Michael v. Horn, 04-9002.

• Decision Date: 18 August 2006
• Docket Number: No. 04-9002.,04-9002.
• Citation: 459 F.3d 411
• Parties: Hubert L. MICHAEL, Appellant v. Martin HORN, Commissioner, Pennsylvania Department of Corrections;<SMALL><SUP>*</SUP></SMALL> David Diguglielmo, Superintendent of the State Correctional Institution at Graterford; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview.
• Court: U.S. Court of Appeals — Third Circuit

459 F.3d 411

Hubert L. MICHAEL, Appellant v. Martin HORN, Commissioner, Pennsylvania Department of Corrections;^* David Diguglielmo, Superintendent of the State Correctional Institution at Graterford; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview.

No. 04-9002.

United States Court of Appeals, Third Circuit.

Argued January 12, 2006.

Filed August 18, 2006.

As Amended August 21, 2006.

Joseph M. Cosgrove, (Argued), Forty Fort, PA, for Appellant.

Thomas W. Corbett, Jr., Attorney General, Richard A. Sheetz, Jr., Executive Deputy Attorney General, Director, Criminal Law Division, Amy Zapp, Chief Deputy Attorney General, Appeals and Legal Services Section, Jonelle Harter Eshbach, (Argued), Senior Deputy Attorney General, Capital Litigation Unit, Office of Attorney General of Pennsylvania, Harrisburg, PA, Michael A. Farnan, Pennsylvania Department of Corrections, Office of Chief Counsel, Camp Hill, PA, for Appellees.

Before AMBRO, GREENBERG and NYGAARD, Circuit Judges.

AMBRO, Circuit Judge.

After finding Hubert Michael competent to terminate his habeas corpus petition in this death-penalty case, the District Court dismissed that petition. The dismissal was appealed, purportedly on Michael's behalf. He later vacillated on his desire to dismiss this appeal. We hold that the presumption of continuing competency does not apply here because the foundational expert for the District Court's competency finding has suggested a new evaluation. We therefore remand to the District Court for another competency finding.

I. Factual Background and Procedural History

A. Michael's homicide conviction and resulting death sentence

Hubert Michael's story is a long and convoluted one, so we present only the facts most relevant to our decision. We draw many of these facts directly from the District Court's opinion in Michael v. Horn, No. 3:CV-96-1554, 2004 WL 438678 (M.D.Pa. Mar.10, 2004), which in turn drew many of its facts from the Pennsylvania Supreme Court's opinion affirming Michael's death sentence, Commonwealth v. Michael, 544 Pa. 105, 674 A.2d 1044 (1996).

On July 12, 1993, Michael pulled up alongside 16-year-old Trista Eng, who was walking to her summer job at a Hardee's restaurant, and offered to drive her to work. She got into the car, and Michael drove to the State Game Lands in York County, Pennsylvania. He forced Eng out of the vehicle, shot her three times with a .44 magnum handgun, and concealed her body.

In late August 1993, Michael was charged with first-degree murder. In September 1993, he was transferred to the medical housing area of the Lancaster County Prison for "closer observation" because he fell down the stairs in a possible suicide attempt (though Michael has denied that he was trying to kill himself). In November 1993, Michael assumed the identity of an inmate who was about to be released, and he escaped from prison. In the spring of 1994, he was apprehended in New Orleans and returned to Pennsylvania.

In October 1994, jury selection on the murder charge began in the Berks County, Pennsylvania, Court of Common Pleas. Michael pled guilty to first-degree murder and kidnapping. He tried to withdraw that plea six days later, but the Court denied his plea-withdrawal request.

In March 1995, Michael waived his right to be sentenced by a jury. He also stipulated to the existence of the two aggravating circumstances alleged by the Commonwealth (killing during the perpetration of a felony and a significant history of felony convictions), and he stipulated that there were no mitigating circumstances. After an extensive colloquy, the Court accepted Michael's waiver of a right to a jury sentence, found that the aggravating circumstances outweighed the mitigating circumstances, and imposed the death penalty.

The Pennsylvania Supreme Court undertook an independent review of the record and affirmed the conviction and sentence. Michael, 674 A.2d at 1048. In July 1996, Governor Thomas Ridge signed an execution warrant, and Michael's execution was scheduled for August 1996.

B. The District Court's stay of Michael's execution

Approximately one week before the scheduled execution date, the Defender Association of Philadelphia, Capital Habeas Corpus Unit, moved for a stay of execution and an appointment of counsel in the District Court for the Middle District of Pennsylvania. That Court granted the stay and appointed the Defender Association as Michael's counsel. Michael then wrote a letter dismissing the Defender Association from acting as his counsel and requesting that Governor Ridge re-sign his execution warrant "as soon as possible." Michael, 2004 WL 438678, at *4.

