Cole v. Roper
Filing
120
MEMORANDUM, ORDER, AND STAY OF EXECUTION - IT IS HEREBY ORDERED that Cole's motion to stay his execution [ECF No. 114] is GRANTED and the execution scheduled for April 14, 2015 is STAYED. Signed by District Judge Catherine D. Perry on April 13, 2015. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDRE COLE,
Petitioner,
v.
CINDY GRIFFITH,
Respondent,
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CAPITAL CASE
No. 4:05CV131 CDP
MEMORANDUM, ORDER, AND STAY OF EXECUTION
Andre Cole is scheduled to be executed on April 14, 2015. He has filed a
Supplemental Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and
a motion to stay his execution. He claims that he is incompetent to be executed
under Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551
U.S. 930 (2007). He requests an evidentiary hearing to determine his competence.
The Missouri Supreme Court concluded that Cole was not entitled to an
evidentiary hearing, but unlike other recent cases, it did not explicitly hold that he
had failed to make a threshold showing of incompetence. Respondent argues that
because the Missouri Supreme Court stated that Cole was competent and was not
entitled to a hearing, it must have made the required determination. Cole,
supported by the dissenting opinion of three Judges of the Missouri Supreme
Court, asserts that the Court improperly combined the issue of a threshold showing
with improper fact-finding on the ultimate issue. I agree, and conclude that the
state court’s decision is an unreasonable application of federal law as determined
by the United States Supreme Court. Because the decision of the Missouri
Supreme Court was an unreasonable application of the law, this Court does not
defer to its factual findings. I therefore conclude that Cole has made the requisite
threshold showing, and is entitled to an evidentiary hearing on the issue of
competence to be executed. He is also entitled to a stay of execution.
Legal Standards
In Ford the United States Supreme Court held that the “Eighth Amendment
prohibits a State from carrying out a sentence of death upon a prisoner who is
insane.” Although the Court did not provide a standard for determining
competency, in a concurring opinion, Justice Powell wrote that “the Eighth
Amendment forbids the execution only of those who are unaware of the
punishment they are about to suffer and why they are to suffer it.” 477 U.S. at 422.
In Panetti the Court agreed with Justice Powell’s definition, noting that “[a]
prisoner’s awareness of the State’s rationale for an execution is not the same as a
rational understanding of it.” 551 U.S. at 959. The Supreme Court held that a
rational understanding was required, although it declined to set a more precise
standard, and instead directed the lower court to hold a hearing to determine
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whether the petitioner’s delusions “may render a subject’s perception of reality so
distorted that he should be deemed incompetent.” Id. at 961-962.
Title 28 U.S.C. § 2254(d) limits this Court’s review of state court decisions.
A federal court may not grant relief to a state prisoner unless the state court’s
adjudication of a claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “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). A state court decision is contrary to clearly
established Supreme Court precedent if “the state court arrives at a conclusion
opposite to that reached by [the] Court on a question of law or . . . decides a case
differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an
unreasonable application of clearly established federal law if it “correctly identifies
the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Id. at 407-08.
In Panetti, the Court noted that Justice Powell’s concurrence in Ford
“constitutes ‘clearly established’ law for purposes of § 2254 and sets the minimum
procedures a State must provide to a prisoner raising a Ford-based competency
claim.” 551 U.S. at 949. “Once a prisoner seeking a stay of execution has made ‘a
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substantial threshold showing of insanity,’ the protection afforded by procedural
due process includes a ‘fair hearing’ in accord with fundamental fairness.” Id.
(citing Ford, 477 U.S. at 426, 424).
State Court Proceedings
The Missouri Supreme Court decided the issue of Cole’s incompetence on
the basis of exhibits filed by both Cole and respondent, and after consideration of
evidence presented in the underlying criminal proceedings. Missouri ex rel. Cole
v. Griffith, No. SC94880, Maj. Op., 6-12 (slip op. April 9, 2015).
Cole submitted a report by Dr. William S. Logan, a forensic psychiatrist,
who interviewed him for two-and-one-half hours. Dr. Logan discussed Cole’s
mental state during the interview:
In my examination on February 20, 2015 Mr. Cole was off several
days on the date. He denied receiving any psychiatric medicines. He
was able to recall the historical elements of the case, but as the
interview progressed his thinking became more disorganized and he
digressed to talking about his emotional state. He reported being
depressed, overwhelmed and distracted by voices of individuals
unfamiliar to him who gave him contradictory advice about legal
issues and predict the future [sic], telling him to ignore his attorney,
Mr. Luby and that he will be [in prison] the rest of his life.
