Page v. Lee

• Citation: 337 F.3d 411
• Decision Date: 28 July 2003
• Docket Number: No. 02-23.,02-23.
• Parties: George Franklin PAGE, Petitioner-Appellant, v. R.C. LEE, Warden, Central Prison, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

337 F.3d 411

George Franklin PAGE, Petitioner-Appellant, v. R.C. LEE, Warden, Central Prison, Respondent-Appellee.

No. 02-23.

United States Court of Appeals, Fourth Circuit.

July 28, 2003.

Argued: February 27, 2003.

Decided: July 28, 2003.

ARGUED: Walter Lamar Jones, Clifford, Clendenin, O'hale & Jones, L.L.P., Greensboro, North Carolina, for Appellant. Valerie Blanche Spalding, Special Deputy Attorney General, North Carolina Department Of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: William G. Causey, Jr., High Point, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, North Carolina Department Of Justice, Raleigh, North Carolina, for Appellee.

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Affirmed in part and dismissed in part by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILLIAMS joined. Judge GREGORY wrote an opinion concurring the judgement.

OPINION

LUTTIG, Circuit Judge:

Petitioner-appellant George Page challenges the validity of his conviction and death sentence, imposed by a North Carolina court for the shooting death of a North Carolina police officer. He claims that the state trial court erred by denying his request for appointment of a mental health expert, in violation of the Due Process Clause as elucidated in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and by denying his request to interview jurors during voir dire as to their understanding of the concept of "life without parole," in violation of principles established in Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), and Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). As no judge on the panel believes that petitioner has made a substantial showing of the denial of a constitutional right as to his Simmons claim, no certificate of appealability on this claim is issued, and the appeal as to that issue is dismissed. See 28 U.S.C. § 2253(c)(1). We do grant a certificate of appealability on petitioner's Ake claim. We conclude, however, that the district court did not err in rejecting that claim, and therefore affirm its judgment as to that issue.

I.

The relevant facts underlying petitioner's conviction for first degree murder and related other crimes are succinctly set forth in the North Carolina Supreme Court's opinion affirming petitioner's conviction and sentence on direct appeal:

[A]t around 8:00 a.m. on 27 February 1995, Sandra McGill was sitting in her apartment when she heard a loud explosion coming from the bar counter. Because she was blind, McGill called maintenance personnel, who discovered that a bullet had gone through her fish tank. The shot was fired by defendant George Franklin Page, who was pointing a high-powered rifle out the window of his apartment directly opposite McGill's building. He fired another shot when the maintenance person, Ellis Hollowell, went outside to take a closer look at a hole in the vertical blinds; this shot hit the wall just above Hollowell's head. Shortly after 9:00 a.m. defendant fired a third shot into a moving vehicle, a cable van.

Police Officers E.A. Newsome, A.N. Swaim, M.R. Bollinger, and J.W. McKenzie of the Winston-Salem Police Department arrived after 9:00 a.m. to inspect McGill's apartment. While Swaim and Newsome were proceeding to defendant's building to question the residents, defendant fired two more shots. While the officers radioed for help, he again fired his rifle, and the officers all took cover. Several testified that they saw defendant moving from window to window.

Officers John Pratt and Stephen Amos arrived at the scene and drove directly to defendant's building. Amos was at the hood of the car when defendant fired another shot that went through the patrol car's back window, then hit Amos in the chest. Pratt, along with officer Steven Sigmon and others, arrived and took Amos to the ambulance. Sigmon testified that he saw the muzzle flash and heard a shot that passed ten feet above his head.

Around 9:30 a.m. defendant called his ex-girlfriend, Tamara Mitchell, and stated that his apartment was surrounded by police officers and that he thought he had shot someone. At 10:00 a.m. Sergeant Marble, a crisis negotiator, called defendant. After discussion, defendant said he wanted to speak with his clinical psychologist, Dan Pollock, and his psychiatrist, Jason Crandell. Pollock spoke with defendant and implored him to surrender.... Negotiations continued until 11:45 a.m. when defendant agreed to go, without weapons, with Crandell and Marble to Pollock's office. Defendant was taken into custody shortly thereafter.

