Bouchillon v. Collins
| Decision Date | 07 August 1990 |
| Docket Number | No. 89-1418,89-1418 |
| Parties | Terry Allen BOUCHILLON, Petitioner-Appellee, v. James A. COLLINS, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
C. Rex Hall, Jr., Charles A. Palmer, Asst. Attys. Gen., Jim Maddox, Atty. Gen., Austin, Tex., for respondent-appellant.
Terry Allan Bouchillon, Lubbock, Tex., pro se.
Alan Rich, Dallas, Tex. (court-appointed), Johnson & Gibbs, for petitioner-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, REAVLEY and HIGGINBOTHAM, Circuit Judges.
James A. Collins, Director of the Texas Department of Corrections, ("The State"), seeks review of an order from the United States District Court for the Northern District of Texas granting Terry Allen Bouchillon's, ("Bouchillon"), petition for a writ of habeas corpus. The district court issued the writ on the grounds that Bouchillon was mentally incompetent when he pled guilty to one count of aggravated robbery, and that his attorney's failure to investigate Bouchillon's competency prior to entering his plea constituted ineffective assistance of counsel. We AFFIRM.
Petitioner, Terry Allen Bouchillon, is a Vietnam veteran with a long history of mental problems and substance abuse. He has been repeatedly diagnosed as suffering from Post-Traumatic Stress Disorder-Delayed. 1 Although it appears that the first serious manifestations of mental illness appeared after he returned from Vietnam and stemmed from his experiences there, his treatment records indicate that his experiences in Vietnam may have only exacerbated existing psychological problems. Bouchillon's childhood was marked by abuse and neglect. His parents were apparently alcoholics and gave up their children to the custody of orphanages. When he was 12, Bouchillon ran away from the orphanage and was taken in by a prostitute with whom he lived for a year and who he says sexually abused him.
One does not need to be a psychiatrist or a seer to know that, if nothing else, such a background provides a fertile soil in which to develop mental problems and from which some degree of social maladjustment or antisocial behavior might be predicted. 2 Bouchillon's case proves the rule, rather than the exception.
Bouchillon was indicted in state court in Lubbock, Texas on charges of aggravated robbery and aggravated kidnapping. The court appointed counsel to represent him, as he had indicated that he was unable to afford retained counsel. Pursuant to a plea bargain to drop the kidnapping charge, Bouchillon pled guilty to the robbery charge and was sentenced, on December 30, 1982, to twenty years in prison. He did not appeal this judgment but rather, filed a state petition for habeas corpus alleging that he had been insane at the time of the offense, incompetent at the time of his plea, and that he had been It is undisputed that the Petitioner received no hearing on the issue of his competency prior to the plea proceedings. Nor did Bouchillon's counsel arrange for his client's competency to be evaluated by a psychologist or psychiatrist. Nevertheless, the convicting court denied Bouchillon's state habeas petition without holding an evidentiary hearing on the matter. It relied primarily on its evaluation of Bouchillon's demeanor at trial and upon the record of his responses at the plea proceeding to find that he was competent. The Texas Court of Criminal Appeals affirmed. Bouchillon then filed a petition for habeas corpus in federal court. His petition was initially denied with prejudice, but that determination was modified by this court into a denial without prejudice for failure to exhaust state remedies.
denied effective assistance of counsel because his counsel had not investigated either his competency or his insanity defense.
Having failed on his first attempt, Bouchillon re-filed his state petition. However, this second petition was interpreted by the state court as a request for medical treatment for his condition, not as a petition for habeas, and it was also denied. This decision was affirmed by the Texas Court of Criminal Appeals. Once again, Bouchillon filed a federal petition for habeas corpus. This time an evidentiary hearing was held, the transcript of which forms the bulk of the record of this appeal. At this hearing Bouchillon presented evidence of his incompetency through his medical records, expert testimony, and affidavits, from his two sisters and a fellow inmate, attesting to his mental problems. The State's only witness was Bouchillon's trial counsel, who testified that he found Bouchillon lucid and able to assist in his own defense and that he therefore judged him to be competent. The State presented no expert testimony of its own.
