Clisby v. Jones, 89-7209

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation960 F.2d 925
Docket NumberNo. 89-7209,89-7209
PartiesWillie CLISBY, Petitioner-Appellee, Cross-Appellant, v. Charlie JONES, Warden, Holman Unit, Alabama Department of Corrections, Respondent-Appellant, Cross-Appellee.
Decision Date04 May 1992

Don Siegelman, Atty. Gen., John Gibbs and Sandra Stewart, Asst. Attys. Gen., Montgomery, Ala., for respondent-appellant-cross-appellee.

Cathy S. Wright, Maynard, Cooper, Fierson & Gale, P.C., Tony G. Miller, Deborah J. Long, Birmingham, Ala., for petitioner-appellee-cross-appellant.

Appeals from the United States District Court for the Northern District of Alabama.


TJOFLAT, Chief Judge:

Petitioner Willie Clisby, Jr., is incarcerated in an Alabama prison under a sentence of death for nighttime burglary of an occupied dwelling during the course of which one of the occupants is intentionally killed. See Ala.Code § 13-11-2(a)(4) (1975) (current version at Ala.Code Ann. § 13A-5-40(a)(4) (Michie 1982)). After an evidentiary hearing, the United States District Court for the Northern District of Alabama granted Clisby's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988) with respect to the death sentence because the state had denied petitioner "adequate psychiatric assistance during the sentencing phase of [his] trial" in violation of the Due Process Clause of the Fourteenth Amendment, as petitioner had alleged in two of his sixteen "grounds for relief." 1 The court further reserved judgment on three claims of ineffective assistance of counsel 2 and two claims of incompetent psychiatric assistance in violation of the Sixth and Eighth Amendments, respectively. 3 Respondent Charlie Jones appealed from the portions of the district court's order granting habeas relief, and petitioner cross-appealed from the portions denying habeas relief. A panel of this court vacated the grant of habeas relief and remanded the case for further proceedings. Clisby v. Jones, 903 F.2d 1348 (11th Cir.1990). After withdrawing its original opinion, the panel issued a new opinion that reached the same result on different grounds. Clisby v. Jones, 907 F.2d 1047 (11th Cir.1990). We then agreed to rehear the case en banc, Clisby v. Jones, 920 F.2d 720 (11th Cir.1990), and now reverse the district court's order granting habeas relief and affirm it on all other grounds. We further remand the case to the district court for a disposition of all remaining claims.

Part I of this opinion discusses petitioner's due process claim under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Part II instructs the district court below, and all other district courts in this circuit, to resolve all constitutional claims raised in a petition for habeas corpus pursuant to 28 U.S.C. § 2254 (1988) before granting or denying relief.


Petitioner argues that he was denied due process of law by not receiving the assistance of a competent psychiatrist for sentencing purposes. 4 Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). 5 In Ake, the Supreme Court held that the Due Process Clause's guarantee of fundamental fairness requires that a state, "at a minimum, assure the [indigent] defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense" whenever an indigent defendant "demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial." Id. at 83, 105 S.Ct. at 1096. 6 As applied to the penalty phase of a capital case, Ake requires a state to provide the capital defendant with such access to a competent psychiatrist upon a preliminary showing to the trial court that the defendant's mental status is to be a significant factor at sentencing. See Thompson v. Wainwright, 787 F.2d 1447, 1459 (11th Cir.1986), cert. denied sub nom. Thompson v. Dugger, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987); Smith v. McCormick, 914 F.2d 1153, 1160 (9th Cir.1990); see also Ake, 470 U.S. at 84, 105 S.Ct. at 1097. 7

Having been supplied with a psychiatric expert, petitioner does not allege a denial of psychiatric assistance, but a denial of competent psychiatric assistance. Although petitioner's claim thereby differs from Ake claims previously considered by this court, we see no reason substantially to diverge from our two-step analysis of Ake claims. 8 We first examine the information before the trial court when it is alleged to have deprived the defendant of due process. See, e.g., Thomas v. Jones, 891 F.2d 1500, 1506 (11th Cir.1989), cert. denied, 495 U.S. 953, 110 S.Ct. 2220, 109 L.Ed.2d 545 (1990); Messer v. Kemp, 831 F.2d 946, 960 (11th Cir.1987) (en banc), cert. denied sub nom. Messer v. Zant, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988); Moore v. Kemp, 809 F.2d 702, 710-13 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). We then determine whether that information should have led the trial court to conclude that the defendant would probably not receive a fair trial. See, e.g., Thomas, 891 F.2d at 1506; Messer, 831 F.2d at 960; Moore, 809 F.2d at 710. "Specifically, we must assess the reasonableness of the trial [court]'s action at the time [it] took it," Moore, 809 F.2d at 710, and "we are to evaluate the actions of the trial [court] based on the evidence presented to [it]," Thomas, 891 F.2d at 1506.