State v. Page, 346 N.C. 689, 693-94, 488 S.E.2d 225 (1997).

Petitioner was, for some time before and after the offense, being treated by both a psychiatrist and a psychologist for various disorders. At a pre-trial hearing on March 7, 1996, petitioner, according to the North Carolina Supreme Court, "moved for appointment of a third expert, a forensic psychiatrist, arguing that this type of expert was better equipped than a clinical psychologist to prepare a legal defense." State v. Page, 346 N.C. at 696, 488 S.E.2d 225. There was no dispute that petitioner's sanity at the time of the offense would be an issue at trial. The trial court, however, denied this motion. It noted that petitioner was being treated by two mental health specialists (a psychiatrist and a psychologist), that these specialists were available to aid petitioner, and thus that there was no need for a third such expert. On direct appeal, petitioner "contend[ed] that the trial court erred in providing the State with access to a forensic psychiatrist while denying his request for the same type of expert." Id. The North Carolina Supreme Court concluded, applying North Carolina's interpretation of Ake, that, "[g]iven the facts before the trial court when it made its ruling," petitioner "did not demonstrate a particularized need for a forensic psychiatrist or a reasonable likelihood that such an expert would materially assist him in the preparation and the presentation of his case." Id. at 697, 488 S.E.2d 225. Thus, the North Carolina Supreme Court held that the trial court did not err, and it affirmed petitioner's conviction and sentence.

Petitioner then brought his petition for a writ of habeas corpus in federal district court, again raising his Ake claim. The district court concluded that the North Carolina Supreme Court's adjudication of the claim was neither contrary to nor an unreasonable application of Ake, and denied the petition. Petitioner thereafter moved for a certificate of appealability with this court. Because Judge Gregory concluded that, as to this issue, petitioner made a substantial showing of the denial of a constitutional right, we issue a certificate of appealability on petitioner's claim under Ake. And we now address the merits of that claim.

II.

A.

As the petition for writ of habeas corpus in this case was filed on December 3, 1999, after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, AEDPA applies to the federal courts' adjudication of petitioner's claim. See Beck v. Angelone, 261 F.3d 377, 380 n. 3 (4th Cir.2001). In particular, since the North Carolina Supreme Court addressed the merits of petitioner's Ake claim on direct appeal, 28 U.S.C. § 2254(d) applies.¹ Section 2254(d) bars the granting of habeas relief upon any claim adjudicated on the merits in state court unless the petitioner can show that the state court's decision was either "contrary to" or involved an "unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or an "unreasonable determination of the facts" given the evidence before the state court.

B.

1.

In Ake v. Oklahoma, the Supreme Court addressed "whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question." 470 U.S. at 70, 105 S.Ct. 1087. The defendant in that case, Ake, was arrested and charged with murdering two individuals and wounding their children. Although his behavior at the arraignment was "so bizarre that the trial judge, sua sponte, ordered him to be examined by a psychiatrist" to determine whether he needed to be committed, id. at 71, 105 S.Ct. 1087, the trial court denied his attorney's request for the appointment of a psychiatrist to aid the defense. At trial, Ake attempted to use the testimony of the state psychiatrists who had treated him in the hospital to establish his insanity defense, but the prosecution "asked each of these psychiatrists whether he had performed or seen the results of any examination diagnosing Ake's mental state at the time of the offense, and each doctor replied that he had not. As a result, there was no expert testimony for either side on Ake's sanity at the time of the offense." Id. (emphasis in original). The prosecution used this testimony in the sentencing phase as well, to establish Ake's future dangerousness. The jury convicted Ake and imposed a death sentence.

On appeal, Ake challenged as a violation of due process the court's refusal to provide a court-appointed psychiatrist. The Supreme Court sustained the challenge: "We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. at 83, 105 S.Ct. 1087. The Court had no trouble determining that Ake had established to the trial court that his mental state...