to be a problem in the jail here, they move him, and then
for a period of time he doesn’t have the right medication. And when I come to see
him, he can’t focus on what we’re talking about.
Now, after he’s been in the new cell block and they’ve got his medication
back, he’s a whole lot better. But, it’s pretty clear to me that when he’s not
medicated, he has an extremely difficult time of conforming his behavior to what,
you know, the Court would expect.
(Id. at 18.)
The prosecution acknowledged Anderson’s mental health problems as well, telling this
Court that his “mental health issues” did not surprise the officers who arrested him “at all” because
“their immediate reaction upon making contact with Mr. Anderson” was that “something was
amiss.” Id. at 23. Indeed, the prosecution agreed that a below-Guidelines 180-month sentence was
appropriate because of Anderson’s “current state and his current age and his current mental health.”
( Id.)
After sentencing Anderson, this Court asked him “[a]re they [Marion County Jail officials]
giving you your medications?” and Anderson responded:
I have problems getting my medication. They just started charging money for – I
don’t have the money to pay for it anyway, but you know what I’m saying? But
they will start charging. You know, I mean, it’s just one day they will give me part
of it, you know what I mean? And then the next time I might not get it all. Like,
this morning they come to give my meds, and they didn’t have all my meds for
me. You know what I’m saying? I’m thinking – –.
(Id. at 31-32.)

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D.

The Ruling
At issue in this case is “the fundamental principle that it is unjust to punish a person who

lacks the mental capacity to understand the proceedings against him and participate in his own
defense.” McManus, 779 F.3d at 656. Given the information the Court had at the sentencing
hearing, this action should have been suspended until such time as an evaluation could be made.
See Drope, 420 U.S. at 181. This is true even though the Court did not have this information
during the change of plea hearing and had previously found:
… the defendant is fully competent and capable of entering an informed plea, that
the defendant was aware of the nature of the charges and the consequences of the
plea, that the plea of guilty is a knowing and voluntary plea supported by an
independent basis in fact, which contained each of the essential elements of the
offense.
(Crim. Dkt. 72 at 3.) A defendant’s competency can be called into question at every stage in the
criminal proceedings. See Burt, 422 F.3d at 569 (7th Cir. 2005) (“trial court should have sua
sponte ordered a renewed competency hearing.” Id. at 566); Timberlake v. Davis, 409 F.3d 819,
823 (7th Cir. 2005) (defendant examined twice before trial and once during post-conviction
proceedings and found competent all three times); Young v. Walls, 311 F.3d 846, 848 (7th Cir.
2002) (defendant found competent three times before trial, and post-conviction court held separate
competency hearing to evaluate his competency while on psychotropic medication).
Here, further evaluation was necessary because competency is not static and additional
information was needed for this Court to make a reasonable independent judgment about
Anderson’s competency. The Supreme Court has recognized,
There are, of course, no fixed or immutable signs which invariably indicate the need
for further inquiry to determine fitness to proceed; the question is often a difficult
one in which a wide range of manifestations and subtle nuances are implicated.

16

That they are difficult to evaluate is suggested by the varying opinions trained
psychiatrists can entertain on the same facts.
Drope, 420 U.S. at 180. Despite these challenges, prior to the completion of the sentencing
hearing, this Court had a “bona fide reason to doubt” Anderson’s competence and should have
ordered an evaluation. This doubt was created by the knowledge of Anderson’s severe psychiatric
disorders and that he was prescribed psychotropic medications that he did not always receive.
First, Anderson suffered from severe psychiatric disorders. He had long been diagnosed
with multiple “severe psychiatric illness[es]” and even one such illness “can suffice” to establish
‘“reasonable cause to believe”’ a defendant has been rendered mentally incompetent. United States
v. Grimes, 173 F.3d 634, 635-36 (7th Cir. 1999) (citation omitted). The PSR alerted this Court to
Anderson’s long history of very serious mental health problems, including diagnoses of paranoid
schizophrenia, antisocial personality disorder, hyperkinetic syndrome, bipolar disorder, chronic
depression, and attention deficit hyperactivity disorder.

As the Seventh Circuit explained,

Anderson’s diagnoses “should have alerted the court to the possibility of a competence issue, even
if his medical history standing alone did not trigger the need for an evaluation.” Anderson, 865
F.3d at 920.
Second, this Court also knew that Anderson was prescribed large dosages of potent
psychotropic medication. Anderson had been prescribed multiple psychotropic drugs, including
Thorazine (an antipsychotic), Tegretol, and Ritalin (a stimulant), during his court proceedings.
The Seventh Circuit’s mandate noted that “[a] defendant’s use of such potent medications can, by
itself, create a substantial doubt about a defendant’s fitness to plead guilty.” Anderson, 865 F.3d
at 920 (internal quotation marks and citation omitted).

