DAVIS v. STATE OF ALABAMA, 545 F.2d 460 (5th Cir. 1977)

JAMES G. DAVIS, PETITIONER-APPELLANT, v. STATE OF ALABAMA, RESPONDENT-APPELLEE.

No. 76-1273.United States Court of Appeals, Fifth Circuit.
January 14, 1977.

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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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James G. Davis, pro se.

George G. Lynn (Court-appointed), Birmingham, Ala., for petitioner-appellant.

William J. Baxley, Atty. Gen., Carol Jean Smith, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before RIVES,[*] GEWIN and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

[1] Petitioner James G. Davis appeals the denial of his petition for habeas corpus relief, sought pursuant to 28 U.S.C. § 2254, by the United States District Court for the Northern District of Alabama. The Circuit Court of Cullman County, Alabama convicted Davis of first degree murder on November 26, 1973. After exhausting his state remedies,[1] Davis filed the present petition[2] with the district court. Adopting the report of the United States Magistrate and holding no evidentiary hearing, the district court dismissed the petition.

[2] On November 26, 1973, the day that Davis’ trial was set to begin, his attorneys moved, pursuant to Ala. Code tit. 15, § 425,[3] for a mental examination of the defendant.[4] At the hearing on the motion, defense attorneys informed the court that they had learned a month before that defendant had undergone some psychiatric treatment in California in May of 1972; according to the statements of the attorneys at the hearing, this information, alone, prompted the § 425 motion. Besides the testimony of the defendant, the only evidence presented at the

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hearing related to the California treatment was a probation report from a Dr. Dean, a psychologist[5] who had treated defendant. According to defendant’s testimony, a California court required, as a condition of defendant’s probation on an assault and battery conviction, that defendant see Dr. Dean. In addition, according to defendant,[6] the local welfare department, which had removed defendant’s children from his and his wife’s custody, stated that they would return the children only upon a satisfactory report from Dr. Dean.[7] Dr. Dean’s report to the probation department merely stated that he had evaluated defendant’s behavior and determined that he and his wife were living together harmoniously and that Davis had decreased his drinking.[8] Upon Dr. Dean’s recommendation that Davis no longer needed treatment, he and his wife again received custody of their children.[9] After hearing the above evidence, the trial court denied the § 425 motion, noting that this evidence was insufficient to require a § 425 mental examination.[10]
Defense counsel then requested a continuance so that they could gather more evidence to aid in their preparation of Davis’ insanity defense; the trial court likewise denied this motion.

[3] Issues before this court on this appeal concern the effect of the trial court’s denial of both motions on defendant’s constitutional right to a fair trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). We first examine the denial of the § 425 motion as that denial related to defendant’s alleged incompetence to stand trial. While defendant’s appellate counsel admittedly does not pursue this issue with much vigor, instead concentrating on the relation of the § 425 denial to the substantive defense of insanity at the time of commission of the crime, we nevertheless find that Davis’ pro se complaint, liberally read, contains such a claim. We therefore, address this issue.

[4] Trial of an accused while he is incompetent violates due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The Supreme Court has held that the test for determining mental competency to stand trial, as distinguished from the standard to determine mental culpability for the criminal act, itself, is

whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.

[5] Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). This court has held that analysis of the issue of competency is two-fold: first, a defendant has a substantive right not to be tried while he is incompetent;[11] second, pursuant to Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the defendant also has a right to adequate procedures to safeguard this substantive right. Nathaniel v. Estelle,

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493 F.2d 794 (5th Cir. 1974). The Nathaniel panel reached this conclusion after observing that long before Pate[12]
federal courts recognized as constitutionally mandated the guarantee against standing trial when incompetent. Only wit Pate, however, could a federal habeas petitioner raise not only incompetence in fact, but also, in a proper case, the trial court’s failure to determine competence contemporaneous with trial. Nathaniel, 493 F.2d at 796-97. Examining the Pate
issue first, we shall follow a similar bifurcated approach in our analysis.

