Felde v. Blackburn, 85-4437

• Decision Date: 21 July 1986
• Docket Number: No. 85-4437,85-4437
• Parties: Wayne Robert FELDE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 400

795 F.2d 400

Wayne Robert FELDE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 85-4437.

United States Court of Appeals, Fifth Circuit.

July 21, 1986.

Millard C. Farmer, Atlanta, Ga., Quigley & Scheckman, William P. Quigley, New Orleans, La., for petitioner-appellant.

Paul Carmouche, Dist. Atty., Shreveport, La., Wm. Guste, Jr., Atty. Gen., Baton Rouge, La., A.M. Stroud, III, Asst. Dist. Atty., Shreveport, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEE, RANDALL, and DAVIS, Circuit Judges.

GEE, Circuit Judge:

In 1981, petitioner Wayne Felde was convicted and sentenced to death in Louisiana state court for the first degree murder of Shreveport police officer Thomas Glen Thompkins. His appeal unsuccessful, State v. Felde, 422 So.2d 370 (La.1982), Felde has since sought habeas relief in the state courts and federal district court to no avail. We now take up his habeas claims.

The petitioner's first claim is that he was denied effective assistance of counsel in the penalty phase of his trial, when his attorney, concededly acting on instructions, suggested to the jury that life imprisonment would be unbearable and requested that it return a sentence of death, a request the jury obliged. The petitioner contends that he was mentally incompetent to give such instructions and that in any event the attorney was derelict in his duty to follow them.

We dealt with a similar claim of ineffectiveness of counsel in Autry v. McKaskle, 727 F.2d 358 (5th Cir.1984). In Autry, the petitioner was convicted of two counts of first degree murder after a vigorous defense. In the sentencing phase of the trial that followed, the defendant gave instructions to his attorney not to argue against the imposition of the death penalty, instructions that the attorney obeyed. Autry's habeas petition argued that the failure of the attorney to seek a competency hearing before abiding by such instructions amounted to ineffective assistance of counsel in the sentencing phase. We rejected that argument, declaring:

[T]he Supreme Court has refused pro se withdrawal of a petition for writ of certiorari absent a competency hearing when counsel questioned his client's competence and supported his concern with a report by an examining psychiatrist who found him incompetent. Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1965). It does not follow for us that refusing to plead for mercy after being convicted of two execution-style slayings will alone so implicate a defendant's competency as to render his counsel constitutionally ineffective for not seeking an inquiry into competency before abiding the client's decision. There is no other evidence from trial or from the post-conviction evidentiary hearings that raises questions about Autry's competence. The United States district judge found no suggestion of incompetence after reviewing the entire trial record and listening to the testimony of Autry and all the witnesses. Those witnesses included the priest who attended Autry on the eve of his aborted execution, Autry's mother and prison officials. None suggested that Autry was or is other than competent.

While categorization of decisions as the personal choices of a criminal defendant or the tactical choices of counsel is not always an easy task, cf. Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc), the United States district court found that Autry made the decisions he now charges his lawyer incompetently made. If Autry knowingly made the choices, Carver was ethically bound to follow Autry's wishes. Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983) (emphasis added).

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In sum, Carver [Autry's attorney] was not ineffective in not seeking a competency hearing before abiding Autry's decision, absent a more substantial reason to suspect incompetence than the lawyer's view that Autry's decision was injurious to the case. 727 F.2d at 362-363 (emphasis added).

In its disposition of this issue, the United States district court stated:

The record shows that the court and defense counsel were familiar with the facts and circumstances underlying the defendant's demands, the physical conditions under which the defendant was maintained, and defendant's apparent competence to assist defense counsel in preparation and conduct of trial. In the absence of apparent mental deficiency, defendant's pursuit of an "all-or-nothing" result was not sufficient in itself to warrant a competency hearing. Defense counsel's familiarity with the defendant precludes a finding that he was ineffective in failing to seek a competency hearing.

The record shows that Felde's attorney was familiar with his client's condition as the trial commenced. But given the defense theory, insanity, and the evidence introduced to support it--as well as the facts surrounding Felde's incarceration--it is less clear to us that on the face of this record there was an "absence of apparent mental deficiency" on Felde's part.

We note the Louisiana Supreme Court's observation that Felde's sanity commission concluded that he was competent to stand trial at the time of the commission's report, State v. Felde, supra, 422 So.2d at 376, and the Louisiana Supreme Court's conclusion that Felde was "mentally competent to stand trial." Id. at 395. Counsel ordinarily would not be deficient in failing to request a second competency hearing for a defendant whom the state trial court has already found to be competent. The state court's finding of mental competence to stand trial, and, inferentially, mental competence to waive sixth amendment rights through the instructions Felde gave his attorney, is a finding of fact entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). Maggio v. Fulford, 462 U.S. 111, 116-17, 103 S.Ct. 2261, 2263-64, 76 L.Ed.2d 794 (1983). ¹ However, there are certain situations in which the presumption of correctness does not apply. Sec. 2254(d)(1)-(8). One of those situations is arguably present in this case. Section 2254(d)(8) states that the presumption of correctness does not apply to fact determinations "not fully supported by the record." The issue we face, therefore, is whether the state court's determination of competence is fairly supported by the record, or if another exception applies.

The Louisiana Supreme Court's finding that Felde was competent to stand trial was apparently based entirely on the reports of the sanity commission members. However, the sanity commission reports are absent from the record before us, and there is no indication when its members completed their reports. The Louisiana Supreme Court states that Dr. Marceau, one of three examining psychiatrists, saw Felde on January 31, 1979, some 18 months before Felde's trial. The second commission member, Dr. Braswell, examined Felde on January 22 and February 19, 1979. The third, Dr. Mauroner, examined Felde on January 29, and February 5 and 19, 1979.

In light of our reasoning in Autry, we believe the district court was obligated to determine whether the state court finding that Felde was competent to stand trial and thus to waive his right to counsel is fairly supported by the record. Such a determination cannot be made on the...