Fitch v. Estelle, 77-1915

• Decision Date: 12 January 1979
• Docket Number: No. 77-1915,77-1915
• Citation: Fitch v. Estelle, 587 F.2d 773 (5th Cir. 1979)
• Parties: Jerry Wayne FITCH, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 773

587 F.2d 773

Jerry Wayne FITCH, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 77-1915.

United States Court of Appeals Fifth Circuit.

Jan. 12, 1979.

Jerry Wayne Fitch, pro se.

Patrick Lanius and Michael Tobin, Staff Counsel for Inmates, Texas Dept. of Corrections, Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Austin, Tex., W. Barton Boling, Asst. Atty. Gen., El Paso, Tex., David M. Kendall, Joe B. Dibrell, Barbara M. Barron, Asst. U. S. Attys., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court For the Western District of Texas.

Before GEE and VANCE, Circuit Judges, and HUNTER, District Judge. ^*

VANCE, Circuit Judge:

Jerry Wayne Fitch, a man of questionable judgment at best, robbed the Sheriff of Pecos County, Texas on January 11, 1973, and at gunpoint escaped from the Pecos County Jail where he had been lawfully confined. In due course he was recaptured, was indicted for robbery, pleaded guilty and on April 12, 1973, he was sentenced to twenty-five years in the State Department of Corrections. ¹ No direct appeal was taken.

Fitch's petition for state habeas corpus was denied without a hearing, and the Texas Court of Criminal Appeals affirmed without written order. On December 3, 1975, he filed his federal petition for a writ of habeas corpus, which was denied by the district court on August 23, 1976, without an evidentiary hearing.

Fitch's notice of appeal was filed with the clerk of the district court on September 23, 1976, thirty-one days after entry of the judgment from which appeal was taken. An affidavit filed by Fitch in the district court reflects that he received the district court's order on August 25, 1976, and a receipt for certified mail indicates that he mailed his notice of appeal on September 21, 1976. Citing Lashley v. Ford Motor Co., 518 F.2d 749 (5th Cir. 1975), another panel of this court remanded the case to the district court for a determination whether excusable neglect entitled Fitch to an extension of time for filing a notice of appeal. Fitch v. Estelle, No. 77-1915 (5th Cir. Oct. 7, 1977). On March 27, 1978, the district judge found that petitioner's one-day delay in filing a notice of appeal was the product of excusable neglect and ordered that his appeal be deemed timely filed.

Petitioner contends that the district court erred in failing to conduct an evidentiary hearing on his claims (1) that he was incompetent to stand trial, (2) that his plea of guilty was involuntary, and (3) that he was denied the effective assistance of counsel. He states in his brief that these three issues are inextricably intertwined. We agree, at least in part, but shall address them separately in the order presented.

I.

To deal with Fitch's claimed incompetency at the time of trial we must turn our attention to the recorded events beginning a few weeks before Fitch's conviction in state court.

Because he was an indigent Fitch had requested that an attorney be appointed to defend him against the robbery charge. The trial judge appointed Fitch's first attorney, Mr. Charles Prock, on February 22, 1973. On March 12, 1973, Mr. Prock filed a motion for continuance in connection with which the following exchange took place:

MR. CHARLES PROCK: Your Honor, this motion for continuance is based upon certain hospitalization records which, yp (sic) to this point we have not been able to obtain. It has come to my attention that the Defendant was hospitalized in the Big Spring State Hospital for some time with a mental disorder.

I think that this may have a bearing, a direct bearing upon our conduct of the trial of the Defendant.

THE COURT: In other words, Mr. Prock, at this point you are telling us and it is your feeling that the Defendant is not mentally competent to assist you in the preparation for the trial. Are you concerned about that?

MR. CHARLES PROCK: That is right, Your Honor. These records may be of some assistance to us when we do go to trial, and we urge the Court to continue this cause to the next term of Court or to a reasonable time in the future.

