61 F.3d 1459 (10th Cir. 1995), 94-2055, Miles v. Dorsey

Docket Nº:94-2055.
Citation:61 F.3d 1459
Party Name:Vernard MILES, Jr., Petitioner-Appellant, v. Donald A. DORSEY, Warden; Attorney General of the State of New Mexico, Respondents-Appellees.
Case Date:August 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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61 F.3d 1459 (10th Cir. 1995)

Vernard MILES, Jr., Petitioner-Appellant,

v.

Donald A. DORSEY, Warden; Attorney General of the State of

New Mexico, Respondents-Appellees.

No. 94-2055.

United States Court of Appeals, Tenth Circuit

August 1, 1995

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Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, NM, for petitioner-appellant.

William McEuen, Asst. Atty. Gen., (Tom Udall, Atty. Gen., with him on the brief), State of N.M., Santa Fe, NM, for respondents-appellees.

Before BALDOCK, SETH, and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

Petitioner Vernard Miles, Jr., appeals the district court's order dismissing with prejudice his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Petitioner seeks review of a state judgment of conviction entered on his no contest plea to one count of murder and two counts of first degree criminal sexual penetration, arguing that his plea was involuntary, he was incompetent to plea, and that he was denied effective assistance of counsel. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

The extensive record before us reveals the following facts. On August 17, 1989, Petitioner was charged in an amended criminal information in Otero County, New Mexico district court with thirty-three felony counts. 1 The information alleged Petitioner committed a series of increasingly violent offenses between February 1986 and February 1989, including the abduction and attempted rape of a convenience store clerk, the abduction and rape of a second convenience store clerk, and the abduction, rape, and murder of a third convenience store clerk. Petitioner's mother, father, brother, two sisters, and sister-in-law were charged with multiple offenses arising from their attempts to hide or destroy evidence that would have potentially inculpated Petitioner in the crimes.

The New Mexico Office of the Public Defender designated Gary Mitchell, a highly experienced private criminal defense attorney, 2 to represent Petitioner. Mitchell and his investigator met with Petitioner in county jail to discuss his representation of Petitioner. Mitchell admonished Petitioner that he should not discuss the case with anyone, including Mitchell, until Mitchell had collected police reports, witness statements, and completely reviewed all details of the case. Petitioner, however, confessed to Mitchell that he had committed the crimes with which he was charged. Later, Petitioner made inculpatory statements concerning his involvement in the crimes to others.

After his confession to Mitchell, Petitioner denied involvement in the crimes and indicated that his family could provide alibi testimony. Mitchell arranged for a polygraph examiner to examine his client. The results showed that Petitioner gave deceptive answers relating to his involvement in the homicide of the convenience store clerk.

Mitchell learned the following facts about Petitioner's mental capacity in his investigation. Petitioner speaks, reads, and writes English. Petitioner's early school records show that he performed academically in the bottom eight percent of students his age and has a full-scale IQ of seventy-one. Although

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Petitioner completed only eight years of school, he passed the General Equivalency Diploma examination and earned his G.E.D., scoring highest in the reading and comprehension sub-tests. Past psychological evaluations diagnosed Petitioner with attention deficit disorder, depression, and antisocial personality disorders. Additionally, Petitioner has a history of substance abuse and behavioral difficulties.

In order to determine whether he should pursue a competency or insanity defense on behalf of Petitioner, Mitchell reviewed two prior psychological evaluations of his client and spoke with one of the evaluators. The evaluations documented evidence of intentional malingering and misrepresentation by Petitioner, and concluded that although he had a low IQ, he was not mentally retarded, psychotic, or suffering from any gross brain disfunction. In sum, the evaluations indicated that Petitioner was neither legally insane nor incompetent to stand trial.

Mitchell anticipated problems advancing an incompetency or insanity defense when prior evaluations had concluded Petitioner was competent, sane, not mentally retarded, and documented intentional malingering and misrepresentation. Mitchell also believed other factors indicated Petitioner's competence, including his attainment of a G.E.D. and a driver's license, and employment as an emergency medical dispatcher. Because the prior findings of competency and intentional malingering could jeopardize an incompetency or insanity defense, and adversely effect the sentencing phase of a trial, Mitchell decided not to pursue an incompetency or insanity defense.