In response, the Defender Association took the position that Michael was not competent. The District Court directed the Defender Association to confer with Michael. Following that conference, attorney Billy Nolas submitted a declaration describing Michael as "`agitated, incoherent, irrational, sad, unable to control his varying emotions, and ultimately . . . catatonic and completely uncommunicative.'" Id. at *5. The declaration also indicated that Michael had authorized Nolas to litigate his Pennsylvania Post Conviction Relief Act¹ (PCRA) proceedings. The District Court then stayed the federal habeas proceedings so that Michael's PCRA claims could be litigated. Our Court affirmed that stay by judgment order in June 1997.

C. Michael's PCRA Proceedings

As part of the PCRA proceedings, the Court of Common Pleas of York County conducted evidentiary hearings concerning Michael's competence to plead guilty and to waive the presentation of mitigating circumstances. The Commonwealth trial court denied relief on all claims, and Michael, represented by the Defender Association, appealed to the Pennsylvania Supreme Court.

While the appeal was pending, Michael filed an affidavit indicating that he did not wish the appeal to proceed. The Pennsylvania Supreme Court remanded the matter to the trial court to determine whether Michael was competent to discontinue the PCRA appeal. The Court of Common Pleas heard expert testimony and engaged in a colloquy with Michael. It found Michael competent, and the case returned to the Pennsylvania Supreme Court.

Before the Supreme Court could review the Court of Common Pleas's competency finding, Michael filed a new affidavit asking the Supreme Court to "decide the merits of his PCRA appeal quickly, essentially repudiating his request to withdraw the appeal." Commonwealth v. Michael, 562 Pa. 356, 755 A.2d 1274, 1276 (2000).² The Court therefore addressed the merits of the underlying PCRA appeal, concluding that Michael's trial counsel had not been ineffective in failing to investigate and present indicia of his alleged incompetency. Id. at 1279-80. It also held that Michael's claims pertaining to the failure to present mitigating evidence could not succeed, because counsel was fulfilling an ethical duty to comply with Michael's directions. Id.

Reargument was sought, but Michael sent a letter to the Pennsylvania Supreme Court claiming that the Defender Association was not acting on his behalf. The Court denied reargument.

D. District Court proceedings after Michael's PCRA litigation

1. District Court proceedings leading up to the dismissal order

Though the District Court stayed federal litigation pending the outcome of the PCRA proceedings, Michael wrote to the Court on three occasions (April 15, 1997; July 9, 1997; and December 26, 2000) to express his wish that the Court refrain from staying his execution.

In September 2001, the Court ruled that the presumption of correctness ordinarily attaching to state-court competency determinations³ should not be applied because the PCRA court's competency determination was not reviewed by the Pennsylvania Supreme Court. The District Court accordingly appointed Dr. Robert Wettstein, a board-certified psychiatrist and clinical professor, to determine "`(1) whether Mr. Michael suffer[ed] from a mental disease, disorder or defect; (2) whether a mental disease, disorder or defect prevent[ed][him] from understanding his legal position and the options available to him; and (3) whether a mental disease, disorder or defect prevent[ed][him] from making a rational choice among his options.'" Michael, 2004 WL 438678, at *10. Accord Hauser v. Moore, 223 F.3d 1316, 1322 (11th Cir.2000) (per curiam). The Court also requested that Dr. Wettstein consider whether Michael had sufficient ability to consult with his attorney with a reasonable degree of rational understanding and the ability to understand legal proceedings.

In June 2001, though the competency issues had not been resolved, the Defender Association filed a 146-page habeas petition.⁴ In May 2002, Dr. Wettstein submitted his report, which was based on his review of the PCRA record, York County Prison records, state prison records, Michael's letters to the District Court, Michael's school records, an affidavit from Michael's sister, transcripts of an interview with Michael's brother, reports prepared by doctors who had testified at Michael's PCRA hearings, results of tests that Dr. Wettstein had personally administered, and eight hours of interviews with Michael. In the report Dr. Wettstein concluded, "with reasonable psychiatric certainty," that Michael (1) was not suffering from any mental disease, disorder, or defect that substantially and adversely affected his ability to make a decision with regard to pursuing his appeals and (2) had the ability to understand the legal proceedings and to consult with his attorneys with a reasonable degree of understanding. Michael, 2004 WL 438678, at *10.

In July 2002, the District Court appointed Joseph Cosgrove, Esq., to represent Michael, and it scheduled an evidentiary hearing on Dr. Wettstein's report. At the September 2002 hearing, the Court's colloquy with Michael revealed—in the words of the District Court—"a rational understanding of each...