Harris v. Cain et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 . Signed by Judge Ivan L.R. Lemelle.(ijg)(NEF: MJ Shushan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TROY L. HARRIS

CIVIL ACTION

VERSUS

NO. 14-951

N. BURL CAIN

SECTION: “B”(1)

ORDER AND REASONS

Before the Court is Troy L. Harris’ (“Petitioner”) petition
pursuant to 28 U.S.C. § 2254 for writ of habeas corpus. (Rec.
Doc. No. 1). Warden N. Burl Cain (“Respondent”) filed an answer
and memorandum in opposition to the petition. (Rec. Doc. No.
14). The matter was referred to United States Magistrate Judge
Sally Shushan, who issued a Report and Recommendation on March
4,

2015,

recommending

prejudice.

(Rec.

that

Doc.

No.

the

petition

15).

be

Petitioner

dismissed
filed

with

timely

objections to the Magistrate’s ruling on March 12, 2015. (Rec.
Doc. No. 16).
For the reasons enumerated below, it is ORDERED that the
Magistrate’s

Report

and

Recommendation

is

ADOPTED

and

instant habeas corpus petition is DISMISSED WITH PREJUDICE.1

1

We are grateful for the work on the case by Sarah Didlake, a Loyola University New Orleans College of Law
extern with our Chambers.
1

the

Causes of Action and Facts of Case:
The petition arises out of Petitioner’s incarceration at
the Louisiana State Penitentiary in Angola, Louisiana, stemming
from

May

18,

2010

convictions

for

Aggravated

Kidnapping,

Attempted Aggravated Rape, and Indecent Behavior with a Juvenile
in

the

Presence

of

an

Individual

Under

the

Age

of

4,

2010,

Thirteen

Years.2
The

record

reflects

that,

on

May

Petitioner

proceeded to trial and elected to waive his right to a jury,
despite his counsel’s advice to the contrary.3 However, on May 5,
2010, questions arose as to Petitioner’s competency, prompting
the judge to interrupt the trial and appoint Dr. Sara Deland to
Petitioner.4

examine
testified

that,

Following

although

an

Petitioner

examination,
seemingly

Dr.

Deland

understood

the

nature of the proceedings, further inquiry by additional doctors
would be helpful regarding his ability to assist his attorney.5
The court then appointed Dr. Richard Richoux and Dr. Raphael
Salcedo to join the Sanity Commission. On May 6, 2010, Doctors
Richoux and Salcedo examined Petitioner and compiled a joint
report

(“the

Commission’s

Report”),

in

which

the

doctors

explained their reasoning for finding Petitioner competent to

2

Rec. Doc. No. 1; State Rec., Vol. 1 of 4, Minute Entry, 5/18/10; State Rec., Vol. 3 of 4, Trial Transcript, 5/18/10.
State Rec., Vol. 2 of 4, Trial Transcript, 5/4/10; State Rec., Vol. 1 of 4, Minute Entry, 5/4/10.
4
State Rec., Vol. 2 of 4, Trial Transcript, 5/5/10.
5
State Rec., Vol. 2 of 4, Trial Transcript, 5/5/10.
3

2

stand trial.6 On May 11, 2010, both doctors were present for
Petitioner’s second competency hearing, wherein the trial court
admitted

the

testified

Commission’s

as

to

the

Report

Commission’s

into

evidence.7

findings,

and

Dr.

Richoux

the

parties

stipulated that Dr. Salcedo’s testimony would reflect the same.8
The court then held Petitioner competent to stand trial and
ordered

proceedings

Petitioner

was

imprisonment

to

continue.9

convicted

without

the

and

Following

subsequently

benefit

of

the

bench

sentenced

probation,

trial,

to

parole,

life
or

suspension of sentence for Aggravated Kidnapping, and concurrent
twenty-five

year

imprisonment

terms

for

Attempted

Aggravated

Rape and Indecent Behavior with a Juvenile in the Presence of an
Individual Under the Age of Thirteen Years.10
On direct appeal, Petitioner raised a single issue: that
the trial court erred in allowing his jury waiver.11 On April 24,
2012,

the

Petitioner’s

Louisiana

Fourth

Circuit

of

conviction

and

sentence.12

The

Appeal

affirmed

Louisiana

Supreme

Court denied Petitioner’s related writ on October 12, 2012.13
On or about March, 13, 201314, Petitioner filed a pro se

6

State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 4-10; State Rec., Vol. 1 of 4, Commission’s Report, 5/6/10.
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 10; State Rec. Vol. 2 of 4, Minute Entry, 5/11/10.
8
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 10-11.
9
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 11.
10
State Rec., Vol. 3 of 4, Trial Transcript, 5/18/10; State Rec., Vol. 3 of 4, Sentencing Transcript, 10/15/10.
11
State Rec., Vol. 3 of 4, Appeal Brief, 9/22/11.
12
State v. Harris, No. 2011-0715, 91 So. 3d 493 (La. App. 4th Cir. 2012).
13
State ex rel. Harris, 99 So.3d 40 (La. 2010) (Mem).
14
As Respondent notes, Petitioner’s post-conviction relief application is not contained within any of the state courts’
records. The Docketmaster is the only indication of the filing date. State Rec., Vol. 1 of 4, Docket Entry, 3/13/13.
7

3

application

for

post-conviction

relief

with

the

trial

court,

asserting the following three claims: (1) ineffective assistance
of

appellate

counsel;

