Mallett v. U.S.

• Decision Date: 01 July 2003
• Docket Number: No. 01-3845.,No. 01-3518.,01-3518.,01-3845.
• Citation: 334 F.3d 491
• Parties: Donald MALLETT, Petitioner/Defendant-Appellant, v. UNITED STATES of America, Respondent/Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 491

334 F.3d 491

Donald MALLETT, Petitioner/Defendant-Appellant, v. UNITED STATES of America, Respondent/Plaintiff-Appellee.

No. 01-3518.

No. 01-3845.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2003.

Decided and Filed: July 1, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied: August 25, 2003.

Mark R. DeVan (argued and briefed), Steven D. Shafron (briefed), B. Jessie Hill (briefed), Berkman, Gordon, Murray & DeVan, Cleveland, OH, for Petitioner-Appellant.

Phillip J. Tripi (argued and briefed), United States Attorney, Cleveland, OH, for Respondent-Appellee.

Before: NELSON, COLE, and GILMAN, Circuit Judges.

COLE, J., announced the judgment of the court and delivered an opinion, in which DAVID A. NELSON and GILMAN, JJ., concurred except as to Part III. GILMAN, J. (pp. 502-504), delivered a separate opinion, in which DAVID A. NELSON, J., concurred, which constitutes the opinion of the court on the issue addressed in Part III.

OPINION

COLE, Circuit Judge.

Defendant Donald Mallett appeals: (1) the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence based on his claim of ineffective assistance of counsel at trial (Case No. 01-3518), and (2) the district court's sentencing of Defendant as a career offender under § 4B1.1 of the United States Sentencing Guidelines (Case No. 01-3845). For the reasons discussed herein, we AFFIRM the district court's denial of Mallett's motion to vacate in Case No. 01-3518, and AFFIRM the sentence imposed in Case No. 01-3845.

I.

On October 6, 1995, Mallett was arrested after law enforcement officers executed a search warrant in the home of Mallett's mother in Cleveland, Ohio. When the search warrant was executed, an FBI agent found Mallett exiting an upstairs bedroom. The agent asked Mallett if there were any weapons in the vicinity, and Mallett indicated that there was a firearm in the headboard compartment of the bed. The agent found a Llama 9 mm. semi-automatic pistol in the headboard and an Intratect 9 mm. Lugar firearm in a drawer under the bed. Agents also seized 19.45 grams of cocaine base from a coat pocket in the closet of the bedroom, $2,773 in cash, and several poster-sized photographs of Mallett holding cash and a cellular phone. In addition, agents located two.22 caliber rifles in another bedroom. On October 31, 1995, a federal grand jury in the Northern District of Ohio returned an indictment charging Mallett with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Upon the government's motion, the district court dismissed the § 924(c) count in January 1996.

On January 19, 1996, after a two-day trial, a jury convicted Mallett of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). After this Court affirmed his conviction and sentence on direct appeal, see United States v. Mallett, 134 F.3d 373 (6th Cir.1997), Mallett filed in the district court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his motion, Mallett alleged, inter alia, that (1) his trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment because counsel failed to investigate and raise potential defenses based on incompetency to stand trial and diminished capacity, and (2) the district court improperly sentenced him as an armed career criminal under 18 U.S.C. § 924(e).

The district court granted Mallett's motion as to the sentencing issue only. The district court ordered a sentencing hearing and subsequently re-sentenced Mallett. Mallett now appeals this sentence in Case No. 01-3845, arguing that the district court erred in designating him as a career offender under U.S.S.G. § 4B1.1.

The district court issued a certificate of appealability with respect to certain issues presented by Mallett's ineffective assistance of counsel claim. In Case No. 01-3518, Mallett appeals the district court's denial of relief based on his ineffective assistance of counsel claim.

