Hull v. Freeman, 90-5900

• Citation: 932 F.2d 159
• Decision Date: 06 March 1991
• Docket Number: No. 90-5900,90-5900
• Parties: Larry Gene HULL, Appellee, v. Robert M. FREEMAN; Ernest D. Preate, Jr., Attorney General, Appellants. . Submitted Under Third Circuit Rule 12(6)
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 159

932 F.2d 159

Larry Gene HULL, Appellee, v. Robert M. FREEMAN; Ernest D. Preate, Jr., Attorney General,

Appellants.

No. 90-5900.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

March 6, 1991.

Decided May 10, 1991.

John F. Nelson, Dist. Atty., Chambersburg, Pa., for appellant.

James V. Wade, Federal Public Defender, Harrisburg, Pa., for appellee.

Before BECKER, NYGAARD and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal from an order of the district court "provisionally" granting Larry Gene Hull's petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Hull is presently serving a sentence of life imprisonment for murder in the first degree, which was imposed by the Court of Common Pleas of Franklin County (Pennsylvania) following Hull's plea of guilty in 1979. Hull filed the instant habeas petition in the United States District Court for the Middle District of Pennsylvania contending, inter alia, that he had received ineffective assistance of counsel at the July, 1979 competency hearing held prior to his plea of guilty. More specifically, he asserts that his trial attorney's performance at the competency hearing was deficient because counsel failed to cross-examine the Commonwealth's psychiatrist and to call witnesses on his behalf. Hull contends that as a result of this inadequate representation, he was permitted to plead guilty to murder while in an incompetent state.

On July 13, 1990, the district court filed an opinion in which it seemed to agree that Hull had received ineffective assistance of counsel during the July, 1979 competency hearing. On September 11, 1990, the court entered an order "provisionally" granting the writ and remanding the matter to the state court for the purpose of holding a hearing to re-determine Hull's competency as of July, 1979. ¹ The District Attorney of Franklin County, representing the Commonwealth of Pennsylvania, now appeals this order.

This appeal presents, as a preliminary matter, interesting questions of appellate jurisdiction, exhaustion of state remedies, and procedural default. We address the latter issue at some length because it appears that one of our important decisions in this area, Bond v. Fulcomer, 864 F.2d 306 (3d Cir.1989), has been effectively overruled by the Supreme Court's decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Ultimately, we decide that these three threshold issues do not present a bar to our reaching the merits of the Commonwealth's appeal.

On the merits, the Commonwealth contends that the district court erred in holding that Hull received constitutionally ineffective assistance of counsel at the 1979 competency hearing. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance must show (1) that counsel's performance was deficient and (2) that he or she was prejudiced by counsel's error. The district court, however, neglected to bifurcate its Strickland discussion along these lines, somewhat obscuring its analysis. Although we are confident that the district court found that the first prong of Strickland has been met (and we endorse that conclusion), we are unsure whether the district court actually held that Hull was prejudiced by his trial counsel's deficient performance. We think that the district court's opinion, when read in conjunction with its accompanying orders, admits of two plausible (and legally problematic) constructions.

On the one hand, the district court might have found that Hull has satisfied only the first prong of Strickland and that an evidentiary hearing is necessary to determine whether Hull was prejudiced by counsel's errors--i.e., whether there is a reasonable probability that Hull would have been found incompetent at the July, 1979 competency hearing but for counsel's deficient performance. If this interpretation is correct, however, the district court should have conducted the evidentiary hearing itself, see Keller v. Petsock, 853 F.2d 1122 (3d Cir.1988), rather than remand the matter to the state court. On the other hand, in view of the tenor of its opinion (notwithstanding the tenor of its September 11th order, which seems to cut the other way), the district court arguably found that Hull has satisfied both prongs of Strickland. If this interpretation is correct, however, the district court should have vacated Hull's guilty plea, rather than order a hearing to determine Hull's competency as of July 1979. Because we are unsure of the legal significance of the district court's decision, we will vacate the order of the district court and remand this case for clarification and further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Hull was charged in 1975 with the murder of Lloyd Shatzer. At a preliminary hearing held on March 7, 1975, the Franklin County Court of Common Pleas found Hull incompetent to stand trial and committed him to Farview State Hospital. Hull remained at Farview until another competency hearing was held on July 31, 1979. At that hearing, Dr. Harry Stamey, a psychiatrist and the Commonwealth's only witness, testified that he believed Hull to be competent to stand trial based on his examination of Hull on April 20, 1979. Hull's attorney neither cross-examined Dr. Stamey nor presented witnesses on Hull's behalf, notwithstanding that two different attending psychiatrists at Farview, Dr. Kenneth Detrick and Dr. Lawrence Chang, recently had found Hull to be incompetent to stand trial. Counsel's failure to call Dr. Detrick as a witness is particularly striking because Dr. Detrick had examined Hull on April 9, 1979, just eleven days before Dr. Stamey's examination, and had concluded that Hull remained incompetent to stand trial. Not surprisingly, the Court of Common Pleas accepted Dr. Stamey's unrebutted testimony and on July 31, 1979, determined that Hull was competent to stand trial.

