Lee v. State of Alabama

• Decision Date: 03 February 1969
• Docket Number: No. 25878.,25878.
• Citation: 406 F.2d 466
• Parties: Huey R. LEE, Appellant, v. STATE OF ALABAMA, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 466 (1968)

Huey R. LEE, Appellant, v. STATE OF ALABAMA, Appellee.

No. 25878.

United States Court of Appeals Fifth Circuit.

November 22, 1968.

Rehearing Denied February 3, 1969.

Huey R. Lee pro se.

MacDonald Gallion, Atty. Gen., W. Mark Anderson, III, Special Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before RIVES and DYER, Circuit Judges, and MEHRTENS, District Judge.

Rehearing En Banc Denied February 3, 1969.

RIVES, Circuit Judge.

The roots of this litigation extend back for more than 26 years to July 6, 1942 when Huey R. Lee was arrested and charged with the murder of his father. His trial resulted in a judgment of conviction for murder in the first degree with punishment fixed at life imprisonment. Since that judgment was affirmed by the Supreme Court of Alabama,¹ and certiorari denied by the Supreme Court of the United States,² it has been the subject of continuous and repeated post-conviction hearings, state and federal, which have been adequately recited in earlier opinions of this Court.³ This Court's 1967 en banc decision reversed the district court's dismissal of the petition for habeas corpus and remanded the case with specific directions formulated in the light of Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. The en banc Court directed:

"* * * that the state be afforded an opportunity promptly to demonstrate to the trial court that there has actually been a determination of Lee\'s mental capacity to stand trial on or about October 27 and 28, 1943, in default of which the trial court shall proceed to a disposition of the case in the light of the Supreme Court\'s decision in Pate v. Robinson, supra. This court concludes after careful consideration of the Supreme Court\'s decision and opinion in that case that it will be the duty of the trial court, under such circumstances, to decide whether it can conduct an adequate hearing on the question of Lee\'s competency to stand trial in 1943. If it cannot, it will be under the obligation to set aside the judgment of conviction and remand the case to the state courts for a new trial at which time it will, of course, be open to Lee to have an adequate hearing on his then mental capacity to stand trial.

"Upon the remand of this case it will also be permissible for appellant to develop in a factual way any contention as to the alleged conspiracy which he has heretofore vaguely charged and to allege any other basis for habeas corpus relief which he considers appropriate."

Lee v. Alabama, 1967, 5 Cir., 386 F.2d 97, 108.

Pursuant to this mandate the district court carefully formulated four questions to be answered at the hearing on remand:

"(1) Whether there was in fact a constitutionally adequate determination in the state court of Lee\'s capacity to stand trial on or about October 27, 1943.

"If not,

"(2) Whether this Court can, at the present time, conduct an adequate and meaningful hearing on the question of Lee\'s competency to stand trial on October 27, 1943.

"If so,

"(3) Whether Lee was, in fact, mentally competent to stand trial on October 27, 1943.

"(4) Whether there exists `any other basis for habeas corpus relief which\' may be presented by petitioner at this time. If petitioner desires to assert any ground other than those set out in the petition in this cause presently on file, it is ORDERED that written notice thereof be given the Attorney General for the State of Alabama and the Clerk of this Court within 10 days from this date."

Lee v. Alabama, M.D.Ala.1967, 291 F. Supp. 922.

At the hearing Lee represented himself. In a "Motion to Proceed" filed August 30, 1967, Lee had stated:

"Petitioner, Huey R. Lee, is, and will be, representing himself in any and all hearings in this cause, and does not desire the appointment of counsel to represent him, never has so desired, and will neither accept nor submit to appointment thereof, although, for the sake of facilitating pre-trial procedure and general understanding in the matter, he is and will be willing to confer and discuss same with any competent agent or go-between designated by the Court."

On this appeal, likewise, Lee has represented himself and has filed an original brief of 28 typed pages and a supplemental brief of 20 typed pages. Both briefs have been carefully read and considered. The appeal was submitted on briefs without oral argument.⁴

We think it clear, under the circumstances, that in this habeas corpus proceeding Lee has not been unconstitutionally denied the assistance of counsel either in the district court or on appeal.⁵

The applicable federal statute provides:

"In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."

