Bundy v. Dugger

• Decision Date: 02 April 1987
• Docket Number: 86-5509,Nos. 86-3773,s. 86-3773
• Citation: 816 F.2d 564
• Parties: Theodore Robert BUNDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 564

816 F.2d 564

Theodore Robert BUNDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections State of Florida, Respondent-Appellee.

Nos. 86-3773, 86-5509.

United States Court of Appeals Eleventh Circuit.

April 2, 1987.

Amending Order April 27, 1987.

Opinion on Denial of Rehearing May 15, 1987.

James E. Coleman, Jr., Wilmer, Cutler & Pickering, Polly Nelson, John Byron Sandage, Washington, D.C., John F. Evans, Holly R. Skolnick, Coral Gables, Fla., for petitioner-appellant.

Gregory Costas, Andrea Smith Hillyer, John M. Koenig, Jr., Mark Menser, Raymond L. Marky, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

Appeals from the United States District Court for the Middle and Southern Districts of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

Theodore Robert Bundy brings this appeal from a denial of his petition for a writ of habeas corpus. Bundy was convicted and sentenced to death by the Circuit Court of Columbia County, Florida, for the abduction and murder of twelve-year-old Kimberley Leach. On direct appeal, the Florida Supreme Court affirmed both the conviction and the sentence. Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, --- U.S. ----, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). After the Governor of Florida signed a death warrant scheduling Bundy's execution for November 18, 1986, Bundy filed with the trial court a motion to vacate his conviction and sentence under Fla.R.Crim.P. 3.850. The trial court summarily denied Bundy any relief on November 17. Later that day, the Florida Supreme Court both affirmed the trial court's denial of Bundy's Rule 3.850 motion and denied Bundy's petition for a writ of habeas corpus.

Bundy then immediately filed an application for a stay of execution, a petition for a writ of habeas corpus, and an application for a certificate of probable cause with the United States District Court for the Middle District of Florida. The state, anticipating that Bundy would file a petition for a writ of habeas corpus, had previously filed the trial record with the district court. Having reviewed the trial record in advance, the district court dismissed, without a hearing, the petition and denied the application for a stay of execution and for a certificate of probable cause. This Court subsequently granted a certificate of probable cause and a stay of execution pending appeal. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986).

In this appeal Bundy raises numerous claims challenging both his conviction and his sentence. Bundy initially contends that he was incompetent to stand trial and that he was denied a full and fair competency hearing. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). A defendant is mentally incompetent to stand trial if he lacks a " 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' " and if he lacks " '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, 789, 4 L.Ed.2d 824 (1960). A defendant is not entitled to an evidentiary hearing on his claim of incompetency unless he "presents clear and convincing evidence to create a 'real, substantial and legitimate doubt as to [his] mental capacity ... to meaningfully participate and cooperate with counsel....' " Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986) (quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir.1973)). "The standard of proof is high. The facts must 'positively, unequivocally and clearly generate' the legitimate doubt." Id.

The district court dismissed this claim, finding that Bundy was not entitled to an evidentiary hearing because he had failed to present sufficient evidence raising a legitimate doubt as to his competence to stand trial. In making that finding, the district court first noted that a trial court in Leon County had found Bundy competent to stand trial. ¹ The district court then stated that Bundy's failure to raise this claim at trial in this case was "highly significant" and that "[i]t would be 'a perversion of the judicial process' to allow petitioner to waive any challenge to his competence at trial and then permit a new trial on the grounds that he was not granted a hearing on his competence."

Admittedly, we must accept the district court's finding that Bundy failed to produce sufficient evidence generating a legitimate doubt as to his competence to stand trial unless that finding is clearly erroneous. Id. However, our review of the record convinces us that the district court erred in concluding that Bundy was not entitled to an evidentiary hearing on this claim.