After Hull was found to be competent, a trial was scheduled for September 10, 1979, on the 1975 murder charge. On August 3, 1979, however, Hull entered a plea of guilty to murder generally. A degree of guilt hearing was then held on August 31, 1979, at which the Court of Common Pleas found Hull guilty of murder in the first degree and imposed a sentence of life imprisonment. After Hull's motion to modify the sentence was denied on September 28, 1979, Hull appealed the sentencing decision of the Court of Common Pleas to the Pennsylvania Supreme Court. On September 24, 1981, the Pennsylvania Supreme Court affirmed the trial court's judgment of sentence, 495 Pa. 644, 435 A.2d 1204.

Meanwhile, Hull had begun his quest to secure collateral relief under Pennsylvania's Post Conviction Hearing Act ("PCHA"), 42 Pa.Con.Stat.Ann. Sec. 9541 et seq. ² On January 19, 1981, Hull filed a PCHA petition with the Court of Common Pleas, which the District Attorney claimed (and Hull now concedes) was premature. On July 18, 1986, after Hull's appeal from the trial court's judgment of sentence was rejected by the Pennsylvania Supreme Court, and his motion for modification of sentence (dated July 7, 1986) was denied as well, Hull filed an amended PCHA petition, which was ordered consolidated with his pending petition.

Hull's consolidated PCHA petition essentially raised the following four issues:

(1) Whether trial counsel was ineffective for failing adequately to pursue the issue of defendant's competency to stand trial at the proceedings held in 1979, wherein defendant was arraigned, entered a guilty plea, underwent a degree of guilt hearing and was sentenced;

(2) Whether trial counsel was ineffective for failing to pursue the issues of defendant's alleged diminished capacity through the production of expert and lay testimony;

(3) Whether defendant's rights were violated by a failure to apprise him adequately of the Miranda warnings; and

(4) whether defendant's guilty plea was coerced.

After holding hearings on July 21, 1987, and on November 9, 1987, the Court of Common Pleas denied Hull's PCHA petition, rejecting all post-conviction claims of error. Hull then appealed the trial court's denial of his PCHA petition to the Pennsylvania Superior Court. His brief to the Superior Court, however, raised only one of the above four issues--namely, the purported ineffectiveness of trial counsel at the July, 1979 competency proceeding. On September 30, 1988, the Superior Court affirmed the trial court's resolution of the ineffectiveness issue. Subsequently, Hull's counsel failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. Once Hull learned of his counsel's failure to appeal, he petitioned pro se for allocatur nunc pro tunc. This petition was denied without comment by order of the Pennsylvania Supreme Court dated February 21, 1989.

On May 8, 1989, Hull filed his petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the district court for the Middle District of Pennsylvania. In his petition, Hull alleged that his trial counsel was ineffective for failing to pursue adequately the issue of his competency to stand trial in 1979. He also averred that his lawyer had neglected to press vigorously certain Miranda and coerced plea issues. Hull's petition was referred to a United States Magistrate Judge for preliminary consideration. In a report dated December 26, 1989, the magistrate judge recommended that Hull's habeas petition be dismissed with respect to the Miranda and coerced plea claims due to state procedural defaults--i.e., Hull's failure to raise these claims in his PCHA appeal to the Pennsylvania Superior Court.

On review, the district court adopted the magistrate judge's recommendation regarding these two claims and remanded the case for further proceedings on the issue of whether Hull's counsel was ineffective at the July, 1979 competency hearing (the "competency issue"). In his...