Dye v. Cowan, 72-8081.
| Decision Date | 27 December 1972 |
| Docket Number | No. 72-8081.,72-8081. |
| Citation | 472 F.2d 1206 |
| Parties | Lawrence "Lum" DYE, Petitioner-Appellant, v. Henry E. COWAN, Warden, Kentucky State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Lawrence "Lum" Dye, in pro. per.
Ed W. Hancock, Atty. Gen. of Kentucky, Frankfort, Ky., for appellee.
Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.
This court has received and considered appellant's motions to proceed in forma pauperis and for a certificate of probable cause.1 Upon examination of the files and records of the state and federal court proceedings, we note that appellant's sole contention which might amount to a federal constitutional issue is his claim that he was tried and sentenced for the crimes charged, although mentally incompetent to stand trial at the time.
As to this issue, we note, as apparently did the District Judge, that the state trial judge conducted a separate evidentiary inquiry on the issue of mental competence to stand trial and resolved the issue against appellant's present contentions. In the unanimous opinion of the Court of Appeals of Kentucky affirming appellant's convictions, we find this discussion of this issue:
Although there was evidence that Dye claimed lapses of memory concerning what happened on the occasion of the tragedy and some subsequent lapses of memory concerning personal details, the evidence also demonstrated that he was fully able to comprehend the nature and consequences of the proceeding pending against him; that he recalled detailed events and answered numerous questions relevant to this case. We cannot say that the trial judge erred when he concluded that Dye was able to participate rationally in his defense. Cf. Anderson v. Commonwealth, Ky., 353 S.W.2d 381 (1961). No complaint is made concerning the instructions to the jury, which included a specific instruction on insanity. Dye v. Commonwealth, 477 S.W.2d 805 (Ky.Ct.App.1972).
We agree with the Court of Appeals that appellant's claims of limited lapses of memory are not in and of themselves evidence of mental incompetence to stand trial. The facts alleged in this habeas petition do not begin to match those dealt with by the United States Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966). Nor do we find in appellant's habeas petition the allegation of facts, as opposed to unsupported conclusions, which if true, would have required the District Judge to hold an evidentiary hearing.
The motions referred to above are denied and the appeal is dismissed.
1 We find in the file of this case an "Order" granting a certificate of probable cause signed by a U. S. magistrate. This order is clearly ultra vires and void. See 28 U.S.C. § 2253 (1970). The U. S. magistrate is not a Title III judge. U.S.Const. art. III. The functions of the U. S. magistrate in relation to post-conviction remedy c...
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