Haeberlin v. Sparkman, 94-5503
| Decision Date | 18 December 1995 |
| Docket Number | No. 94-5503,94-5503 |
| Citation | 73 F.3d 362 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Marvin Wayne HAEBERLIN, Petitioner-Appellant, v. Emmitt L. SPARKMAN, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MERRITT, Chief Judge; GUY and SILER, Circuit Judges.
Marvin Wayne Haeberlin, a Kentucky prisoner, appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. Based on the following discussion, we affirm the district court's order dismissing Haeberlin's petition.
Haeberlin was formerly married to the mother of two minor girls. In June 1988, he was indicted for the following state offenses involving the girls: two counts of first degree rape, one count of second degree rape, three counts of first degree sodomy, one count of sodomy in the second degree, and six counts of first degree sexual abuse. He was represented by retained counsel, Neil Banks. On November 9, 1988, he pleaded guilty as charged, and was sentenced to life imprisonment. 1 He did not appeal this conviction.
On January 8, 1989, Haeberlin filed a motion to withdraw his guilty plea. The Anderson County Circuit Court treated it as a Rule 11.42 motion under the Kentucky Rules of Criminal Procedure (RCr) and conducted an evidentiary hearing. 2 The court denied the motion, but dismissed four counts of the indictment dealing with sodomy. Specifically, the court stated that:
the plea of guilty by Defendant was voluntarily made with full knowledge of Defendant of the consequences, after advice of counsel and negotiation with Commonwealth Attorney, and the Motion to Withdraw Guilty Plea is overruled, except that Counts 4, 5, 11 and 12 of the indictment, which Defendant insists he is not guilty of, are hereby dismissed, leaving the remaining counts intact, in which the Defendant admits his guilt, and Defendant's sentence of life imprisonment on the remaining counts shall stand.
Haeberlin did not appeal this ruling.
Haeberlin then filed a second RCr 11.42 motion alleging that his original counsel was ineffective in not requesting a competency examination and not presenting an insanity defense. The court appointed Scott Getsinger as counsel, and conducted a second evidentiary hearing. On February 19, 1991, the court denied the motion. The Kentucky Court of Appeals affirmed this denial, holding that petitioner had failed to show that his counsel's performance was deficient and prejudicial.
Haeberlin moved for a rehearing based upon the court's rendering of a decision without a transcript of the second RCr 11.42 proceeding. He also alleged in this motion that his rights were violated throughout the case based on the following alleged errors: (1) the trial court did not inform him of his rights and failed to provide a transcript; (2) retained counsel made no effort to perform pre-trial discovery, investigate the case or present witnesses; (3) retained counsel also failed to adequately communicate with him prior to his guilty plea, advise him of his rights or sentencing range, or inform the court of his mental condition; and (4) no counsel was appointed for his appeal to the Kentucky Court of Appeals. On October 9, 1992, the Kentucky Court of Appeals denied the motion. The Kentucky Supreme Court declined to hear the case.
Haeberlin then filed a petition for a writ of habeas corpus in the district court raising issues regarding the effective assistance of counsel, the nature of his guilty plea, and the right to a transcript of a second post-conviction hearing under RCr 11.42. The magistrate judge recommended that the petition be denied, and warned Haeberlin that his failure to object within ten days would constitute a waiver of his right to appeal. Haeberlin moved for an extension of time to file objections to the magistrate judge's report. The district court granted him an additional fifteen days in which to file his objections. He failed to object within the allotted time, and the district court adopted the magistrate judge's report and recommendation.
