Moran v. Godinez

• Citation: 40 F.3d 1567
• Decision Date: 15 November 1994
• Docket Number: No. 91-15609,91-15609
• Parties: Richard Allan MORAN, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1567

40 F.3d 1567

Richard Allan MORAN, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Respondent-Appellee.

No. 91-15609.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 25, 1994.

Submission Deferred May 16, 1994.

Resubmitted July 1, 1994.

Decided Nov. 15, 1994.

Cal J. Potter, III, Las Vegas, NV, and Edward Chikofsky, Washington College of Law, The American University, Washington, DC, for petitioner-appellant.

David Sarnowski, Chief Deputy Atty. Gen., Carson City, NV, for respondent-appellee.

On Remand from the United States Supreme Court.

Before: FARRIS, PREGERSON and THOMPSON, Circuit Judges.

Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.

DAVID R. THOMPSON, Circuit Judge:

Richard Allan Moran pleaded guilty to three counts of capital murder and was sentenced to death by a Nevada state court. After exhausting his state court appeals, he filed a petition for habeas corpus in the United States District Court for the District of Nevada pursuant to 28 U.S.C. Sec. 2254. The district court denied his petition and Moran appeals. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

FACTS AND PROCEEDINGS

On August 13, 1984, Moran summoned police to the hospital room where he was recuperating from an attempted suicide. He confessed to killing his ex-wife at her home and two people at the Red Pearl Saloon. He was charged with three counts of capital murder. Initially, he pleaded not guilty to each count. Detailed facts of the murders and the circumstances of Moran's confession are set forth in Godinez v. Moran, --- U.S. ----, ---- - ----, 113 S.Ct. 2680, 2682-84, 125 L.Ed.2d 321 (1993), and Moran v. State, 103 Nev. 138, 140-41, 734 P.2d 712, 713 (1987).

On November 28, 1984, Moran appeared before the Nevada trial court. He said he wanted to discharge his attorneys and plead guilty to prevent the presentation of mitigating evidence on his behalf.

Before accepting Moran's waiver of counsel and guilty pleas, the court interrogated Moran at length. During this interrogation, the following colloquy occurred:

The Court: Are you presently under the influence of any drug or alcohol?

Moran: Just what they give me in, you know, medications.

Although Moran indicated he was under the influence of medications, the trial court made no inquiry as to the medications he had been given, the dosages, the times when he was medicated, or how the medications affected him. The court simply moved on to other questions, and eventually accepted Moran's waiver of counsel and guilty pleas.

On January 21, 1985, a three-judge Nevada state court sentenced Moran to death for each of the three murders. On appeal, the On July 30, 1987, Moran filed a petition in the Nevada state court for post-conviction relief. He alleged his guilty pleas and waiver of counsel were involuntary because he was "under the influence of drugs," he was mentally incompetent to represent himself, and the trial court failed to conduct a proper canvass "as to mental and legal competency." After an evidentiary hearing, the Nevada post-conviction court found Moran was competent to represent himself and plead guilty, and his guilty pleas and waiver of counsel were voluntary. The Nevada Supreme Court dismissed Moran's appeal. Moran v. Warden, 105 Nev. 1041, 810 P.2d 335, cert. denied sub. nom Moran v. Whitley, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989).

Nevada Supreme Court affirmed Moran's death sentences for the two Red Pearl Saloon murders, but reversed his death sentence for the murder of his ex-wife. On this count, the Nevada Supreme Court remanded for imposition of a life sentence without possibility of parole. Id. at 141-42, 734 P.2d at 714.

Moran then filed a habeas petition in the United States District Court for the District of Nevada. The district court denied the petition. We reversed in Moran v. Godinez, 972 F.2d 263 (9th Cir.1992). We concluded the state court should have entertained a good faith doubt during the November 28, 1984 change-of-plea proceedings as to Moran's competency to discharge counsel and plead guilty. Id. at 265. We held the failure of the trial court to conduct a competency hearing at that time violated Moran's right to due process. Id. We also held the 1987 post-conviction court failed to correct the trial court's error because the post-conviction court incorrectly applied the standard of competency to stand trial, which we stated was a lower standard than the standard of competency to waive counsel and plead guilty. Id. at 267.

