Bundy v. Dugger, 86-3773

Citation850 F.2d 1402
Decision Date07 July 1988
Docket NumberNo. 86-3773,86-3773
Parties26 Fed. R. Evid. Serv. 322 Theodore Robert BUNDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Polly Nelson, Wilmer, Cutler and Pickering, James E. Coleman, Jr., John Byron Sandage, Andrew James Munro, Washington, D.C., for petitioner-appellant.

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

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE, KRAVITCH and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Theodore Robert Bundy was convicted and sentenced to death in Florida for the murder of Kimberly Leach. 1 On direct appeal, the Florida Supreme Court affirmed the conviction and sentence. Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). The Governor of Florida signed a death warrant scheduling Bundy's execution for November 18, 1986. On November 17, Bundy was unsuccessful in state post conviction and habeas corpus proceedings. Bundy v. State, 497 So.2d 1209 (Fla.1986).

Bundy 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. On November 17, the district court, having reviewed the trial record in advance, dismissed the petition without a hearing and denied the applications for a stay of execution and for a certificate of probable cause. Bundy v. Wainwright, No. 86-968-CIV-ORL-18 (M.D.Fla. Nov. 17, 1986). 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) (Bundy II ), application to vacate stay denied, --- U.S. ----, 107 S.Ct. 483, 93 L.Ed.2d 426 (1986).

After briefing and oral argument, this Court remanded the case to the district court for the limited purpose of conducting an evidentiary hearing into Bundy's competence to stand trial. Bundy v. Dugger, 816 F.2d 564 (11th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). On remand, the district court conducted an evidentiary hearing and concluded that Bundy was competent to stand trial. Bundy v. Dugger, 675 F.Supp. 622 (M.D.Fla.1987). This Court ordered supplemental briefing on the competence to stand trial issue and heard oral argument.

I. Abuse of the Writ

We expressly state at the outset a conclusion implicit in the earlier decision of a limited remand: Bundy's first federal habeas corpus petition should not be dismissed for abuse of the writ. Typically, "abuse of the writ" principles apply to second or successive petitions that present claims that were raised, or that could have been raised, in previous petitions. See 28 U.S.C. Sec. 2554 Rule 9(b); see also Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984). Although this is Bundy's first petition, the district court considered the petition abusive:

At approximately 2:30 p.m. on November 17, 1986, sixteen and one half hours prior to the time Mr. Bundy is scheduled to be executed, the petitioner filed a 183 page petition for writ of habeas corpus asking this [C]ourt to stay the execution and grant relief to the petitioner. This Court considers the petition filed under these conditions to be abusive. Davis v Wainwright, [--- U.S. ----] 107 S.Ct. 17 (1986).

Slip op. at 1.

We disagree. 2 Even assuming arguendo that a first petition could be dismissed as an abuse of the writ because it was filed on the eve of execution, 3 this case does not present an abusive situation. The United States Supreme Court denied certiorari review of Bundy's direct appeal on October 14, 1986. On October 21, the Governor of Florida signed a death warrant scheduling Bundy's execution for November 18. Bundy began state postconviction and habeas proceedings on November 7 and those proceedings concluded on November 17. Bundy then filed his federal petition. Under these facts, the filing on the eve of execution does not constitute abuse of the writ. 4

II. Competence to Stand Trial

As set forth above, the district court, after a limited remand from this Court, conducted an evidentiary hearing and concluded that Bundy was competent to stand trial. Bundy v. Dugger, 675 F.Supp. 622 (M.D.Fla.1987). We begin our analysis by setting forth the applicable legal standards central to our review of the district court's conclusion. First, "[t]he legal test for mental competency is whether, at the time of trial and sentencing, the petitioner had 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and whether he had 'a rational as well as factual understanding of the proceedings against him.' " Adams v. Wainwright, 764 F.2d 1356, 1359-60 (11th Cir.1985) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960)), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). Second, Bundy had the burden of proof on remand: "At the ensuing district court hearing, petitioner [the defendant] bears the burden of proving the fact of incompetency by a preponderance of the evidence." Price v. Wainwright, 759 F.2d 1549, 1553 (11th Cir.1985) (citing Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir.1978) (en banc)). Third, the standard of appellate review provides:

