Harvey v. Tambi

• Decision Date: 26 August 2015
• Docket Number: CASE NO. 1:12-cv-3037
• Parties: DAVID HARVEY, Petitioner, v. SAMUEL TAMBI, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

DAVID HARVEY, Petitioner, v. SAMUEL TAMBI, Warden, Respondent.

CASE NO. 1:12-cv-3037

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

August 26, 2015

JUDGE JOHN R. ADAMS

ORDER AND DECISION

This matter appears before the Court on Petitioner David Harvey's objections to the Magistrate Judge's Report and Recommendation ("R & R"). Doc. 35. Respondent Samuel Tambi, Warden, filed a response to Harvey's objections on May 30, 2014. Doc. 36. For the following reasons, Harvey's objections are OVERRULED, and the Court ADOPTS the Magistrate Judge's Report and Recommendation. Doc. 34.

The R & R adequately states the factual and procedural background of this case. Harvey has demonstrated no error in that background, so the Court will not reiterate those sections herein.

I. STANDARD OF REVIEW

If a party files written objections to a magistrate judge's report and recommendation, a judge must perform a de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

II. LAW AND ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this Court's review of the instant case. See Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997). The relevant portion of the habeas statute provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1) and (2). However, if a claim has not been adjudicated on the merits in a state court proceeding, "and has not been procedurally defaulted, we look at the claim de novo rather than through the deferential lens of AEDPA." Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005).

A. GROUND ONE: Harvey objects to the state court findings of competency.

1. The Court overrules Harvey's objection and finds that the Magistrate Judge properly concluded that Harvey failed to rebut the state court's factual findings of competency by clear and convincing evidence.

Harvey argues that the Magistrate Judge improperly concluded that he had failed to rebut the state court's factual findings by clear and convincing evidence. Doc. 35 at 4. Specifically, Harvey argues that he was incompetent to assist in his defense due to his physical condition of aphasia; and as such, the state court should have found him incompetent and refused to accept his plea of no contest. Further, Harvey argues that the Magistrate Judge relied on insufficientevidence to uphold the state court's determination. For the following reasons, this objection is without merit.

The AEDPA dictates that a federal habeas petitioner may challenge "the factual basis for a prior state-court decision rejecting a claim," and "the federal court may overturn the state court's decision only if it was 'based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (quoting 28 U.S.C. § 2254(d)(1)) (emphasis added). After making such a challenge, the petitioner has the burden to prove "by clear and convincing evidence" that the state court's findings were incorrect. 28 U.S.C. § 2254(e)(1). The "AEDPA requires 'a state prisoner to show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error ... beyond any possibility for fairminded disagreement.'" Id. (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-87 (2011)).

A state-court determination of competence is a factual finding, to which deference must be paid. Thompson v. Keohane, 516 U.S. 99, 108-11, 116 S.Ct. 457 (1995). "[R]egardless of whether we would reach a different conclusion were we reviewing the case de novo, the findings of the state court must be upheld unless there is clear and convincing evidence to the contrary." Clear v. O'Dea, 257 F.3d 498, 506 (6^th Cir. 2001) (applying 28 U.S.C. §2254(e)(1)); see also Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 849 (2010) (under 28 U.S.C. §2254(d)(2), "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance"). This deference must be paid even to state-court factual findings made on appeal. See Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453 (1983). "Further, the Supreme Court has very recently made abundantly clear that the review granted by AEDPA is even more constricted than AEDPA's plain language alreadysuggest." Peak v. Webb, 673 F.3d 465, 472 (6^th Cir. 2012). "[S]o long as fairminded jurists could disagree on the correctness of the state court's decision, "relief is precluded under the AEDPA. Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786 (2011) (internal quotation marks omitted); see also Franklin v. Bradshaw, 695 F.3d 439, 447-48 (6^th Cir. 2012).

In this case, Harvey's objections are a repetition of the underlying arguments to the state court. He does not argue that the state court failed to use the correct legal standard at the competency hearing. Instead, Harvey simply disagrees with the state court's reliance on lay testimony over competing expert testimony. While Harvey may disagree with this finding, he points to no statute or case law that creates a constitutional bar to allowing lay evidence to weigh more heavily than expert testimony.

To the contrary, federal courts have repeatedly held that a trial court's reliance on lay testimony over expert evidence is not clearly arbitrary or unwarranted. See e.g. U.S. v. Makris, 535 F.2d 899 (5^th Cir. 1976) (upholding competency determination where trial judge credited subjective evaluations and testimony over testimony by doctor who performed objective tests); U.S. v. Birdsell, 775 F.2d 645 (5^th Cir. 1985) (affirming finding of competency based in part on trial court's reliance on "the observations of those witnesses in long-term daily contact with the patient rather than conclusions based on a relatively brief period of examination"); U.S. v. Clark, 53 F.3d 1281 (5^th Cir. 1995); Bundy v. Dugger, 675 F.Supp. 622, 634 (M.D. Fla. 1987) (citing United States v. Mota, 598 F.2d 995, 998-1000 (5^th Cir. 1979)) ("[T]he court may rely on, in addition to expert testimony, lay witness testimony concerning the [defendant's] rational behavior, and cross examination of [defendant's] expert.").

Despite this established case law, Harvey attempts to argue that the Sixth Circuit Court of Appeals has prohibited state courts from relying on lay witness testimony on the issue competency, citing U.S. v. Smith, 437 F.2d 538 (6^th Cir. 1970). However, Harvey misrepresents and misapplies the holding in Smith.

The Smith court confronted the issue of whether the trial court properly admitted and considered lay witness testimony on the defense of insanity. It did not analyze the issue of competence to stand trial. The Sixth Circuit recognized the "...established rule that lay testimony may, at least under some circumstances, serve to create an issue of fact for the jury as to a defendant's criminal responsibility" when resolving the defense of insanity. Id. at 540. The court ultimately determined that lay opinion testimony on issues of insanity is probative if the witness observed the defendant's actions over a prolonged period of intimate contact. Id. at 541, (quoting Carter v. United States, 102 U.S. App.D.C. 227, 252 F.2d 608, 618 (1957)) ("'Also obvious upon a moment's reflection is the fact that, while a lay witness's observation of abnormal acts by an accused may be of great value as evidence, a statement that the witness never observed an abnormal act on the part of the accused is of value if, but only if, the witness had prolonged and intimate contact with the accused.'").

Here, the issue is not insanity; and therefore, Smith is not applicable. However, even if this Court were to analyze the issue of competency through the Smith lens, the lay testimony in this case involved sufficient contact and intimacy to be reliable. For example, Harvey's pretrial supervision officer, made extensive visits to Harvey's home where the officer had personal and continuous contact with Harvey. Harvey also appeared every Monday for his probation appointments. The state court heard evidence including, Harvey's ability to drive himself to medical appointments, care for his disabled wife, dispense medication, grocery shop, payexpenses, prepare meals, do chores around the house, and fill out legal paperwork. The trial court also observed Harvey interact with his own attorneys and request assistance when needed.

Finally, Harvey made appropriate responses to the trial court during the plea colloquy. While Harvey admittedly has a more limited vocabulary following his stroke, he was able to communicate his thoughts, ideas, and needs, and then to consider his options and make choices. See State v. Stanley, 121 Ohio App.3d 673, 694, 700 N.E.2d 881(1997) (trial court may consider an expert's credentials when determining the expert's credibility; but the court may also rely upon its own observations of the defendant, provided that the trial court has other competent credible evidence upon which to rely).

The trial court was permitted to rely on lay testimony in conflict with expert evidence. Harvey cites no law to the contrary, but rather...