First, the district court erroneously relied on the finding of competency in the Leon County case because the record of the competency hearing in that case had not been filed with it. A state court's finding that a defendant was competent to stand trial is not entitled to a presumption of correctness unless the state court applied the correct legal standard for determining competency to stand trial and unless its conclusion that the defendant met that standard is supported by substantial evidence developed at a full and fair hearing. Price v. Wainwright, 759 F.2d 1549, 1551-52 (11th Cir.1985). Without the record of the competency hearing in the Leon County case before it, however, the district court could not have determined that the Leon County court applied the correct legal standard and that its conclusion was supported by substantial evidence. Consequently, even assuming arguendo that the Leon County court's determination of Bundy's competency to stand trial is relevant to this case and is otherwise admissible in this proceeding, the district court's reliance on the Leon County court's finding of competency was improper.

Second, the district court improperly weighed the evidence in the record. Although defense counsel's failure to question at trial his client's competency can be highly persuasive evidence that the petitioner's competence to stand trial was not in doubt, Adams, 764 F.2d at 1360; Reese v. Wainwright, 600 F.2d 1085, 1092 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979), the district court unduly emphasized defense counsel's failure to do so here. ² As indicated, the trial court in the Leon County case determined that Bundy was competent to stand trial. Because this case and the Leon County prosecution were contemporaneous and because a competency claim in this case would have rested on much of the same evidence that the Leon County court apparently rejected, defense counsel may have concluded that the trial court here also would have denied any relief on a competency claim. He could have reached that conclusion even though he seriously doubted Bundy's competency to stand trial. Therefore, because trial counsel's failure to raise this claim gives rise to conflicting inferences, the district court attached too much weight to the failure to raise this claim at trial.

In contrast, the district court seemingly ignored strong indicia of Bundy's incompetence to stand trial. After the sentencing jury recommended the death sentence, defense counsel offered to the court the report of Dr. Tanay. The trial court in the Leon County case appointed Dr. Tanay, a clinical psychiatrist, to examine Bundy. Dr. Tanay interviewed Bundy and defense counsel in the Leon County case and examined Bundy's behavior during police interrogations and in the courtroom. As a result, Dr. Tanay concluded that Bundy "lacks a rational understanding of what is facing him" and that he probably lacks "sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding" and recommended that the court conduct an inquiry into Bundy's competency to stand trial. Such evidence--the uncontradicted opinion of a qualified psychiatrist directed expressly towards the relevant legal standard--is far more significant than defense counsel's failure to raise this claim at trial. The district court, however, failed even to mention Dr. Tanay's report.

In addition, the record contains several instances in which Bundy apparently ignored the advice of his counsel such as when he gave statements to the police and when he reneged on the plea agreement. Furthermore, despite his counsel's urging to the contrary, Bundy refused to offer any mitigating evidence to the sentencing jury. Instead, Bundy insisted on performing a mock wedding ceremony with his fiancee before them. Such conduct standing alone may not constitute a "history of pronounced irrational behavior" warranting a competency hearing. Pate, 383 U.S. at 386, 86 S.Ct. at 842. However, a court must consider the aggregate effect of the indicia of a defendant's incompetence. Drope v. Missouri, 420 U.S. 162, 179-80, 95 S.Ct. 896, 907-08, 43 L.Ed.2d 103 (1975). Bundy's behavior throughout this prosecution reinforces Dr. Tanay's conclusion that Bundy lacked a rational understanding of the case against him and that Bundy could not rationally consult with counsel. We believe that the district court gave too little weight to that fact.

Furthermore, it is highly significant that both defense counsel and the state moved for a competency hearing in the Leon County case after Bundy refused to accept a joint plea offer. Bundy's behavior in rejecting that plea offer was central to the state's decision to request a competency hearing in the Leon County case. Because the joint plea agreement covered both this case and the Leon County case, the trial judge in this case attended the hearing where Bundy theatrically rejected the plea offer. Bundy's behavior at that hearing, atop his already suspect behavior, sufficed to question seriously his competency to stand trial in the Leon County case. It has the same...