(2)

denial

of

the

right

to

a

proper

appeal; and (3) denial of a proper competency hearing.15 On May
1, 2013, the trial court denied that application, finding the
first issue factually incorrect, the second moot, and the third
inappropriate for post-conviction review.16 Petitioner’s related
writ

applications

were

subsequently

denied

by

the

Louisiana

Fourth Circuit Court of Appeal on June 19, 201317 and by the
Louisiana Supreme Court on February 21, 2014.18
On April 8, 2014, Petitioner filed the instant petition for
federal habeas corpus relief wherein he contends that the state
courts’ denial of relief was contrary to federal law, asserting
the following four claims: (1) the trial court erred in allowing
Petitioner to waive his right to a jury trial; (2) ineffective
assistance of appellate counsel; (3) denial of the right to an
effective appeal; and (4) denial of a proper sanity hearing.19
Respondent
timely,

but

concedes

urges

that

that

Petitioner’s

the

first

and

application

fourth

claims

was
are

procedurally barred for failure to properly exhaust state court

15

Rec. Doc. No. 1 at 3, 7-9; State Rec., Vol. 1 of 4, Judgment, 5/1/13.
State Rec., Vol. 1 of 4, Judgment, 5/1/13.
17
State Rec., Vol. 1 of 4, Fourth Circuit Order, 2013-K-0797, 6/13/13.
18
State Rec., Vol. 1 of 4, Supreme Court Order, 2013-KH-1803, 2/21/14.
19
Rec. Doc. No. 1.
16

4

remedies and that Petitioners remaining claims lack merit.20
Law and Analysis:
I. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) controls the Court’s review of Section 2254 petitions.
Woodford v. Garceau, 538 U.S. 202, 205 (2003). The threshold
questions are whether the petition was timely filed and whether
the claims raised by the petitioner were adjudicated on the
merits

in

a

state

court;

that

is,

a

petitioner

must

have

exhausted state court remedies and must not be in “procedural
default” on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20
(5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
When

considering

a

pure

question

of

fact,

the

Court

presumes factual findings to be correct and defers to the state
court’s

decision

unless

it

“was

based

on

an

unreasonable

determination of the facts in light of the evidence presented in
the

state

(requiring

court
“clear

proceeding.”
and

28

convincing

U.S.C.

§

evidence”

2254(d)(2)-(e)(1)
to

rebut

that

presumption). When considering a pure question of law or a mixed
question of fact and law, the Court defers to the state court’s
decision unless it was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” § 2254 (d)(1).
20

Rec. Doc. No. 14 at 6-14.
5

A state court decision is considered contrary to clearly
established

law

when

“(1)

the

state

court

arrives

at

a

conclusion opposite to that reached by [the Supreme Court] on a
question of law ... or (2) the state court confronts facts that
are materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to [that Supreme
Court decision].” Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state court decision is considered an unreasonable application
of federal law when “(1) the state court unreasonably applies
the correct governing legal rule to the facts of the particular
case, (2) the state court unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should
apply, or (3) the state court refuses to extend that principle
to a new context where it should apply.” Id. at 407.
Portions

of

a

magistrate’s

report

and

recommendation

to

which a petitioner objects are reviewed de novo. Fed. R. Civ. P.
72(3). As Petitioner objected to each of the Magistrate Judge’s
findings, the Court will review the entirety of the Report and
Recommendation accordingly. As explained below, the Court finds
Petitioner’s claims lack merit; therefore the Court need not
consider

in

detail

Respondent’s

exhaustion

defense.

Jones

v.

Jones, 163 F.3d 285, 299 (5th Cir. 1998) (noting AEDPA “allows a
federal court, in its discretion, to deny habeas relief on the
merits, regardless of whether the applicant has exhausted state
6

remedies”).21
II. Analysis
i.

Denial of Right to a Jury Trial (Claim 1)

Petitioner first argues that the trial court violated his
constitutional right to a jury trial in allowing the jury waiver
“without further questioning concerning his understanding of the
consequences and his constitutional right to a jury trial.”22
Whether Petitioner knowingly and intelligently waived his right
to a jury trial is a “legal question” reviewed under section
2254(d)(1). Pierre v. Leger, 495 Fed. App’x 403, 406 (5th Cir.
2012) (citing Johnson v. Cain, 196 F.3d 1258 (5th Cir. 1999)).
Accordingly, the Court must defer to the state court’s decision,
unless the admission of Petitioner’s waiver was contrary to, or
involved
Supreme

an

unreasonable

Court

precedent.

application
See

id.

of
at

clearly
405-09

established

(noting

that

determining the validity of a waiver “may involve subsidiary
factual questions subject to review under 2254(d)(2)”).
The Constitution guarantees defendants the right to a jury
trial in serious criminal cases. U.S. Const. amends. VI, XIV;
Duncan v. Louisiana, 391 U.S. 145, 154-57 (1968). Defendants may
waive this fundamental right and may exercise this option either

21

Arguably, there may be merit to Respondent’s exhaustion defense, at least as to Petitioner’s first claim. However,
the fourth claim appears to have been exhausted, as it was raised in his post-conviction relief application along with
his allegations of ineffective assistance of appellate counsel and denial of the right to an effective appeal—
Petitioner’s second and third claims. State Rec., Vol. 1 of 4, Judgment, 5/1/13.
22
Rec. Doc. No. 1 at 28.
7

through counsel or personally before the court. See Singer v.
United States, 380 U.S. 24, 34 (1965); Boykin v. Alabama, 395
U.S. 238, 243 (1969); United States v. Page, 661 F.2d 1080,
1080–83 (5th Cir.1981). However, the waiver must be expressly
and

intelligently

made.

