Ellingburg v. Lockhart, PB-73-C-7.

• Court: U.S. District Court — Eastern District of Arkansas
• Writing for the Court: EISELE
• Citation: Ellingburg v. Lockhart, 397 F.Supp. 771 (E.D. Ark. 1975)
• Decision Date: 18 July 1975
• Docket Number: No. PB-73-C-7.,PB-73-C-7.
• Parties: James G. ELLINGBURG, Petitioner, v. A. L. LOCKHART, Superintendent of the Cummins Unit, Arkansas Department of Correction, Respondent.

397 F. Supp. 771

James G. ELLINGBURG, Petitioner, v. A. L. LOCKHART, Superintendent of the Cummins Unit, Arkansas Department of Correction, Respondent.

No. PB-73-C-7.

United States District Court, E. D. Arkansas, Pine Bluff Division.

July 18, 1975.

James H. Wilkins, Jr., Rose, Nash, Williamson, Carroll & Clay, Little Rock, Ark., for petitioner.

Jack Lassiter, Asst. Atty. Gen., Little Rock, Ark., for respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

EISELE, Chief Judge.

This habeas corpus proceeding pursuant to 28 U.S.C. § 2254 arose out of a state court conviction received by James G. Ellingburg in the Circuit Court of Miller County in the early fall of 1972. Petitioner is presently in custody at the Cummins Unit of the Arkansas Department of Correction, serving a thirty-one and one-half year sentence as a result of that conviction.

On July 6, 1972, petitioner was charged by way of information with the crimes of burglary and grand larceny. The factual allegations which formed the basis of the information were that Ellingburg allegedly broke into an apartment occupied by his sister, stole her color television set, and on that same day pawned the television set with a local pawnbroker in his own name.

At the time of the theft Ellingburg was residing in a local motel under an assumed name. Until two days prior to the event, petitioner resided with his sister at her apartment at which time she asked him to leave because of his aberrant behavior. At the initial trial she testified that she asked her brother to leave because of his excessive drinking and his unwillingness to share in the living expenses.

On August 7, 1972, the trial court appointed Mr. David Potter of the Texarkana bar to represent Mr. Ellingburg. On August 27, 1972, Ellingburg was arraigned and entered a plea of not guilty to both charges. On September 11, 1972, seven days prior to trial, the State amended the original information, and in addition to the charges previously mentioned, Ellingburg was charged with a violation of Ark.Stat.Ann. § 43-2328 (Supl.1971) as an alleged habitual offender. The petitioner was never arraigned on the recidivist charge.

A jury trial was held on September 18, 1972, before the Honorable John Goodson, Circuit Judge of the Eighth Judicial Circuit of Arkansas. The jury returned a verdict of guilty on the grand larceny count, but acquitted petitioner on the burglary count. As is the practice in Arkansas, the jury assessed Ellingburg's punishment, setting his term of imprisonment at three years.

Immediately following the return of verdicts on the original counts, the trial judge informed the veniremen for the first time that they were to hear evidence on the recidivism charge. After retiring a second time, the jury found petitioner guilty of being an habitual criminal, the effect of which substituted a thirty-one and one-half year term of imprisonment in the place of the three-year term previously assessed.

Petitioner's conviction was upheld on direct appeal by the Arkansas Supreme Court. Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973). Alleging his mental incompetence at the time of trial, petitioner again appealed to the Arkansas Supreme Court requesting a post-conviction hearing in the trial court under Arkansas Rules of Criminal Procedure, Rule One. Permission was granted. Ark.Sup.Ct. Per Curiam Op., 73-11CR, April 30, 1973. On October 31, 1973, the Honorable John Goodson denied Ellingburg's post-conviction petition, finding petitioner to have been mentally competent at the time of his trial. Exhaustion of available state remedies has been conceded by the respondent.

On February 25, 1975, an evidentiary hearing was held in this Court. Petitioner appeared in person and through his court-appointed counsel, Mr. James Wilkins. Respondent, A. L. Lockhart, appeared through his attorney, Mr. Jack Lassiter, Assistant Attorney General for the State of Arkansas.

In his application for the writ of habeas corpus petitioner has raised a plethora of claims upon which he contends his conviction should be reversed. By choice of both parties, evidence at the hearing before this Court was limited to those matters bearing on the following issues: (1) whether petitioner was denied due process in contravention of the Fifth and Fourteenth Amendments to the United States Constitution by the trial judge's determination that petitioner was sane at the time he committed the offense and that he was mentally competent to stand trial; (2) whether petitioner was denied constitutionally adequate notice of the State's intention to pursue the recidivism charge; and (3) whether petitioner received ineffective or inadequate representation by his court-appointed attorney at the initial trial.

