190 F.3d 88 (3rd Cir. 1999), 97-7551, Hull v Kyler

Docket Nº:97-7551
Citation:190 F.3d 88
Party Name:LARRY GENE HULL, Appellant v. KENNETH KYLER, Superintendent; PA ATTORNEY GENERAL
Case Date:August 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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190 F.3d 88 (3rd Cir. 1999)

LARRY GENE HULL, Appellant

v.

KENNETH KYLER, Superintendent; PA ATTORNEY GENERAL

No. 97-7551

United States Court of Appeals, Third Circuit

August 23, 1999

Argued: July 13, 1999

Amended September 10, 1999

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civ. No. 97-cv-00353) District Judge: Honorable Malcolm Muir

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JAMES V. WADE, ESQUIRE (ARGUED), Federal Public Defender, Middle District of Pennsylvania, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant

JOHN F. NELSON, ESQUIRE (ARGUED), Office of District Attorney, Franklin County Court House, 157 Lincoln Way East, Chambersburg, PA 17201, Counsel for Appellees

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Before: BECKER, Chief Judge, ROTH, and RENDELL, Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

This habeas corpus case is before us for the third time. Twenty years ago, petitioner Larry Gene Hull was convicted of first-degree murder in a Pennsylvania state court and sentenced to life imprisonment. For the past thirteen years, Hull has sought to have that conviction overturned on the ground that he received ineffective assistance of counsel at a pretrial competency hearing. Although the state courts have rejected his ineffectiveness claim, we have held that his counsel's performance was constitutionally deficient. See Hull v. Freeman, 932 F.2d 159, 168-69 (3d Cir. 1991) ["Hull I"]. However, we have also held that Hull procedurally defaulted this claim. See Hull v. Freeman, 991 F.2d 86, 90 (3d Cir. 1993) ["Hull II"]. The primary issues in the present appeal are whether the Pennsylvania courts have waived Hull's procedural default, and whether, if they have, he has demonstrated that his counsel's deficient performance was prejudicial under Strickland v. Washington, 466 U.S. 668 (1984).

For the reasons that follow, we conclude that the Pennsylvania courts have waived Hull's procedural default and that he thus may bring his claim in federal court. We also conclude that Hull was prejudiced by his counsel's failure to present any of the numerous pieces of available evidence regarding his competency or to challenge the government's single witness at his short competency hearing. We will therefore reverse the judgment of the District Court and remand the case with directions to issue a writ of habeas corpus conditioned on Hull's being retried by the Commonwealth. Of course, before new criminal proceedings may be commenced against Hull, the Pennsylvania courts must determine that he has regained his competency to be tried.

I. Procedural History

The procedural history of this case is long and convoluted. We recite it in detail, given its importance to the first issue before us--procedural default.

A. The Initial State Proceedings

On February 26, 1975, Hull was charged with murder in Franklin County, Pennsylvania. On March 7, 1975, he was found incompetent to stand trial by the Franklin County Court of Common Pleas. At that time, a defendant who asserted his incompetence to stand trial in Pennsylvania was required to demonstrate by a preponderance of the evidence that he was incompetent. See Commonwealth v. Kennedy, 305 A.2d 890, 892 (Pa. 1973). Hull was committed to Farview State Hospital until a second competency hearing was held on July 31, 1979. By that time, the state legislature had altered the burden for a defendant asserting his incompetency to proof by "clear and convincing evidence." See Pa. Stat. Ann. tit. 50, S 7403(a) (West Supp. 1996), amended by Act of July 2, 1996, No. 77, S 2, 1996 Pa. Laws 481, 482 (requiring proof by a preponderance). However, as Hull had already been found incompetent in 1975, the burden to prove that he had regained his competency was most likely on the Commonwealth. See id. S 7403(e) (West Supp. 1999) (providing that, after an initial finding of incompetency, criminal proceedings will resume only "[w]hen the court . . . determines that such person has regained his competence to proceed").

At the July 31, 1979, competency hearing, the government presented a single witness, Dr. Harry C. Stamey, a court-appointed psychiatrist who had examined Hull. Dr. Stamey was asked only eleven questions. The first nine were preliminary questions regarding Dr. Stamey's background, qualifications, and the foundation for his opinion. He was then asked what his opinion was "as to whether Mr.