See

Singer,

380

U.S.

at

34

(citing

Patton v. United States, 281 U.S. 276, 312 (1930), abrogated on
other

grounds

by

Williams

v.

Florida,

399

U.S.

78

(1970));

Boykin, 395 U.S. at 242-43 (holding that it is impermissible to
presume a waiver of a constitutional right merely from a silent
record).
Citing

his

“bare

bones

colloquy

with

the

trial

court,”

Petitioner asserts that the record demonstrates that his waiver
was not knowingly and intelligently made.23 The record is not
silent on this issue. In fact, transcript of the first day of
trial reveals the following exchange:
DEFENSE COUNSEL: Judge at this time [Petitioner] wants
to waive his right to a jury trial. I have met with
[Petitioner] several times on this issue, and several
times he has told me of his desire to waive the jury.
I have told him about the consequences, and I have
instructed him that my advice was not to waive the
jury trial, but he wants to go ahead and waive the
jury trial and proceed with a jury trial.
JUDGE: What do you care to do, sir?
DEFENDANT: What?
JUDGE: You have the right to be tried before a judge
or a jury. Make your selection.
23

Rec. Doc. No. 1 at 25, 29.
8

DEFENDANT: A judge.
JUDGE: Alright. Let the record reflect that the
defendant has indicated that he wants a judge trial.24
The validity of Petitioner’s jury waiver was the sole issue
raised on direct appeal and considered by the Louisiana Fourth
Circuit Court of Appeal.25 Finding Petitioner’s waiver valid, the
appellate court reasoned:
The record in this case reflects when counsel for the
defendant informed the trial judge of the defendant’s
decision to waive his right to a jury, counsel advised
the court that (1) he met with the defendant on
several occasions to discuss the decision; (2) he
advised the defendant of the consequences of his
decision;
(3)
he
counseled
[Petitioner]
against
waiving the jury; and (4) despite his advice, the
defendant decided to proceed with a judge trial. The
trial judge then personally addressed the defendant
and advised him again of his right to be tried by a
jury or a judge before asking him to make his
selection. The defendant clearly stated that he wanted
a judge trial.26
Petitioner fails to persuade the Court that, in the absence
of a more thorough colloquy, his waiver was invalid. On habeas
review, the absence of any colloquy between a defendant and the
trial judge regarding the constitutional right to a jury trial
“does not compel the finding that [the petitioner’s] waiver was
not knowing and intelligent.” See Pierre, 495 Fed. App’x at 410.
Several United States Courts of Appeals, including the Fifth

24

State Rec., Vol 2 of 4, Trial Transcript, 5/4/10; State Rec., Vol 1 of 4, Minute Entry, 5/4/10.
State v. Harris, 91 So.3d 493 (La. App. 4th Cir. 2012).
26
Id.
25

9

Circuit, advise that the better practice calls for courts to
engage in a colloquy with the defendant about a jury’s function
and the difference between a bench and a jury trial. See id. at
410-11

(citations

Supreme

Court

omitted).
has

Notably,

neither

however,

defined

a

United

States

“fact-specific

constitutional minima for a valid jury waiver,” nor required “a
set of colloquy before a jury waiver can be accepted.” Scott v.
Cain, 364 Fed. App’x 850, 855 (5th Cir. 2010). Instead, the
Supreme Court has determined that the test for a valid jury
waiver “must depend upon the unique circumstances of each case.”
Adams v. United States ex rel. McCann, 317 U.S. 269, 278 (1942).
Moreover,

the

Fifth

Circuit

standard

states

that

“minimum

factual threshold for a knowing and intelligent personal waiver
of

the

right

to

a

jury

trial

is

an

open

question

when

a

defendant voices his preference for a bench trial in person.”
See Scott v. Cain, 364 Fed. App’x 850, 853 (5th Cir. 2010).
The Court presumes that the factual findings were correct
because Petitioner’s vague and unsupported statements claiming a
right to further inquiry do not constitute the requisite clear
and convincing evidence to rebut that presumption. § 2254(e)(1).
Further, the record indicates and the appellate opinion echoes
that Petitioner made a knowing and intelligent waiver of his
right

to

a

jury.

In

light

of

the

absence

of

a

clearly

established minimum colloquy, the Court finds that the state
10

court’s decision, in allowing the waiver, did not rest on an
unreasonable application of federal law. See Adams, 317 U.S. at
278.
Finally,
waiver

due

to

to

the

extent

competency

that

issues,

Petitioner
this

claim

asserts
also

invalid

meritless.

Petitioner argues that the colloquy was insufficient for any
case, but urges that the questions raised about his competency
“should have raised a red flag causing the trial court to ask
further questions.”27 This allegation is misleading. As explained
more detail below, Petitioner’s competency to stand trial was
questioned and the court to interrupted trial to open competency
proceedings.28 However, the jury waiver occurred prior to any
issue of Petitioner’s competency being called into question.29 As
a result, Petitioner’s implication that that the standard of
review for his jury waiver should be altered is unavailing.
ii.

