Beans v. Black

• Decision Date: 09 April 1984
• Docket Number: No. CV83-L-97.,CV83-L-97.
• Citation: 605 F. Supp. 342
• Parties: Lee A. BEANS, Petitioner, v. Charles BLACK, Warden, Nebraska State Penitentiary, Respondent.
• Court: U.S. District Court — District of Nebraska

605 F. Supp. 342

Lee A. BEANS, Petitioner, v. Charles BLACK, Warden, Nebraska State Penitentiary, Respondent.

No. CV83-L-97.

United States District Court, D. Nebraska.

March 9, 1984.

On Motion to Amend April 9, 1984.

COPYRIGHT MATERIAL OMITTED

John Tarrell, Kearney, Neb., for petitioner.

Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., for respondent.

MEMORANDUM OF DECISION

URBOM, Chief Judge.

Lee A. Beans' petition for a writ of habeas corpus raises, inter alia, the difficult issue of the extent of a defense counsel's duty to a client who has been declared competent to stand trial and who appears determined to plead guilty against his attorney's advice. While I retain a substantial doubt about whether the disposition of the petitioner's case in the state courts accurately reflects the proper level of his culpability for the slaying of his wife in 1976, I must conclude, within the limits set by 28 U.S.C. sec. 2254, that the petitioner has received all of the process due to him and that his incarceration is not the result of ineffective assistance of counsel.

The review available in a federal habeas corpus proceeding is limited by sec. 2254(d). The federal courts must defer to findings of basic, primary, or historical fact made by the state court, unless the state fact-finding procedure is found to be deficient in one of the ways set out in sec. 2254(d)(1-7), the record from the state court does not fairly support the state findings, sec. 2254(d)(8), or new evidence presented to the federal court establishes by convincing evidence that the factual determination made by the state court was erroneous. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). Such deference is due even in the absence of an express finding of fact accepting or rejecting particular evidence, where the state court follows the proper legal standard and makes a legal ruling which is inconsistent with an opposite view of that evidence. Marshall v. Lonberger, 459 U.S. 422, 430, 103 S.Ct. 843, 848, 74 L.Ed.2d 646 (1983).

The Nebraska Supreme Court set out the facts of the case, as it found them, in some detail in State v. Beans, 212 Neb. 31, 321 N.W.2d 72 (1982). See also, 199 Neb. 807, 261 N.W.2d 749. To the extent that the state court's narrative represents facts, as opposed to questions of law or mixed fact and law, I am bound to follow it. I have previously denied the petitioner's request for an evidentiary hearing, because he failed to specify what new evidence he needed to present. An examination of the record fails to disclose any of the section 2254(d) deficiencies in the state fact-finding process, and each of the relevant facts appears to be fairly supported by the record, although it may be possible to find support in the record for contrary findings. Because of this I will not reproduce here the facts of the case as described in State v. Beans.

The petitioner's claims concern his mental competency at the time he pled guilty to first degree murder and the effectiveness of his appointed counsel in representing him during the course of the state criminal proceedings.

A court may not accept a guilty plea from a person who is mentally incapable of understanding the nature of the charge against him or the rights waived by the plea without violating that person's right to due process, and a criminal defendant may not waive his procedural rights for determining competency. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Robinson illustrates one method for challenging a conviction of an incompetent defendant: Where a substantial doubt as to competency is raised either before or at trial, the trial court must resolve the doubt before proceeding. The fact that the judge ordered a psychiatric evaluation may be enough to establish such a doubt under Robinson. See Brizendine v. Swenson, 302 F.Supp. 1011, 1019 (W.D. Mo.1969). Even though the resulting report indicates competency to stand trial, the trial judge should give the defendant an opportunity to challenge the report and to present evidence to the contrary. See Speedy v. Wyrick, 702 F.2d 723 (8th Cir. 1983); cf. Floyd v. United States, 365 F.2d 368 (5th Cir.1966) (section 2255 proceeding). But cf. State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971) (no need for hearing if report indicates competency and nothing to contrary appears). Where a Robinson hearing is not held to resolve a substantial doubt as to competency, the federal court need not try to determine retroactively whether the defendant was in fact incompetent at the time of trial, because of the difficulty of doing so at such a late date.