There is little dispute as to the underlying legal principles that govern the disposition of this case. Application of these principles requires that the Court treat extensively only petitioner's first claim concerning the constitutional infirmity of the trial judge's determination of petitioner's sanity and mental competency. The conclusions reached herein render needless extended discussion of the remaining issues.

No authority need be cited for the proposition that the state's conviction of an accused while he is legally incompetent violates due process. That states are required to provide procedures whereby a defendant's competency to stand trial may be determined was established in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. See, e. g., Bumgarner v. Lockhart, 361 F. Supp. 829, 833 (E.D.Ark.1973).

In Arkansas when the issue of an accused's competency to stand trial or his sanity at the time of the commission of the offense arises, Ark.Stat.Ann. §§ 43-1301-1309 (Supl.1974) sets forth the procedure whereby the Circuit Court may obtain psychiatric evidence pertaining to these issues. In 1972 Ark.Stat. Ann. § 43-1301 provided for postponement of the case and commitment of the accused forthwith to the Arkansas State Hospital for examination not exceeding one month when:

". . . the defense of insanity at the time of the trial or at the time of the commission of the offense has been raised on behalf of the defendant and becomes an issue in the cause, or the circuit judge has reason to believe that the defense of insanity will be raised on behalf of the defendant and will become an issue in the cause, or shall be of the opinion that there are reasonable grounds to believe that the defendant was insane at the time of the commission of the offense with which he is charged or has become insane since the alleged commission of the offense . . .."

When a request for a mental examination is made less than thirty days prior to trial, Ark.Stat.Ann. § 43-1304 provides that a circuit judge shall exercise his discretion in granting an order for an examination and shall not be required to enter an order unless "two reputable doctors of medicine appointed by the court" inform the court that there are reasonable grounds to believe the defendant insane.

In the instant case, petitioner, Ellingburg, filed two pro se motions with the Clerk of the Circuit Court of Miller County on August 1, 1972. One of these motions is entitled "Motion for Mental Examination". It sets forth numerous specific grounds upon which Ellingburg believed he was entitled to be adjudged an incompetent and requests that he be examined by at least two physicians qualified to determine his competency.¹

The second motion is entitled "Motion to Dismiss the Charge of Burglary" and alleges, inter alia, that the period during the commission of the offense "is a complete blank to petitioner", that "petitioner suffers from blackout spells, loss of memory for periods of days moving about . . . unknowing of his actions or sayings", and that petitioner "hears voices when there is no one around, hears his deceased mother calling to him, hears music when there is no music playing, suffers temporary insanity, and is abnormal in thinking and in mind". Both motions were filed more than thirty days prior to petitioner's September 18, 1972 trial date.

Mr. Potter first became aware of the pro se drafted motions when he visited Ellingburg in the jail shortly after Potter's appointment. Having practiced law in Texas and Arkansas for little more than two years, Potter felt it necessary to discuss the procedure for requested mental examinations with the trial judge. Through his conversations with the trial judge, Potter learned that it was the practice of the local court to require defendants to submit to an examination by a local physician before expending county money for the more costly examination at the Arkansas State Hospital.

At the arraignment on August 28, 1972, Mr. Potter raised the issue of the requested mental examination in the manner suggested by the trial court. Judge Goodson replied that Dr. Jerry Stringfellow, a local physician who was treating Ellingburg for tuberculosis during pre-trial detention, could examine petitioner and, if the doctor felt Ellingburg was in need of observation at the State Hospital, the issue could be presented when the situation arose.

Three days following the arraignment, Mr. Potter wrote to Dr. Stringfellow requesting that the examination be completed by September 11, the first day of the court's term on the criminal docket. It is clear that Mr. Potter assumed that Dr. Stringfellow was competent to conduct the examination from the fact of the trial court's appointment of the doctor pursuant to what Potter understood to be the local procedure. Mr. Potter failed to inquire into the doctor's qualifications. The only attempt Mr. Potter made to test the validity of the doctor's findings was to request that the examination be conducted by September 11, presumably to allow himself time to review the report.

On September 18, the morning of the trial, Mr. Potter had yet to receive a report on the examination. Prior to the opening of court,...