The state intended to try Petitioner's family members first for their efforts to conceal or destroy evidence of Petitioner's alleged offenses, thereby eliminating them as potentially helpful witnesses to Petitioner. In all, the state indicted Petitioner's brother James Miles, two sisters, sister-in-law, and mother and father. After James Miles was convicted of conspiracy and tampering with evidence and sentenced to four and one-half years imprisonment, the trial of Petitioner's mother and father ended in a mistrial when his mother collapsed during the trial. A retrial was scheduled for Monday, January 29, 1990.

Prior to the retrial of Petitioner's mother and father, the state proposed a new plea and disposition agreement whereby Petitioner would plead no contest to one count of murder and two counts of first degree criminal sexual penetration. In exchange, the state agreed to drop thirty of the thirty-three felony charges against Petitioner, and ensure that his family would serve no jail time for their concealment of his offenses. The state agreed to allow Petitioner's parents to plead no contest and serve probation on a conspiracy charge filed against them, dismiss criminal charges against his sisters and sister-in-law, and release his brother James Miles from prison. Petitioner, however, had to accept the plea agreement by Friday, January 26, 1990. Based on his determination that the state had an extremely strong case and that his client faced conviction on all counts, Mitchell recommended to his client that the plea agreement was in his best interest.

On Thursday, January 25, 1990, four days before the scheduled retrial of Petitioner's mother and father, New Mexico State District Judge Sandra A. Grisham 3 held a conference in her chambers with Petitioner's family, their individual counsel, Mitchell, and the prosecutors. Petitioner was not present. Mitchell and the prosecutors told Petitioner's mother, father, and sisters that the plea agreement was in Petitioner's best interest. Judge Grisham assured Petitioner's family that the state would abide by the plea agreement if Petitioner pled no contest, and that the family would receive the benefits offered under the agreement. Judge Grisham arranged for the family to discuss the proposed plea agreement with Petitioner in jail outside visiting hours that evening and the following morning. Family members met with Petitioner, told him the plea agreement was in his best interest, and that he would save his family from going to prison if he pled no contest to the charges.

On Friday afternoon, January 26, 1990, Judge Grisham arranged for Petitioner to meet with his family in the jury room of the

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courthouse to discuss the proposed plea agreement in private. At a hearing later that afternoon, Petitioner pled no contest to one count of murder and two counts of first degree criminal sexual penetration. During the hearing, Petitioner acknowledged that: (1) he understood the nature of the charges; (2) he understood and agreed to the terms of the plea and disposition agreement; (3) no one had threatened or coerced him to enter the plea agreement; (4) no one had made him any promises that were not set forth in the agreement itself; (5) he was not presently being treated for mental illness; and (6) he was not under the influence of narcotics, alcohol, or medication that might effect his competency. Judge Grisham accepted the plea and disposition agreement. After Mitchell reviewed the document with him a final time, Petitioner signed the plea and disposition agreement. The plea agreement did not mention the benefits to Petitioner's family. Judge Grisham found Petitioner guilty of committing murder and two counts of first degree criminal sexual penetration, and sentenced him to life plus two consecutive eighteen year sentences. 4

On May 15, 1991, Petitioner filed a petition for a writ of habeas corpus in the Otero County, New Mexico district court. The state district court dismissed the petition without opinion, and the New Mexico Supreme Court denied his petition for certiorari on December 30, 1991.

Having presented his claims to the state courts, Petitioner filed the instant petition for a writ of habeas corpus with the district court pursuant to 28 U.S.C. Sec. 2254 on January 9, 1992. Petitioner contended that his plea was involuntary, he was incompetent to plea, and that he was denied effective assistance of counsel. The district court referred the matter to a magistrate judge who scheduled an evidentiary hearing that lasted three days.

On November 16, 1993, the magistrate judge proposed 102 findings and recommended that the district court dismiss the petition for a writ of habeas corpus. Petitioner filed objections to the magistrate judge's findings. On January 14, 1994, the district court amended 5 and adopted the...

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