Ineffective Assistance of Appellate Counsel and Denial
of Right to an Effective Appeal (Claims 2 & 3).

The Court will discuss Petitioner’s second and third claims
together because both claims rest upon Petitioner’s assertion
that his counsel “abandoned” him in the appeal process.30
In

Petitioner’s

second

claim,

he

argues

ineffective

assistance of appellate counsel on the following grounds: (1)
27

Rec. Doc. No. 1 at 11.
State Rec., Vol. 2 of 4, Trial Transcript 5/5/10.
29
State v. Harris, 91 So.3d 493 (La. App. 4th Cir. 2012).
30
Rec. Doc. No. 1 at 30.
28

11

“failure to notify [Petitioner] when the appeal was filed” or
provide “an opportunity to obtain a copy of the brief,” (2)
failure to timely notify Petitioner when his appeal was denied
or provide a copy of the court’s decision.31 Moreover, in his
third

claim,

Petitioner

cites

this

alleged

abandonment

of

counsel as the cause of Petitioner’s failure to file a timely
writ application to the Louisiana Supreme Court and argues that
“he was denied the right to a proper appeal.”32
Claims

of

ineffective

assistance

of

counsel

claims

are

mixed questions of law and fact; thus, the inquiry is whether
the

state

court’s

denial

of

relief

was

contrary

to,

or

an

unreasonable application of, federal law. See, e.g., Clark v.
Thaler, 673 F.3d 410, 416 (5th Cir. 2012). The two-pronged test
for evaluating such a claim

provides that

demonstrate

(1)

the

following:

“counsel’s

a

petitioner must
performance

was

deficient,” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 697 (1984). A
petitioner

bears

to

“demonstrate,

by

a

preponderance

of

the

evidence, that his counsel was ineffective.” Clark v. Johnson,
227 F.3d 273, 284 (5th Cir. 2000).
To prevail on the deficiency prong of the Strickland test,
a petitioner must demonstrate that counsel’s conduct fell below
the minimum “objective standard of reasonableness.” Little v.
31
32

Rec. Doc. No. 1 at 30-34.
Rec. Doc. No. 1 at 34-35.
12

Johnson, 162 F.3d 855, 860 (5th Cir. 1998). In an appellate
context,

the

demonstrate
prevailed

a

on

prejudice

prong

“reasonable
his

appeal

requires

probability”

“but

for

his

a

petitioner

that

he

counsel’s

would

to
have

unreasonable

failure.” Briseno v. Cockrell, 275 F.3d 204, 207 (5th Cir. 2001)
(citing Smith v. Robbins, 528 U.S. 259, 285 (2000)).
Petitioner’s

first

allegations

of

ineffective

assistance

concern the drafting and filing of his original appellate brief.
Here, the record reflects that, on direct appeal, Petitioner was
represented by counsel, who submitted an appellate brief to the
Louisiana Fourth Circuit Court of Appeal.33 As to the deficiency
prong, Petitioner asserts that his counsel’s alleged failure to
notify

or

provide

a

copy

of

his

appellate

brief

and

record

constituted “errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed by the Sixth Amendment.”34 As to the
second

Strickland

inquiry,

Petitioner

argues

that

he

was

irreparably prejudiced “because he was denied the opportunity to
submit a pro se supplemental brief.”35
First,
failures

Petitioner’s

constitute

demonstrate
unreasonable.

that

unsupported

deficient
counsel’s

Second,

assertion

performance
performance

Petitioner’s

33

assertion

13

these

is

insufficient

was

objectively

of

State Rec., Vol. 1 of 4, Judgment, 5/1/13; State Rec. Vol. 1 of 4, Appellate Brief, 9/22/11.
Rec. Doc. No. 1 at 34.
35
Rec. Doc. No. 1 at 30, 34.
34

that

a

right

to

submit a

pro se

defendant

does

supplemental brief is misplaced. A
not

have

a

constitutional

right

criminal
of

self-

representation on direct appeal. Martinez v. Court of Appeal of
California, 528 U.S. 152, 164 (2000). Further, if a criminal
appellant

accepts

disagrees

with

appellant

assistance

counsel’s

“cannot

then

of

counsel

strategy
expect

or

to

and

brief
be

subsequently

preparation,

allowed

to

file

the
a

supplemental pro se brief.” Myers v. Johnson, 76 F.3d 1330, 1335
(5th Cir. 1996) (citing McKaskie v. Wiggins, 465 U.S. 168, 18283 (1984)). As such, a criminal appellant “waives his right to
present pro se briefs on direct appeal” via his acceptance of
assistance of counsel. Id.
In sum, Petitioner fails to satisfy either of the requisite
Strickland inquiries; therefore, Petitioner is not entitled to
habeas relief for this claim.
Petitioner’s

remaining

ineffective

assistance

claims

concern his untimely writ application to the Louisiana Supreme
Court.

