Barnett v. Hargett

• Decision Date: 16 April 1999
• Docket Number: No. 98-6244,98-6244
• Citation: 174 F.3d 1128
• Parties: 1999 CJ C.A.R. 2601 Luther K. BARNETT, Jr., Petitioner--Appellee, v. Steve HARGETT, Respondent--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1128

174 F.3d 1128

1999 CJ C.A.R. 2601

Luther K. BARNETT, Jr., Petitioner--Appellee, v. Steve HARGETT, Respondent--Appellant.

No. 98-6244.

United States Court of Appeals, Tenth Circuit.

April 16, 1999.

Luther K. Barnett, Jr, pro se.

W.A. Drew Edmondson, Attorney General, and Nathan L. Dills, Assistant Attorney General, Oklahoma City, Oklahoma for Respondent-Appellant.

Before ANDERSON, KELLY, and LUCERO, Circuit Judges. ^*

KELLY, Circuit Judge.

Respondent appeals from the district court's grant of a conditional writ of habeas corpus, 28 U.S.C. § 2254. The district court determined that Petitioner had raised a procedural and substantive competency claim in his federal petition, that appellate counsel was ineffective for not pursuing such claims when Petitioner's direct appeal had been remanded to the state district court, and that the record before the state district court was insufficient to support its finding that a competency hearing had occurred and a finding of competency had been entered. Without a sufficient record to determine whether a competency hearing had been held and what standard had been applied, the district court granted a conditional writ, allowing the State ninety days to conduct a feasibility determination hearing and, if a retrospective competency determination were feasible, another ninety days to conduct such a hearing or set the case for a new trial. The failure to make the requisite determination would result in the Petitioner's release from custody.

On appeal, Respondent contends that the district court erred in (1) granting relief on an issue not raised by the Petitioner in his federal petition, and (2) failing to afford the state district court's determinations about a competency hearing a presumption of correctness, see 28 U.S.C. § 2254(e)(1). Our jurisdiction arises under 28 U.S.C. § 1291. The district court did not hold an evidentiary hearing, so our review of its factual findings and legal conclusions is de novo. See Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir.1998). We affirm.

Background

We discuss the facts briefly as they relate to the State's appeal. In a two-stage jury trial, Petitioner was convicted of assault and battery with intent to kill after former conviction of two or more felonies and sentenced upon the jury's recommendation to one hundred years imprisonment. See Aplt.App. at 98. The jury trial and sentencing were not continuous; apparently, Petitioner achieved competency for his trial in March 1989, was determined to be incompetent thereafter, see id. at 93-96, and was not sentenced until August 1989 when he regained competency. An appeal was taken and the judgment and sentence were affirmed. See id. at 99.

The treatment records from the state hospital indicate a discharge diagnosis prior to trial of organic delusional syndrome and seizure disorder. See id. at 96. The competency restoration effort for the trial confirmed the presence of bone defects relating to a head injury. Id. The psychiatric evaluation shortly after trial indicates that Petitioner was over-sedated, delusional and not oriented-he could not walk without assistance and was incapable of self care. See id. at 93-95.

The federal petition contains a claim that Petitioner's appellate counsel was ineffective for failing to file a petition for rehearing in his direct appeal, and that this ineffective assistance rendered the appellate proceeding unreliable. See id. at 8. Petitioner's theory mirrors that unsuccessfully asserted in state post-conviction proceedings. Petitioner maintains that he had proper grounds for a rehearing petition based upon the lack of a record order memorializing his competency hearing, and that a new trial is necessary because a post-examination competency hearing is not feasible. See id. at 28-32, 67-83. He also contended that he was denied the right to counsel because his appellate indigent defender had resigned during the pendency of his appeal and no counsel was available to represent him during the appellate process and file a petition for rehearing. See id. at 29 (citing Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)) & 67. Both the state district court and the Oklahoma Court of Criminal Appeals rejected the ineffective assistance claim on the merits. See id. at 35-42.

