Franklin v. Francis, No. 98-3187

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: SILER
• Citation: 144 F.3d 429
• Parties: Jennie FRANKLIN and Elaine Quigley, on Behalf of Wilford Lee Berry, Jr., Petitioners-Appellees, v. Rodney L. FRANCIS, Warden, Respondent-Appellant.
• Docket Number: No. 98-3187
• Decision Date: 22 May 1998

Page 429

144 F.3d 429 Jennie FRANKLIN and Elaine Quigley, on Behalf of Wilford Lee
Berry, Jr., Petitioners-Appellees,
v.
Rodney L. FRANCIS, Warden, Respondent-Appellant. No. 98-3187. United States Court of Appeals,
Sixth Circuit. Argued March 24, 1998.
Decided May 22, 1998.

Page 430

Randall L. Porter, David H. Bodiker, J. Joseph Bodine, Jr., Laurence E. Komp (argued), Public Defender's Office, Ohio Public Defender Com'n, Columbus, OH, for Petitioners-Appellees.

Simon B. Karas, Asst. Atty. Gen., (argued), Office of the Atty. Gen. of Ohio, Columbus, OH, Jeffrey S. Sutton, State Solicitation Admin., Columbus, OH, Sharon A. McClellan, Office of the Atty. Gen., Chief Capital Crimes Section, for Respondent-Appellant.

Before: KENNEDY, RYAN, and SILER, Circuit Judges.

OPINION

SILER, Circuit Judge.

This is a suit for habeas corpus relief, pursuant to 28 U.S.C. § 2254, filed on behalf of Wilford Lee Berry, Jr., who has received a death sentence for murder from the State of Ohio. The petitioners are Jennie Franklin, his birth mother, and Elaine Quigley, his sister, acting as next friends for Berry. Suit was brought against Rodney L. Francis, the Warden of the Corrections Medical Center, where Berry is currently incarcerated. Upon the completion of two direct appeals through the Ohio state court system, the Ohio Supreme Court set an execution date for March 3, 1998.

Although Berry asserts that he waives his legal rights for further appeals, the petitioners filed this claim for relief a short time before the execution date. The district court granted a temporary stay of the execution. For reasons stated hereinafter, we will vacate the stay of execution.

I. BACKGROUND

Berry was convicted in 1990 for the aggravated murder during the robbery of his employer, Charles Mitroff, the owner of a bakery in Cleveland, Ohio. An accomplice, Anthony Lozar, shot Mitroff in the torso with an SKS assault rifle. When Mitroff fell to the floor, he looked at Berry and said, "You shot me." When he begged for Berry to call for help, Berry shot Mitroff in the head. The two men took Mitroff's wallet and delivery van and buried the body. More details of the crime are outlined in State v. Berry, 72 Ohio St.3d 354, 650 N.E.2d 433 (1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996). After a trial by jury, Berry was sentenced to death.

The conviction and sentence were affirmed on appeal by the Ohio Court of Appeals in State v. Berry, No. 60531, 1993 WL 425370 (Oct. 21, 1993), and the Ohio Supreme Court in Berry, 72 Ohio St.3d 354, 650 N.E.2d 433. Throughout his appeals, Berry repeatedly indicated his preference to waive his rights on appeal. He wrote to his attorneys and to

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other officials asking that he be allowed to waive his appellate rights and to receive the death penalty.

Thereafter, in 1995, the State asked the Ohio Supreme Court to appoint a psychiatrist to evaluate Berry's competence to waive collateral review of his sentence. The court granted the motion, State v. Berry, 74 Ohio St.3d 1470, 657 N.E.2d 511 (1995), and appointed Dr. Phillip J. Resnick, a psychiatrist, to evaluate Berry's competence under the following standard:

A capital defendant is mentally competent to abandon any and all challenges to his death sentence, including appeals, state-post conviction collateral review, and federal habeas corpus, if he has the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue further remedies.

State v. Berry, 74 Ohio St.3d 1504, 659 N.E.2d 796 (1996). In directing Dr. Resnick, the court cited, inter alia, Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976); and Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966).

After Dr. Resnick submitted his assessment to the Ohio Supreme Court, the matter was remanded to the state trial court (Court of Common Pleas) to hold an evidentiary hearing on the issues of competency and waiver. Upon remand, the Ohio trial court appointed Dr. Robert Alcorn, another psychiatrist, who later submitted his report. Counsel for Berry called Dr. Sharon Pearson, a psychologist. At the hearing on competency, Drs. Resnick and Alcorn found Berry to be competent to waive his rights. Drs. Resnick and Alcorn diagnosed a mixed personality disorder with schitzotypal, borderline and antisocial features. However, Dr. Pearson found that Berry was not competent. She concluded that Berry suffered from schitzotypal disorder, a rigid thought process, a tendency toward extreme isolation and withdrawal, and a tendency to have psychotic episodes under stress.

The Public Defender also called Dr. Jeffrey L. Smalldon, a psychologist, who never examined Berry and had no opinion concerning his competence. He testified generally regarding schitzotypal personality disorder and its relevance in determining competence.

After hearing the evidence, the trial court on July 22, 1997, found that while Berry suffers from a mixed personality disorder with schitzotypal, borderline and antisocial features, he " 'is competent to forgo any and all further legal challenges.' " State v. Berry, 80 Ohio St.3d 371, 686 N.E.2d 1097, 1099 (1997). It further found that although Berry had no mental disease, his mixed personality disorder "does not prevent him from understanding his legal position and the options available to him, or from making a rational choice between those options." Id. In making the determination that Berry was competent, the trial court found that the testimony of Drs. Resnick and Alcorn was more credible and convincing than Dr. Pearson's conclusion that Berry was not competent. Id. The Ohio Supreme Court affirmed the trial court's determination of Berry's competence and further found that the trial court followed the criteria set out in Rees, 384 U.S. at 314, 86 S.Ct. 1505:

"Whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises."

Berry, 686...