As

to

the

first

prong

of

the

Strickland

inquiry,

Petitioner, claims that he “demonstrates deficient performance”
by stating, without

more, that his counsel failed to either

timely notify or provide Petitioner with a copy of the Louisiana
Fourth Circuit Court of Appeal’s decision on direct appeal”36 As
to the second Strickland requirement, Petitioner argues these
36

Rec. Doc. No. 1 at 34
14

alleged

errors

because

it

“irreparably

caused

him

to

prejudiced”
“miss[]

Petitioner’s

the

defense

opportunity

to

seek

certiorari to timely submit his appeal claims to the Louisiana
Supreme Court....”37
A review of the record, however, contradicts Petitioner’s
claim

regarding

inability

to

Petitioner’s

these

timely
letter

alleged

file
to

with

the

failures
the

and

Louisiana

Louisiana

Supreme

his

subsequent

Supreme
Court

Court.

clarifies

that—at least by April 30, 2012— Petitioner had received both
notification and a copy of the Louisiana Fourth Circuit’s April
25, 2012 decision.38
These alleged failures neither constitute a valid claim of
ineffective

assistance

of

counsel

nor

evidence

a

denial

of

Petitioner’s right to a proper appeal. Petitioner’s conclusory
and unsupported assertions are insufficient to satisfy either
prong

of

the

Strickland

test.

Therefore,

Petitioner

is

not

entitled to relief for this claim.
iii. Right to a Proper Competency Hearing (Claim 4)
In
court
proper

his

final

failed

to

claim,

provide

Petitioner
“a

proper

consideration...regarding

his

contends
competency
mental

that

the

hearing

health

trial
and/or

condition”

prior to or during trial.39 Any competency claim requires the

37

Rec. Doc. No. 1 at 34.
State Rec., Vol. 4 of 4, Letter to La. S. Ct., 4/30/12 (requesting an extension of time to file his brief).
39
Rec. Doc. No. 1 at 36.
38

15

Court

to

However,

address
the

complicate

the

a

series

of

circumstances

of

Court’s

analysis.

due

process

considerations.

Petitioner’s
That

is,

case

Petitioner

further
alleges

that, during the competency hearing, the state court violated
his “constitutional right to confrontation.”40 Accordingly, in an
attempt to clarify both Petitioner’s claims and the Magistrate’s
Report

and

Recommendation

the

Court

will

analyze

the

issues

pertaining to Petitioner’s Fifth Amendment due process rights
and Sixth Amendment confrontation rights separately.
Due Process Analysis:
A

criminal

defendant

has

distinct

substantive

and

procedural due process rights pertaining to competency to stand
trial. See, e.g. Reese v. Wainwright, 600 F.2d 1085 (5th Cir.
1979). Different standards govern violations of each of these
rights; thus, the Court’s analysis depends on the context in
which Petitioner raises the competency claim. See id. at 1091.
First,

to

the

extent

that

Petitioner

alleges

he

was

actually incompetent at the time of trial or challenges the
state court’s finding of competency in fact, Petitioner must
seek relief under the standards for a substantive due process
right violation. See id. at 1093-94. A defendant has a “wellestablished” substantive due process right “not to be tried or
convicted while incompetent to stand trial.” Medina v. U.S., 505
40

Rec. Doc. No. 1 at 37.
16

U.S. 437, 439 (1992) (citing Drope v. Missouri, 420 U.S. 162
(1971) and Pate v. Robinson, 383 U.S. 375 (1966)). The test for
competency to stand trial is whether a defendant “has sufficient
present ability to consult with his lawyer with a reasonable
degree of rational understanding—and whether he has a rational
understanding of the proceedings against him.” Dusky v. United
States, 362 U.S. 402, 402 (1960). But, a federal habeas court
must presume a state court’s factual finding of competency to be
correct. See Deville v. Whitley, 21 F.3d 654, 656 (5th Cir.
1994).

Thus,

this

Court

must

defer

to

the

state

court’s

competency determination unless it “was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2)-(e)(1).
However, before the Court has a duty to investigate the
substantive
heavy”

right

threshold

positively,
substantial,
capacity...to

violation,
burden

to

unequivocally,
and

Petitioner
establish
and

legitimate

meaningfully

bears

“sufficient

clearly
doubt

participate

an

“extremely
facts

generate

as

to
and

a

[his]
cooperate

to

real,
mental
with

counsel during trial.” Bruce v. Estelle, 536 F.2d 1051, 1059
(5th Cir. 1976); Carter v. Johnson, 131 F.3d 452, 460-61 (5th
Cir. 1997).
Petitioner has not met this threshold burden. As to the
factual

determination

of

his

competency,
17

Petitioner

merely

states that the court issued a “bogus and misleading ruling,”
based on the findings of a “mock sanity commission empaneled to
give the appearance of due process” and that such commissions
are

“usually

allegations

always

as

well

slanted
as

in

favor

Petitioner’s

of

the

State.”41

statements

regarding

Such
his

current mental health are insufficient evidence to establish the
requisite “threshold doubt about [Petitioner’s] competency” at
the time of his trial or conviction. See Carter, 131 F.3d at
460;

Bruce,

536

F.2d

at

1059.

Thus,

to

the

extent

that

Petitioner asserts a substantive due process right violation or
challenges the state court’s finding of competency, his claim
fails.
Second, with respect to Petitioner’s challenge as to the
adequacy of the hearing or process employed by the state court
to determine his competency, Petitioner must seek relief under
the standards for a procedural due process right violation. See
Reese, 600 F.2d at 1091-93.
As a corollary to the substantive right, the United States
Supreme Court has clarified that a defendant also has a separate
procedural right in order to “safeguard the [substantive] due
process guarantee.” Id. at 1091 (citing Pate, 383 U.S. at 375).
That is, if “sufficient doubt of [a defendant’s] competence”
exists, a defendant is entitled to “further inquiry to determine
41

Rec. Doc. No. 1 at 15.
18

his fitness to proceed.” (“a Pate hearing”). Drope, 420 U.S. at
908 (citing

Pate, 383 U.S. at 385-86).