28 U.S.C. § 1654. Under that statute Lee had a right to represent himself or to be represented by counsel, but he had no right to a hybrid representation partly by himself and partly by counsel.⁶

Lee's present mental competency to represent himself both in the district court and on appeal is not an issue here. Indeed, the district court impliedly found Lee competent to exercise his statutory rights. Cf. United States v. Davis, E.D.Tenn.1966, 260 F.Supp. 1009, 1019, aff'd, 6 Cir. 1966, 365 F.2d 251. Under such a finding, neither the district court nor this Court has the power to force Lee to accept representation by counsel. As held in McKenna v. Ellis, 5 Cir. 1959, 263 F.2d 35, 41:

"The defendant, being sui juris and mentally competent, had a right to rely on his own skill and ability and to conduct his defense in person without the assistance of counsel; and the court was not justified in imposing assigned counsel on the defendant against his will."

In its previous opinions, this Court has treated Lee's primary claim as being that he was not competent to stand trial in 1943 when he was convicted. On this last hearing Lee specifically repudiated any such contention: "I have no disposition to challenge the fact that I was mentally competent at that time. I was mentally competent."⁷ Instead, Lee now refers to insanity as "the fictitious and fraudulent ground * * * perpetrated by conspiracy" and to conspiracy as "the only real ground ever in the case."

In an addendum to his petition for habeas corpus, Lee detailed his claim of conspiracy:

"The ground advanced for consideration of claims of Constitutional violations in the cited facts of the petition is that of conspiracy; the ground itself may be subdivided, segmented, in the total sequence of events on the face of cited records, as follows:

"1.

"A conspiracy to perpetrate a fraud, viz., petitioner\'s insanity. The first overt act of record after petitioner\'s arrest July 6, 1942, was a petition filed in the trial court July 13, 1942, by a deputy sheriff of the trial county alleging instant petitioner\'s insanity. That first attempt at perpetration was legally frustrated July 20, 1942, by a jury finding that instant petitioner was then sane.

"Proof is circumstantial on the face of extant record and can be enlarged in a full hearing of the instant petition.

"2.

"A conspiracy to commit petitioner to the state insane asylum under authority of Title 15, Section 425, Code of Alabama, 1940, in the teeth of the above referred to jury finding of petitioner\'s sanity. That segment of conspiracy was consummated October 23, 1942, by the commitment order signed by the trial court judge, and the actual commitment October 24, 1942.

"Proof is circumstantial on the face of extant record, and can be enlarged and defined in the full hearing sought.

"3.

"A conspiracy to secure rendition of a lunacy commission report of this petitioner\'s fraudulent insanity, the result of which was a Report to the trial court dated July 21, 1943, the same appearing of record in the trial court transcript and by verbatim publication in a newspaper.

"The fraudulent nature of the Report is carried on its face, and the whole is provable in the full hearing now sought.

"4.

"A conspiracy of trial court and trial counsel (with the silent acquiescence of prosecution) to try petitioner on the capital charge of the indictment while under the legal disability and onus of his reported and published insanity, in defiance of Title 15, Section 426, Code of Alabama, 1940, and the common law.

"Proof is extant and absolute on the face of trial transcript record and needs but be produced and shown in the full hearing now sought.

"5.

"Of appellate record is proof positive of knowing, willful and continual denial of due process of law and equal protection of the laws, substantive and procedural, over a period in excess of twenty years in this case.

"The records themselves and the several opinions rendered in the case need but be produced and shown for proof in the full hearing now sought on petition for the Writ of Habeas Corpus."

Though afforded full opportunity to offer proof of the claimed conspiracy, the only evidence which Lee could muster was the trial records themselves accompanied by his own repeated statements of opinions that he is the victim of false and fraudulent misconduct.

We are impressed with Lee's apparent sincerity in the belief that he would have been better off if the defense of insanity had never been raised and instead the murder charge had been defended on its merits. Nonetheless, Lee candidly admitted on this last habeas hearing that the testimony which he gave on the trial of the case in October 1943⁸ was true only "so far as it went." The district court also questioned Lee as to his first pro se brief filed in the Supreme Court of Alabama on December 29, 1964, on petition for rehearing of the judgment affirming his conviction:

"THE COURT: I notice here in your argument to the Supreme Court, you were contending that you were insane?

"MR. LEE: Yes, sir; that is so; that is so. Would you like for me to account for that?

"THE COURT: Yes.

"MR. LEE:

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