On April 14, 1994, Haeberlin appealed to this court alleging that his federal constitutional rights were violated because: (1) the Anderson County Circuit Court failed to provide the Kentucky Court of Appeals with a certified record of the proceedings; (2) the state courts failed to ensure that he had appointed counsel to appeal the denial of his second RCr 11.42 motion; (3) retained counsel Neal Banks failed to perform any pre-trial discovery, investigate the case, inform him of defense options, and generally communicate regarding the case; and (4) Banks and appellate counsel Scott Getsinger failed to request a mental competency exam and to contact and present witnesses establishing Haeberlin's mental incompetence. 3
Litigants must file specific and timely objections to a magistrate judge's report and recommendation under 28 U.S.C. Sec. 636(b)(1)(C), in order to preserve the right to appeal a district court order adopting the report. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991). Once a district court adopts a magistrate judge's report, this court may review only the issues to which objections have been filed. Smith, 829 F.2d at 1373. The right to appeal is waived as to all other issues. Id. The objection requirement, however, is not jurisdictional, and, hence, it may be excused in the interest of justice. See Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.1987).
Based on the circumstances of this case, we conclude that the objection requirement is excused. Accordingly, we will review the district court's order adopting the magistrate judge's report and recommendation.
First, Haeberlin asserts that he received ineffective assistance of counsel because counsel failed to request a competency examination. Although Haeberlin did not raise this issue in his first RCr 11.42 motion, he did raise it in his second RCr 11.42 motion. Moreover, the Kentucky Court of Appeals considered the issue in affirming the denial of his second motion.
The test for competency is "whether [a defendant] 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as a factual understanding of the proceedings against him.' " Williams v. Bordenkircher, 696 F.2d 464, 466 (6th Cir.), cert. denied, 461 U.S. 916 (1983). In this case, however, the court is only concerned with the adequacy of representation.
Haeberlin must show that his trial counsel's failure to move for a competency examination fell below an objective standard of reasonableness and was prejudicial. Strickland v. Washington, 466 U.S. 668 (1984). In order to meet this showing, he alleges that he suffers from Phenylketonuria (PKU), 4 has an I.Q. less than 55, and operates on a third grade level. Even if true, these allegations would be insufficient to show that Haeberlin's counsel was constitutionally required to request a competency examination. 5 Cf. Pate v. Smith, 637 F.2d 1068 (6th Cir.1981) ().
A review of the state court record reveals letters from social workers and family members, among others. Although these letters mention some of Haeberlin's alleged deficiencies, none shows that he was incompetent. For example, one social worker recommended probation, but conceded that "[Haeberlin] should certainly have to take the consequences of his behavior...." Moreover, the letters also point out that Haeberlin finished high school and served a short term in the Coast Guard. Finally, the magistrate judge found that Haeberlin conceded that he can " 'learn to appreciate simple facts and the right and wrongness of specific behavior.' "
Haeberlin must show prejudice by proving "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). He has not shown that he would have gone to trial but for the errors of retained counsel. Haeberlin has failed to demonstrate ineffective assistance of counsel. 6
Haeberlin argues that Kentucky's failure to provide him with a transcript of the evidentiary hearing held on his second RCr 11.42 motion violated his federal equal protection and due process rights. Specifically, he asserts that appellate review of the denial of a second RCr 11.42 motion is an "appeal of right," and, thus, he was entitled to a constitutionally meaningful review, which should have included a transcript of the hearing below.
The magistrate judge determined that Kentucky was not required to prepare a transcript of the second state habeas proceeding because Haeberlin had no constitutional right to the hearing. Additionally, the magistrate judge concluded that the failure to provide the transcript was not a constitutional deprivation because the transcript does not exist. Although there is some question about the first of these two grounds, 7 the court's ruling is proper on the latter ground. There is no constitutional violation where a transcript does not exist, and, is thus unavailable to both sides. See, e.g., Norvell v. Illinois, 373 U.S. 420, 424 (1963). Finally, any error on this point would be harmless. "[I]n order to demonstrate denial of a fair appeal, petitioner must show prejudice resulting from the missing transcripts." Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.1986), cert. denied, 481 U.S. 1056 (1987). The issue on the second RCr 11.42 motion only related to the alleged ineffectiveness of counsel...
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