Ford v. Haley, 99-10895

• Citation: 195 F.3d 603
• Decision Date: 08 November 1999
• Docket Number: No. 99-10895,99-10895
• Parties: (11th Cir. 1999) PERNELL FORD, Petitioner-Appellant, v. MICHAEL W. HALEY, Commissioner, Alabama Department of Corrections, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 603

195 F.3d 603 (11th Cir. 1999)

PERNELL FORD, Petitioner-Appellant, v. MICHAEL W. HALEY, Commissioner, Alabama Department of Corrections,

Respondent-Appellee.

No. 99-10895

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nov. 8, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Alabama D. C. Docket No. 95-B-3020-S

Before ANDERSON, Chief Judge, DUBINA and HULL, Circuit Judges.

HULL, Circuit Judge:

Petitioner Pernell Ford ("Ford") is an Alabama death row inmate who has filed recurrent requests to dismiss his 2254 habeas petition, discharge his counsel, and be executed. Ford permitted his counsel, Ms. LaJuana Davis ("Davis"), to file and litigate his habeas petition for two years. However, in 1997, Ford began his quest to dismiss his petition and be executed. On March 31, 1999, the district court found Ford was mentally competent to forego further collateral review and granted Ford's pro se requests to dismiss his habeas petition and Davis as his counsel. Thereafter, Davis, as Ford's former counsel, appealed the district court's order. In Ford v. Haley, 179 F.3d 1342 (11th Cir. 1999), we granted a stay of Ford's execution set for July 9, 1999, and held that Davis appeared to retain standing to the limited extent necessary to appeal the mental competency rulings in the district court's order.¹ We expedited briefing and oral argument in this appeal.

Accordingly, the main issue we must address now is whether the district court erred in finding Ford competent to forgo further collateral review of his conviction and death sentence. We begin our analysis by reviewing the factual history of the state and federal court proceedings wherein Ford repeatedly has been examined by doctors and found competent. We next outline why we conclude that the district court's competency findings are supported by substantial evidence and that the district court did not clearly err in those competency findings. Lastly, because the merits of the competency issue have now been considered on appeal, we explain why Davis lacks standing to pursue this habeas petition further.

I. STATE TRIAL

In 1984, Pernell Ford was sentenced to death in Alabama state court for murdering Willie C. Griffith and her daughter Linda Gail Griffith during the course of burglarizing their home. Ford admits that he killed the two women, who died of multiple stab wounds to the head, neck, and trunk. Additionally, the trial evidence that Ford committed these capital crimes was overwhelming. This evidence is detailed in the opinions of the Alabama appellate courts affirming Ford's conviction and sentence. See Ford v. State, 515 So. 2d 34 (Ala. Crim. App. 1986), aff'd, Ex parte Ford, 515 So. 2d 48 (Ala. 1987).

During the guilt phase of his trial, Ford waived counsel and conducted his own defense. Prior to permitting Ford to proceed pro se, the trial court conducted an extensive colloquy with Ford in which the court explained the rights that Ford would be relinquishing by representing himself at trial. See Ford v. State, 515 So. 2d at 37-39.² Three mental health professionals testified regarding Ford's competence to waive counsel. Dr. Robert G. Summerlin, a psychologist hired at the request of the defense team, testified that Ford had an I.Q. of 80 and was competent to stand trial. Dr. Summerlin stated that Ford had the capacity to understand everything the trial judge explained to him, but was concerned that Ford may have made up his mind to proceed pro se and may not have been listening to the judge. Dr. Summerlin gave his opinion that Ford had a personality disorder with some indication of an "emerging psychosis." Although Dr. Summerlin was seriously concerned about Ford's mental ability to waive his right to counsel, Dr. Summerlin acknowledged that his doubts could be affected by the possibility of Ford's "malingering" or "faking bad."

Dr. Wallace W. Wilkerson, a psychiatrist whom the trial court selected, testified that in his opinion Ford was "far more intelligent" than an I.Q. of 80 would indicate, and estimated Ford's I.Q. to be closer to 110. Dr. Wilkerson found no evidence of "emerging psychosis" and stated that Ford was a sociopath, one who believes the law does not apply to him. He told the court that Ford "knows the system" and is "perfectly capable of knowing what to do to beat the system or confuse the system." In Dr. Wilkerson's opinion, Ford had a preplanned idea as to what he was going to do-disrupt the proceedings of this Court, feigning mental illness. Dr. Wilkerson concluded that Ford was competent to stand trial and competent to waive his right to an attorney. The third expert, Dr. Harry A. McClaren, chief psychologist at the Taylor Hardin Secure Medical Facility, also testified that Ford had an anti-social personality disorder, was competent to stand trial, and was competent to make the choice to dismiss his legal counsel.