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Hull would be able to understand the nature or object of the proceedings against him." App. at 422. He answered, "I feel that he could." Id. at 423. The final question posed to Dr. Stamey asked his opinion "as to whether or not Mr. Hull would be able to participate and assist in his defense." Id. He answered, "At that time I felt that he could do so." Id. Presumably, "that time" referred to the date of his examination of Hull, April 20, 1979, more than three months before the competency hearing. Then, when the court asked Hull's counsel to cross-examine Dr. Stamey, he responded, "We have no questions, Your Honor." Id.

The record does not disclose if the state court considered the report that Dr. Stamey had produced, although the doctor sent it to the court about three months before the hearing. See id. at 441. As we discuss in more detail infra Part IV.D.1, eight different doctors at Farview had found Hull mentally ill and incompetent on numerous occasions leading up to the competency hearing. Hull's counsel did not present any evidence from these examinations nor did he call any of these doctors as witnesses on Hull's behalf. Nor did his counsel argue to the trial court that Hull was incompetent, despite the prior finding of incompetence in 1975 and the strong evidence in this regard.

At the conclusion of the short competency hearing, and with the consent of Hull's counsel, the court found Hull competent to stand trial. On August 3, 1979, Hull entered a general guilty plea to murder. Following a degree-of-guilt hearing, the trial court found Hull guilty of first-degree murder and imposed a life sentence. Hull appealed his conviction, claiming that he could not be guilty of first-degree murder because "he was intoxicated and acting under the influence of a mental illness at the time of the shooting." Commonwealth v. Hull, 435 A.2d 1204, 1204 (Pa. 1981). In a one-paragraph per curiam opinion, the Pennsylvania Supreme Court rejected his appeal.

B. The Initial State Post-Conviction Proceedings

Hull filed a premature state post-conviction petition in January 1981. Following the denial of his motion for modification of his sentence, he filed a new state post- conviction petition, on July 18, 1986. This petition was consolidated with his prior, premature petition. Hull raised four issues in his state petition, including the one he presses in the current habeas petition--that his trial counsel was ineffective for failing adequately to contest the issue of his competency to stand trial in 1979. On February 22, 1988, following two days of hearings in July and November of 1987, the Court of Common Pleas rejected all of the claims in Hull's post-conviction petition. See Commonwealth v. Hull, Crim. No. 101-1975 (Pa. C.P. Ct. Feb. 22, 1988). Hull's appeal to Pennsylvania Superior Court from the denial of post-conviction relief raised only a single issue, the current ineffectiveness claim. On September 30, 1988, the Superior Court affirmed the denial of relief on this claim. See Commonwealth v. Hull, No. 215 Harr. 1988 (Pa. Super. Ct. Sept. 30, 1988).

The Superior Court was the last state court to reach the merits of Hull's ineffective-assistance claim. In rejecting this claim, the court "reviewed the colloquy which followed the guilty plea and [was] impressed with appellant's ability to recount in detail his actions and emotions at the time of the murder." Id., slip op. at 3-4. The court held that this "ability" demonstrated that Hull was able to assist his counsel and to understand the proceedings against him, making his ineffectiveness claim meritless. See id. at 4. The court added that Hull's trial counsel testified that he failed to cross-examine the government's witness or to offer independent evidence of Hull's incompetence because of "the findings of the court-appointed psychiatrist, his own observation of appellant, and appellant's expressed wish to be found

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competent and enter a guilty plea"--and the court held that this constituted a reasonable basis for counsel's actions. Id. The court did not directly address the single substantive issue before us, i.e., whether Hull was prejudiced by his counsel's deficient performance.

Following issuance of the Superior Court order, Hull's counsel failed to timely file a petition for allowance of appeal with the Pennsylvania Supreme Court.1 When he learned of his counsel's actions (or lack thereof), Hull filed a pro se petition for allowance of appeal nunc pro tunc. The Pennsylvania Supreme Court denied Hull's petition, without comment, on February 21, 1989. See Commonwealth v. Hull, No. 4 M.D. Misc. Dkt. 1989 (Pa. Feb. 21, 1989).

C. The Initial Federal Habeas Petition

On May 8, 1989, Hull filed a pro se petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. S 2254. He raised a number of issues, including the ineffective-assistance claim. Following appointment of counsel and a magistrate judge's initial report and recommendations on the other (non-competency related) issues, the district court remanded for consideration of the ineffectiveness/ competency claim. The magistrate judge found that Hull had exhausted his state remedies, but that the...

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