Wilkins v. Bowersox

• Decision Date: 15 May 1996
• Docket Number: No. 91-0861-CV-W-5.,91-0861-CV-W-5.
• Citation: 933 F. Supp. 1496
• Parties: Heath A. WILKINS, Petitioner, v. Michael BOWERSOX, Respondent.
• Court: U.S. District Court — Western District of Missouri

933 F. Supp. 1496

Heath A. WILKINS, Petitioner, v. Michael BOWERSOX, Respondent.

No. 91-0861-CV-W-5.

United States District Court, W.D. Missouri, Western Division.

May 15, 1996.

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Connie M. Francis, Sean O'Brien, Public Interest Litigation Clinic, Kansas City, MO, for petitioner.

Cassandra Kaye Dolgin, Missouri Attorney General's Office, Jefferson City, MO, Ronald Jurgeson, Kansas City, MO, for respondent.

ORDER

SCOTT O. WRIGHT, Senior District Judge.

This is a petition for writ of habeas corpus under 28 U.S.C. § 2254 by Heath A. Wilkins (petitioner), an inmate in custody at Potosi Correctional Center, Potosi, Missouri. The petitioner seeks to vacate his conviction for first degree murder and sentence of death entered by the Circuit Court of Clay County, Missouri after petitioner waived counsel and entered a guilty plea.¹

Background

In the summer of 1985, Petitioner, who was then sixteen years old, lived in a public park in Kansas City with three other teenagers, Marjorie Filipiak, Patrick Stevens and Ray Thompson. The four of them planned and carried out the robbery of a liquor store in Avondale, Missouri, on July 27, 1985. According to the plan, Marjorie Filipiak went to the nearby North Kansas City Hospital and called a cab while the three boys went to the liquor store. Ray Thompson stayed outside the store to act as lookout, and Petitioner and Patrick Stevens went inside the store to rob it. During the robbery, Petitioner fatally stabbed the proprietor of the store, Nancy Allen, as Stevens held her.

Acting on an anonymous tip, Kansas City police arrested Petitioner and his associates in the park on August 10, 1985. After questioning by the police, Petitioner confessed to the murder and robbery. Because of his age, a hearing was conducted to determine whether he would be tried as an adult. Fred Duchardt, the Clay County Public Defender, was appointed to represent Petitioner at the hearing. After denying counsel's request for a mental examination, the juvenile court on August 15, 1985, entered an order allowing Petitioner to be tried as an adult.

Petitioner was charged as an adult with the offenses of unlawful use of a weapon, first degree murder and armed criminal action. At arraignment in the Clay County Circuit Court, counsel entered the alternative pleas of not guilty and not guilty by reason of mental disease or defect on Petitioner's behalf. Pursuant to that plea, the court ordered a mental examination of Wilkins. Steven A. Mandracchia, Ph.D., a psychologist at Western Missouri Mental Health Center, examined Wilkins in November, 1985.

In January, 1986, Mr. Duchardt visited petitioner in the Clay County jail. At that time, petitioner told Mr. Duchardt that he wished to be executed. A second examination was performed in March, 1986 by William A. Logan, M.D., a psychiatrist with the Menninger Foundation.

A competency hearing was held on Wednesday, April 16, 1986. Dr. Mandracchia testified that he did not believe petitioner had a mental disease or defect "as defined by" Missouri statute. He gave no opinion whether petitioner had a mental disease or disorder outside of the statutory definition, except that he "agreed with the past treatment records and past psychiatric and psychological diagnoses." Dr. Mandracchia concluded that petitioner was "competent to proceed". Although Dr. Mandracchia was not aware of petitioner's desire to be executed when he conducted his examination, he testified at the hearing that this fact did not alter his conclusion regarding petitioner's competency to proceed.

Dr. Logan testified that petitioner was "psychiatrically ill" with a "plethora of mental difficulties". However, he did not give an opinion on petitioner's competency to proceed because he interpreted Missouri law to require a psychotic disorder. Dr. Logan stated that although petitioner had no cognitive deficits, his emotional disabilities "could interfere with his decision-making process at certain critical points." Mr. Duchardt insisted that there was "considerable question" about petitioner's competency. Over Mr. Duchardt's protests, the court found him competent to proceed.

Mr. Wilkins then informed the court that he wanted to be sentenced to death. He also stated that he wanted to waive counsel because Mr. Duchardt would not help him get the death penalty. Counsel again reiterated his belief that petitioner was not acting competently. The court deferred action on Petitioner's request until a hearing the following week. On April 23, 1986, the court accepted the waiver of counsel.

