Weber v. Israel

• Citation: 730 F.2d 499
• Decision Date: 23 March 1984
• Docket Number: No. 82-2470,82-2470
• Parties: Raymond W. WEBER, Petitioner-Appellant, v. Thomas ISRAEL, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 499

730 F.2d 499

Raymond W. WEBER, Petitioner-Appellant, v. Thomas ISRAEL, Respondent-Appellee.

No. 82-2470.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 1983.

Decided March 22, 1984.

As Amended March 23, 1984.

Allen E. Shoenberger, Prof., Tayola University, Pamela Menaker, law student, Chicago, Ill., for petitioner-appellant.

Pamela Magee-Heilprin, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., for respondent-appellee.

Before PELL, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Petitioner-appellant, Raymond Weber, appeals the judgment of the United States District Court, Eastern District of Wisconsin, 527 F.Supp. 1182, denying his petition for writ of habeas corpus. We affirm.

I

The record reveals that in early December 1976, the petitioner-appellant, Raymond Weber, was charged with nine counts of party to the crime of armed robbery in violation of Wis.Stat. Secs. 943.32(1)(b), (2) and 939.05. On December 13, 1976, Weber appeared with counsel in the Milwaukee County Circuit Court and waived a preliminary hearing on the crimes charged. The following day, Weber appeared for arraignment before Judge McCormick in the Milwaukee County Circuit Court and at that time Weber's counsel entered pleas of "not guilty" and "not guilty by reason of mental disease or defect" on Weber's behalf. Under Wisconsin law when a plea of "not guilty" is joined with a plea of "not guilty by reason of mental disease or defect," the defendant is entitled to a bifurcated trial. See Wis.Stat. Sec. 971.175 (1981-82). During the first phase of the trial, the jury is informed of the two pleas, hears evidence on the issue of guilt, and renders a verdict on the plea of "not guilty." If the defendant is found guilty, the second phase of the bifurcated trial commences and the same jury hears evidence on the plea of "not guilty by reason of mental disease or defect." Id.

On December 14, 1976, following the entry of Weber's pleas at the arraignment proceeding, Weber's counsel informed the court that Weber had become non-communicative and unable to aid in his own defense. At the request of defense counsel, the court ordered Weber to undergo a psychiatric examination to determine Weber's competency to stand trial. The court-appointed psychiatrist concluded, after preliminary testing, that it was "impossible to make a definite estimate as to [Weber's] mental capability" and recommended that Weber be sent to the Central State Hospital for more complete mental testing and further observation. Pursuant to Wis.Stat. Sec. 971.14(2), Weber was committed to the Central State Hospital for a complete mental, social, psychiatric, psychological, and neurological examination. Weber was returned to court for a competency hearing on March 30, 1977, and based upon the testimony of the examining physicians, Judge McCormick concluded that more data was required before Weber's competency to stand trial could be determined. The court again committed Weber to the Central State Hospital to allow the psychiatric staff to perform more extensive testing. Some four months later, on July 29, 1977, Weber was returned to court for another competency hearing and based upon the testimony of Dr. Arndt that Weber was "having symptoms for a need, ... to avoid something, and this is referring to a faking or malingering," and the testimony of Dr. Fosdale that Weber was "not mentally ill, ... the behavior he demonstrates is simulation," Judge McCormick ruled that Weber was competent to stand trial.

On October 11, 1977, Weber appeared in the Milwaukee County Circuit Court with a second attorney who requested that a third battery of psychiatric testing be performed in order to determine his client's competency to stand trial. The court granted the motion and Weber underwent further psychiatric testing. Weber returned to court for a third competency hearing on October 18, 1977, and following psychiatric testimony, Judge McCormick again found Weber competent to stand trial. The case was subsequently reassigned to Judge Wedemeyer who presided as the trial judge in the Milwaukee County Circuit Court. On May 4, 1978, the jury found Weber guilty on only four counts of the nine count indictment of party to the crime of armed robbery in violation of Wis.Stat. Secs. 943.32(1)(b), (2) and 939.05.

