Wilkins v. Secretary of Florida DOC

• Decision Date: 01 February 2021
• Docket Number: 3:18-cv-1361-LC-MJF
• Parties: LYNDAL KENNETH WILKINS, Petitioner, v. SECRETARY OF FLORIDA DOC, Respondent.
• Court: U.S. District Court — Northern District of Florida

LYNDAL KENNETH WILKINS, Petitioner, v. SECRETARY OF FLORIDA DOC, Respondent.

No. 3:18-cv-1361-LC-MJF

United States District Court, N.D. Florida, Pensacola Division

February 1, 2021

REPORT AND RECOMMENDATION

Michael J. Frank United States Magistrate Judge

PetitionerLyndal Kenneth Wilkins, proceeding pro se, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.(Doc. 1).Respondent(“the State”) answered, providing relevant portions of the state court record.(Doc. 17).Wilkins replied.(Doc. 22).The undersigned concludes that no evidentiary hearing is required for the disposition of this matter and that Wilkins is not entitled to habeas relief.^[1]

I.Background Facts and Procedural History

This case involves Wilkins's negotiated plea of nolo contendere to four crimes: (1) Burglary of a Dwelling While Armed with Explosives or a Dangerous Weapon; (2) Aggravated Stalking by Credible Threat; (3) Possession of a Short-Barreled Rifle or Shotgun or Machine Gun; and (4) Possession of Burglary Tools.Wilkins challenges his plea primarily on grounds relating to its voluntariness and his competency to enter it.In order to provide context for his claims, the undersigned provides an extensive review of the proceedings leading up to Wilkins's plea, as well as the plea proceeding itself.

In Santa Rosa County Circuit CourtNo. 07-CF-1367, Wilkins was charged with five crimes: (1) Burglary of a Dwelling While Armed with Explosives or a Dangerous Weapon; (2) Attempted Armed Kidnapping with a Weapon; (3) Aggravated Stalking by Credible Threat; (4) Possession of a Short-Barreled Rifle or Shotgun or Machine Gun; and (5) Possession of Burglary Tools.(Doc. 17-1, Ex. Aat 121-22in ECF (Fifth Am Information)).^[2] The victim was Wilkins's former girlfriend, Amanda Stevens.(Id.).Ms. Stevens's harrowing ordeal is described in the arrest report which formed the factual basis for Wilkins's plea of nolo contendere.(Doc. 17-1, Ex. Aat 25-26(Arrest Report);Ex. Aat 123-27(Plea Agreement);Doc. 17-1, Ex. C (Tr. of Plea Hr'g)).

Approximately seven months after the charges were filed, Wilkins's retained counsel, Michael Griffith, filed a Notice of Intent to Rely on Insanity Defense; a Suggestion of Incompetence to Proceed; and a motion for the court to appoint two experts to evaluate those issues.(Ex. Aat 53-59).On September 5 2008, the trial court appointed Dr. Lawrence Gilgun to evaluate Wilkins's competency.(Id. at 65-67(Order Appointing Gilgun for Competency Evaluation)).

Dr. Gilgun reported that Wilkins was uncooperative.(Doc. 17-1, Ex. Bat 178-80(Gilgun Report filed 10/24/08)).Gilgun was unable to determine whether Wilkins's lack of cooperation was due to his being severely disturbed or malingering.(Id.).Gilgun concluded that there was a “strong possibility” Wilkins was malingering.(Id.).However, given the seriousness of the charges and Wilkins's history of psychiatric illness, Gilgun recommended that Wilkins be placed in the Forensic Unit at the Florida State Hospital for further observation and evaluation where he could be observed around the clock.(Id.).

On December 2, 2008, the State moved for the appointment of a second expert to evaluate Wilkins's competency.(Doc. 17-1, Ex. Aat 69-71).The trial court granted the motion and appointed Dr. Harry McClaren to evaluate Wilkins's competency.(Id.).The court also appointed Gilgun and McClaren to evaluate Wilkins's sanity at the time of the crimes.(Id. at 72-75(Orders Appointing McClaren and Gilgun for Sanity Evaluations).The court scheduled a competency hearing for March 10, 2009.(Doc. 17-1, Ex. Aat 17(Docket Sheet)).

Dr. McClaren concluded that Wilkins was competent to proceed and that there was a strong indication Wilkins's clinical presentation was influenced by malingering.(Doc. 17-1, Ex. Bat 181-85(McClaren Report dated 12/31/08 and filed 1/16/09)).Dr. McClaren supplemented his report on January 16, 2009, with his evaluation of Wilkins's sanity at the time he committed the crimes.McClaren concluded that his evaluation did not support an adjudication of insanity.(Doc. 17-1, Ex. Bat 187-89(McClaren addendum dated 1/16/09 and filed 1/22/09)).

On March 10, 2009, Wilkins's competency hearing was continued to June 10, 2009.(Doc. 17-1, Ex. Aat 17(Docket Sheet)).

Dr. Gilgun interviewed Wilkins again on May 20, 2009.(Doc. 17-2, Ex. Eat 79-81).On June 4, 2009, Gilgun informed the court by letter that he had listened to audio recordings of several telephone calls Wilkins made from the jail to family and friends between September 27, 2007 and March 19, 2009, and that he concluded (1) Wilkins was malingering during Gilgun's competency interviews and (2) Wilkins was competent to proceed.(Doc. 17-1, Ex. Bat 190-92).Gilgun's letter was filed in court on June 10, 2009.(Doc. 17-1, Ex. Bat 190-92).