Petitioner immediately asked to plead guilty to all charges and be executed. After a brief hearing two weeks later, the court accepted petitioner's pro se guilty plea on May 9, 1986 and a sentencing hearing was held on June 27, 1986. The State presented evidence of the crime and testimony by Dr. Mandracchia and Dr. Logan. Petitioner objected to any evidence of his mental disorders that could be construed as mitigating and joined in the State's request for the death penalty. The court found that the murder was wantonly vile, horrible or inhuman because it involved depravity of mind, and that the murder was committed in the course of a robbery. Then the court sentenced petitioner to death.

The sentence was reviewed by the Missouri Supreme Court pursuant to Mo.Rev. Stat. § 565.035 (1986). The Office of the Public Defender was appointed to act as amicus curiae for petitioner on the "appeal". At oral argument, Mr. Wilkins appeared personally before the Missouri Supreme Court, repeated his wish to be executed and requested that amicus counsel be discharged. The court ordered Sam Parwatikar, M.D., a psychiatrist with the Missouri Department of Mental Health, to examine petitioner to determine his "competence to waive counsel" on appeal. Dr. Parwatikar concluded that Petitioner "was not capable of waiving his constitutional right to counsel."

Amicus counsel then moved to remand the matter to the Circuit Court for an evidentiary hearing on Wilkins' mental competence and waiver in light of Dr. Parwatikar's findings. The State objected, arguing that the review was limited to the statutory criteria in § 565.035. The Missouri Supreme Court denied the motion for remand and appointed the Public Defender to act as counsel for Petitioner.

The Missouri Supreme Court affirmed Petitioner's conviction and sentence on direct statutory review, State v. Wilkins, 736 S.W.2d 409 (Mo. banc 1987), with Justices Blackmar, Donnelly and Welliver dissenting on proportionality grounds. Judge Donnelly also wrote separately that proportionality was the only issue properly before the court. On June 30, 1988, the United States Supreme Court granted certiorari to decide whether the execution of a sixteen-year-old offender per se violates the cruel and unusual punishment clause of the Eighth Amendment, and eventually held that it did not. Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989).

On the same day that the Supreme Court granted certiorari, petitioner filed a motion in the sentencing court pursuant to Mo. R.Crim.P. 24.035 to set aside his convictions and sentences. By that time, petitioner was nineteen years old and did not aspire to be executed. Counsel was appointed to represent Petitioner and a hearing on Wilkins' motion was held May 22-26, 1989. Dorothy Lewis, M.D., Jonathan Pincus, M.D., and William O'Connor, Ph.D., conducted testing and clinical interviews and concluded that Wilkins suffers from schizoaffective disorder, a mental disease which rendered him incompetent to proceed at the time of his plea. Dr. Logan also testified that had he been asked to respond to the question posed in the Missouri Supreme Court's order to Dr. Parwatikar, he would have concurred with Dr. Parwatikar — that Wilkins was not "competent" to proceed as his own attorney.

The State called Mr. Duchardt and Dr. Mandracchia. Mr. Duchardt again stated that he believed that Wilkins was not competent at the time of his plea and sentencing hearing. Dr. Mandracchia testified that he would need to perform an additional examination of Petitioner to respond to the State's question about Wilkins' "competence to waive" counsel. Claiming surprise at Dr. Mandracchia's testimony, the State requested a mental evaluation by Dr. Mandracchia to determine whether petitioner was "competent to waive" his constitutional rights and plead guilty and whether petitioner's waiver of counsel and guilty plea were in fact knowing, intelligent and voluntary. After conducting the court-ordered supplemental examination, Dr. Mandracchia testified that the waiver of counsel, guilty plea and waivers of other constitutional rights were not intelligent and voluntary. Nevertheless, the hearing court denied the motion and the Missouri Supreme Court affirmed. Wilkins v. State, 802 S.W.2d 491 (Mo.) cert. denied, Wilkins v. Missouri, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991).

Petitioner then filed the Petition for Writ of Habeas Corpus currently before this Court. The First Amended Petition alleged thirteen grounds of constitutional error. On May 16, 1995, this Court entered an Order conditionally granting the Writ on one of Petitioner's claims on the basis of the state court record, without an evidentiary hearing. The Court also considered and denied one other claim, but did not address the eleven remaining claims. After filing a timely notice of appeal, the State requested the Court of Appeals for the Eighth Circuit to remand the case to this Court for resolution of all remaining claims. The motion was granted on October 3, 1995.

After remand, Petitioner renewed his previous request for an evidentiary hearing. Over the State's objections, this Court heard testimony on January 5 and 30, 1996. Petitioner then voluntarily dismissed several claims. On April 23, 1996, ...