However, the Supreme

Court has not enunciated a specific standard for the hearing,
itself. Instead, the Supreme Court has held that the “state
procedures

must

be

adequate”

and

the

state

must

offer

a

defendant “a reasonable opportunity to demonstrate that he is
not competent to stand trial.” Pate, 383 U.S. at 378 (emphasis
added); Medina v. California, 505 U.S. 437, 451 (1992); Drope,
420 U.S. at 180.
Interpreting Pate, the United States Fifth Circuit Court of
Appeals has found that a state court’s competency determination
“must rest on procedures and evidence ‘sufficient to permit a
trier

of

against

fact

reasonably

prevailing

to

medical

assess

and

an

legal

accused’s

competency

standards.’”

Holmes

v.

King, 709 F.2d 965, 967 (5th Cir. 1983) (quoting Fulford v.
Maggio,

692

F.2d

354,

361

(5th

Cir.

1982)

rev’d

on

other

grounds, 462 U.S. 111 (1983)). Additionally, the adequacy of the
challenged procedures “varies according to the ‘fact matrix.’”
See id. (quoting Curry v. Estelle, 531 F.2d 766, 768 (5th Cir.
1976)).
Thus,

the

question

for

the

Court

is

whether

the

state

court’s procedures in this case were either “contrary to, or
involved

an

unreasonable

application

of

clearly

established

Federal law, as determined by the Supreme Court.” § 2254(d)(1);
19

Pate, 383 U.S. 375; Medina, 505 U.S. 437; Drope, 420 U.S. 162,42
As

previously

mentioned,

after

an

initial,

inconclusive

competency evaluation by Dr. Deland, the state court appointed
Dr. Richoux and Dr. Salcedo to join the sanity commission.43
Doctors

Richoux

evaluated

and

Salcedo,

Petitioner.44

At

then,

the

state

jointly

interviewed

competency

hearing,

and
Dr.

Richoux testified and was cross-examined as to the commission’s
finding

that

Additionally,

Petitioner

was

competent

a

and

recommendation,

report

to

stand

trial.45

bearing

the

signatures of both Dr. Richoux and Dr. Salcedo, was submitted to
the court and explained the doctors’ process and reasoning for
finding

Petitioner

legally

competent.46

After

Dr.

Richoux’s

testimony, the parties agreed to a stipulation “both as to the
expertise of both [Dr. Richoux and Dr. Salcedo] as well as that
Dr. Salcedo’s testimony would be substantially similar as Dr.
Richoux’s.”47 As a result, Dr. Salcedo, who was present in court,
neither

testified

nor

was

subject

to

cross-examination.

Soon

thereafter, the trial court, held Petitioner competent to stand

42

Generally, procedural challenges stem from a trial court’s failure to do any inquiry or hold any hearing regarding a
petitioner’s competency. See, e.g., United States v. Flores-Martinez, 677 F.3d 699 (5th Cir. 2012); Orange v. Cain,
No. 06-10761, 2009 WL 938909 (E.D. La. Apr. 6, 2009). That the trial court appointed three doctors and held a
hearing distinguishes the instant case. Further, these trial court proceedings satisfy the threshold burden a petitioner
bears when asserting a Pate violation to “point to evidence before the trial court that raised a bona fide doubt about
competency.” Holmes v. King, 709 F.2d 965, 967 (5th Cir. 1983).
43
State Rec., Vol. 2 of 4, Trial Transcript, 5/5/10 at 8-9; State Rec., Vol. 2 of 4, Minute Entry, 5/6/10.
44
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 5.
45
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 4-9.
46
State Rec., Vol. 2 of 4, Commission’s Report, 05/06/10; State Rec., Vol. 2 of 4, Minute Entry, 5/11/10.
47
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 10-11.
20

trial.48 The judge reasoned, “[b]ased on the testimony and the
stipulated testimony, I am going to find that [Petitioner] can
assist his attorney in his defense, and is able to understand
the nature of the proceedings.”49
To protect a defendant’s substantive right, due process may
require

the

cross-examination

of

witnesses

at

competency

hearings in some cases.50 However, absent a specific standard set
forth by the Supreme Court for competency hearings, this Court
cannot conclude that the state court’s procedures were either
inadequate

or

rights

allowing

by

violated
and

Petitioner’s
considering

procedural
Dr.

due

Salcedo’s

process

stipulated

testimony or by admitting the Commission’s Report. See, e.g.,
Pate, 383 U.S. at 378.51 Instead, the “fact matrix” regarding the
state court’s competency procedures (the initial examination,
the subsequent appointment of a separate sanity commission to
evaluate Petitioner’s competency, and the hearing at which a
member of the commission testified and was subject to crossexamination as to their methods, findings, and reasoning) was
“sufficient

to

permit

[the

court]

48

to

reasonably

assess

State Rec., Vol. 2 of 4, Minute Entry, 5/11/10.
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 11.
50
See U.S. ex rel. McGough v. Hewitt, 528 F.2d 339, 340 (3d Cir. 1975) (holding that the trial court erred in finding
competency without holding hearing in which defendant could “present evidence and cross-examine” the
psychiatrist who raised “substantial questions about [the defendant’s] mental soundness); see also Lewis v. Zon, 573,
F. Supp. 2d. 804, 815 (S.D. N.Y. 2008) (finding a due process violation where the court relied heavily upon
competency reports submitted after a full hearing had been held).
51
This conclusion is buttressed by Ford v. Wainwright, where the Supreme Court addressed without deciding
whether defendants have a due process right to cross-examine witnesses at a competency hearing. See 477 U.S. 399,
426 (1986) (Powell, J., concurring) (“ordinary adversarial procedures-complete with…cross-examination…are not
necessarily the best means of arriving at sound, consistent judgments as to a defendant’s sanity”).
49

21

[Petitioner’s] competency against prevailing medical and legal
standards.”