A discussion ensued between the court, the defense attorney and the district attorney concerning difficulties then being experienced in obtaining reports from the hospital. The district attorney seemed to be familiar with the defendant's hospitalization in connection with another case but could not supply the details. After a file was brought to the district attorney he informed the court that the record indicated that Fitch was voluntarily committed in May of 1972. He gave Fitch's attorney a letter addressed to the sheriff and dated July 5, 1972, as well as a discharge form dated July 6, 1972. The form showed that Fitch had been hospitalized for approximately forty-two days. The letter, which was signed by a social case worker, stated that his diagnosis was a personality disorder and that his prognosis was poor. The file also showed that Fitch was hospitalized a second time, which according to the district attorney was for an examination in connection with another offense. A discharge form covering the second hospitalization reflected that Fitch was hospitalized for sixty days beginning on August 3, 1972, until his discharge on November 2, 1972. ² The file contained no report whatever concerning Fitch's diagnosis or prognosis on the occasion of the more recent hospitalization. The district attorney stated that the sheriff requested a report but was told verbally that the hospital personnel would not make one and that their diagnosis and prognosis was the same as that shown in the earlier report.

The court then gave the following instruction:

THE COURT: Right. Mr. District Attorney, you are instructed and requested to contact the hospital and ascertain if they feel like they could get us this report and also if they would examine him again if they could and forthwith.

The Court will continue this cause until April 24, 1973, at 10:00 o'clock on such date. Meanwhile the custody of the defendant is remanded to the Pecos County Sheriff's office. We will have the final pre-trial on April 9, 1973. Thank you, Mr. Prock, you are excused.

The record before us is silent as to what, if anything, was done as a result of this instruction and as to whether any subsequent report was ever received by the state court. Fitch alleges that his second attorney told him that nothing was done.

On March 29, 1973, Fitch's appointed counsel filed a motion seeking to discover documents in the possession of the district attorney including "(a)ll medical records or psychiatric reports made in any way in connection with the prosecution of the Defendant." There apparently was never a ruling on the motion.

The record reflects that on April 9, 1973, the judge appointed a second defense counsel to represent the defendant. On April 11, 1973, a motion to withdraw was filed by Mr. Prock, Fitch's first attorney, alleging in support of the motion that Fitch had "failed to co-operate with this attorney to such an extent that this attorney can no longer hope to effectively represent said party." On the next day, April 12, 1973, Fitch, accompanied by his new attorney, appeared in court and pleaded guilty. He and his attorney signed a five-page form captioned "Representations and Waivers of Defendant," used by the court in accepting pleas of guilty. Part of representation number 12 on the standard form that provides "and, have never been treated by a doctor for mental illness or committed to a mental institution" was crossed out. In representation 4(i) he acknowledged that he was informed that he could not be compelled to go to trial for at least ten days following the appointment of counsel. In another portion of the same form he waived this ten-day minimum period.

In reaching his conclusion that a hearing on the issue of competency was not warranted, the district judge relied on (1) the report that resulted from Fitch's first hospitalization from May 25, 1972, to July 6, 1972, and (2) Fitch's acknowledgement in open court at the time his plea was entered that he understood the offense for which he was being tried and felt able to assist his attorney.

We observe at the outset that the second of the stated reasons is of questionable persuasiveness. An incompetent defendant can hardly be accepted as a reliable witness to his own competency. No principle of waiver applies. As the Supreme Court held in Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815 (1966),

But it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial.

The standard long applicable in federal cases and now applied in state cases as well is whether Fitch had sufficient present ability to consult with his attorney with reasonable understanding and whether he had a rational as well as a factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Davis v. Alabama, 545 F.2d 460, 463 (5th Cir.), Cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977); Lee v. Alabama, 406 F.2d 466, 471 (5th Cir. 1968), Cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246 (1969). Trial of an accused while he fails to meet this standard of competency denies him due process of law. A defendant has a right not to be tried while he is incompetent, and he also has a right to procedures adequate to safeguard this substantive right. Martin v. Estelle, 546 F.2d 177 (5th Cir.), Cert. denied, 431 U.S. 971, 97 S.Ct. 2935, 53 L.Ed.2d 1069 (1977); Davis v. Alabama, supra; Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974); Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974).

Fitch now claims that his right to procedural due process was violated when the state trial court failed to conduct a hearing...