The state trial court found that Ford was competent to stand trial and waive his counsel, but required Ford's three appointed attorneys to stand by in the courtroom throughout the trial and to be available to consult with Ford or take over should Ford change his mind about proceeding pro se. Standby counsel did not sit at Ford's table but remained in the courtroom. The trial court did not on its own require counsel to sit at Ford's table. However, the trial court repeatedly reminded Ford that standby counsel was available to him. During the trial, Ford actually consulted with standby counsel a number of times. During the guilt phase of the trial, Ford, proceeding pro se, made no opening, pressed no objections or motions, nor did he present a defense. He tendered no requests to charge and did not object to the trial court's charge. Ford did make a closing argument during the guilt phase.

During the penalty phase of the trial, however, Ford allowed his standby attorneys to represent him. His counsel introduced various medical and psychological records of Ford and made a closing argument during the penalty phase. The jury recommended the death sentence. At the final sentencing before the trial judge, Ford proceeded pro se with standby counsel in the courtroom. Thereafter, the trial court sentenced Ford to death.

II. STATE DIRECT APPEAL

On direct appeal, counsel represented Ford and argued, inter alia, ineffective assistance of counsel at trial because: (1) there should be no right to waive counsel in a criminal case; (2) Ford was incompetent to waive his right to an attorney; and (3) his standby counsel did not sit at the defense table with him.³ The Alabama appellate courts upheld the trial court's finding that Ford was competent to waive his trial counsel and conduct his own defense. Ex parte Ford, 515 So. 2d 48 (Ala. 1987), aff'g, Ford v. State, 515 So. 2d 34 (Ala. Crim. App. 1986). The Alabama Supreme Court and the Alabama Court of Criminal Appeals affirmed the convictions and death sentence. Ex parte Ford, 515 So. 2d 48 (Ala. 1987), aff'g, Ford v. State, 515 So. 2d 34 (Ala. Crim. App. 1986). The United States Supreme Court denied Ford's petition for a writ of certiorari. Ford v. Alabama, 484 U.S. 1079 (1988).

The Alabama Court of Criminal Appeals ("Appeals Court") concluded that "[t]he record in this case leaves no doubt that the defendant was free of a mental disorder which would so impair his will as to render his waiver decision involuntary." 515 So. 2d at 42. Specifically, the Appeals Court noted that all three experts unequivocally stated that Ford was competent to stand trial. Two experts were equally positive in their diagnoses that Ford was free of mental disease and competent to waive counsel. Even Dr. Summerlin, the one expert expressing some doubt about Ford's waiving counsel, was unwilling to characterize Ford's condition as anything more than indicative of "emerging psychosis" and acknowledged that his findings could have been colored by Ford's "faking bad."

Given the tentativeness of Dr. Summerlin's conclusions, as well as Dr. Wilkerson's testimony that Ford knew how to "beat" or "confuse" the system, the Appeals Court held that the trial court was warranted in concluding that Ford did not suffer from any mental disease which impaired his waiver of counsel. The Appeals Court also upheld the trial court's finding that Ford was intelligent enough to understand the consequences of his decision, especially in light of other testimony that Ford's I.Q. might be as high as 110. Id. In sum, the Appeals Court concluded that the psychological evidence, combined with the trial court's thorough colloquy with Ford as well as his responses, fully supported the trial court's finding that Ford was competent to waive counsel. Id. at 43. The Appeals Court also held that Ford had no constitutional right to have standby counsel sit at the defense table with him, and affirmed Ford's conviction and death sentence. Id.⁴

The Alabama Supreme Court affirmed the Appeals Court's decision. Like the Appeals Court, the Alabama Supreme Court relied on the United States Supreme Court's ruling in Faretta v. California, 422 U.S. 806 (1975), which recognized that a criminal defendant could waive counsel so long as the accused did so "knowingly and intelligently." 422 U.S. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)). Further, the Alabama Supreme Court noted that Faretta requires that, although the defendant need not have the skill and experience of a lawyer in order to choose self-representation, "he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" 515 So. 2d at 50 (quoting Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942))).

The Alabama Supreme Court observed that the trial court discussed Ford's rights and discussed each phase of the trial in...