Jordan v. Wainwright, 72-1037 Summary Calendar.

• Citation: 457 F.2d 338
• Decision Date: 27 March 1972
• Docket Number: No. 72-1037 Summary Calendar.,72-1037 Summary Calendar.
• Parties: Abram J. JORDAN, Petitioner-Appellant, v. Louis L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

457 F.2d 338 (1972)

Abram J. JORDAN, Petitioner-Appellant, v. Louis L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.

No. 72-1037 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 27, 1972.

Douglas W. Hampton, Tampa, Fla., for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., P. A. Pacyna, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

PER CURIAM:

Jordan, a Florida prisoner serving a 20-year sentence for robbery in the custody of the respondent, Wainwright, was denied habeas corpus relief by the lower court without an evidentiary hearing, but following argument after the respondent had responded to an order to show cause and attached to his response a commendably complete transcript of the prior state court proceedings, including pretrial motions, the jury trial transcript, briefs both on direct appeal¹ to the Florida court, the suit papers and briefs on appeal² in connection with Jordan's posttrial motion³ to set aside his judgment and conviction.

It is apparent from the record that the only ground raised which has constitutional dimensions⁴ is the failure of the trial court to hold a competency hearing (termed by the motion a "Sanity Inquisition") before trial when defendant's counsel, a state public defender, raised the issue by motion.

We note that the motion asserted only that counsel had difficulty communicating with his client. No showing was made of prior hospitalization for or diagnosis of mental difficulties or of prior adjudication of incompetency. No evidence of any kind was proffered to support the motion. The trial judge denied it, stating that he had observed the petitioner closely throughout previous court appearances and actual trials, and knew him to be a keen witted person, competent to stand trial.

Again, no evidence was offered to support the contention of incompetency in the post-conviction review proceedings.

The teaching of Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, is that the due process clause of the Fourteenth Amendment to the U.S. Constitution requires that state criminal trials not proceed against incompetents.

But no sanity hearing is mandated by Pate v. Robinson by a naked suggestion that the defendant may be incompetent. Evidence must be presented which is sufficient to raise a "bona fide doubt" as to the defendant's competency to stand trial, Pate v. Robinson, supra. See also Wilson v. Wainwright, 5 Cir.1971, 445 F.2d 837, Tyler v. Beto, 5 Cir.1968, 391 F.2d 993, 997, Greer v. Beto, 5 Cir.1967, 379 F.2d 923. In Hawks v. Peyton, 4 Cir.1966, 370 F.2d 123, 125, our sister Circuit held that the state trial judge did not abuse his discretion in refusing to order a psychiatric examination where the defendant's lawyer testified to his low mentality, and the defendant testified that he could not remember the circumstances of the crime. Compare Lee v. State of Alabama, 5 Cir.1967, 386 F.2d 97, where we held en banc, that a lunacy commission's determination three months before trial that a defendant was insane at the time of the offense and at the time of the inquiry nine months after the offense, was sufficient to put the state trial judge on notice that a separate competency examination should be made.⁵

We hold that in the circumstances here no...