Blazak v. Ricketts

• Decision Date: 02 August 1993
• Docket Number: 91-16562,Nos. 91-16549,s. 91-16549
• Citation: 1 F.3d 891
• Parties: Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek, Respondents-Ap pellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 891

1 F.3d 891

Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald

Wawrzaszek, Respondents-Ap

pellants-Cross-Appellees.

Nos. 91-16549, 91-16562.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 16, 1992.

Decided Aug. 2, 1993.

Robert Bartels, Arizona State University College of Law, Tempe, AZ, for petitioner-appellee-cross-appellant.

Natman Schaye, Tucson, AZ, for petitioner-appellee-cross-appellant.

R. Wayne Ford, Asst. Atty. Gen., Phoenix, AZ, for respondents-appellants-cross-appellees.

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

Before: TANG, BEEZER and BRUNETTI, Circuit Judges.

TANG, Circuit Judge.

This is an appeal by officials of the State of Arizona (hereinafter, "the State") from the grant of habeas corpus to Mitchell Thomas Blazak pursuant to 28 U.S.C. Sec. 2254. The district court granted relief on Blazak's claim that his due process rights were violated by the state trial court's failure to determine his competency to stand trial. Blazak cross-appeals the denial of relief as to the remaining challenges to his convictions. These include claims that (1) there was insufficient evidence to sustain his conviction, (2) the accomplice testimony was not corroborated, (3) certain evidence introduced at trial had no probative value, (4) new evidence had been discovered which would likely lead to an acquittal, (5) the State failed to disclose that its key witness (the accomplice) had been released from custody during jury deliberations, (6) Blazak was denied effective assistance of counsel at trial, and (7) Blazak was absent during critical pretrial proceedings.

Because we are evenly divided on whether Blazak's due process rights were violated by

the failure to determine his competency to stand trial, the judgment of the district court will stand affirmed. See United States v. Zolin, 491 U.S. 554, 561, 109 S.Ct. 2619, 2625, 105 L.Ed.2d 469 (1989).

BACKGROUND

On December 15, 1973, two men entered the Brown Fox Tavern in Tucson, Arizona. When the bartender refused to hand over any money, one of the men, wearing a ski mask, shot the bartender four times, killing him. The assailant also shot two bar patrons, killing one and seriously injuring the other. The two men fled by automobile.

Blazak was convicted on November 20, 1974, of two counts of first degree murder, one count of assault with intent to commit murder and one count of attempted armed robbery. He was sentenced to death on the two counts of murder, to incarceration for a period of not less than eighty years nor more than life on the count of assault with intent to commit murder, and to incarceration for a period of not less than twenty years nor more than thirty years on the attempted armed robbery count.

Blazak appealed his convictions and sentence, which were affirmed. State v. Blazak, 114 Ariz. 199, 560 P.2d 54, 61 (1977). The Arizona Supreme Court subsequently ordered resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (the death penalty statute is unconstitutional insofar as it limits the right of defendants to show all mitigating circumstances), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), and Blazak was resentenced to death on September 11, 1980. State v. Blazak, 131 Ariz. 598, 643 P.2d 694, 695, cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Blazak's convictions and sentence were again affirmed, and he unsuccessfully sought post-conviction relief in the Arizona courts. Id., 643 P.2d at 701.

Blazak then filed a petition for writ of habeas corpus in federal district court, and was twice allowed to amend his petition. Blazak's second amended petition contained 37 claims for relief, eleven of which challenged his convictions, and the remaining challenging his death sentence. The district court granted relief as to the convictions and therefore did not consider Blazak's challenges to his sentence. We considered sua sponte whether this court had jurisdiction over the appeal. We found that the grant of habeas corpus was a final judgment ripe for immediate review. Blazak v. Ricketts, 971 F.2d 1408, 1409, 1412 (9th Cir.1992). Judge Beezer dissented, arguing that a final judgment did not exist, id. at 1418 (Beezer, J., dissenting), and accordingly expresses no view on the merits here.

As to the merits of the appeal, a district court's decision on a petition for writ of habeas corpus is reviewed de novo. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir.1987).

DISCUSSION

I.

