Neely v. Newton

Decision Date24 June 1998
Docket NumberNo. 97-2161,97-2161
Parties98 CJ C.A.R. 3591 Judith Ann NEELY, Petitioner-Appellant, v. Tom NEWTON, Warden; Attorney General for the State of New Mexico, Respondents-Appellees,
CourtU.S. Court of Appeals — Tenth Circuit

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, NM, for Petitioner-Appellant.

Patricia A. Gandert, Assistant Attorney General (Tom Udall, Attorney General, Elizabeth Blaisdell, Assistant Attorney General, Santa Fe, New Mexico, with her on the brief), for Respondents-Appellees.

Before PORFILIO, LOGAN and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Petitioner Judith Neely appeals from the district court's dismissal of her federal habeas corpus petition, brought pursuant to 28 U.S.C. § 2254, following her convictions, sentencing, and appeal in New Mexico state courts. A jury found Neely guilty but mentally ill ("GBMI") of first-degree murder, three counts of attempted murder, and two counts of aggravated battery. On appeal, Neely asserts (1) New Mexico's GBMI statute deprives a mentally ill defendant of due process and a fair trial, in violation of the Fourteenth Amendment; (2) New Mexico's GBMI statute subjects a mentally ill defendant to cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments; and (3) the trial court's restriction of voir dire and its refusal to instruct the jury on the consequences of the not-guilty-by-reason-of-insanity ("NGRI") and GBMI verdicts deprived her of due process and a fair trial.

This court exercises jurisdiction pursuant to 28 U.S.C. § 2253. We construe Neely's request for a certificate of appealability as a request for a certificate of probable cause, 1 grant it, and affirm the district court's dismissal of her petition.


Neely has a long history of mental illness, including schizophrenia and manic depression. During the ten years she was under the care of her psychiatrist, she was hospitalized five times. In May 1989, approximately six weeks after her last hospitalization, Neely drove her car into a family of four, killing one member and injuring two others. The sole issue at Neely's trial was whether she was criminally insane at the time of the offenses. The jury, rejecting her insanity defense, found her guilty but mentally ill of the charged offenses. The trial court sentenced her to life imprisonment plus twenty-seven years.

Neely appealed to the New Mexico Supreme Court, which affirmed her convictions. See State v. Neely, 112 N.M. 702, 819 P.2d 249, 260 (1991) [hereinafter Neely I ]. Among other things, the court held that New Mexico's GBMI statute does not violate a mentally ill defendant's right to due process and a fair trial; that the GBMI statute does not violate the Eighth Amendment's proscription against cruel and unusual punishment; and that Neely was not entitled to a jury instruction on the consequences of the NGRI and GBMI verdicts nor was she entitled to question the venire panel concerning those consequences. 2 See id. 819 P.2d at 251-57.

Upon remand, Neely filed a motion asking the trial court to reconsider its sentence and requesting that the court sentence her to an appropriate mental facility where she could receive treatment for her mental illness. The trial court denied her motion, and Neely again appealed to the state supreme court. The state supreme court held that because she was convicted of first-degree murder, the trial court lacked discretion to sentence her to a mental facility. 3 See State v. Neely, 117 N.M. 707, 876 P.2d 222, 225 (1994) [hereinafter Neely II ].

Neely next filed a petition for habeas corpus relief in federal district court and raised the same issues resolved by the New Mexico Supreme Court. The district court adopted the proposed findings and the recommended disposition of the magistrate judge and dismissed the petition with prejudice. From this dismissal, Neely appeals.

A. Applicability of Supreme Court Precedent

Before addressing the merits of Neely's due process challenge, this court must first determine the effect on this appeal of the Supreme Court's summary dismissal in Hardesty v. Michigan, 477 U.S. 902, 106 S.Ct. 3269, 91 L.Ed.2d 560 (1986). Hardesty appealed to the Supreme Court from a decision of the Michigan Court of Appeals, 4 which, inter alia, rejected his federal constitutional challenge to Michigan's GBMI statute. See People v. Hardesty, 139 Mich.App. 124, 362 N.W.2d 787, 798 (1984), appeal denied, 424 Mich. 877, 380 N.W.2d 763, appeal dismissed, 477 U.S. 902, 106 S.Ct. 3269, 91 L.Ed.2d 560 (1986). The Supreme Court summarily dismissed his appeal for want of a substantial federal question. See Hardesty v. Michigan, 477 U.S. 902, 106 S.Ct. 3269, 91 L.Ed.2d 560 (1986).

In Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the Supreme Court held that summary affirmances and summary dismissals for want of a substantial federal question are considered decisions on the merits, and lower courts are thereby bound by the summary actions " 'unless and until the Supreme Court should instruct otherwise.' " Id. at 344, 95 S.Ct. 2281 (quoting Port Auth. Bondholders Protective Comm. v. Port of New York Auth., 387 F.2d 259, 263 n. 3 (1967)). The Supreme Court noted that a lower court must first ascertain what issues were properly presented and declared by the Court to be without substance in order to determine whether its summary action is controlling precedent. See id. at 345 n. 14, 95 S.Ct. 2281. The Court recognized that "[a]scertaining the reach and content of summary actions may itself present issues of real substance." Id.

Two years after its decision in Hicks, the Supreme Court provided further guidance, stating that such actions "without doubt reject the specific challenges presented in the statement of jurisdiction and ... leave undisturbed the judgment appealed from." Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam). The Court further counseled that summary actions "prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Id. The Court cautioned, however, that the precedential significance of a summary action "is to be assessed in light of all of the facts in that case." Id. at 177, 97 S.Ct. 2238.

In his jurisdictional statement, Hardesty stated the relevant issue for review as follows:

Whether Michigan's statutes allowing a verdict of guilty but mentally ill unconstitutionally infringe on the rights to a fair jury trial and to present an insanity defense, where the trial judge instructed on the verdict over defense objection and the jury found Appellant Hardesty to be guilty but mentally ill on all seven counts.

Jurisdictional Statement, Hardesty v. Michigan, No. 85-6850 (1986), at 1. In arguing the question presented was substantial, Hardesty stated the "objective in creating the GBMI legislation is to induce 'compromise' guilty verdicts." Id. at 19. He further argued that "some commentators have found that [the GBMI verdict] violates due process" because the verdict deprives legally insane defendants of their right to present an insanity defense. Id. at 19-20.

At first glance, the issue presented by Hardesty appears to be the same due process issue Neely presents to this court. 5 Delving further into Hardesty's jurisdictional statement, however, two important distinctions between Hardesty's case and Neely's case emerge. First, Hardesty states the jury in his case was instructed on the consequences of both a NGRI verdict and a GBMI verdict. See id. at 14. In contrast, one of Neely's arguments is partially premised on the trial court's refusal to instruct the jury on the consequences of the two verdicts. Second, Hardesty states in his jurisdictional statement that a defendant found GBMI is "eligible for treatment of his mental illness in prison or a mental hospital while incarcerated." Id. at 19. Neely, however, claims the trial court's lack of discretion to commit her to a mental facility undermines the constitutionality of New Mexico's GBMI statute. That the Michigan Court of Appeals in Hardesty did not explicitly rely on these two factors in upholding the state's GBMI statute is of no consequence. The Supreme Court has cautioned that for purposes of determining the binding effect of a summary action, the action should not be interpreted as adopting the rationale of the lower court, but rather as affirming only the judgment of that court. See Mandel, 432 U.S. at 176.

The referenced differences between Hardesty's and Neely's cases compel the conclusion that the Supreme Court's summary dismissal in Hardesty is not controlling precedent in this case. This court must therefore address Neely's due process challenge. Cf. Lecates v. Justice of Peace Court No. 4, 637 F.2d 898, 907 (3d Cir.1980) ("To avoid our duty to decide a case properly before us by an unquestioning reliance on [the summary dismissal in] [State ex rel.] Caulk [v. Nichols, 281 A.2d 24 (Del.1971)], where critical differences appear between the two cases, would retard the development of constitutional principles....").

B. Due Process and Right to Fair Trial

Neely argues that New Mexico's GBMI statute violates a mentally ill defendant's right to due process and a fair trial. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Whether the GBMI statute contravenes the United States Constitution is a question of law which this court reviews de novo. See Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir.1994).

Unlike the insanity defense, which has its roots in ancient Judaic, Christian, and Roman law, the GBMI verdict first appeared in 1975, when Michigan enacted its GBMI statute. See Ira Mickenberg, A Pleasant Surprise: The Guilty but Mentally Ill Verdict Has Both Succeeded in its Own Right...

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