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
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