Farabee v. Johnson , 129 F. App'x 799 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7553
BRIAN DAMON FARABEE,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CA-02-960-2)
Argued: October 26, 2004 Decided: April 22, 2005
Before WIDENER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote a
dissenting opinion.
ARGUED: Brad Richard Newberg, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Appellant. Michael Thomas Judge, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee. ON BRIEF: Jerry W. Kilgore, Attorney
General of Virginia, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brian Damon Farabee filed a petition for writ of habeas corpus
under 28 U.S.C. § 2254, challenging his conviction and sentence on
the grounds that (1) the prosecutor failed to disclose evidence
favorable to him, (2) his prosecution violated his protection
against double jeopardy, and (3) he had been found not guilty by
reason of insanity in a prior proceeding and thus could not be
prosecuted under Virginia law. The district court ruled that
Farabee’s claims were procedurally defaulted and dismissed the
petition. A judge of this Court granted Farabee a certificate of
appealability to present the question whether Farabee’s mental
illness should excuse his procedural defaults. We conclude that
Farabee cannot demonstrate that his defaults actually resulted from
his mental illness, and we therefore affirm the ruling of the
district court.
I.
Farabee has suffered from psychiatric problems since childhood
and first entered a psychiatric institution at the age of ten.
Over the last fifteen years, Farabee has received treatment in more
than twenty mental institutions. In November 1998, while a patient
at Eastern State Hospital, Farabee set fire to his bed sheets in a
suicide attempt. The Commonwealth of Virginia charged Farabee with
arson. In July 1999, after a psychiatric evaluation concluded that
2
Farabee was mentally ill at the time of the arson, the state court
adjudged Farabee not guilty by reason of insanity (“NGRI”).
Pursuant to Va. Code Ann. § 19.2-182.3 (Michie 2004), the court
then ordered Farabee committed to Central State Hospital.1
Under Virginia law, the court that orders a defendant
committed to a state mental hospital must hold a hearing twelve
months after the date of commitment to determine whether the
defendant continues to need inpatient hospitalization. Id. § 19.2-
182.5. Based upon a psychiatric evaluation and any other evidence
presented at the hearing, the state court must (i) release the
acquitee from confinement if he does not need inpatient
hospitalization and does not meet the criteria for conditional
1
Under § 19.2-182.3, a trial court must commit a defendant
acquitted as NGRI if it finds that the defendant is mentally ill
and in need of hospitalization. This statute further provides that
“[t]he decision of the court shall be based upon consideration of
the following factors:
1. To what extent the acquitee is mentally ill or
mentally retarded, as those terms are defined in
§ 37.1-1;
2. The likelihood that the acquitee will engage in
conduct presenting a substantial risk of bodily
harm to other persons or to himself in the
foreseeable future;
3. The likelihood that the acquitee can be adequately
controlled with supervision and treatment on an
outpatient basis; and
4. Such other factors as the court deems relevant.”
Id.
3
release . . . ; (ii) place the acquitee on conditional release if
he meets the criteria for conditional release, and the court has
approved a conditional release plan . . . ; or (iii) order that he
remain in the custody of the Commissioner [of the Department of
Mental Health, Mental Retardation, and Substance Abuse Services] if
he continues to require inpatient hospitalization based on
consideration of the factors set forth in § 19.2-182.3.” Va. Code
Ann. § 19.2-182.5(C). Pursuant to this statute, the state court
that committed Farabee to Central State Hospital scheduled a
hearing for July 2000 to assess his condition, and after this
hearing Farabee remained in the custody of Central State Hospital.2
In the spring of 2000, Farabee was involved in physical
altercations with hospital staff at Central State Hospital. The
Commonwealth charged Farabee with two counts of malicious wounding,
and on August 25, 2000, Farabee, with the assistance of counsel,
pled guilty to these charges. In the course of his plea colloquy,
Farabee stated that he understood the nature of the charges against
him and that he was satisfied with the efforts of his counsel. The
prosecutor noted that Farabee had been adjudged NGRI in connection
2
The dissent cites the petitioner’s briefs to support its
assertion that the judge on Virginia’s Ninth Judicial Circuit Court
who initially committed Farabee for the arson charge “found that
Farabee was still mentally ill.” Post, at 14. Although Farabee
requested permission to supplement the record with a document
purporting to establish this “fact,” that request was denied.