The case was placed on the trial calendar for August 31, 2009.(Doc. 17-1, Ex. Aat 18-19(Docket Sheet indicating issuance of trial subpoenas)).

On August 26, 2009, Attorney Griffith filed an amended motion for suggestion of incompetence to proceed.(Doc. 17-1, Ex. Aat 92-94).The parties appeared in court on August 27, 2009.The court reappointed Dr. Gilgun and Dr. McClaren to evaluate Wilkins's competency, and scheduled a competency hearing for August 31, 2009.(Doc. 17, Ex. Aat 97-98).Both experts determined that Wilkins was competent to proceed.(Doc. 17-1 Ex. Bat 228-29(McClaren Report dated 8/31/09);Ex. Bat 173(Gilgun Report dated 8/31/09)).

On August 31, 2009, Wilkins moved to disqualify the trial judge based on statements the judge made during the August 27, 2009, docket day which “indicated that he has already made his mind up” on the issue of Wilkins's competency.(Ex. Aat 101-07).The presiding judge disqualified himself, and a new judge was assigned.(Ex. A at 108).On September 10, 2009, Wilkins's competency hearing was rescheduled to October 23, 2009.(Doc. 17-1, Ex. Aat 20(Docket Sheet)).

On September 30, 2009, Attorney Griffith moved to withdraw as Wilkins's counsel.(Doc. 17-1, Ex. Aat 113).The matter was heard on October 8, 2009.(Doc. 17-1, Ex. Aat 20(Docket Sheet)).On October 13, 2009, the court granted Griffith's motion to withdraw, appointed the public defender to represent Wilkins, and ordered that Wilkins's next court appearance be for a docket day on January 11, 2010.(Ex. Aat 116).At the January 11, 2010, docket day, Wilkins's competency hearing was scheduled for February 17, 2010.(Doc. 17-1, Ex. Aat 21(Docket Sheet)).

Wilkins's Public Defender, Sam Hall, obtained a new competency evaluation by a third expert-Dr.James Larson.(Doc. 17-1, Ex. Bat 193-98).On February 9, 2010, Larson determined that Wilkins was not competent to proceed.(Id.).

The parties appeared for the competency hearing on February 17, 2010.(Doc. 17-2, Ex. E (Tr. of Hr'g)).Appointed counsel Hall announced that he was ready to proceed and called Dr. Larson as his first witness.(Id. at 45-48).After qualifying Larson as an expert, Hall asked Larson to testify concerning his competency evaluation.(Id. at 54).Larson noted that he was hired by the defense to perform an evaluation subject to the attorney-client privilege; that he had not been released from that privilege; and that he could not discuss the evaluation until released.(Id.).Hall indicated that he would release Larson, but the prosecutor questioned whether the waiver must come from Wilkins personally.(Id. at 54-55).

Hall conferred with Wilkins privately, and then informed the court that Wilkins asked to speak with his mother.(Id. at 55-56).After Wilkins conferred with his mother, Hall advised the court that Wilkins informed him that “there is some question as to whether or not they're going to hire Randy Etheridge to represent [Wilkins].”(Id. at 56).Attorney Etheridge was contacted by telephone and addressed the court.Etheridge informed the court that “the only way”he would agree to represent Wilkins was if Wilkins obtained a continuance of the competency hearing.(Doc. 17-2, Ex. Eat 109).Etheridge also informed the court that Wilkins had just disclosed that he“was seen by a new doctor at the jail, a Doctor Martin who currently as of Sunday has him on Thorazine, ” and that Dr. Larson was just informed of that information as well.(Id.).

The trial court denied a continuance; Etheridge hung up; and the hearing proceeded with Hall representing Wilkins.The court heard testimony from the three experts who examined Wilkins for competency-Dr.Gilgun, Dr. McClaren and Dr. Larson-as well as other evidence relating to Wilkins's competency, including the audio recordings of phone calls Wilkins made from jail to a friend.

The trial court adjudged Wilkins competent to proceed; granted a continuance of Wilkins's trial from March 22, 2010, to May 24, 2010; and set a docket day for April 29, 2010.(Id. at 198-99).

Etheridge filed a notice of appearance on March 17, 2010.(Doc. 17-4, Ex. Nat 20).At the April 29, 2010, docket day, the court set the matter for trial on July 12, 2010.(Doc. 17-1, Ex. Aat 21(docket sheet)).

On June 2, 2010, Etheridge moved for rehearing of Wilkins's competence to proceed and requested another competency hearing.(Doc. 17-1, Ex. Aat 119-120).Etheridge retained a fourth expert, Dr. Brett Turner, to evaluate Wilkins's competency.(Ex. Bat 199-205).On July 8, 2010, Dr. Turner determined that Wilkins was competent to proceed but suffered from some type of mental illness that was difficult to pinpoint because Wilkins was uncooperative.(Id.).

On July 9, 2010, Wilkins, still represented by Etheridge, entered a negotiated plea agreement with the State, memorialized on a form titled “Sentence Recommendation.”(Doc 17-1, Ex....