This is not a case where counsel failed to pursue a competency determination. See Williamson v. Ward, 110 F.3d 1508, 1519 (10th Cir.1997). Whether a competency hearing had been held before trial was squarely at issue in Petitioner's direct appeal. See Aplt.App. at 108-09. There, appellate counsel argued that Petitioner should receive a new trial because, although the record reflected that an application for a post-examination competency hearing was filed and a hearing was set, nothing in the record indicated that it was actually held. See id. The Oklahoma Court of Criminal Appeals noted that (1) the record indicated that Petitioner was determined to be incompetent, but capable of achieving competency, and (2) the State had filed an application for a hearing based upon a letter from a forensic psychologist advising the state district court that Petitioner had achieved competency. See id. at 89. It further noted that trial court granted the request for a hearing and set the hearing. See id. Finding the record insufficient to determine whether the hearing actually was held, however, the Oklahoma Court of Criminal Appeals made a limited remand of the case to the state district court to enter findings and conclusions, including whether Petitioner "was afforded an opportunity to present evidence concerning his competency and argue as to inferences therefrom." Id. at 90.

By that time, it appears that the lawyer handling Petitioner's appeal, a deputy appellate indigent defender, was no longer with the Oklahoma Indigent Defense System. Petitioner contends that he learned of this based upon a March 19, 1997 letter to another inmate informing him that the deputy appellate indigent defender had resigned. See Aplt.App. 206, 213. Nothing in the record before us indicates that Petitioner was represented during the remand proceedings; indeed, it appears that Petitioner did not know of the findings and conclusions entered by the trial court on remand until three years later. See id. at 247.

In those remand proceedings, the state district court found that in fact a competency hearing had been held on the date set and that the trial judge had determined that Petitioner was competent and ordered the trial resumed. See id. at 237. The state district court further found that Petitioner "was present with counsel and was afforded an opportunity to present evidence concerning his competency and argue as to inferences therefrom." Id. The original trial judge had no personal recollection of the event and only an unsigned minute order was located in another file in the district attorney's office. The state district court relied upon several sources for its findings. A report from a forensic psychologist determining Petitioner was competent was submitted two weeks prior to the scheduled hearing, see id. at 235, although that report is not part of the appendix on appeal. An affidavit of the prosecutor indicated that the hearing was held and that defense counsel in consultation with Petitioner stipulated to the findings by the forensic psychologist. See id. at 239-41. An affidavit of the defense attorney indicated that Petitioner was eventually found competent by the treating hospital, although the attorney could not recall whether a hearing had been held. See id. at 242.

Discussion

A. Liberal Construction of the Petition

The district court did not abuse its discretion in attempting to ascertain the nature of Petitioner's claim. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). When a defendant contends that appellate counsel was ineffective for failing to raise an issue on appeal or here, on rehearing, an examination of the merits of the omitted issue is usually necessary See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir.1995).

Moreover, the mandated liberal construction afforded to pro se pleadings "means that if the court can reasonably read the pleadings to state a valid claim on which the [petitioner] could prevail, it should do so despite the [petitioner's] failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (footnote omitted). At the same time, a district court should not "assume the role of advocate for the pro se litigant," id., and may "not rewrite a petition to include claims that were never presented," Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1053, 143 L.Ed.2d 58 (1999). The district court in this case looked carefully at the facts and the pleadings in an effort to ascertain what occurred in prior state proceedings and the true nature of Petitioner's claims. Although the language and syntax of the petition, together with an emphasis on ineffective assistance of appellate counsel for failing to file a rehearing petition suggest an unwinnable claim, Petitioner cited proper legal authority and explained why a rehearing petition was so necessary-he was without counsel during the remand and Oklahoma's standard for determining competency had been declared unconstitutional. The task of sorting though pro se pleadings is difficult at best; provided a respondent is afforded a full and fair opportunity to address a construction not immediately apparent, we will not interfere with the district court's effort to do substantial justice.

B. Petitioner's Procedural Competency Claim

Competency claims are based either upon substantive due process or procedural due process, although sometimes there is overlap. A competency claim...