Moore v. United States

• Citation: 464 F.2d 663
• Decision Date: 18 August 1972
• Docket Number: No. 72-1190.,72-1190.
• Parties: Bernie MOORE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

464 F.2d 663 (1972)

Bernie MOORE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 72-1190.

United States Court of Appeals, Ninth Circuit.

July 20, 1972.

As Modified August 18, 1972.

Bernie Moore, in pro per.

William D. Keller, U. S. Atty., Earl E. Boyd, Eric A. Nobles, Asst. U. S. Attys., Los Angeles, Cal., for respondent-appellee.

Before BROWNING, HUFSTEDLER and WRIGHT, Circuit Judges.

PER CURIAM:

Moore appeals from a district court order dismissing his application for section 2255 relief. Moore claimed that his 1968 guilty plea to a violation of 18 U. S.C. § 2113(a) should be set aside because he was mentally incompetent when his plea was taken.

The district court dismissed the application for two reasons: (1) Moore waived his claim for relief on the ground here asserted because he had not presented the claim on an earlier section 2255 petition; and (2) Moore's "mental competence was the subject of psychiatric investigation, a hearing, and judicial determination before his plea was made and accepted," and the issue is thus foreclosed.

Denial of a prior application for section 2255 relief does not foreclose a subsequent petition for the same relief on a ground not earlier presented, unless that failure to assert the claim was an abuse of the section 2255 process: "If a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground." (Sanders v. United States (1963) 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148.) There is nothing in this record to support a conclusion that Moore deliberately withheld his mental incompetency claim when he filed his first petition.

On this record the second ground for dismissing the application cannot be sustained.

When Moore was initially arraigned on December 11, 1967, his appointed counsel moved for a psychiatric examination under 18 U.S.C. § 4244. The motion was granted, and Moore was examined on December 30, 1967. On January 8, 1968, Moore returned to court and was rearraigned. The psychiatrist's report was received in evidence. Although Moore's lawyer did not object to the admission of the report, he observed: "I think, your Honor, we should have a discussion of the report made by the psychiatrist. . . . Considering the report at page 3, it does not seem to be very consistent with the finding of the doctor of an individual who does . . . not seem to be a person who has the mental ability to aid in his own defense, and things of that nature. I have to be critical of the doctor's findings, they just do not seem consistent." The examining psychiatrist was not called to testify; there is no indication that he was even present. No testimony of any kind was offered. The court forthwith found that Moore was competent to stand trial.¹ Moore thereafter entered a not guilty plea.

The psychiatrist's report reveals an extensive history of mental illness, including hospitalizations for psychiatric disorders and repeated suicide attempts. During his stay at the Federal Medical Center, he was "kept in isolation and developed visual hallucinations." In describing Moore's mental condition at the time of the examination, the psychiatrist said: "Abnormal mental trends were manifested by self-destruction, mutilating behavior which occurs under stressful conditions. . . . He panics and has engaged in dangerous behavior to himself such as running before gunfire and swallowing razor blades in an attempt to get into a more protective situation. His mood swings are wide and rapid from deep depression and to euphoria in a brief period. . . . His main problem is in sexual identity with fear of both men and women and this leads to panic. He will continue to act out both in custodial and psychiatric hospital placements. He feels that he has nothing to lose and therefore engages in impulsive acting out and controls the environment through his self-destructive acts."

The psychiatrist's diagnosis was that Moore's "competency will be subject to periods of impaired judgment during his panic reactions," that he has "deep-seated emotional problems of long duration," and "the prognosis is poor." He nevertheless concluded that "Moore is presently sane and presently able to understand the proceedings taken against him and to properly assist in his own defense." The psychiatrist did not undertake to offer any explanation for his ultimate conclusion.

On February 6, 1968, there was filed with the district court records of the Federal Bureau of Prisons containing lengthy psychiatric reports about Moore. The records describe his repeated suicide attempts, his hospitalizations for acute mental illness, his hallucinatory episodes, and his psychiatric therapy.

Under the rule of Pate v. Robinson (1966) 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, a due process evidentiary hearing is constitutionally compelled at any time that there is "substantial evidence" that the defendant may be mentally incompetent to stand trial....