USA. v. Budell

• Decision Date: 17 August 1999
• Docket Number: No. 98-30012,98-30012
• Citation: 187 F.3d 1137
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR TODD BUDELL, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1137

187 F.3d 1137 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR TODD BUDELL, Defendant-Appellant.

No. 98-30012

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 12, 1999

Filed August 17, 1999

J. Mayo Ashley, Helena, Montana, for the defendant appellant.

Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for the plaintiff-appellee.

Appeal from the United States District Courtfor the District of Montana Charles C. Lovell, District Judge, Presiding. D.C. No. CR 89-00032-CCL.

Before: Harry Pregerson and David R.Thompson, Circuit Judges, and Robert M. Takasugi,* Senior District Judge.

Opinion by Judge Takasugi

OPINION

TAKASUGI, Senior District Judge:

Victor Todd Budell ("Budell"), who has been institutionalized at the United States Medical Center in Springfield, Missouri, since his plea of not guilty only by reason of insanity, appeals from an order denying his pro se request for a discharge hearing and appointment of counsel. A certificate of appealability was denied by the district court.

We determine that a certificate of appealability was unnecessary because Budell's letter request was not a motion pursuant to 28 U.S.C. S 2255, and that Budell was effectively denied his statutory right to counsel and, therefore, reverse and remand this matter for further proceedings.

I.

On November 20, 1989, Budell was charged with murder of a forest service employee, in violation of 18 U.S.C. SS 1111 and 1114 (Count One); and with threatening the life of the President of the United States, in violation of 18 U.S.C. S 871 (Count Two).

At an evidentiary hearing before the district court on June 28, 1990, Budell was found competent to enter a plea and pled not guilty only by reason of insanity.¹ The district court found that Budell committed the offenses charged in the indictment but was unable to appreciate the nature or quality of his acts at the time of the commission of the acts constituting the offenses. Therefore, the district court committed Budell to the custody of the Attorney General pursuant to 18 U.S.C. S 4243(a), to be placed in a suitable facility for his care and treatment until the hearing on whether his release would pose a substantial risk of bodily injury to others or serious damage to the property of others.

Pursuant to 18 U.S.C. S 4243(c), a hearing was conducted before the district court on October 3, 1990, at which time Budell was represented by his appointed counsel who had represented him since his arraignment.² The court found that Budell had "failed to prove by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or serious damage to property of another" and, therefore, remanded Budell to the custody of the Attorney General.

Upon such hospitalization, the director of the custodial facility is required to submit annual reports to the committing court concerning the mental condition of the insanity acquittee including recommendations concerning the need for continued hospitalization. 18 U.S.C. S 4247(e). However, it appears that no annual reports were submitted to the court for more than three years.

On July 28, 1993, Budell filed, pro se, a very articulate typewritten application for habeas corpus pursuant to, inter alia, 18 U.S.C. S 4247. By order filed September 1, 1993, the district court denied the habeas corpus application and ordered the Director of the Springfield Medical Center to provide the court with annual reports. In so doing, the court found Budell not qualified to render an opinion as to the risk he poses to others and "encourage[d] the Director of the Medical Center for Federal Prisoners to provide the court as soon as possible with the report required by . . . statute," (9/1/93 Order at 3), noting the statutory language requiring that the director of the facility " `shall prepare annual reports . . . [and that] [t]he reports shall be submitted to the court that ordered the person's commitment to the facility . . . .' " Id. (alteration in original) (quoting, 18 U.S.C. S 4247(e)(1)).

Thereafter, according to a reference made in a district court order of January 19, 1994, it appears that the first annual report, or Risk Assessment Panel report ("RAP"), dated October 15, 1993, was received by the district court. However, the RAP does not appear anywhere in the record as the court never filed it or attached it to any order or other paper that has been filed. The docket sheet reveals that the district court has not filed any of the annual RAPs. However, an examination of the district court record indicates that the court received RAPs dated October 17, 1994 (with cover letter from the warden dated December 12, 1994),³ October 2, 1995, August 19, 1996 and May 19, 1997.⁴ There is no indication in the record that the district court received an annual report in 1998.