The Supreme Court reversed. Godinez, --- U.S. at ----, 113 S.Ct. at 2688. The Court held the standard for competency to waive counsel and plead guilty was identical to the standard for competency to stand trial. Id. at ----, 113 S.Ct. at 2686. The Court also stated when a court has reason to doubt a defendant's competence, in addition to the competency inquiry, the court "must satisfy itself that the waiver of his constitutional rights is knowing and voluntary." Id. at ----, 113 S.Ct. at 2687. ¹ The Court remanded the cause to us for further proceedings. Id. at ----, 113 S.Ct. at 2688.

STANDARD OF REVIEW

We review the denial of a habeas corpus petition de novo. Mikes v. Borg, 947 F.2d 353, 356 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3055, 120 L.Ed.2d 921 (1992).

DISCUSSION

A. Competence to Waive Counsel and Plead Guilty

Due process requires a court to conduct a competency hearing on its own motion, before permitting a defendant to waive constitutional rights, whenever a reasonable judge would be expected to have a bona fide doubt as to the defendant's competence. United States v. Lewis, 991 F.2d 524, 527 (9th Cir.) (competence to plead guilty), cert. denied, --- U.S. ----, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993); Harding v. Lewis, 834 F.2d 853, 856 (9th Cir.1987) (competence to waive counsel), cert. denied, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988); Chavez v. United States, 656 F.2d 512, 515-16 (9th Cir.1981) (competence to plead guilty). A bona fide doubt should exist when there is substantial evidence of incompetence. Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856; Chavez, 656 F.2d at 517. Although no particular facts signal incompetence, suggestive evidence includes a defendant's demeanor As we said in our previous decision, a reasonable jurist should have entertained a good faith doubt as to Moran's competence during the November 28, 1984 change-of-plea hearing. Moran, 972 F.2d at 265. When the trial court asked Moran whether he was "presently under the influence of drugs or alcohol," Moran indicated he was taking medications. Although the court made no inquiry, it is not disputed the medications Moran was taking were Inderal, Dilantin, Phenobarbital, and Vistaril. Inderal, a "beta-blocker," is used in the management of hypertension. Physician's Desk Reference (42d ed. 1988) at 650-52; Docket No. 26, Exhibit III. Dilantin is an antiepileptic drug that inhibits the spread of seizure activity in the motor cortex and is related to barbiturates in its chemical structure. Id. at 1543-45. Vistaril is used for relief of anxiety and tension associated with psychoneurosis. It acts on certain key regions of the central nervous system. Id. at 1625-26. Phenobarbital is a sedative used to counteract central nervous system stimulation. Id. at 1667-68. It is also not disputed that these medications were given to Moran while he was in jail awaiting trial, although the record is silent as to what dosages he was given, the times they were administered, and the effect they had on him.

before the trial court, previous irrational behavior, and available medical evaluations. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856.

The court also was aware that three months before the hearing, Moran attempted suicide, and that he wanted to fire his attorneys, plead guilty to three counts of capital murder, and die.

In these circumstances, the state trial court should have entertained a bona fide doubt as to Moran's competence. The court should have held an immediate competency hearing. It did not, and as a result Moran's right to procedural due process was violated. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856. The state contends, however, that the 1987 post-conviction hearing cured this due process violation. We agree.

When a state court wrongfully fails to hold a competency hearing, "it often may be possible to repair the damage retrospectively." Evans v. Raines, 800 F.2d 884, 888 (9th Cir.1986). Although retrospective competency hearings are disfavored, see Drope, 420 U.S. at 183, 95 S.Ct. at 909; Blazak v. Ricketts, 1 F.3d 891, 894 n. 3 (9th Cir.1993) (Tang, J., for an equally divided court), cert. denied sub. nom Lewis v. Blazak, --- U.S. ----, 114 S.Ct. 1866, 128 L.Ed.2d 487 (1994), they are permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant. See Evans, 800 F.2d at 888; De Kaplany v. Enomoto, 540 F.2d 975, 986 n. 11 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). While the passage of time is significant in determining whether such a hearing can be held, Pate, 383 U.S. at 387, 86 S.Ct. at 843, medical reports contemporaneous to the time of the initial hearing greatly increase the chance for an accurate retrospective evaluation of a defendant's competence. See Sieling v. Eyman, 478 F.2d 211, 215-16 (9th Cir.1973). See also Ray v. Bowen, 843 F.2d 998, 1006 (7th Cir.1988).

In the present case, the post-conviction hearing was held three years after Moran waived counsel and pleaded guilty. The judge who presided at the post-conviction hearing was the same judge who presided over the change-of-plea hearing. He was ideally situated to "adduce [additional] evidenc...