Boag v. Raines

• Decision Date: 07 November 1984
• Docket Number: No. 84-1545,84-1545
• Citation: 769 F.2d 1341
• Parties: Donald Gene BOAG, Petitioner-Appellant, v. Robert RAINES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1341

769 F.2d 1341

Donald Gene BOAG, Petitioner-Appellant, v. Robert RAINES, Respondent-Appellee.

No. 84-1545.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 7, 1984. ^*

Decided Aug. 26, 1985.

Michael V. Black, Asst. Federal Public Defender, Phoenix, Ariz., for petitioner-appellant.

Bruce M. Ferg, Asst. Atty. Gen., Tucson, Ariz., for respondent-appellee.

Appeal from the United States District Court for the District of Arizona.

Before SKOPIL and FLETCHER, Circuit Judges, and RAY McNICHOLS, ^** District Judge.

FLETCHER, Circuit Judge:

Boag appeals the dismissal of his habeas corpus petition, contending the district court erred in concluding that new evidence he presented was insufficient to raise a substantial doubt as to his competency to stand trial in 1967. We affirm.

In 1967, Boag was convicted of various felonies in Arizona court. At his trial, Boag's counsel made a motion for examination of his client's mental condition. The trial court did not rule on this motion, nor did it order a competency hearing. Boag's conviction was affirmed on direct appeal.

In 1980, Boag brought this action for a writ of habeas corpus, 18 U.S.C. Sec. 2254 (1982), in the district court, contending that he had been incompetent to stand trial in 1967. The district court denied the writ and dismissed Boag's action. Boag appealed and we reversed, holding that the district court applied an improper standard to determine his right to a competency hearing. Boag v. Raines, 673 F.2d 1336 (9th Cir.1982). On remand, the district court dismissed the petition a second time, and Boag appealed again. We affirmed the district court's conclusion that the evidence before the state trial court was insufficient to raise a good faith doubt as to Boag's competency. We remanded, however, for the district court to consider whether new evidence, not presented at the 1967 trial, was sufficient to raise a substantial doubt as to Boag's competency. Boag v. Raines, 707 F.2d 516 (9th Cir.1983). The district court, in a thorough and well-reasoned opinion, concluded that it was not.

The test for competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); Chavez v. United States, 656 F.2d 512, 518 (9th Cir.1981). In a habeas proceeding, a petitioner is entitled to an evidentiary hearing on the issue of competency to stand trial if he presents sufficient facts to create a real and substantial doubt as to his competency, even if those facts were not presented to the trial court. Steinsvik v. Vinzant, 640 F.2d 949, 954 (9th Cir.1981).

Boag points to several incidents which he contends show that he was in fact incompetent in 1967: (1) five attempted suicides between 1954 and 1965; (2) repeated head injuries; (3) a story of bizarre behavior; and (4) alcoholism. Boag also relies on the report of a prison psychiatrist, made four months before trial, which stated that he had a "sociopathic personality disturbance, anti-social reaction," and the statement of a California judge, made six months before trial, that Boag needed "intensive psychiatric treatment." Applying de novo review, United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); United States v. Makris, 535 F.2d 899, 907 (5th Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803 (1977); cf. de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976) (appellate review of trial court's failure to provide competency hearing based on facts available at trial not limited to abuse of discretion or clearly erroneous standard), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977), we agree with the district court that these facts, taken as a whole, do not raise a substantial doubt as to Boag's competency.

In de Kaplany v. Enomoto, 540 F.2d at 983-85, we held that evidence of two emotional and inappropriate outbursts at trial, coupled with the bizarre and gruesome nature of the crime charged, and psychiatric testimony characterizing the defendant as "severely disturbed" and suffering from paranoid schizophrenia, was insufficient to raise a bona fide doubt with respect to the defendant's competency to stand trial. In cases finding sufficient evidence of incompetency, the petitioners have been able to show either extremely erratic and irrational behavior during the course of the trial, e.g., Tillery v. Eyman, 492 F.2d 1056, 1057-58 (9th Cir.1974) (defendant screamed throughout the nights, laughed at the jury, made gestures at the bailiff, disrobed in the courtroom and butted his head through a glass window), or lengthy histories of acute psychosis and psychiatric treatment, e.g., Moore v. United States, 464 F.2d 663, 665 (9th Cir.1972) (defendant repeatedly hospitalized for acute mental illness and hallucinations).

We discount the probative value of Boag's suicide attempts because they occurred long before the trial. Cf. Chavez v. United States, 656 F.2d at 518 (psychiatric report indicating incompetence may lose its...