In a handwritten letter dated November 21, 1996, ⁵ Budell requested an annual release hearing "as I have never had a release hearing in the eight years that I've been committed." In connection therewith, Budell further requested "that the court appoint counsel to present my case as I have been run for release twice and the officials at Springfield can not find a facility to place me." Budell was referring to the fact that the annual reports for 1995 and 1996, contained the opinion from the Risk Assessment Panel that "Mr. Budell's mental illness was well controlled on the present regimen of treatment. . . . It was the unanimous opinion of the panel that Mr. Budell could be released from psychiatric hospitalization under certain specific conditions . . . . " However, according to the warden's cover letters to the RAPs, the structured living environment and outpatient mental health services necessary to meet the specific conditions could not be found in the State of Montana, where Budell's mother lives. Both his request for annual release hearings and for appointment of counsel were denied by the district court by order filed December 3, 1996.⁶

By a handwritten letter dated April 8, 1997, which was filed by the district court more than six months later on October 29, 1997, Budell requested that a hearing be set pursuant to 18 U.S.C. S 4247, as soon as possible after the court's receipt of his 1997 RAP and that counsel be appointed to represent him.

According to the May 19, 1997 RAP, the Risk Assessment Panel

concluded that Mr. Budell would not pose a danger to others or to the property of others due to mental illness if released to the home of his mother and required to follow a set of conditions. This opinion is based on his current psychiatric stability and evidence of improved insight and behavioral self management. The panel recommended a conditional release to include outpatient psychiatric treatment, substance abuse counseling, compliance with medication, abstinence from drugs and alcohol, and no access to firearms or weapons of any kind. The panel agreed that Mr. Budell could reside with his mother as long as he followed all of the conditions of his release.

The October 20, 1997 cover letter to this RAP from the warden, P. W. Keohane, states the following:

Since the report was prepared, our efforts to secure appropriate mental health aftercare have met with negative results. A letter dated July 11, 1997, from the Mental Health Center, Billings, Montana, indicated that they were unable to safely manage the patient. Because the community resources necessary to facilitate Mr. Budell's successful adjustment in society are not currently available, we propose he remain at the U.S. Medical Center, Springfield, Missouri. . . ."

By order filed October 29, 1997, the court reaffirmed its October 3, 1990 finding that release of Budell would create a substantial risk of bodily injury to another person or serious damage to property of another and denied Budell's motions for a hearing and appointment of counsel.

On December 2, 1997, Budell filed a notice of appeal ⁷ and a motion to proceed on appeal in forma pauperis and for appointment of appellate counsel. By order filed December 23, 1997, the district court stated that "[d]efendant ha[d] already been granted in forma pauperis status for the pendency of this criminal matter. . . . [and that] Defendant does have court-appointed counsel, who has apparently declined to present this motion to the court."⁸ The court also stated that "[i]n light of defendant's notice of appeal and to the extent that the court's October 29, 1997, order constitutes the denial of a petition for writ of habeas corpus, the court must consider whether to issue or deny a certificate of appealability. . . ." The court denied the certificate of appealability and, thereupon, denied Budell's motion for in forma pauperis status and appointment of counsel as moot, "Defendant already having been granted both in forma pauperis status and courtappointed counsel."

This court has jurisdiction pursuant to 28 U.S.C.S 1291.

II.

Whether the denial of a certificate of appealability precludes this court from reaching the merits of this appeal is an issue of law, as is the issue whether the district court erred in denying Budell's motion for discharge hearing and for appointment of counsel. Review is, therefore, de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

III.

A. Certificate of Appealability

A certificate of appealability is a prerequisite to an appeal from "(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255." 28 U.S.C. S 2253(c)(1).

Pursuant to 28 U.S.C. S 2255,

"[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the...