590 F.2d 1383 (5th Cir. 1979), 78-1696, Pedrero v. Wainwright

Docket Nº:78-1696.
Citation:590 F.2d 1383
Party Name:Joe PEDRERO, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Dept. of Offender Rehabilitation, State of Florida, Respondent-Appellee.
Case Date:March 12, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1383

590 F.2d 1383 (5th Cir. 1979)

Joe PEDRERO, Petitioner-Appellant,


Louie L. WAINWRIGHT, Secretary, Dept. of Offender

Rehabilitation, State of Florida, Respondent-Appellee.

No. 78-1696.

United States Court of Appeals, Fifth Circuit

March 12, 1979

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[Copyrighted Material Omitted]

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Charles P. Schropp, Tampa, Fla., for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Charles Corces, Jr., William I. Munsey, Jr., Asst. Attys. Gen., Tampa, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

Joe Pedrero appeals the district court's denial of his habeas corpus petition. Convicted by a Florida court of robbery and possession of narcotics, Pedrero sought federal habeas relief on the ground that the state violated his due process rights by failing to accord him an adequate hearing on his competency to stand trial and by denying his pretrial request for a psychiatric examination to aid him in establishing his defense of insanity at the time of the offense. His petition, and this appeal, present basically two questions. First, was the state trial court, on the basis of what it knew or should have known, under a federal constitutional duty to grant Pedrero's request for a psychiatric examination? Second, in the circumstances of this case, once a state appeals court determined that Pedrero was entitled to a postconviction hearing into his competency to stand trial, did the state have a duty, As a matter of federal constitutional law, to accord Pedrero a "meaningful" hearing? We answer both questions in the negative and accordingly affirm the district court.


Pedrero was arrested in October 1971 and charged with robbery, possession of narcotics, and possession of a firearm by a convicted felon. He was arraigned, tried, convicted, and sentenced on a single day, November 30, 1971. The firearms count was dismissed by the trial court at the arraignment. Pedrero was sentenced to life imprisonment

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on the robbery charge, and received a concurrent sentence of five years' imprisonment on the narcotics charge.

At the arraignment, Mr. Kaylor, the public defender appointed to represent Pedrero, orally moved the court that Pedrero be given a psychiatric examination at state expense. The colloquy went as follows:

MR. KAYLOR: Your Honor, for the record, this is John Kaylor speaking, a representative of the Public Defender's office, representing Mr. Joe Pedrero.

At this time, we would like to enter a plea of not guilty to all counts in the information and request a jury trial. And, at this time, I would like to on behalf of Mr. Pedrero, request that he be granted, at State expense, a mental examination by a competent psychiatrist and/or psychologist. In support of such motion, I would allege to the Court that in 1967 to 1968, one year period, he was declared incompetent with regard to a robbery charge by the Federal Judge of the Fifth Circuit Court of Appeals in New Orleans and spent that year in Chattahoochee.

I would also allege that he is a drug addict, and he was insane at the time of the offense, alleged in information, to-wit: robbery, possession of narcotics, possession of firearm by a convicted felon on October 12, 1971, was committed; also alleges to the insanity at the time of this trial, to-wit: November 30, 1971.

THE COURT: * * *

Do you have any testimony you want to offer in support of your motion insofar as incompetency?

MR. KAYLOR: No, sir; I have no testimony, no.

THE COURT: The Court will deny the motion, then.

MR. KAYLOR: No, sir. I was going to proffer to the Court if the defendant could testify in support of the motion without waiving his rights of self incrimination, I would proffer his testimony; other than that, I would not proffer the testimony.

THE COURT: The motion will be denied insofar as these are concerned.

The issues of trial competency and insanity at the time of the offense were never raised again. The public defender did not reiterate his request for a psychiatric examination; and he made no request for a continuance. At trial the defense offered no evidence that Pedrero was insane at the time of the offense.

Pedrero appealed his conviction. The Florida district court of appeals agreed with Pedrero's contention that he was entitled to a competency hearing as a matter of state law. The court ruled that under Florida Rule of Criminal Procedure 3.210(a) 1 Pedrero's motion for a competency examination should have been granted and remanded the case to the trial court for a Nunc pro tunc hearing on the issue of competency to stand trial. Pedrero v. State, 1972, Fla.Dist.Ct.App., 262 So.2d 737.

The trial court ordered Pedrero examined by two panels of psychiatrists. One member of each panel testified at the competency hearing, which was held in September of 1972. Both testified that Pedrero was competent when the panels examined him, but could not state unequivocally whether Pedrero had been competent at the time of his November 1971 trial. One expert stated that Pedrero was "probably" competent at the trial. The other would not "make a statement one way or the other" but did state that based on his observations of Pedrero, his conversations with Pedrero's trial counsel, and what he heard during the hearing itself, he leaned towards the conclusion that Pedrero was competent at the time of the trial. From the testimony of the psychiatrists and his own observations of Pedrero's demeanor and behavior at the trial,

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the trial court concluded that Pedrero had been competent to stand trial and entered its order to that effect.

The record of the case was retransferred to the district court of appeals, which affirmed the trial court's competency finding. The appeals court also rejected Pedrero's argument that he was insane at the time of the offense. The court ruled that Pedrero's failure to follow the procedures outlined in Florida Rule of Criminal Procedure 3.210(b), (c) for raising the insanity defense barred him from raising the issue either at or after the trial. The conviction was affirmed. Pedrero v. State, 1973, Fla.Dist.Ct.App., 271 So.2d 201.

Pedrero then brought his case to the federal courts. 2 In 1975 he filed a habeas corpus petition in the United States District Court for the Middle District of Florida. In that petition he contended that he was denied his due process rights in that the trial court failed to determine whether the Nunc pro tunc competency hearing was meaningful or adequate and that the hearing was not in fact meaningful. In addition, Pedrero again urged that the trial court had unconstitutionally burdened his right to present the insanity defense by denying his request for a psychiatric examination by court-appointed experts. The magistrate who reviewed Pedrero's petition found merit in both contentions and recommended that the writ be issued. The district court disagreed with the magistrate and denied the petition. The district court held that Pedrero had not been constitutionally entitled to a competency hearing in the trial court because he had not raised a bona fide doubt as to his competency and thus had failed to meet the standard of Pate v. Robinson, 1966,383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, and its progeny. Because Pedrero was not entitled as a matter of federal constitutional law to a competency hearing in the first place, the court concluded, the alleged inadequacy of the Nunc pro tunc hearing granted Pedrero did not violate...

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