United States v. Shaifer , 94 F. App'x 756 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 6 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-1246
v. (D. Colorado)
ERNEST NORMAN SHAIFER, also (D.C. No. 02-CR-217-RB)
known as Hanif,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, and ANDERSON and BALDOCK , Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Ernest Norman Shaifer a/k/a Hanif 1
pled guilty to one count of forcibly
assaulting and injuring by means of a dangerous weapon the chaplain at the
Federal Penitentiary in Florence, Colorado, in violation of 18 U.S.C. § 111(a)(1),
(b). Prior to sentencing, Shaifer filed a motion for downward departure based on
diminished mental capacity, pursuant to United States Sentencing Commission,
Guidelines Manual (“USSG”), §5K2.13 (Nov. 2002). The district court denied
Shaifer’s motion for downward departure and sentenced him to ninety-six months
imprisonment, followed by three years of supervised release.
Shaifer’s appointed counsel has filed a brief pursuant to Anders v.
California , 386 U.S. 738 (1967), because he has concluded that this appeal is
“wholly frivolous, after a conscientious examination of it,” id. at 744, and he has
so advised this court and requests permission to withdraw as counsel. Shaifer has
filed a pro se supplement to the Anders brief. After carefully reviewing the
record, we agree with Shaifer’s counsel that this appeal presents no non-frivolous
issues, so we grant counsel’s request to withdraw and we affirm Shaifer’s
sentence.
1
Shaifer apparently also uses the surname Brown.
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BACKGROUND
Shaifer was an inmate at the Federal Penitentiary in Florence, Colorado.
He worked at the Penitentiary chapel. George Kendall Hughes was employed by
the Bureau of Prisons as chaplain at the Penitentiary. On January 31, 2002,
Shaifer entered the chapel and stabbed Hughes in the head and chest without
warning or conversation, using a homemade shank. Hughes was taken to a
hospital for stitches and released the same day.
Shaifer was indicted by a grand jury and initially pled not guilty. He
thereafter negotiated a plea agreement and, in a change of plea hearing, withdrew
his plea of not guilty and pled guilty to the count with which he had been charged.
The record of that change of plea hearing reveals that Shaifer participated fully in
the proceeding and the district court found he “voluntarily, knowingly,
intelligently, and intentionally” withdrew his earlier plea and “has now entered a
plea of guilty to Count 1.” Tr. at 24, R. Vol. III.
Prior to sentencing, Shaifer filed a motion for downward departure based
on diminished mental capacity, pursuant to USSG §5K2.13. Included with that
motion was a forensic evaluation conducted by Dr. Doris C. Gundersen, in which
she concluded that Shaifer had an untreated bipolar disorder which had
“contributed to Mr. Shaifer’s past antisocial behavior and will continue to
interfere with his ability to adopt the degree of prosocial behavior necessary for
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advancement in the penal system.” Presentence Investigation Report (“PSR”),
Addendum Ex. A at 17. He also included a letter from Dr. William Hansen, in
which Dr. Hansen expressed the opinion that “[a]t the present time, it appears
possible (and perhaps even probable) that Mr. Shaifer has a bipolar mood
disorder.” Id. at Ex. B. At the sentencing hearing, Dr. Gundersen testified about
her diagnosis of Shaifer.
Section 5K2.13 provides in pertinent part as follows:
A sentence below the applicable guideline range may be warranted if
the defendant committed the offense while suffering from a
significantly reduced mental capacity. However, the court may not depart below the appli
the facts and circumstances of the defendant’s offense indicate a need to protect
the public because the offense involved actual violence or a serious threat of
violence; (3) the defendant’s criminal history indicates a need to incarcerate the
defendant to protect the public . . . .
USSG §5K2.13. Despite the existence of strong indications that Shaifer suffers
from a bipolar mood disorder which “more likely than not” played a substantial
role in Shaifer’s attack on Hughes, the court found that “the facts and
circumstances of this offense indicate the need to protect the public . . . because
this offense involved actual serious violence.” Tr. at 119, 120, R. Vol. II. The
court also found that “the defendant’s criminal history indicates a need to
incarcerate him to protect the public.” Id. at 120. The court therefore denied the
motion for downward departure and sentenced Shaifer to ninety-six months
imprisonment.
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Shaifer appeals, arguing the court erred in refusing to depart downward
pursuant to section 5K2.13, that the court erred in failing to order a competency
evaluation of him, and that his trial counsel were ineffective in failing to seek a
competency evaluation. 2
DISCUSSION
I. Downward Departure
“We ‘cannot exercise jurisdiction to review a sentencing court’s refusal to
depart from the Guidelines, either upward or downward, unless the court refused
to depart because it interpreted the Guidelines to deprive it of the authority to do
so.’” United States v. Busekros , 264 F.3d 1158, 1159 (10th Cir. 2001) (quoting
United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999) (collecting cases));
see also United States v. Brown , 316 F.3d 1151, 1154 (10th Cir. 2003). The
district court in this case recognized its authority to depart downward under
section 5K2.13, applied that section to the facts of this case and to Shaifer’s
offense, and “simply declined, on those facts, to enter the requested departure.”
2
Shaifer’s current appointed counsel addresses all three issues in his Anders
brief. Shaifer’s pro se supplement to that brief argues only the two issues
involving a competency determination. In the interest of thoroughness, we
address all three.
