Clark v. Blackburn, Civ. A. No. 81-262

• Decision Date: 30 October 1981
• Docket Number: Civ. A. No. 81-262,81-895.
• Citation: 524 F. Supp. 1248
• Parties: Colin CLARK, Petitioner, v. Frank C. BLACKBURN, et al., Respondents. Jean BEAVANS, Individually and as Next Friend Acting on Behalf of Colin Clark v. Ross MAGGIO, et al., Respondent, and the Attorney General of the State of Louisiana, William J. Guste, Jr., Additional Respondent.
• Court: U.S. District Court — Middle District of Louisiana

524 F. Supp. 1248

Colin CLARK, Petitioner, v. Frank C. BLACKBURN, et al., Respondents.

Jean BEAVANS, Individually and as Next Friend Acting on Behalf of Colin Clark v. Ross MAGGIO, et al., Respondent, and the Attorney General of the State of Louisiana, William J. Guste, Jr., Additional Respondent.

Civ. A. Nos. 81-262, 81-895.

United States District Court, M. D. Louisiana, Civil Division.

October 29, 1981.

Statement of Reasons for Declining to Issue Certificate of Probable Cause for Appeal October 30, 1981.

Terrance J. Powers, American Civil Liberties Union of America, New Orleans, La., for plaintiffs.

Kay Kirkpatrick, John Sinquefield, Asst. Dist. Attys., Patrick Quinlan, Asst. Atty. Gen., Baton Rouge, La., for defendants.

JOHN V. PARKER, Chief Judge.

This application for a stay of execution of a sentence of death was filed in the evening hours of the last day of the grace period provided for out-of-time appeals by Rule 4(a)(5) of the Fed.R.App.P. It brings to mind the words of Justice Rehnquist in his chambers opinion in Evans v. Bennett, 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979):

"... There may be very good reasons for the delay, but there is also undoubtedly what Mr. Justice Holmes referred to in another context as a `hydrolic pressure' which is brought to bear upon any judge or group of judges and inclines them to grant last minute stays in matters of this sort just because no mortal can be totally satisfied that within the extremely short period of time allowed by such a late filing he has fully grasped the contentions of the parties and correctly resolve them." (99 S.Ct. at 1485).

In this case, the Court is fully familiar with the entire background of these proceedings and the contentions of the parties and concludes that no stay of execution is justified.

The history of this case is set forth in detail in this Court's prior opinion in Clark v. Louisiana State Penitentiary, 520 F.Supp. 1046 (M.D.La.1981). Briefly, Clark was convicted in state court and sentenced to the death penalty by a jury. He exhausted state appeals and certiorari was declined by the Supreme Court of the United States. He thereafter exhausted state court post-trial remedies and on April 6, 1981, upon his petition for habeas corpus under 28 U.S.C. § 2254, this Court granted a stay of execution pending an evidentiary hearing into the serious allegations of constitutional deprivation upon which there had been no hearing in state court. This Court had several hearings and on August 26, 1981, concluded that there was no basis for a habeas corpus collateral attack upon Clark's state court conviction or sentence. On August 27, 1981, formal judgment was signed dismissing the petition for habeas corpus and continuing the previous stay of execution for an additional thirty days within which to appeal.

As pointed out in the opinion in the prior proceedings, 520 F.Supp. at 1049, after the entire matter had been tried and submitted on briefs which were filed with the Court, Clark wrote the Court personally requesting that he be permitted to discharge his counsel and that he be permitted to withdraw his petition. The Court declined to permit withdrawal of the petition but did permit him to discharge Mr. Richard Shapiro who was his retained counsel. The matter proceeded to judgment, as noted above.

Thereafter, as the record will show, Clark communicated with the Court, in writing, on several occasions, requesting that the stay of execution be lifted and stated that he had no desire to pursue his appellate remedies.

These consolidated proceedings present two groups of pleadings.

First in Number 81-262, Mrs. Jean Beavans, who alleges that she is Clark's mother, moves to intervene as Clark's "next friend", requests that the Court extend the time for filing a notice of appeal to the United States Court of Appeals for the Fifth Circuit and asks that the appeal be entered. The predicate for the motion is that Mr. Clark is not mentally competent to intelligently waive his right to pursue additional federal remedies.