Sometimes he hears the voices through the TV. He believes these
voices are supernatural. They make derogatory statements about him,
his family and legal counsel and discuss how and whether he should
kill himself. He cannot concentrate well enough to read as he is
distracted by the voices. He sometimes hears repetitive phrases like
“see see” or “smart ass.” At times the voices have told him they are
there to help him, or conversely, that they are working with the state.
He believes the voices are trying to scare him with the death penalty
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thing and have made it nearly impossible for him to sleep. His
appetite also has decreased.
The voices have come through the intercom. He has heard them on
the yard, in his cell, and even through his headphones, even if he turns
up the volume to drown them out. Mr. Cole believes he is innocent,
that the state knows this, and wants to execute him in order to “take
me down.” He believes the state talks to him through the TV.
Dr. Logan also reviewed his previous 4.33 hour examination of Cole in 2002
and “an extensive body of collateral material” included in his 2002 report. He
further considered the report of another psychiatrist, which “documented recurrent
episodes of major depression . . .” And he reviewed Cole’s prison medical records,
“which revealed an unexplained hunger strike which resulted in two
hospitalizations in 2010.” Dr. Logan concluded:
Mr. Cole is depressed with prominent symptoms of psychosis which
adversely affect his comprehension and understanding to the extent
that his mental disease causes him to lack the capacity to understand
the nature and purpose of the punishment about to be imposed upon
him or matters in extenuation, arguments for executive clemency or
reasons why the sentence should not be carried out. Mr. Cole’s
hallucinations have compromised his understanding to the point he
has gross delusions which prevent him from comprehending or
forming a rational understanding of the reason for the execution to
which he has been sentenced.
Cole also submitted the affidavits of his current and former counsel who
state that Cole’s mental condition has deteriorated over the last four years and that
he suffers from auditory hallucinations.
Respondent submitted the record of a routine wellness check conducted by
Dr. Alwyn Whitehead, a psychologist employed by Corizon Medical Services.
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The wellness check was conducted at Cole’s cell door. Dr. Whitehead reported
that Cole denied “any hallucinatory experiences and there were no overt symptoms
of severe depression, mania, or psychosis.” Dr. Whitehead conducted the entire
wellness check in fifteen minutes.
Respondent also submitted recordings and transcripts from four telephone
calls made by Cole to unknown persons, who are most likely family members.
Cole, Majority Op. at 9 n. 6-7. During the phone calls, Cole discussed various
topics, including execution issues in other states, that he was placed on “preexecution” status, the execution drugs, his opinion that the prosecutor’s story that
he stabbed the victim while he had a gun did not make sense, and other things. Id.
at 9-11.
Dr. Logan filed a supplemental report in which he reviewed respondent’s
briefs and exhibits. He concluded that none of respondent’s evidence or arguments
altered his opinions set out in his report dated March 12, 2015.
In its discussion, the Missouri Supreme Court stated:
Neither Ford nor Panetti states that a prisoner is entitled to an
evidentiary hearing to determine competency to be executed. Rather,
Ford and Panetti hold that due process requires that a prisoner who
makes a substantial showing of incompetency be provided an
opportunity to be heard, which includes submission of “evidence and
argument from the prisoner’s counsel, including expert psychiatric
evidence that may differ from the State’s own expert psychiatric
examination.” Ford, 477 U.S. at 424, 427; see also Panetti, 551 U.S.
at 949-950. In both Ford and Panetti, the state court proceedings
were driven and controlled by the state without providing the prisoner
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an opportunity to be heard. Ford, 477 U.S. at 403-04; Panetti, 551
U.S. at 936-41.
Unlike in Panetti, Mr. Cole has not been deprived of an opportunity to
be heard. Mr. Cole initiated this proceeding by filing his writ petition
in which he submitted his counsel’s argument and his own evidence,
including expert psychiatric evidence. Mr. Cole had the further
opportunity to respond to the state’s evidence with his counsel’s
argument and evidence. Because his petition for writ of habeas
corpus is an original proceeding in this Court, pursuant to Rules 84.22
and 91.01, this Court is the factfinder. In this role, the Court
considers Mr. Cole’s argument and evidence in ruling on his writ
petition. Accordingly, even assuming Mr. Cole’s evidence makes a
substantial showing of incompetency, he has received all the process
to which he is entitled under Ford and Panetti.
Id. at 15-16 (footnote omitted; emphasis added).
In weighing the evidence, the state court faulted Cole’s attorneys for not
opining “about Mr. Cole’s ability to understand his sentence and the reason for it.”