Before the court can meaningfully apply [the Dusky ] legal standard ... it must often ascertain the nature of petitioner's allegedly incapacitating illness. It is at this initial juncture that expert testimony is particularly valuable, for the existence of even a severe psychiatric defect is not always apparent to laymen. Because of this difficulty in detecting medical diseases, the trial court may find it necessary to make an initial factfinding on whether the accused suffers from a mental defect at all. Although sometimes dispositive of the ultimate competency question, this medical inquiry is properly classified as pure factfinding and reviewable only under the clearly erroneous standard.

Once it is established that an individual suffers from a clinically recognized disorder, the court must decide whether such condition rendered the accused incompetent under the Dusky formulation.... [T]his second stage determination of legal incompetency is subject to a review more stringent than the clearly erroneous rule. To insure protection of valuable constitutional rights, this court is bound to take a hard look at the ultimate competency "finding."

Bruce v. Estelle, 536 F.2d 1051, 1059-60 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). 5

Bruce suggests that a district court's determination of competency should proceed in two parts: (1) Does the defendant suffer from a clinically recognized disorder? and (2) if so, did that disorder render the defendant incompetent under the Dusky standard? In the present case, Bundy argued that he suffered from bipolar mood disorder. 6 Although the district court did not segregate its analysis as suggested by Bruce, our reading of the district court's opinion, particularly the conclusion, 7 indicates that the district court determined that, even if Bundy otherwise suffered from bipolar mood disorder, the disorder was not manifesting itself so as to affect his competence to stand trial. Consequently, pursuant to Bruce, we take a "hard look" at the ultimate competency "finding."

Bundy argues that, although he had a factual understanding of the proceedings against him, he lacked a rational understanding of those proceedings and a rational understanding necessary to consult with his lawyer. We have undertaken a detailed review of the record and given a "hard look" to the district court's conclusion of "competency." Based upon the record evidence of the testimony (including depositions) at the evidentiary hearing and the associated exhibits, we hold that the district court's findings of historical fact were not clearly erroneous, see Amadeo v. Zant, --- U.S. ----, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988), and thus we will not reiterate the district court's findings here. We do, however, highlight the record evidence that leads us to conclude, after a "hard look," that Bundy was competent to stand trial. 8

Dr. Dorothy Lewis and Dr. Emanuel Tanay, both psychiatrists, testified 9 that Bundy was incompetent to stand trial. Dr. Charles Mutter and Dr. Umesh Mhatre, both psychiatrists, testified in rebuttal for the State. The district court credited the testimony of Drs. Mutter and Mhatre. We agree with the district court's observation that their testimony better accorded with the testimony of other witnesses and the associated exhibits. 10

For example, Judge Wallace Jopling, the presiding judge at the Lake City trial, and prosecutors George Dekle and Jerry Blair testified about Bundy's actions at trial. This testimony indicates that Bundy's actions were inconsistent with the actions of a person manifesting bipolar mood disorder. 11

In addition, the exhibits from the hearing, largely ignored by Bundy in his supplemental brief, indicate that Bundy was competent to stand trial. The videotape of Bundy's argument to Judge Jopling prior to sentencing shows that Bundy delivered a cogent, well-reasoned argument. Bundy focused on the effect of pretrial publicity on the jury and argued that the jury was overwhelmed more by the quantity, than the quality, of the state's evidence. Bundy can be seen flipping pages of a legal pad as he goes through his argument.

The tapes made by Bundy 12 while awaiting the verdict and shortly after the verdict strongly demonstrate that Bundy had a rational understanding of the proceedings. For...

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