The District Court again denied relief on the grounds that Bouchillon had not exhausted his state remedies because the State had not heard the evidence produced in the federal proceeding. For a third time, Bouchillon filed his state petition to the convicting court, this time attaching the transcript and exhibits from the federal evidentiary hearing. Again, the state court, without conducting an independent hearing, and relying primarily on the evidence of Bouchillon's demeanor at the plea colloquy, denied relief. This holding was affirmed by the Texas appellate court.
Finally, Bouchillon filed the instant petition alleging three grounds for relief: (1) that he was denied the affirmative defense of insanity, (2) that he was incompetent to plead at the time of his guilty plea, and (3) that he had been denied effective assistance of counsel because his attorney failed to investigate his competency to stand trial or the viability of an insanity defense. This time the District Court found that he had exhausted his state remedies and referred the matter to a magistrate for a hearing on the merits. 3
The magistrate rejected the petitioner's first claim on technical grounds. However, he found that Bouchillon had been incompetent in fact at the time of his plea, and that his attorney's conduct represented ineffective assistance of counsel in violation of the Sixth Amendment. The District Court adopted the findings of the magistrate and granted Bouchillon's petition subject to the State's right to re-try him within 120 days. The State appeals this ruling.
Due process 4 prohibits the conviction of a person who is mentally incompetent. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). "This constitutional right cannot be waived by the incompetent--by guilty plea or otherwise...." Carroll v. Beto, 421 F.2d 1065, 1067 (5th Cir.1970). While a guilty plea may only be attacked on the basis that it was not knowing and voluntary, 5 "[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right[s]...." Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815 (1966). See e.g., Bolius v. Wainwright, 597 F.2d 986, 988, n. 3 (5th Cir.1979); Malinauskas v. United States, 505 F.2d 649, 655 (5th Cir.1974).
The test of incompetency is whether a 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, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824 (1960) (citation omitted). See e.g., Acosta v. Turner, 666 F.2d 949, 954 (5th Cir.1982); Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980); Bolius v. Wainwright, 597 F.2d 986, 988 (5th Cir.1979).
In a federal habeas proceeding stemming from a state court conviction, the burden is on the petitioner 6 to prove, by a preponderance of the evidence, that he was incompetent in fact at the time of the plea. Thompson v. Blackburn, 776 F.2d 118 (5th Cir.1985) (). See also Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir.1978) (); Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir.1978) (en banc) (); Bruce v. Estelle, 536 F.2d 1051, 1059 (5th Cir.1976) ().
It is undisputed that Bouchillon suffers from Post-Traumatic Stress Disorder. 7 It is also clear from the record and the testimony at the evidentiary hearing that, in all probability, Bouchillon suffered from this disorder both at the time of his offense and at the time of his plea. 8 What is more Not all people who have a mental problem are rendered by it legally incompetent. According to the record, the nature of Bouchillon's disorder is such that he apparently goes through lucid and competent intervals, as opposed to episodes of "numbing" and blackouts during which he cannot be expected to exercise judgment or reason. Moreover, these episodes of diminished capacity would not necessarily be obvious to the layman.
to the point is whether this disorder rendered him unable to understand the proceedings against him or to assist in his own defense.
As previously noted, the state court, in reviewing Bouchillon's petition, relied almost exclusively on the evidence of Bouchillon's demeanor at the plea proceeding and the testimony of his trial counsel 9 to hold that he was competent. 10 While the findings of fact in a state proceeding on this question are entitled to a presumption of correctness in the federal habeas proceedings pursuant to 28 U.S.C. Sec. 2254(d), 11 in this case the State held no evidentiary proceedings--either at the time of the plea or after the fact. 12 Its factfinding was limited to observing...
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