A review of the trial record reveals that following the jury's return of its verdict on the issue of guilt, there was no mention by the defense counsel, Weber, the prosecutor, or the trial judge about an insanity plea or a jury trial on the issue of insanity. The record further reveals that no evidence was introduced on the issue of Weber's insanity at trial, no objections were raised by the defense counsel or Weber concerning the lack of a jury trial on the issue of insanity, and neither the defense counsel nor Weber objected when the trial judge dismissed the jurors following the return of their verdict on the issue of guilt. Similarly, no objections were raised by the defense counsel or Weber when the trial judge, without hearing any evidence on the issue of insanity, entered judgments of conviction and sentenced Weber to a sixty-four year term of imprisonment.

Weber, rather than seeking post-conviction relief in the trial court, appealed his judgments of conviction to the Wisconsin Court of Appeals claiming, inter alia, that he was denied due process of law because he did not receive a jury trial on the issue of his mental capacity after entering his plea of "not guilty by reason of mental disease or defect." The Wisconsin Court of Appeals, after reviewing the trial court record, affirmed Weber's conviction and ruled, in an unpublished order, that:

"[N]o objection was recorded concerning the absence of a jury determination of [the insanity] issue. Since the issue was not raised in the trial level, this court will not consider it on appeal."

Weber appealed this decision to the Wisconsin Supreme Court but the court denied review.

On October 13, 1981, Weber filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin and the case was assigned to the Honorable Myron Gordon. Weber claimed, inter alia, that "his right to a jury trial was violated because his plea of not guilty by reason of mental disease or defect was never presented to the jury." Weber v. Israel, 537 F.Supp. 1182, 1183 (E.D.Wis.1982). The district court ruled that:

"In my opinion, the petitioner's failure to pursue his plea of mental disease was properly deemed a waiver. Mr. Weber did nothing to demonstrate a continued interest in that plea during the year and a half which transpired between the time he 'apparently' entered the plea and the trial itself. Although represented by counsel during that period, there was no effort made by the defense to persist in the defense of mental disease; no objection was made to the format of the actual trial.

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Accordingly, I reject his contention that his random reference to insanity a year and a half before the trial entitles him to the granting of a writ of habeas corpus."

Id. at 1183-84.

Following the district court's decision, Weber submitted a Motion for Reconsideration based upon his contentions that in March 1977, he had been judged mentally ill by the County Court of Dodge County, Wisconsin, and that at his criminal trial in May 1978, Weber had instructed his attorney to pursue the insanity defense. ¹ In response to Weber's contentions, the district court conducted an evidentiary hearing on whether Weber had, in fact, waived his plea of "not guilty by reason of mental disease or defect." At the evidentiary hearing, the district court heard testimony from Judge Wedemeyer, the presiding trial judge; Assistant District Attorney Richard Klinkowitz, the trial prosecutor; John Murray, Weber's trial counsel; Detective Cole, a member of the Milwaukee Police Department; the petitioner; and the petitioner's mother, Violet Weber. Based upon the testimony elicited at this evidentiary hearing, Judge Gordon ruled that:

"The statements of [Judge Wedemeyer, Richard Klinkowitz, and Detective Cole] are singularly persuasive; it convinces me that the plea of mental defect was actually withdrawn by Mr. Weber's counsel.

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Although there is a cloud on this matter because the withdrawal was not reflected in the reporter's notes, I am satisfied that there was a withdrawal of the plea, that it occurred in open court in the presence of both Mr. Weber and the presiding judge, and that it was not recorded because the reporter had not yet arrived in the courtroom at the time of the discussion."

Accordingly, the court denied Weber's Motion for Reconsideration. The issue on appeal is whether the petitioner's plea of "not guilty by reason of mental disease or defect" was properly withdrawn.

II

Before reviewing the district court's finding on the issue of withdrawal, we must initially address the threshold issue of whether the doctrine of waiver bars Weber from obtaining Federal habeas review on the issue of his insanity plea. The doctrine of waiver, in the context of a Federal habeas corpus action, provides that, "[i]f a state withholds the right of appellate review of issues not raised at trial, the federal courts will not undermine the state's interest in orderly procedure by allowing the defendant to litigate the issue in a federal habeas proceeding." Carbajol v. Fairman, 700 F.2d 397, 399 (7th Cir.1983). Thus, as the United States Supreme Court has stated, "when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice." Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982) ("Engle" ). See also Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 55...