An alternative to the Robinson approach is for the defendant to undertake the heavy burden of proving actual incompetency at the critical time. Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir.1983); Blackwell v. Wolff, 403 F.Supp. 759 (D.Neb.), aff'd, 526 F.2d 1142 (8th Cir. 1975).

Neither approach is helpful to the petitioner here. The trial court committed the petitioner to the Lincoln Regional Center for evaluation of his competency to stand trial on three separate occasions, and even rejected an earlier guilty plea in order to obtain further testing. The same doctors who had questioned his competency in earlier reports to the court reported in December 1976 that the petitioner's condition had improved enough that he could cooperate with his counsel. The trial judge accepted the report into evidence without objection and gave the petitioner a chance to be heard. When no evidence was forthcoming, other than defense counsel's bare assertion that he believed his client to be incompetent, the judge found the petitioner to be competent. The judge noted that even counsel's statement did not contradict the psychiatric report, because counsel had explained that his client was refusing to cooperate in his defense, not that he was incapable of cooperating. Unlike Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103, nothing in the record shows that the petitioner's later behavior should have put the judge on notice that the petitioner was not competent at the time of the arraignment or the factual basis hearing or the sentencing, such that a new evaluation or hearing would be necessary.

As for actual incompetency, everything before this court was before the state court in the post-conviction proceedings, including Dr. James Cole's criticism of the December 1976 report. The state supreme court chose to rely upon the opinion of the psychiatrists and psychologists at the Regional Center, who had been examining the petitioner for over half a year, rather than that of Dr. Cole, a psychologist who had never examined the petitioner and who based his opinion on incomplete records. Impliedly, the state courts also rejected the lay opinion of Terry Dowling, who had visited the petitioner during the critical period. This determination of competency by the state court is a finding of fact entitled to deference under section 2254(d). White Hawk v. Solem, 693 F.2d 825, 829 (8th Cir.1982), cert. denied, 460 U.S. 1054, 103 S.Ct. 1505, 75 L.Ed.2d 934 (1983). It is fairly supported by the record, and nothing new has been presented to show it to be erroneous.

Neither is there any ground for finding a constitutional violation with respect to other aspects of the requirement that a guilty plea be voluntarily, intelligently and knowingly made. The state court found that the defense counsel advised the petitioner of the nature of the charge, the element of intent to kill or to do bodily harm, and the possible defense of self defense, as well as other defenses. The record shows that the trial judge informed the petitioner of the nature of the charge and its elements and determined that he understood both the rights he was waiving by pleading guilty and the consequences of doing so. This was adequate to satisfy due process. See Wabasha v. Solem, 694 F.2d 155 (8th Cir.1982).

The trial judge found that the evidence adduced at the factual basis hearing supported the plea to first degree murder. The judge hinted, and I tend to agree, that the evidence also would have supported lesser degrees of homicide, or even self defense. However, the establishment of a factual basis for a guilty plea is not a requirement of due process. Wabasha v. Solem, supra; White Hawk v. Solem, supra. A factual basis is required constitutionally only if the guilty plea is accompanied by a protestation of innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Here the petitioner proclaimed his guilt without reservation. A guilty plea made by a competent person is valid if it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Id. at 31, 91 S.Ct. at 164.

The Sixth Amendment claim has various aspects. One contention concerns the alleged failure of the defense counsel, Gary Giese, to investigate the facts of the shooting or to interview the four eyewitness or other potential witnesses for the prosecution. The state court found that the investigation was adequate under the circumstances, but this is a mixed question of fact and law not subject to section 2254(d). See McQueen v. Swenson, 498 F.2d 207 (8th Cir.1974). However, even assuming that counsel's inactivity in this regard violated the duty to investigate established by McQueen, the second prong of the federal test, that the substandard performance materially prejudiced the defense, is not established. Unlike the situations in Hawkman v. Parratt, 661 F.2d 1161 (8th Cir.1981), and Morrow v. Parratt, 574 F.2d 411 (8th Cir.1978), the defense attorney here did not advise his client to plead guilty. Rather, as the state court found, he advised him to plead not guilty and even objected to entry of the guilty plea. The state court found, and the record shows, that the defendant refused to...