When Blazak was tried in 1974, it was a violation of due process to prosecute a defendant who was incompetent to stand trial, or to fail to conduct an evidentiary hearing where evidence before the trial court raised a "bona fide doubt" ¹ about the defendant's competency to stand trial. Pate v. Robinson, 383 U.S. 375, 378, 385, 86 S.Ct. 836, 838, 842, 15 L.Ed.2d 815 (1966); Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972). This basic doctrine has not changed since 1974. See Medina v. California, --- U.S. ----, ----, ----, 112 S.Ct. 2572, 2574, 2581, 120 L.Ed.2d 353 (1992).

The State of Arizona, in accord with due process requirements, prohibits the prosecution of a defendant who is not competent to stand trial. See Ariz.R.Crim.P. 11.1 (1992) ("A person shall not be tried, convicted, sentenced or punished for a public offense while, as a result of a mental illness or defect, he is unable to understand the proceedings against him or to assist in his own defense."); Ariz.R.Crim.P. 11.3(a) (1992) ("If the court determines that reasonable grounds for an examination exist, it shall appoint at least two mental health experts ... to examine the defendant...."); Ariz.R.Crim.P. 11.5 (1992) (hearing required to determine competency after examinations completed). ²

A defendant is competent if "he 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). See also Godinez v. Moran, --- U.S. ----, ----, 113 S.Ct. 2680, 2686, 125 L.Ed.2d 321 (1993).

The district court concluded after an evidentiary hearing that Blazak's right to due process was violated by the state court's failure to address Blazak's competency prior to trial. The district court found:

At the time of his trial, Petitioner had a history of mental illness and had been found to be incompetent to stand trial in a[n] unrelated case several years earlier. At the [district court] evidentiary hearing, Psychologist Joseph Geffen testified that Petitioner should have been given a competency hearing before the trial. See Transcript of July 31, 1991 Hearing, p. 21. Howard Kashman, Petitioner's attorney at the trial, testified that, had he known of Petitioner's history of mental illness, he would have requested a competency hearing. See id. at 90. Medical records indicate that Petitioner had been hospitalized for mental illness several years before the trial, and that he had been diagnosed with several mental illnesses. All of this evidence indicates to this Court that there were reasonable grounds to question Petitioner's competency at the time of trial.

The State argues that none of this evidence was before the state trial court at the time of trial and thus cannot support the district court's finding that there was reasonable doubt regarding Blazak's competency. Blazak argues that the evidence, in addition to that cited by the district court, supports the conclusion that a competency hearing was required. ³

II.

Prior to the 1974 convictions challenged in these proceedings, Blazak had a documented history of mental illness. In a previous prosecution Blazak had been found incompetent in Pima County Superior Court, on three separate occasions, although he was eventually declared competent to stand trial. See State v. Blazak, 105 Ariz. 216, 462 P.2d 84, 84-85 (1969); State v. Blazak, 110 Ariz. 202, 516 P.2d 575, 576 (1973).

Blazak had been charged in April of 1967 with robbery and assault with intent to commit murder. After a nine day hunger strike by Blazak in jail, Blazak's attorney requested the court to conduct a competency hearing. On June 14, 1967, the first competency hearing was held. The court found that Blazak was not competent to stand trial and committed him to the Arizona State Hospital. The State Hospital discharged him on July 19, 1967. In a second competency hearing held on August 22, 1967, the court again held Blazak incompetent to stand trial and committed him to the State Hospital; Blazak was then again later discharged. The third competency hearing was held on October 16, 1967, and the court again held Blazak incompetent. Blazak was again committed to the State Hospital and released again shortly thereafter. Blazak, 462 P.2d at 84-85.

The commitments by the court and the subsequent discharges from the State Hospital seem to have been primarily a result of different diagnoses between Dr. Harrison Baker at the Arizona State Hospital and Dr. Willard Shankel of Pima County General Hospital. Dr. Shankel was of the opinion that Blazak was psychotic and suffered from "schizophrenic reaction, paranoid type." Dr. Shankel concluded that Blazak was unable to fully understand the charges against him and was unable to cooperate in his defense. Dr. Baker of the State Hospital, on the other hand, concluded that Blazak was a sociopathic personality with a possible symptomatic drug reaction from LSD, but that there was no evidence that Blazak was psychotic. Dr. Baker opined that Blazak was deliberately feigning mental illness, and that he was competent to stand trial. Drs. Pierce and Willis, also of the State Hospital, agreed with Dr. Baker's diagnosis and concluded that Blazak was competent to stand trial.

On April 24, 1968, after Blazak's...