Raymond v. Weber

• Decision Date: 12 January 2009
• Docket Number: No. 08-1774.,08-1774.
• Citation: 552 F.3d 680
• Parties: Roger Allen RAYMOND, Petitioner-Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

552 F.3d 680 Roger Allen RAYMOND, Petitioner-Appellant,
v.
Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent-Appellee. No. 08-1774. United States Court of Appeals, Eighth Circuit. Submitted: November 13, 2008. Filed: January 12, 2009.

[552 F.3d 681]

Ronald A. Parsons, Jr., argued, Sioux, SD, for Petitioner-Appellant.

Sherri Sundem Wald, AAG, argued, Pierre, SD, for Respondent-Appellee.

Before MURPHY, HANSEN, and RILEY, Circuit Judges.

MURPHY, Circuit Judge.

Roger Allen Raymond was convicted in South Dakota of sexual contact with a minor and of being an habitual offender; he was sentenced to life in prison without possibility of parole. On direct appeal, the South Dakota Supreme Court affirmed Raymond's conviction and sentence. After several unsuccessful attempts at state habeas relief, Raymond petitioned the federal

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district court¹ for a writ of habeas corpus. The petition was denied, and Raymond was granted a certificate of appealability on three issues, all of which have been briefed and argued. We now affirm.

I.

In 1994 Raymond was convicted in Brown County, South Dakota, of sexual contact with a minor and of being an habitual offender. The South Dakota Supreme Court reversed the conviction and remanded for a new trial. At the time of his trial and successful appeal, Raymond was represented by court appointed counsel.

At a pretrial motion hearing, Raymond informed the trial court that he wished to represent himself at the retrial and that he understood the consequences of his decision. At the state's request, the trial court authorized a 24 hour recess in order for Raymond to reconsider his decision to waive counsel and for the state to research legal issues concerning self representation.

The next day the parties met on the self representation issue. The trial court fully informed Raymond of the various rights he was waiving and the disadvantages of waiving those rights. After Raymond repeated his desire to represent himself, the court ruled that Raymond had knowingly and intelligently waived his right to counsel and that he would be permitted "to proceed pro se and to represent [himself] during the trial."

A couple of weeks later the state trial court decided sua sponte to order a psychological evaluation of Raymond, to hold a competency hearing, and to appoint counsel to assist Raymond at this hearing. The court stated that pursuant to South Dakota Codified Laws § 23A-46-3, it was obligated to appoint Raymond an attorney for the purpose of the competency hearing. It also observed that neither Raymond nor the court had discretion to waive the obligation for counsel, and it appointed Tony Portra to represent Raymond on the competency issue.

At the competency hearing, Dr. William Pettit, a psychologist who had performed the psychological evaluation of Raymond, testified that in his opinion Raymond was competent to assist in and conduct his own defense in a rational manner. The defense was given the opportunity to cross examine Dr. Pettit. Attorney Portra informed the court that Raymond had "specifically asked [him] not to ask any questions or present any evidence which would tend to bring [Raymond's] competency into question." Raymond proceeded to represent himself and cross examined Dr. Pettit. The prosecutor objected to Raymond's cross examination of Dr. Pettit, arguing that Portra should represent Raymond at the competency hearing. In response to that question the court stated that "Raymond in conference with Mr. Portra ha[d] informed the Court that Mr. Portra does not desire to contest the competency opinion of the doctor." When the court asked if this assessment was correct, Portra answered affirmatively. The court then overruled the prosecutor's objection and allowed Raymond to cross examine Dr. Pettit. Raymond presented no evidence regarding his competence. The court asked Portra if he had any witnesses, and Portra stated that he did not. Based on Dr. Pettit's testimony, the court determined that Raymond was competent to represent himself.

Portra submitted a letter to the court, along with his billing statement, stating

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that he had "put in a substantial amount of time in preparation for [the competency] hearing." Portra's billing statement reflected that he had prepared for the cross examination of Dr. Pettit, performed legal research, and examined Raymond's prior psychological reports, jail incident logs, and various documents drafted by Raymond.

Although Raymond conducted his own defense at the retrial, he was again convicted and sentenced in the same manner as in his initial trial. The South Dakota Supreme Court affirmed Raymond's conviction and sentence. State v. Raymond, 563 N.W.2d 823 (S.D.1997). The only issues Raymond presented on direct appeal were (1) whether he was competent to waive his right to counsel at trial, and (2) whether his sentence constituted cruel and unusual punishment.

From 1997 to 1999 Raymond filed three separate petitions in the federal court for a writ of habeas corpus, but each petition was dismissed without prejudice for failure to exhaust state court remedies. In 2001 the district court entered an order finding that it would be futile for Raymond to attempt to file a state habeas petition and directing Raymond to file an amended petition for a writ of habeas corpus in federal court. Shortly thereafter, Raymond filed an amended habeas petition. With the assistance of appointed counsel, Raymond filed a second amended habeas petition in 2003, alleging a Sixth Amendment violation of his right to effective assistance of counsel at his competency hearing.

The district court denied the petition. As to the Sixth Amendment claim it concluded that under the deferential standard of 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214,² Raymond was not entitled to relief...