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Further, both trial counsel and Anderson told this Court that there were times when the
Marion County Jail did not provide Anderson with his medications and that he did not take all the
medications he was supposed to take the morning of sentencing. To reiterate, the Court had
reasonable cause to believe that Anderson did not always take his proscribed psychotropic
medication and, that even when he was properly administered and accepted his medications, the
potential side effects of those medications would not have necessarily resulted in competence.
Accordingly, Anderson’s severe psychiatric diagnoses as well as his medical regimen – and the
fact that he did not always take his medications – was a bono fide reason to order a competency
hearing.
Two additional points are worth addressing. First, this Court should not have relied on
Anderson’s past statements that he understood the proceedings during the sentencing (or change
of plea) hearing. “Anderson’s belief about the effects of his medication is inadequate assurance
that he was capable of entering a plea: A person grappling with a serious mental illness or under
the influence of psychotropic drugs cannot be assumed to have a reliable understanding of his
faculties.”

Anderson v. United States, Case 15-2683 (7th Cir. Aug. 2, 2017).

See also

Pitsonbarger v. Gramley, 141 F.3d 728, 736 (7th Cir. 1998) (“the charge that a defendant was
under the influence of psychotropic drugs at or near the time of trial is a serious one”).
The fact that Anderson was told of the consequences of pleading guilty is irrelevant. The
Seventh Circuit has explained, “[t]he observation that the court admonished [petitioner] of the
consequences of pleading guilty is irrelevant to his claim of incompetency. If [petitioner] was in
fact unable to understand the proceedings, that the court informed him of the consequences of a
guilty plea would make no difference.” Burt, 422 F.3d at 565. This caselaw is consistent with Dr.
18

Agharkar’s testimony that an individual’s ability to answer closed-ended, yes or no questions does
not mean that the person does not have a thought disorder. In addition, when asked by this Court
whether Anderson could still have been incompetent the day of the change of plea hearing if
Anderson was pleasant with a normal affect and no active psychosis, Dr. Agharkar said yes because
“those are outward kind of masking or social behaviors” that do not shed light on Anderson’s ability
“to weigh and deliberate options and hav[e] a deeper understanding about what he’s really agreeing
to.” (Dkt. 109 at 158.)
Second, the United States resists this conclusion arguing that if this Court finds Anderson
incompetent, it would be the first court to do so – despite Anderson having been a defendant on
19 separate occasions over 30 years. (See Dkt. 100 at 3.) This argument is not persuasive because
the United States has not offered any evidence that a judicial officer ever applied the applicable
legal standard in finding that Anderson was competent. Without a record that the judges presiding
over Anderson’s prior criminal cases “made a reasonable independent judgment about
[defendant’s] competency,” the fact that Anderson has a horrible and extensive criminal history
does not reflect he is competent. See McManus, 779 F.3d at 658. Further, the United States’
argument is based on the premise that Anderson’s mental health and medications’ effect on his
competency is static. “The Supreme Court, however, has emphasized that a defendant’s
competency must be evaluated at the time of trial and that his condition can change as proceedings
unfold.” Burt, 422 F.3d at 568 (“‛Even when a defendant is competent at the commencement of
his trial, a trial court must always be alert to circumstances suggesting a change that would render
the accused unable to meet the standards of competence to stand trial.’” Id. (quoting Drope, 420
U.S. at 181)).
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Again, under these circumstances, this Court, sua sponte, should have held a competency
hearing. Holmes v. Buss, 506 F.3d 576, 581 (7th Cir. 2007) (“[T]he judge is the expert on what
mental capabilities the litigant needs in order to be able to assist in the conduct of the litigation.”).
The failure to do so violated Anderson’s due process rights.
This holding makes it unnecessary for the Court to address Anderson’s remaining claims
which rest on the theory of ineffective assistance of counsel.
E.

Courtroom Advocacy and Demeanor
This Entry reflects the Court’s acknowledgment that it erred in failing to hold a competency

hearing in Anderson’s criminal case prior to sentencing him and entering final judgment. This
case has given the Court (and hopefully, the defense bar) the opportunity to reflect on best practices
to ensure all criminal defendants’ constitutional rights are upheld. It is in this spirit of reflection
that the performance of counsel for the United States in litigating this action pursuant to 28 U.S.C.
§ 2255 is addressed.
Anderson’s pro bono counsel was thoroughly prepared, cordial and provided excellent
advocacy in this matter. But on several occasions during the evidentiary hearing, the courtroom
demeanor of the Government attorney was inappropriate and unprofessional. Counsel was
reminded several times “to please not interrupt witnesses in the middle of their answers and allow
the witness to complete their answer before you begin the next question.” (Dkt. 109 at 162.) The
Government attorney did not heed the Court’s advice and continued to argue with the witnesses.5