In Number 81-262, which is an entirely new proceeding, Jean Beavans, again identified as Clark's mother, seeks to petition for a writ of habeas corpus under 28 U.S.C. § 2254, again claiming the status of Clark's "next friend." In these proceedings Ms. Beavans again alleges that her son is mentally incompetent to make the decision to forego further appeals, alleges that there were serious constitutional deficiencies in both his trial and sentence and alleges that by reason of his mental incompetency she ought to be permitted to raise these issues on his behalf.

In both proceedings a stay of execution is requested pending "clinical" psychiatric, psychological and other medical examination and evaluation of Clark.

While "next friend" petitions have been permitted in federal courts, it is clear that such an application may be entertained only if it is clearly demonstrated that the individual is himself unable to seek relief on his own behalf or is mentally incompetent to do so. Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct., 436, 50 L.Ed.2d 632 (1976).

Clark's execution is presently scheduled for November 5, 1981. Oral argument was held on this matter on October 29, 1981, at which counsel for mover, counsel for the state authorities and Clark individually were present.

Ms. Beavans' justification for her "next friend" status as well as for psychiatric examination and evaluation of Clark is the same in both proceedings. She attaches her own affidavit in which she declares that Clark is her son who lived with her until he was nineteen but then he moved to Florida but that she has remained in frequent contact with him. She further declares that her son has a long history of being a self-destructive person, that he has a history of drug use; that he was hospitalized for drug related illnesses in 1970 at which time he was in a drug related coma that lasted almost three weeks; that he spent nine months in a reform school; but after his release on Christmas Eve of 1971, Clark was obviously and deeply disturbed and that he was admitted into a psychiatric unit in Georgia for approximately three months at that time; that in 1973, Clark sought help for his drug and emotional problems at an institution in Florida but that he left after two weeks. She has nothing in her affidavit concerning Clark's whereabouts or activities between 1973 and 1978 but states that in 1978 he attempted to commit suicide at a time when he was under the influence of drugs; that Clark received psychiatric treatment following this incident in Mobile, Alabama for about two and a half months; that since Clark has been incarcerated, she has been in frequent contact through telephone, letters, and visits, and that these contacts have been very disturbing to her because although she realizes he is no longer on drugs she sees a "disturbed, irrational, strange, often bizarre, depressed and self-destructive person." She alleges "wildly fluctuating moods" that cause her to doubt his mental and emotional stability, that on occasion he goes from a happy mood to a sad mood and that he cries. She finally states that due to his long history of "self-destructive behavior and severe emotional and mental instability" she believes that his current decision to forego his legal appeals, he can not make a "competent and rational choice."

Along with the affidavit of Ms. Beavans, mover attaches the affidavit of one Michael Nelson, M.D. who declares that he is a staff member of the Harvard University Medical School and that he has an opinion "based on record review only", that Clark is "currently actively suicidal and that the action by which he has not taken advantage of or has actively dismissed legal remedies to safeguard his own life, is evidence of a continuing suicidal intention."

His entire affidavit is based upon an unspecified record review. During oral argument counsel specified that the "record" consisted of the affidavit of Ms. Beavans to which reference has been previously made. Dr. Nelson acknowledges that he has never seen Colin Clark, much less examined him.

At oral argument counsel was permitted to state what evidence he had to support his contention that Clark is presently mentally incompetent to handle his own affairs and to support his request for further examination and evaluation. He stated that these two affidavits, together with a tender of the testimony of a psychologist who had reviewed the affidavits but had never interviewed or examined Clark, consisted of the entire evidence he would wish to present upon an evidentiary hearing. The state requested and received permission to file into evidence copies of a video taped news conference which Clark recently conducted at the Louisiana State Penitentiary at Angola, Louisiana, at which he discussed in detail his decision not to pursue further legal remedies and his decision to submit to the carrying out of the death penalty.

It goes without saying that Ms. Beavans has no legal standing to interfere in her son's legal proceedings unless she can demonstrate that he is mentally incompetent and it also goes without saying that she must present substantial evidence indicating a need therefore in order to justify this Court in ordering Clark to undergo medical examination and evaluation at this time.

During oral argument on October 29th the Court explained the general nature of the pleadings which had been filed and the allegations contained in those...