We begin by reviewing the facts available to the trial court at the time when it is said to have denied petitioner a fair trial by refusing to grant petitioner access to a competent psychiatric expert. For purposes of this opinion, we will assume that petitioner made the preliminary showing required by Ake to be entitled to psychiatric assistance at sentencing. As petitioner complains of the trial court's failure to provide him with competent psychiatric assistance, rather than with psychiatric assistance of any form, we need concern ourselves only with the facts that could have indicated to the trial court that the psychiatrists who examined petitioner provided incompetent assistance.

Petitioner was arrested on November 15, 1979. Pursuant to a court order, Dr. Robert Estock examined petitioner for competency to stand trial on December 7, 1979. 9 Counsel for petitioner at no time objected to the adequacy of Dr. Estock's competency examination. Following petitioner's arraignment on February 29, 1980, his counsel filed three motions requesting evaluation of petitioner's mental condition by a psychiatrist: a motion for psychiatric examination, a motion for court-appointed psychiatrist, and a motion for funds to hire a private psychiatrist. None of these motions specifically requested a psychiatric examination for possible mitigating circumstances. At a hearing on March 11, 1980, the trial court deemed the first motion granted as it already had ordered petitioner examined by Dr. Estock. It held the remaining two motions in abeyance pending the results of Dr. Estock's examination. 10

No evidence regarding petitioner's mental condition was introduced during the guilt phase of petitioner's trial or during the sentencing hearing before the jury. The jury recommended the death sentence. Petitioner's counsel did not renew his two abeyant pre-trial motions until the sentencing hearing before the trial court on February 27, 1981. At this hearing, petitioner's counsel for the first time specifically requested that his client "be evaluated by a psychiatrist ... competent in the field to determine if Mr. Clisby suffers from such illness of delusions or derangement that would bring him within the mitigating circumstances as prescribed by the statute." In response, the trial court read into the record two letters from a social worker to the effect that Dr. Estock had examined petitioner and had found him competent to stand trial. The court denied both abeyant motions based on these accounts of the results of Dr. Estock's examination.

The trial court then entered findings and conclusions upholding the jury verdicts both as to guilt and as to sentence. After the Alabama Court of Criminal Appeals had affirmed the trial court, Clisby v. State, 456 So.2d 86 (Ala.Crim.App.1982), the Alabama Supreme Court remanded the case to the Court of Criminal Appeals, Ex parte Clisby, Jr., 456 So.2d 95 (Ala.1983), which in turn remanded to the trial court for "reconsideration of its handling of Dr. Estock's report in view of the holdings of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982)," Clisby v. State, 456 So.2d 98, 99 (Ala.Crim.App.1983).

On remand, counsel for petitioner filed a motion for psychiatric examination "to be conducted in light of those mitigating factors or circumstances as set forth in Section 13A-11-13 (Alabama Code 1975)." The trial court granted the motion and, on April 25, 1983, petitioner was examined for approximately forty-five minutes by Dr. John Callahan, a board-certified psychiatrist affiliated with the University of Alabama Medical School. On April 26, 1983, petitioner's counsel called Dr. Callahan as a witness during the sentencing hearing before the trial court on remand. Dr. Callahan testified that petitioner had appeared on a list of persons to be examined for competency to stand trial, and that, as a consequence, Dr. Callahan had examined petitioner only for that purpose, and not for mitigating circumstances. In order to document the information available to the trial court, we quote those portions of Dr. Callahan's testimony on direct examination by petitioner's counsel that pertain to his qualifications and to the specifics of his examination of petitioner:

Q. Could you give us, please, sir, some of your educational background?

A. Yes, sir.


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