Further, the state has not had the opportunity to challenge
Farabee’s assertion. We limit our recitation of the facts to those
actually contained in the record.
4
with the 1998 arson charge but that there was no issue concerning
his competency to stand trial. J.A. 46. According to Farabee’s
counsel, a sanity evaluation had concluded that there was “not a
problem with [Farabee’s] sanity” at the time of the instant
offenses. J.A. 46-47. A Virginia state court accepted Farabee’s
plea, specifically finding that Farabee “underst[ood] the nature of
the charges and the consequences of [his] plea[].” J.A. 48. The
court then sentenced Farabee to consecutive twenty-year prison
terms but adjusted that sentence so that Farabee was required to
serve only three years and four months in prison. Farabee did not
appeal his conviction or sentence on the malicious wounding
charges.
Two years later, on August 8, 2002, Farabee filed his initial
petition for writ of habeas corpus in Virginia state court.
Farabee argued that his conviction for malicious wounding was
unlawful because he had previously been adjudged NGRI and under
Virginia law, he could not be prosecuted for any offense while
maintaining that status. Farabee requested an evidentiary hearing
on this claim. The court dismissed Farabee’s petition on the
ground that the claim asserted had not been presented to the trial
court or on direct appeal. See Slayton v. Parrigan, 205 S.E.2d 680(Va. 1974). Farabee did not appeal the dismissal of this initial
state habeas petition.
5
On November 15, 2002, Farabee filed a second state habeas
petition. In addition to the NGRI claim, Farabee alleged in this
petition that his conviction was unlawful because the prosecutor
failed to disclose information favorable to him and his prosecution
violated his protection against double jeopardy. Again, Farabee
requested an evidentiary hearing. The court dismissed this
petition on the grounds that it was untimely and successive under
Virginia law. Farabee did not appeal this dismissal.
In December 2002 -- while his second state habeas petition was
still pending -- Farabee commenced this federal habeas action under
§ 2254, attacking his conviction on the same grounds he asserted in
state court. The magistrate judge recommended that the petition be
dismissed because Farabee’s claims were procedurally defaulted.
Specifically, the magistrate judge noted Farabee’s (1) failure to
file a direct appeal of his conviction in state court, (2) failure
to appeal the dismissals of his state habeas petitions, and (3)
failure to file a separate habeas petition with the Virginia
Supreme Court. Notwithstanding Farabee’s objections, the district
court adopted the magistrate judge’s recommendation and dismissed
Farabee’s habeas petition. Farabee appealed this ruling and filed
an informal brief in this court. A judge of this Court granted a
certificate of appealability on the question whether Farabee’s
mental illness should excuse his procedural defaults.
6
II.
A petitioner in state custody seeking federal habeas relief
must exhaust all remedies available in state courts. 28 U.S.C. §
2254(b)(1)(A). To satisfy this exhaustion requirement and avoid
procedural default, a petitioner “must give the state courts one
full opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
To overcome a procedural default in a habeas proceeding, the
petitioner must show “cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749-50
(1991). The Supreme Court has stated that “cause for a procedural
default must ordinarily turn on whether the prisoner can show that
some objective factor external to the defense impeded [his] efforts
to comply with the State’s procedural rule.” Murray v. Carrier,
477 U.S. 478, 488 (1986). Examples of such external impediments
include a factual or legal basis for a claim that was not
reasonably available, interference with the defense by government
officials, or constitutionally ineffective assistance of counsel.