Id. at 17.
Neither [counsel’s] affidavits nor Dr. Logan’s report explain what
exactly is Mr. Cole’s understanding of his scheduled execution or the
reason to which he has been sentenced to death. By concluding the
delusions prevent Mr. Cole from forming a rational understanding of
the reason for execution, Dr. Logan may have found that Mr. Cole
believed what the voices were saying with respect to his sentence.
However, Dr. Logan did not include such a finding in his report.
This Court is cautious of accepting Dr. Logan’s conclusion. The
circuit court presiding over Mr. Cole’s post-conviction proceedings
found Dr. Logan was not a credible expert and did not believe his
report or testimony regarding Mr. Cole’s mental state at the time of
the offense. Additionally, Dr. Logan’s reports were relied on by
prisoners alleging incompetency precluding execution in Middleton
and Clayton. Both times, this Court found flaws in Dr. Logan’s
reports and was not persuaded by his opinions that the prisoners were
incompetent. Considering Dr. Logan’s lack of credibility in previous
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proceedings in Mr. Cole’s case and other cases before this Court, this
Court does not give much weight to Dr. Logan’s conclusion that Mr.
Cole suffers gross delusions preventing him from rationally
understanding the reason for his sentence when Dr. Logan fails to
identify or explain Mr. Cole’s understanding of his sentence.
Id. at 17-18.
Additionally, the court considered important the fact that Cole was not
determined to be incompetent at the time of his trial. Id. at 18. The court found
the telephone conversations to be significant, and concluded that his discussions
about religion, in particular, showed that he understood everything:
Most important, a review of the audio recordings of Mr. Cole’s
telephone conversations undermines his claims that his mental state
has deteriorated or that he is suffering from delusions preventing him
from rationally understanding his sentence. Instead, the recordings
reveal that he has a rational understanding of his execution, including
the reason for it.
***
If Mr. Cole believes the alleged voices telling him that he would be
released and that state officials, like Prosecutor McCulloch, have
authority to release him, Mr. Cole would not be so resolute in trusting
God would help him.
Not only do Mr. Cole’s conversations regarding his faith raise
questions about the authenticity of the alleged delusions but they also
show he understands his execution. In Ford, the Supreme Court noted
that a basic principle of civilized societies is that one is not put to
death “who has no capacity to come to grips with his own conscience
or deity.” 477 U.S. at 409. Mr. Cole has demonstrated, however, that
he is capable of coming to grips with his own deity.
Id. at 19-21 (footnote omitted).
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In concluding its opinion, the court found that “Mr. Cole does not lack a
rational understanding of the reason for his sentence.” Id. at 21.
According to the alleged voices, Mr. Cole is going to be executed
because the state wants to “take him down.” As already discussed,
Mr. Cole’s understanding of his execution, as demonstrated by recent
telephone conversations and medical records, seriously undermines
the authenticity of these voices. Further, the conversation on March 9,
2015, shows that Mr. Cole understands he was convicted of murder
because he talks about the murder case. Immediately after discussing
problems with the execution protocol, Mr. Cole explains how he
believes there was a racial motive behind what happened to him, and
then Mr. Cole and the caller discuss what they believe were
inconstancies or lies in the prosecutor’s version of the murder. The
conversation demonstrates that Mr. Cole understands he was
convicted for murder and that his sentence is the result of the
conviction.
Any such delusions that Mr. Cole may be suffering do not so impair
his concept of reality that he cannot reach a rational understanding of
his sentence and the reason for it. Therefore, he is not entitled to a
declaration of incompetency or an evidentiary hearing under Ford
and Panetti.
Id. at 21-22 (emphasis added).
Judge Laura Denvir Stith dissented. Her opinion identifies the procedures
for determining whether a prisoner under a death warrant is competent to be
executed: “first, a court must determine whether a substantial threshold showing
has been made of incompetence. . . then there must be a second procedural step, a
‘fair hearing’ at which the prisoner can support his claim with further evidence
. . .” Griffith, No. SC94880, Dissenting Op. at 4.
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Judge Stith noted that “[t]he majority opinion cites to no authority to support
its conflation of the threshold showing and the hearing stages of the Panetti
analysis or for substituting this Court for a fact-finder on issues of credibility, and
there is none.” Id. at 2. She further stated that “[a] writ proceeding in an appellate
court with no briefing or oral argument does not constitute a ‘fair hearing.’” Id. at
11.