II. Case No. 01-3518-Ineffective Assistance of Counsel

A. Background

Prior to Mallett's original sentencing for his 1996 conviction, the probation officer who prepared Mallett's Presentence Investigation Report recommended that Mallett undergo a psychological evaluation. Trial counsel filed a motion for a psychological evaluation of Mallett, which the district court granted. Psychologist David Pincus conducted this examination and submitted a report to the district court on June 18, 1996.

Dr. Pincus's report indicated that Mallett sustained a severe brain injury in 1987 when he was struck by a car while riding a motorcycle. Mallett suffered a large right subdural hematoma and a contusion to the right lobe of the brain.

Dr. Pincus's report described Mallett as a man with limited intelligence and impaired cognitive function, who cannot integrate information effectively:

He is a man with limited intelligence who is oriented, not psychotic, not depressed, has a paranoid tendency and who has some passive dependent character features. His cognitive functions are impaired in a manner that implicate injury to right temporal areas of the brain, and contra lateral left frontal and parietal-occipital regions of the brain.... [he] has a biologically based vulnerability that is significant and his thinking is profoundly affected in some areas. The deficits in executive functions make it difficult for him to plan, organize and learn from his behavior effectively.

Dr. Pincus concluded that the head injury significantly impaired Mallett's decision-making process, cognitive reasoning and judgments, and may have contributed to his criminal behavior. The report also noted that if Mallett "already had dependent tendencies in his character, having this sort of brain dysfunction would make him more dependent upon others, and very pliable under the influence of others."

A revised Presentence Investigation Report that incorporated Dr. Pincus's evaluation was submitted to the district court. Based on Dr. Pincus's report, the trial judge granted a downward departure of seven levels because of Mallett's "significantly reduced mental capacity," pursuant to U.S.S.G. § 5K2.13, p.s.

On August 13, 1996, Mallett filed a notice of appeal, pro se, to this Court. On August 19, 1996, Mallett's new counsel filed a Motion for New Trial in the district court, based on the newly discovered evidence of Dr. Pincus's report. In this motion, Mallett argued that Dr. Pincus's report raised issues as to whether Mallett was competent to stand trial, whether Mallett was capable of forming the requisite intent to commit the offenses charged in the indictment, and whether Mallett was competent to be sentenced. On September 12, 1996, Mallett filed in the district court a Motion for Order allowing an interview of Dr. Pincus, and for compensation for Dr. Pincus's additional expert service. Since his appeal was pending in this Court, however, the district court lacked jurisdiction to rule on these motions.

In his direct appeal before this Court, Mallett raised the issue of ineffective assistance of counsel at trial. This Court declined to rule on the issue because the record was not fully developed.

B. § 2255 Proceedings

1. Mallett's Motion to Vacate

In his § 2255 motion, Mallett alleges that his trial counsel was constitutionally ineffective for failing to investigate the possibility that he was incompetent to stand trial. A criminal defendant may not be tried unless he is competent. See Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Gall v. Parker, 231 F.3d 265, 284 (6th Cir.2000); see also 18 U.S.C. § 4241(d) (stating that a defendant is incompetent to stand trial if a court finds "by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense ..."). The test for a defendant's competency to stand trial is "whether he 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 factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); United States v. Ford, 184 F.3d 566, 580 (6th Cir.1999).

Mallett alleges that several factors should have led his trial counsel to investigate whether he was competent to stand trial. He argues that the information in Dr. Pincus's report indicating Mallett's impaired cognitive functioning should have led trial counsel to question his competency. In addition, Mallett contends that his behavior should have put counsel on notice that his competency was an issue. Mallett specifically cites his "confused request" for new counsel on the eve of trial and confused statements that he made at a hearing held after this request. He also points to rambling and confused statements that he made during his first sentencing hearing. According to Mallett, Dr. Pincus's report and his behavior demonstrate his inability to grasp the nature of the events taking place around him. He alleges that his confusion and failure to understand what was happening made it unlikely that he was able to assist effectively in his own defense.

In requesting a psychological evaluation of Mallett, trial counsel stated that "numerous conversations" between himself and Mallett led him to conclude that Mallett's brain injuries might be of interest to the court. Trial coun...