Id. To establish actual prejudice, the petitioner “must show not
merely that the errors . . . created a possibility of prejudice,
but that they worked to his actual and substantial disadvantage,
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infecting his entire [proceeding] with error of constitutional
dimensions.” Id. at 494. (internal quotations and emphasis omitted).
Assuming that profound mental illness may constitute cause to
excuse a procedural default in certain circumstances, see Thomas v.
Cunningham, 313 F.2d 934, 937 (4th Cir. 1963); cf. United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004), Farabee has not
demonstrated that any mental illness actually caused his procedural
defaults. Although Farabee points to facts suggesting that he
suffered from mental illness at particular points after his
conviction, those facts do not establish that his condition
rendered him unable to exhaust his state court remedies during the
appropriate periods.
First, Farabee points to the fact that he was
institutionalized from September 2000 to November 2000, the period
during which he was required to file a direct appeal from his
conviction. According to Farabee, this fact is “direct evidence”
of his “mental incompetence at the time he was supposed to be
appealing his conviction.” Appellant’s Br. at 10-11. We disagree.
Although it is certainly true that Farabee was institutionalized
during the relevant period, that fact alone does not establish
Farabee’s mental condition or describe his capacity to comply with
procedural requirements in state habeas litigation. Indeed, under
Virginia law, it is entirely possible that Farabee remained in the
custody of Central State Hospital simply because he continued to
8
require inpatient hospitalization based on the likelihood that he
would engage in conduct posing a risk of injury to himself or
others. See Va. Code Ann. § 19.2-182.5(C).3 Moreover, the record
shows that Farabee was examined and found to be both sane at the
time of the malicious wounding offenses -- in the spring of 2000 --
and competent to stand trial in August 2000.4 Given the fact that
Farabee was institutionalized during those periods as well, the
dissent’s claim that the fact of institutionalization establishes
cause for a procedural default is simply untenable.
Second, Farabee points to the fact that on March 14, 2001 --
during the time in which he should have been preparing a separate
habeas petition for the Supreme Court of Virginia -- he attempted
suicide by lacerating his arms and eating glass and batteries. At
most, this fact establishes that Farabee was in no condition to
prepare or file the petition on that date or in the several days
before and after that date. Farabee had two years from the date of
3
It is simply not the case, as the dissent suggests, that a
person committed to a mental hospital in Virginia must remain
insane throughout the duration of his commitment. Given the
specific provisions of § 19.2-182.3, the mere fact of continued
commitment does not establish the nature or characteristics of the
individual’s particular condition, much less his ability to
understand and appreciate the requirements of state and federal
habeas litigation.
4
During Farabee’s August 2000 guilty plea proceedings, his
trial counsel represented to the court that “there is not a problem
with the sanity,” J.A. 46, and further stated that he had “a sanity
evaluation that says there wasn’t a problem with the sanity at the
time of these offenses,” J.A. 47, i.e., while Farabee was committed
to Central State Hospital.
9
his conviction to file a habeas petition with the state supreme
court, and evidence of his condition on one particular day does not
establish that he was unable to prepare and file that petition
throughout the two-year period allowed by law.
Other evidence suggests that Farabee was able to prosecute his
state appeals. A Virginia court found Farabee competent prior to
the entry of his guilty plea, even after the prosecutor alerted the
court to the fact that Farabee had been adjudged NGRI in a prior
proceeding. That court made a specific finding that Farabee
“underst[ood] the nature of the charges and the consequences of
[his] plea[].” In his initial state habeas petition, Farabee
challenged the lawfulness of his detention in a Department of
Corrections facility in light of his NGRI status. According to
Farabee, he could only be detained in a state mental health
facility. Farabee further noted that he had asserted similar
claims in a civil rights complaint under 42 U.S.C. § 1983. In
connection with this initial state habeas petition, Farabee
specifically requested a “plenary hearing.” J.A. 73. Farabee then
filed a second state habeas petition, asserting in addition to the
NGRI claim two federal constitutional claims. Farabee’s
allegations made specific reference to relevant Virginia statues
and federal constitutional provisions, and he offered reasons why
these claims were not offered in his first petition. Farabee also
requested an evidentiary hearing in connection with this state
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habeas action. In sum, it is clear from the record that during the
periods when Farabee was required to file a direct appeal, prepare
a petition for the state supreme court, and appeal the dismissal of
his initial habeas petition, he was able to prosecute his state
habeas actions in important respects.
