Weekley v. Jones, 89-2909

• Decision Date: 04 March 1991
• Docket Number: No. 89-2909,89-2909
• Citation: 927 F.2d 382
• Parties: Jimmie L. WEEKLEY, Appellant, v. Jimmy JONES, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 382

927 F.2d 382

Jimmie L. WEEKLEY, Appellant, v. Jimmy JONES, Appellee.

No. 89-2909.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 8, 1990.

Decided March 4, 1991.

Robert A. Useted, St. Louis, Mo., for appellant.

William J. Bryan, IV, Jefferson City, Mo., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and STUART, ^* Senior District Judge.

HENLEY, Senior Circuit Judge.

Jimmie Lee Weekley appeals the district court's denial of his petition for writ of habeas corpus. He claims: (1) his jury was unconstitutional under Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) (Missouri system of juror selection systematically excludes women in violation of the sixth amendment); (2) his counsel was ineffective for failing to raise the Duren issue at trial or as soon thereafter as practicable; and (3) his counsel was ineffective for advising him to withdraw a not guilty by reason of insanity plea given conflicting evidence of competency at the time the plea was changed and significant evidence of his insanity both at the time of the trial and the time of the crime. Appellee objects to appellant being granted an extension of time within which to file his notice of appeal in the present action.

Based on the record before us, we cannot conclude the district court abused its discretion in granting appellant an extension of time to file his notice of appeal. We otherwise reverse the district court and remand this case for further consideration of the jury and ineffective assistance of counsel issues.

FACTS

Appellant was convicted of second degree murder for killing his estranged wife with a shotgun, and was sentenced to life in prison. After the killing, which evidently took place in a house trailer, appellant also shot himself, inflicting extensive physical injuries to the head and serious nerve and brain damage. Intelligence quotient tests reveal appellant was, after the shooting, borderline mentally retarded (IQ as low as 71).

Appellant had at least three psychiatric examinations performed on him after the shooting. The first, by Dr. Corales, was about eighteen months before trial. The doctor concluded that appellant was incompetent to stand trial, presently suffered from a mental disease (paranoid-type schizophrenia), but evidence was inconclusive on whether appellant suffered from the disease at the time of the crime. Approximately two months later, Dr. Parwatikar performed an examination and concluded appellant was competent to stand trial, was presently suffering from a mental disease, and was legally insane at the time of the crime. Approximately four months after All the doctors' reports note a history of personal and family psychiatric problems, including substantial medication and multiple instances of hospitalization. These same evaluations concur in their diagnoses that appellant has paranoid-type schizophrenia including paranoid ideation, hallucinations, delusions, violent behavior and depression (including some suicidal tendencies). All reports make mention of appellant's near borderline retardation, at least much of which was the result of his self-inflicted wounds.

trial, a third examination was performed by Dr. Bratkowski. Only partial excerpts of his report appear in the record. Based on this report, appellant was suffering from serious mental disease at the time of the examination.

A pre-trial hearing to determine competence to stand trial and to enter a change of plea was held. In determining competence, the trial court referred to Dr. Parwatikar's report, without any reference to Dr. Corales' report, and concluded there was no dispute regarding competence and that the "doctors" agreed that appellant was competent. Tr. 111. The trial court asked appellant whether he had been able to assist his lawyer, to which appellant responded, "[y]eah, as far as I could." Tr. 112. Based on that response and the belief that there were harmonious doctors' reports, the trial court held: "[w]e'll enter the Order finding that the Defendant does have the capacity to know and understand the nature of the complaint." Tr. 113.

From this exchange, the trial court proceeded to address the change in plea from not guilty by reason of insanity ("insanity plea") to not guilty. The trial court questioned appellant, his new wife, and counsel regarding the change in plea. In response to the trial court's first inquiry as to appellant's desire to change his plea, trial counsel interrupted and prevented appellant from answering. Tr. 113. Counsel then, curiously, proceeded to explain why appellant and his spouse wanted to plead insanity, which fact appellant verbally affirmed.