[6] Essential to a claim that the trial court violated one’s procedural due process rights, pursuant to Pate‘s mandate, by not determining competence at the time of trial is a showing that the defendant presented evidence raising the issue of competency Nathaniel, 493 F.2d at 797. Accord, Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974). Tyler v. Beto, 391 F.2d 993 (5th Cir. 1968) cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969). Obviously, one cannot fault a trial court judge for failing to determine a question that he has no reason to believe is in issue. Yet, the Supreme Court has indicated that an explicitly worded motion for a competency hearing is not the only signal to trigger procedures that provide for a determination of competency. Pate v. Robinson, 383 U.S. at 384, 86 S.Ct. at 841, 15 L.Ed.2d at 821; Drope v. Missouri, 420 U.S. at 176-77, 95 S.Ct. at 906, 43 L.Ed.2d at 116. See also Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967) (en banc) cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246 (1969). Rather, if the defendant has presented evidence to the trial court, before or during trial, that raises a “bona fide doubt,” of his competence, Pate, 383 U.S. at 385, 86 S.Ct. at 842, 15 L.Ed.2d at 822, the trial court’s failure to make further inquiry denies that defendant his constitutional right to a fair trial. While the Supreme Court has not prescribed a general standard regarding the nature or quantum of evidence necessary to require resort to an adequate procedure, it has stated that three factors should be considered. These factors are: existence of a history of irrational behavior; defendant’s demeanor at trial, and prior medical opinion. Drope v. Missouri, 420 U.S. at 180, 95 S.Ct. at 907, 43 L.Ed.2d at 118. Examining the present case in light of the considerations discussed above, we note that the defense never raised the issue of competency either prior to or during the trial. While the defense attorneys did make a § 425 motion for a mental examination, this court has held that such a motion, alone, does not place defendant’s competence in issue.[13] Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967) (en banc). Accord, Seibold v. Daniels, 337 F. Supp. 210, 214 (M.D.Ala. 1972). In addition, the remarks of both the trial judge and defense counsel, as contained in the trial court record, make clear that all parties understood the motion to be directed toward obtaining evidence relevant to defendant’s substantive defense of insanity.[14]

[7] Having determined that defendant did not raise the issue of competency, we look to the record to determine if, in light of the three factors listed in Drope, indicia suggesting a bona fide doubt as to defendant’s competence existed at trial. First, we note that while domestic quarrels occasionally clouded defendant’s past, he had no history of irrational behavior such as that uncovered in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) or in Lee v. Alabama, 386 F.2d 97
(5th Cir. 1967) (en banc).[15] While the record indicates that

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defendant had seen a psychologist, the psychologist’s report, indicating that defendant was getting along better with his wife and no longer needed treatment, negates any suggestion of incompetency that one might infer from the fact of his treatment. In addition, lay witnesses, who testified at trial that defendant did not act irrationally or seem incoherent shortly after the crime and during his pre-trial confinement in jail, rebutted any suggestion of “bona fide doubt” about defendant’s competence. Finally, defendant’s demeanor at the pre-trial hearing on the § 425 motion[16] as reflected through his ability to recite, with great particularity and understanding, facts concerning his family and his criminal record, indicated no incompetence on his part. See McCune v. Estelle, 534 F.2d 611, 612 (5th Cir. 1976) (no incompetence shown where defendant understood proceedings and able to coherently narrate what had happened in his life as a whole, as well as immediately before trial). Our examination of the trial record, therefore, convinces us that n Pate violation occurred through the trial court’s failure t sua sponte conduct a competency hearing.

[8] “A determination that insufficient doubt [of competence] existed . . . at the time of trial does not preclude a post-conviction inquiry into competence to stand trial.”Nathaniel v. Estelle, 493 F.2d at 798.[17] Although he cannot argue that the trial court’s failure to invoke appropriate procedures violates his rights to due process, the defendant still may prevail if, at habeas, he can show that he nevertheless was incompetent to stand trial. To determine this second question, the Nathaniel panel adopts the guideline articulated by Judge Gewin in Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973):

Courts in habeas corpus proceedings should not consider claims of mental incompetence to stand trial where the facts are not sufficient to positively, unequivocally, and clearly generate a real, substantial, and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during a criminal trial. . . . [T]he standard which should be met to sustain such a claim [is] a history of mental illness, substantial evidence of mental incompetence at or near the time of trial supported by the opinions of qualified physicians and the testimony of laymen. The burden is on the petitioner to prove his allegations; such proof should be clear and convincing.