See

Holmes,

709

F.2d

at

967.

In

sum,

the

Court

cannot conclude that the state court’s procedures were contrary
to

or

involved

an

unreasonable

application

of

the

adequacy

standard as enunciated in Pate, Medina, and Drope.
Confrontation Clause Right:
Petitioner
“improper

specifically

sanity

[Petitioner’s]

alleges

hearing”

that

resulted

constitutional

right

the

in
to

a

trial

court’s

“violation

of

confrontation.”52

To

support this assertion, Petitioner claims that the stipulated
testimony of Dr. Salcedo and any other submitted report were
“inadmissible as hearsay” under the Supreme Court’s holdings in
Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v.
Massachusetts,

557

U.S.

305

(2009),

and

Bullcoming

v.

New

Mexico, 131 S.Ct. 2705 (2011).53
Thus,

the

Court

must

assess

procedure

allowing

the

stipulated

commission

report

was

either

whether
testimony

contrary

to

the
and
or

state
the

court
sanity

involved

an

unreasonable application of Confrontation Clause protections as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1); U.S.
Const. amend. VI.
The

Confrontation

Clause

of

the

Sixth

Amendment,

made

applicable to the states by the Fourteenth Amendment, guarantees
52
53

Rec. Doc. No. 1 at 37 (citing U.S. Const. amends. VI, XIV).
Rec. Doc. No. 1 at 30.
22

that “[i]n all criminal prosecutions, the accused shall enjoy
the right...to be confronted with witnesses against him.” U.S.
Const. amend. VI.; Pointer v. Texas, 380 U.S. 400, 403 (1965).
The Confrontation Clause was aimed at preventing the “use of exparte examinations as evidence against” a defendant “in lieu of
personal

examination

and

cross-examination

of

the

witness.”

Crawford v. Washington, 541 U.S. 36, 50 (2004); Barber v. Page,
390 U.S. 719, 721 (1968).
Under the Confrontation Clause, out-of-court, “testimonial”
hearsay

statements

are

inadmissible

unless

the

declarant

is

“unavailable to testify” and the defendant has “had a prior
opportunity [to] cross-examin[e]” the declarant. See Crawford,
541

U.S.

at

36;

Davis

v.

Washington,

547

U.S.

813,

814-22

(2006); see also Wharton v. Bockting; 549 U.S. 406, 420 (2007).
Although the Crawford and Davis decisions both hinged upon the
distinction between “testimonial” and “nontestimonial” hearsay,
the Supreme Court purposely “le[ft] for another day any effort
to spell out a comprehensive definition of “testimonial.” See
id. at 68; Davis, 547 U.S. at 814.54
Consequently,
review:

(1)

two

whether

distinct
the

questions

stipulated

54

guide

testimony

this

Court’s

or

sanity

Instead, the Supreme Court acknowledged that “[v]arious formulations of [the] core class of ‘testimonial’
statements exist” and offered three examples: (1) “ex parte in court testimony or its functional equivalent…that
declarants would reasonably expect to be used prosecutorially;” (2) “extrajudicial statements contained in
formalized materials, such as affidavits, depositions, prior testimony, or confessions;” and (3) “statements that were
made under circumstances which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.” Crawford, 541 U.S. at 51-52 (internal citations omitted).
23

commission report constitute “testimonial” statements; and (2)
whether

the

scope

of

the

Confrontation

Clause

extends

to

a

defendant’s competency hearing.
Assuming,

arguendo,

the

testimonial

nature

of

the

stipulated testimony and the Commission’s Report, whether or not
the a violation occurred hinges upon the applicability of the
Confrontation

Clause

guarantees

to

a

defendant’s

competency

hearing.
The three cases Petitioner relies upon for this claim each
addressed

confrontation

Melendez-Diaz,

557

Crawford,

541

U.S.

precedent

necessarily

rights

U.S.
36.

305);
Thus,

supports

during

a

jury

Bullcoming,
none
an

of

131

trial.

See

S.Ct.

2705;

Petitioner’s

cited

extension

of

Confrontation

Clause protections to a defendant’s competency hearing.
Additionally, a thorough review of the case law reveals
that the Supreme Court has not explicitly held that the right to
confrontation exists at defendant’s competency hearing. Rather,
the

Supreme

Court

has

extended

confrontation

rights

only

to

trials. See, e.g., Barber, 390 U.S. at 725 (stating “[t]he right
to confrontation is basically a trial right”); California v.
Green, 399 U.S. 719, 725 (1970) (explaining that “it is the
literal right to ‘confront’ the witness at the time of trial
that forms the core of the values furthered by the Confrontation
Clause”); see also Pennsylvania v. Ritchie, 480 U.S. 39, 54 n.10
24

(1987) (plurality opinion) (citations omitted) (noting that “the
Court normally has refused to find a Sixth Amendment violation
when the asserted interference with cross-examination did not
occur at trial”).
Moreover, lower courts are split on whether the scope of
this right extends beyond trial. See Lieser v. Miller, No. 5:10CV-2314,

2012

WL

3151172,

at

*2

(N.D.