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Id. We therefore lack jurisdiction to review the court’s decision not to depart
downward.
II. Failure to Order Competency Evaluation
“A competency claim by a criminal defendant may implicate both
substantive and procedural due process.” Gilbert v. Mullin , 302 F.3d 1166, 1178
(10th Cir. 2002). “‘A procedural competency claim is based upon a trial court’s
alleged failure to hold a competency hearing, . . . while a substantive competency
claim is founded on the allegation that an individual was tried and convicted
while, in fact, incompetent.’” Id. (quoting McGregor v. Gibson , 248 F.3d 946,
952 (10th Cir. 2001) (en banc)). The same standard applies to a guilty plea.
Shaifer appears to raise primarily a procedural competency claim, arguing the
district court erred in failing to have a competency evaluation done, presumably
before Shaifer entered his guilty plea.
To prevail on a procedural competency claim, Shaifer must “establish that a
reasonable judge should have had a bona fide doubt as to his competence at the
time [of his guilty plea].” Id. (further quotation omitted). Further:
We view the evidence in the record objectively, from the standpoint
of a reasonable judge presiding over petitioner’s case at the time of
trial. A petitioner establishes a bona fide doubt if he shows that a
reasonable judge should have doubted whether petitioner had
“sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding” and whether petitioner
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had “a rational as well as factual understanding of the proceedings
against him.”
McGregor , 248 F.3d at 954 (quoting Dusky v. United States , 362 U.S. 402, 402
(1960)). The record in this case is completely devoid of any indication that
Shaifer was unable to consult with his lawyer or that he lacked a rational and
factual understanding of the proceedings against him.
Shaifer suggests in his supplement to the Anders brief that there was a
hearing before he changed his plea from not guilty to guilty, in which there was
apparently a discussion of potential defense strategies. He alleges that the district
court judge stated that Shaifer’s proposed defense was a “hybrid duress-insanity
defense,” Defendant-Appellant’s Anders Br. Supp. at 2, to which the government
attorney allegedly responded that, in light of that proposed defense, the
government might seek a competency evaluation. 3
That exchange does not
convince us that the district court judge had, or should have had, any question
about Shaifer’s competency to stand trial or to plead guilty. It simply suggests
that, had the case proceeded to trial, the defense might have involved some sort of
mental capacity defense, presumably similar to the diminished capacity downward
departure Shaifer sought at sentencing.
3
The record contains no transcript of the proceeding in which these
statements allegedly were made.
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Moreover, to the extent Shaifer argues a substantive competency claim—
i.e., that he was incompetent when he entered his change of plea, the record of
that proceeding contains nothing suggesting he was incompetent. Further, the
district court specifically found him competent at the end of that proceeding, and
there is no error in that finding. 4
III. Trial Counsel’s Effectiveness
On August 5, 2003, Shaifer’s court-appointed assistant public defender,
Virginia Grady, sought to withdraw as appellate counsel, stating her
The district court found as follows at the conclusion of the change of plea
4
hearing:
On this record considered as a whole, I enter the following
findings of fact, conclusions of law and orders. That the defendant
understands the charge filed and pending against him, which is the
charge made the focus of his proposed plea agreement. . . . That Mr.
Shaifer today is alert, competent, and sober, not now under the
influence of or impaired by drugs, narcotics, marijuana, alcohol or
medications.
That the defendant understands each and every term and
provision in his plea agreement . . . . That he has reviewed those plea
agreement documents in their entirety, carefully and thoroughly, with
his counsel.
That Mr. Shaifer has now voluntarily, knowingly, intelligently,
and intentionally withdrawn his earlier plea of not guilty to Count 1,
and has now entered a plea of guilty to Count 1.
Tr. at 24, R. Vol. III.
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understanding that Shaifer’s appeal was primarily for the purpose of pursuing a
claim of ineffective assistance of counsel by Ms. Susan Cushman, formerly a
member of the federal public defender’s office, who represented Shaifer during
the presentence portions of his case. Shaifer’s supplement to the Anders brief
makes it clear that he argues on appeal that both Ms. Cushman and Ms. Grady
were ineffective in failing to order a competency evaluation for him.
“Generally, we will not resolve an ineffective assistance of counsel claim
on direct appeal when the claim has not been raised before the district court.”
United States v. Montoan-Herrera , 351 F.3d 462, 465 (10th Cir. 2003) (citing
United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). “An
exception to the rule exists when ‘the record is sufficient, or where the claim
simply does not merit further factual inquiry.’” Id. (quoting United States v.
Gordon , 4 F.3d 1567, 1570 (10th Cir. 1993)). We will review Shaifer’s claim of
ineffective assistance of counsel on direct appeal “because it does not merit
further factual inquiry and the record is sufficient to address his claim.” Id.To establish ineffective assistance of counsel, Shaifer must show that
counsel’s performance was deficient and that the deficient performance
prejudiced him. Shaifer fails to show deficient performance. We have already
held that the record reveals nothing demonstrating that Shaifer was incompetent
to negotiate the plea agreement and plead guilty. To the contrary, the record
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reveals that he fully participated in the proceedings, with complete understanding
of the charges against him. His counsel was therefore not ineffective in failing to
have a competency evaluation performed.
CONCLUSION
For the foregoing reasons, we GRANT appointed counsel’s motion to
withdraw as counsel and we AFFIRM Shaifer’s sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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