[9] Id. at 1043 (emphasis added). Examining the state court record and pleadings before the district court on habeas, petitioner’s allegations do not meet this threshold requirement. The facts before the trial court that were potentially relevant to competency[18] clearly do not satisfy the Bruce standard. Petitioner’s only other factual allegation to the district court was the existence of a report by a clinical psychologist, Dr. Verna Wool, presumably made during the first months of petitioner’s sentence on this conviction.[19] Introduced as Petitioner’s Exhibit E, the report merely records the essence of an interview with petitioner concerning his history of domestic problems. Dr. Wool never addresses the issue of petitioner’s present or past competency or insanity and none of her comments, even if accepted as true, raise a “real, substantial, and legitimate doubt” as to defendant’s competency.[20] Given petitioner’s failure to

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present allegations that, even if accepted as correct, meet th Bruce requirement, the district court did not err in dismissing, without an evidentiary hearing,[21]
petitioner’s habeas petition, at least as that petition calls into question petitioner’s competency.

[10] Defendant’s appellate counsel argues primarily that the trial court’s denial of the § 425 motion was improper in that it foreclosed appropriate inquiry about defendant’s criminal responsibility at the time of the commission of the crime; i. e., appellant’s substantive defense of insanity. A problem with appellant’s argument, however, clearly exists. That is, in order to receive habeas corpus relief pursuant to 28 U.S.C. § 2254, the petitioner must establish that the state court violated a federal constitutional right. Yet, while appellant’s counsel discusses at great length the constitutional requirement that a defendant be competent to assist in his defense, he cites us to no relevant authority that requires, as constitutionally mandated, any procedure to determine criminal responsibility similar to that provided for in § 425.[22] Instead, he concentrates on the impropriety of the § 425 denial in terms of Alabama law. The Alabama Criminal Court of Appeals, however, determined that the trial court’s denial of that motion accorded with relevant state law; we accept their determination.

[11] The final allegation of error contained in defendant’s pro se
complaint was the failure of the trial court to grant counsel’s motion for a continuance to better prepare themselves to defend Davis. In its order denying Davis’ habeas petition, the district court merely noted that the trial court’s denial of defendant’s motion for a continuance did not rise to constitutional dimensions. We are aware that the matter of continuance is traditionally within the discretion of the trial court and that not every denial of such a motion violates one’s due process rights or renders ineffective the assistance of his counsel Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921
(1964). See also United States v. Miller, 513 F.2d 791 (5th Cir. 1975). On

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the basis of the particular facts in this case,[23] we conclude that petitioner raises a substantial claim of ineffective assistance by counsel. Cf., Hintz v. Beto, 379 F.2d 937 (5th Cir. 1967) (with expanding right to effective counsel, continuance should have been granted to allow attorney to prepare his case adequately). Yet, the district court dismissed this contention without holding an evidentiary hearing. No full and fair hearing on this matter having been held in state court, Townsend‘s requirement of a hearing in the district court applies. See also Barker v. Wainwright, 459 F.2d 8
(5th Cir. 1972) (where petitioner alleges that defense counsel refused to investigate his case and devoted little time to its preparation, allegations of ineffective assistance of counsel that require an evidentiary hearing are raised). Accord, Mitchell v. Henderson, 432 F.2d 435 (5th Cir. 1970) Hollingshead v. Wainwright, 423 F.2d 1059 (5th Cir. 1970). Accordingly, we remand this part of the complaint to the district court to determine if denial of the continuance deprived petitioner of effective assistance of his counsel.

[12] Affirmed in part, reversed in part.