Ohio

Aug.

2,

2012)

(comparing courts that have found “that the Confrontation Clause
does apply to certain pretrial hearings” to courts “that have
held the Confrontation Clause is only a trial right”).55
However,

even

if

the

Court

were

to

conclude

that

the

Confrontation Clause clearly applies to competency hearings and
that

the

stipulated

testimony

and

the

Commission’s

Report

constituted “testimonial” hearsay, Petitioner would still not be
entitled to the relief he seeks. Before a federal court may
grant habeas relief for the violation of a constitutional right,
the court must apply harmless error analysis to “assess the
prejudicial effect” of that error. See Brecht v. Abrahamson, 507
U.S. 619, 645 (1993) (citing Chapman v. California, 386 U.S. 18
(1967)); see also Lilly v. Virginia, 527 U.S. 116, 139-40 (1999)
(finding Confrontation Clause violations are subject to harmless
55

Accordingly, federal courts have denied habeas relief on the grounds that the applicability of the Confrontation
Clause to a pretrial or post-conviction hearing is not “clearly established.” See Lieser, 2012 WL 3151172 at *2-3
(citing 28 U.S.C. § 2254(d)); Baggs v. Terrell, No. 09-6808, 2015 WL, at *12-13 (E.D. La. Jan. 15, 2015) (finding
that the “lack of Supreme Court precedent directing application or extension of the Confrontation Clause, or the
holdings in Crawford or Melendez-Diaz, to post-conviction proceedings is devastating to [the petitioner’s] pursuit of
federal habeas relief”).
25

error review). Under the Brecht standard, the Court must find
the error harmless unless it “had a substantial and injurious
effect or influence” on the judge’s finding of competency. See
id. at 116 (quoting Brecht, 507 U.S. at 631). When addressing
Confrontation Clause errors, the harmless error inquiry “depends
upon a host of factors,” including the importance of a witness’
testimony, whether the testimony was cumulative, the extent of
cross-examination

otherwise

permitted,

and

the

presence

or

absence of evidence corroborating or contradicting the testimony
of that witness. See Delaware v. Van Arsdall, 475 U.S. 673, 684
(1984);

accord

United

States

v.

Contreras-Saldana,

274

Fed.

Appx. 394, 398 (5th Cir. 2008).
A review of the state trial court record shows that Dr.
Salcedo’s stipulated testimony was not the only evidence before
the court on the issue of Petitioner’s legal capacity. First, at
Petitioner’s initial competency hearing, Dr. Deland testified
and was available for cross-examination56 by the defense as to
her

findings.57

Second,

at

Petitioner’s

subsequent

competency

hearing, the sanity commission submitted a joint forensic report
with its findings and conclusions. Third, although Dr. Salcedo
did

not

testify,

the

record

shows

56

that

he

was

present

When given the opportunity to cross-examine Dr. Deland, defense counsel stated, “I have no questions, Your
Honor. I am satisfied.” State Rec., Vol 2 of 4, Trial Transcript, 5/5/10 at 7.
57
State Rec., Vol. 1 of 4, Minute Entry, 5/5/10.
26

and

available

to

Additionally,

testify
the

at

Petitioner’s

parties

stipulated

competency

hearing.58

that

Salcedo’s

Dr.

testimony would duplicate that of Dr. Richoux, a fact supported
by the content of the joint report.59 Further, Petitioner does
not assert any error of ineffective assistance of trial counsel
by agreeing to such a stipulation. Thus, as to the stipulated
testimony, any error in precluding cross-examination regarding
Dr. Salcedo’s potential testimony was harmless.
Likewise, any error in admitting the joint report without
cross-examination of both doctors was harmless.

Petitioner does

not cite anything in the record demonstrating that the trial
judge

used

the

Commission’s

Report

in

any

direct

manner

in

determining Petitioner’s legal competency. In fact, the trial
judge explicitly stated that his decision

was “based on the

testimony and the stipulated testimony.”60 Moreover, the content
of the challenged report mirrors that of Dr. Richoux’s testimony
at

Petitioner’s

second

competency

hearing.61

Thus,

report’s

admission into evidence did not have a substantial or injurious
effect on a finding of competency that was well supported by
other

evidence.

Under

these

circumstances,

its

admission,

if

erroneous, constitutes harmless error.
In sum, the trial court’s constitutional errors, if any, in
58

State Rec., Vol. 1 of 4, Trial Transcript, 5/11/10 10.
State Rec., Vol. 1 of 4, Trial Transcript, 5/11/10 at 10-11.
60
State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 11.
61
State Rec., Vol. 1 of 4, Commission’s Report, 5/6/10; State Rec., Vol. 2 of 4, Trial Transcript, 5/11/10 at 4-10.
59

27

admitting either the stipulated testimony or the Commission’s
Report

were,

at

most,

harmless.

Therefore,

habeas

relief

is

unavailable to Petitioner for this claim.

Conclusion:
For the reasons enumerated above, IT IS ORDERED that the
Magistrate’s Report and Recommendation is ADOPTED and that Troy
L. Harris’ petition for writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 19th day of August, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

28