Additional exchanges were had between the bench and counsel, including an explanation of how the withdrawal of the insanity plea would result in a plea of not guilty to second degree murder. The court then asked whether this is what appellant wished to do, to which appellant responded, "[w]ell ... I understand what you mean, but I don't know what to say. I actually don't." Tr. 115.

Appellant's new wife, a registered nurse, was also questioned. When asked whether, as a result of discussions regarding her husband's lack of recollection of the crime and his own serious injuries, a change in plea had been contemplated, she responded, "[f]or whatever reason." Tr. 116. The trial court then asked her whether she thought the change in plea was in her husband's best interest. She responded, "I don't know ... I do bedpans, you do lawbooks, okay?" Tr. 116.

During these discussions of appellant's plea alternatives, the prosecutor pointed out and the trial court confirmed that under Missouri law, appellant could enter both a not guilty and an insanity plea. Tr. 117-18. To this, trial counsel responded, "[w]ell, the only reason we're [referring to counsel] here is we thought we were trying him [Weekley] on the grounds that he was Not Guilty. That's what you hired us for." Tr. 118. Trial counsel then insisted the court permit him to accept full responsibility for his client's change in plea. From the point of that statement, the trial court proceeded on the assumption that appellant was making an informed and voluntary change in plea. The trial court held, after interruption and several incoherent remarks by appellant, Tr. 118-19, that the record would reflect the change in plea.

The trial record shows that counsel principally relied on appellant's lack of memory and the lack of any eyewitnesses to support the claim of not guilty to the charged offense. However, the record also reflects that the jury was presented with evidence that neighbors heard gun shots, saw only appellant and the victim in the house trailer immediately thereafter, the victim died of a shotgun wound, appellant himself was covered in blood at the scene of the crime and apparently suffered from a self-inflicted On direct appeal, the Missouri Court of Appeals affirmed appellant's conviction holding the circuit court did not abuse its discretion by (1) allowing the prosecution to strike a male juror for cause based on the juror's doubts he could properly perform his duty; (2) not issuing the most recent form of jury instruction on credibility of witnesses where the only difference was the use of an indefinite masculine pronoun; (3) permitting extensive cross-examination of Weekley on the issue of blackout; and (4) admitting black and white photographs of the crime scene. State v. Weekley, 621 S.W.2d 256 (Mo.1981).

shotgun wound, and appellant claimed he did not know what had happened but that he guessed he shot her. In short, there was little doubt appellant had killed the victim. The only defense witness was appellant.

Appellant then sought post-conviction relief which was denied twice. The first action generally alleged ineffective assistance of counsel relating to the insanity plea, which claim was determined to be meritless. This determination was affirmed on appeal. The second action raised the jury issues. The Missouri circuit court stated it believed such claims were procedurally barred, but the court apparently denied the claims on other grounds as meritless. The determination was summarily affirmed by the court of appeals without comment in a per curiam opinion. Weekley v. State, 694 S.W.2d 267 (Mo.Ct.App.1985). Appellant then petitioned for federal relief.

In the Review and Recommendation adopted by the district court, the federal magistrate recommended that habeas relief be denied. The magistrate determined that appellant was procedurally barred from raising the constitutional jury issue because appellant did not object at trial, did not raise the issue in his first post-conviction relief action and, apparently, such claim was treated as procedurally barred in the second state action. The magistrate ruled there was no showing of cause and prejudice sufficient to overcome the procedural default.

The magistrate then discussed the question whether counsel was ineffective for withdrawing the insanity plea. The magistrate primarily relied on the circuit court's findings in appellant's first state post-conviction relief action. That court determined the evidence of appellant's competency was clear based on two medical reports. The magistrate deferred to the state court and apparently concluded that, since appellant was competent, he was legally capable of changing his plea. The magistrate did not discuss evidence of appellant's insanity.

We review a district court's decision to grant a timely filed extension to file a notice of appeal under an abuse of discretion standard. Vogelsang v. Patterson Dental Co., 904 F.2d 427, 431 (8th Cir.1990). We review determinations regarding a petitioner's entitlement to a writ of habeas corpus as a mixed question of fact and law, reviewing any factual findings under a clearly erroneous standard, recognizing a presumption of correctness regarding the factual findings of state...