5

The Court:
Mr. DeBrota:
The Court:
Mr. DeBrota:
The Court:
Mr. DeBrota:

So listen, Mr. DeBrota. Just relax.
I will.
Just relax. You need to take a breath and count to ten.
Okay.
You really do.
I’ll do that, Your Honor

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This Court has high expectations for all attorneys, especially attorneys who regularly practice in
the Southern District of Indiana. Ignoring the judicial officer’s instructions, and showing hostility
towards the witnesses, adverse counsel, and proceedings generally is not appropriate advocacy.
Instead, counsel should be mindful to accept the following principals as true: 1) criminal
defendants have the right to seek redress for the violation of their constitutional rights pursuant to
28 U.S.C. § 2255 and 2) criminal defendants are entitled to due process even if they are guilty.
Even in the throes of advocacy, an attitude that reflects the honor of representing the United States
and supporting the Constitution is required.

The Court:
Mr. DeBrota:
The Court:
Mr. DeBrota:
The Court:

And just let the witness – we need to be respectful of each other. We’re not in front of a jury. You’re
just in front of me.
I gotcha.
And it’s not impressing me at all, so –
Okay.
-- just slow down and let’s be cordial and let the witnesses explain their answers, please.

Dkt. 109 at 199. But once again, Mr. DeBrota failed to ask direct questions of the witness to solicit their testimony.
Mr. DeBrota:

Mr. Urdangen:
Mr. DeBrota:
THE COURT:
MR. DeBrota:

THE COURT:

So that was -- we have the conversation we talked about. We have the lectern movement. What is
the third thing that you’re seeing from the record of that hearing that we should consider here as one
of these warning signs that you think Ms. Cook didn’t pay attention to?
I would appreciate seeing the transcript. You’re asking me what the third thing was.
You also heard her testify yesterday; right? Did you hear something else?
Mr. DeBrota, you are saying “third thing.” Tell him what third thing you’re referring to.
I don’t think there is one. I’d like him to just say that. Basically, what’s happened is -- I read his
report, and it talks about what happened that day. These are the two things. If there’s something
else, I want to hear about it so I can deal with it. I believe these were the only two, and my point
being, okay, well, we’ve explained both of them. If there’s something else, I need to hear it. But
what he’s doing is expanding off his report. That’s not fair to us.
Well, he can expand off his report. That’s why he’s here and that’s why you have an opportunity to
cross-examine.

Dkt.109. at 200-201. Even after being corrected again, the conduct continued. The Court was required to strike Mr.
DeBrota’s commentary. See id. at 203. Mr. DeBrota was ultimately admonished to refrain from making narrative
comments, arguing with witness, asking compound questions, and interrupting witnesses. Id. at 231-232.

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IV.

CONCLUSION

To be clear, the Court declines to determine whether Anderson was in fact competent at
the time he pled guilty and was sentenced. Instead, the Court’s decision is based on the fact that
this Court had bono fide reasons to doubt Anderson’s competency and should have held a
competency hearing before entering final judgment. Pate, 383 U.S. at 387 (discussing importance
of a contemporaneous competency hearing). Accordingly, Anderson’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is GRANTED because his due process
rights were violated. The Judgment in Case No. 1:11-cr-00201-TWP-TAB-1 is vacated and the
case is reopened, subject to further proceedings. Judgment consistent with this Entry shall now
issue. The United States shall have thirty (30) days from the date of this Entry in which to notify
this Court of its intention to prosecute Anderson. At that time, Anderson’s present competency
can be addressed. This outcome is consistent with the Supreme Court’s view that there are inherent
difficulties in making a nunc pro tunc determination of competency under the most favorable
circumstances. See Pate, 383 U.S., at 386-387; Dusky, 362 U.S., at 403; Drope, 420 U.S. at 183.
The Clerk shall also enter this Entry on the docket in the underlying criminal action,
Case No. 1:11-cr-00201-TWP-TAB-1. The Motion to Vacate filed in the underlying criminal
action (Crim. Dkt. 82) shall also be terminated.
SO ORDERED.
Date: 12/19/2018

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DISTRIBUTION:
Barry Levenstam
JENNER & BLOCK
[e-mail]
Gregory M. Boyle
JENNER & BLOCK LLP
[e-mail]
Reanne Zheng
JENNER & BLOCK LLP
[e-mail]
Steven D. DeBrota
UNITED STATES ATTORNEY’S OFFICE (Indianapolis)
[e-mail]
Brian L. Reitz
UNITED STATES ATTORNEY’S OFFICE (Indianapolis)
[e-mail]

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