Regarding the majority’s discussion of Cole’s telephone calls, Stith stated:
whether the ability to sometimes sound rational means one
understands the nature and purpose of one’s execution is a matter that
comes within the province of expert testimony – testimony that the
State could present at a hearing, but that this Court does not have the
psychiatric skill to assess in the absence of such a hearing.
Id.
Judge Stith concluded that “a threshold showing has been made and [] this
Court should refer this matter to a master for a fair hearing at which evidence may
be presented.
Discussion
The issues before the Court are two-fold: Was the state court decision that
Cole was not entitled to a hearing an unreasonable application of federal law as
determined by the United States Supreme Court? Is the state court’s decision
entitled to AEDPA deference? After careful review, I find that the state court’s
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decision not to hold a hearing was an unreasonable application of Ford and
Panetti. Moreover, the court’s decision is not entitled to AEDPA deference.
Judge Stith’s dissent correctly analyzes the law. Both Ford and Panetti
required the Missouri Supreme Court to refer the matter to a qualified fact-finder
for a fair hearing at which each of the parties could present evidence relevant to
Cole’s competency. It is clearly established that a prisoner under a death warrant
who makes a substantial showing of incompetency is entitled to a “‘fair hearing’ in
accord with fundamental fairness.” Panetti, 551 U.S. at 949 (citing Ford, 477 U.S.
at 426, 424). Under Panetti, the court must first determine whether the petitioner
has made a substantial threshold showing of incompetence.
Although the respondent argues that the Missouri Supreme Court did so
here, it bases this argument not on any explicit statement, but on the conclusion
stated on page 22 of the Court’s opinion: “Therefore, he is not entitled to a
declaration of incompetency or an evidentiary hearing under Ford and Panetti.”
But this conclusion follows the Court’s evaluation of all the evidence, was a
determination on the merits that Cole was in fact competent, and included the
Court’s making credibility determinations about the expert witness without any
hearing or opportunity for Cole to present additional evidence. In contrast, in two
other recent death penalty cases presenting issues of competence to be executed,
the Missouri Supreme Court explicitly held that the petitioners had failed to make
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the necessary threshold showing. See Clayton v. Griffith, ---S.W.3d---, 2015 WL
1442957, *1 (Mo. banc 2015) (“Addressing the merits of Clayton’s petition, this
Court finds that he has failed to make the threshold showing required by Panetti
and Ford to justify staying his execution so that his competence can be determined
after an evidentiary hearing.”); Middleton v. Russell, 435 S.W.3d 83, 86 (Mo. banc
2014) (“Accordingly, this Court denies Middleton’s petition for a writ of habeas
corpus on the merits because he has failed to make a substantial threshold showing
that he lacks the competence to be executed that the Eighth Amendment
demands.”). Unlike in Clayton and Middleton, the Missouri Supreme Court did
not decide in this case whether the petitioner made a threshold showing of
incompetence.
In Panetti, the district court remanded the action to the state court for an
evidentiary hearing on Panetti’s competence based on evidence similar to that
produced by Cole:
The state court had before it, at that time, petitioner’s renewed motion
to determine competency to be executed (hereinafter Renewed Motion
To Determine Competency). Attached to the motion were a letter and
a declaration from two individuals, a psychologist and a law
professor, who had interviewed petitioner while on death row on
February 3, 2004. The new evidence, according to counsel,
demonstrated that petitioner did not understand the reasons he was
about to be executed.
Panetti, 551 U.S. at 938.
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Cole has presented the report of Dr. Logan, who conducted a two-and-onehalf hour interview on March 12, 2015. Respondent has not submitted any expert
testimony. The fifteen minute wellness check conducted by Dr. Whitehead from
Cole’s cell does not constitute reliable expert testimony on whether Cole is
competent to be executed.
In Panetti, the state court unreasonably applied Ford because it relied upon
court-appointed experts without allowing petitioner the opportunity to present
conflicting evidence. Id. at 951-52.
The state court failed to provide petitioner with a constitutionally
adequate opportunity to be heard. After a prisoner has made the
requisite threshold showing, Ford requires, at a minimum, that a court
allow a prisoner’s counsel the opportunity to make an adequate
response to evidence solicited by the state court. In petitioner's case
this meant an opportunity to submit psychiatric evidence as a
counterweight to the report filed by the court-appointed experts. Yet
petitioner failed to receive even this rudimentary process.
In light of this error we need not address whether other procedures,
such as the opportunity for discovery or for the cross-examination of
witnesses, would in some cases be required under the Due Process
Clause. As Ford makes clear, the procedural deficiencies already
identified constituted a violation of petitioner’s federal rights.
Id. at 952 (citations omitted; emphasis added). The actions of the Missouri
Supreme Court in this case are very similar to those undertaken by the trial court in
Panetti: the court considered the limited evidence before it, determined that it
believed the respondent’s evidence over that presented by petitioner, and decided
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the petitioner was competent. The Missouri Supreme Court failed to comply with
the clearly established dictates of Ford and Panetti.
The Missouri Supreme Court’s alternate conclusion, that even if Cole had
made the threshold showing he received all the process that was due him is also
contrary to federal law established by the Supreme Court. Although the Supreme
Court in Panetti did not list exactly what procedures should be followed at the at
the “fair hearing,” it made clear that an actual hearing, which must include notice
and the opportunity to present evidence in addition to that of the “threshold
showing,” was required.
The state court found that Cole merely had an opportunity “to be heard.”
And it found that Cole was given that opportunity by filing a last-minute petition
and motion to stay along with exhibits. The court then decided to give little weight
to Dr. Logan’s report without hearing any testimony. Although a court might very
well reach the same credibility findings after a full hearing, the court’s evaluation
of the evidence before it did not constitute a fair hearing under Ford or Panetti.
The Missouri Supreme Court’s decision is not entitled to deference. “When
a state court’s adjudication of a claim is dependent on an antecedent unreasonable
application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A
federal court must then resolve the claim without the deference AEDPA otherwise
requires.” Panetti, 551 U.S. at 953. In Panetti, the Court “consider[ed]
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petitioner’s claim on the merits and without deferring to the state court’s finding of
competency . . . [because] the factfinding procedures upon which the court relied
were ‘not adequate for reaching reasonably correct results’ or, at a minimum,
resulted in a process that appeared to be ‘seriously inadequate for the
ascertainment of the truth.’” Id. at 954 (quoting Ford, 477 U.S. at 423-24).
The fact-finding procedures employed by the Missouri Supreme Court were
wholly inadequate for reaching reasonably correct results. “[T]he competency
determination depends substantially on expert analysis in a discipline fraught with
‘subtleties and nuances.’” Ford, 477 U.S. at 426. The state court was
unreasonable in disregarding Dr. Logan’s testimony in the absence of a conflicting
qualified opinion. And its analysis of Cole’s mental health based on four relatively
short telephone calls, rather than a proper forensic evaluation by a qualified doctor,
deprived Cole of basic due process.
In Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009), the Court of Appeals for
the Sixth Circuit found that the state court had unreasonably applied Ford because
it found petitioner’s severe delusions to be irrelevant. 580 F.3d at 436. And it
further erred in disregarding petitioner’s history of mental illness. Id. The Sixth
Circuit concluded: “[r]egardless of whether Thompson’s incompetency petition
should be granted, his evidence has at least created a genuine issue about his
competency, and therefore warrants an evidentiary hearing.” Id.
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In Druery v. Texas, 412 S.W.3d 523 (Tex. Crim. App. 2013), the trial court
determined that defendant had not made a substantial showing of incompetence
after holding an informal hearing. 412 S.W.3d at 538. The Court of Criminal
Appeals of Texas found that the trial court denied defendant of due process:
In conducting this informal inquiry, the trial judge should not weigh
competing evidence of incompetency because the informal hearing is
not the appropriate venue for determining the merits of the claim.
Rather, the informal inquiry is intended to determine if the issue is
sufficiently raised to merit a formal hearing. A determination that
there is “some evidence” of incompetency then leads to a formal
hearing before a jury. At that hearing, the defendant must prove his
incompetence by a preponderance of the evidence.
Id. The court further stated that “if the trial court must resolve material factual
disputes in making the threshold competency-to-be-executed determination, then
the defendant has made a “substantial showing” of incompetency . . .” Id. at 541.
Although Panetti did not dictate all the procedures set out in Druery
(including a jury trial allowed by that state’s statutory scheme), the procedures
shown by Thompson and Drueuy are representative of the procedural requirements
for fairly determining competency. The fact that the Missouri Supreme Court was
required to weigh the evidence and make credibility determinations was sufficient
to trigger the need for a full evidentiary hearing.
The Missouri Supreme Court denied Cole the process he is due for an
adequate and fair determination of his competency. Therefore, the motion to stay
his execution is granted. See 28 U.S.C. § 2251(a)(1).
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Accordingly,
IT IS HEREBY ORDERED that Cole’s motion to stay his execution [ECF
No. 114] is GRANTED and the execution scheduled for April 14, 2015 is
STAYED.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 13th day of April, 2015.
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