Moreover, Farabee’s conduct of this federal litigation
suggests that he was competent to participate in habeas proceedings
during the period when he should have appealed the dismissal of his
second state habeas petition. Farabee filed his § 2254 petition in
December 2002, before the state court dismissed his second state
habeas petition. In the district court, Farabee filed a
substantive § 2254 petition alleging various constitutional
violations in terms and with a degree of specificity indicating
careful preparation by a prison inmate. He also filed objections
to the magistrate judge’s report and recommendation and upon the
district court’s dismissal of the petition initiated this appeal
and filed an informal brief. All of this evidence suggests that
Farabee’s condition was not uniform over time and that there were
times when he was able to prosecute this litigation. Given this
evidence, we conclude that Farabee has failed to demonstrate that
any mental illness actually caused his several procedural
defaults.5
5
Because we find that Farabee cannot demonstrate cause to
excuse his defaults, we need not consider the question whether he
can demonstrate actual prejudice.
11
The dissent wonders what more we require from Farabee. We
require nothing more than a showing that his mental illness
actually caused his procedural defaults. It is not enough for a
petitioner to show that there existed at the time of his procedural
defaults certain conditions external to the defense; the petitioner
must show that those external conditions actually “impeded [his]
efforts to comply” with procedural requirements and thus caused his
default. Murray, 477 U.S. at 488. Farabee has presented no
evidence establishing, for instance, that his mental illness
interfered with his ability to appreciate his litigation position
or to make rational decisions concerning the litigation during the
entirety of the relevant time periods, see Holt v. Bowersox, 191
F.3d 970, 974 (8th Cir. 1999), so that he was unable to consult
with counsel, file pleadings, or otherwise comply with state
procedural requirements, see Malone v. Vasquez, 138 F.3d 711, 719
(8th Cir. 1998); see also Smith v. Newsome, 876 F.2d 1461, 1465
(11th Cir. 1989) (assuming that “a pro se habeas petitioner who
lacked the mental capacity to understand the nature and object of
habeas proceedings and to present his case for habeas relief in a
rational manner” could establish cause to excuse a procedural
default). In the absence of such evidence, and considering the
fact that Farabee was able, despite his mental illness, to comply
with certain procedural requirements in habeas litigation, we
cannot say that the district court erred when it ruled that Farabee
12
had not demonstrated cause to excuse his several procedural
defaults.
III.
Farabee has asserted that his mental illness constitutes cause
to excuse his several procedural defaults, but he has failed to
offer any evidence to connect his mental state to those defaults.
Because Farabee has not shown that any mental illness actually
caused his failure to exhaust available state court remedies, we
affirm the district court’s dismissal of Farabee’s habeas petition.
AFFIRMED
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GREGORY, Circuit Judge, dissenting:
Because Farabee has provided sufficient evidence of his mental
incapacity, I respectfully dissent. As the majority recognizes,
Farabee has been in and out of mental institutions –- mostly in --
since he was ten. Indeed, he was institutionalized when he (1)
committed the offense for which he was convicted, (2) pleaded
guilty, and (3) should have prepared and filed his direct appeal.
On July 21, 1999, Judge Samuel T. Powell of Virginia’s Ninth
Judicial Circuit Court found Farabee Not Guilty by Reason of
Insanity. J.A. 28-29. This Order explicitly holds that Farabee
“remains under the jurisdiction of this court and shall not be
released from custody and inpatient hospitalization without further
Order of the court.” J.A. 29. As Virginia admitted at oral
argument, this order has not been lifted. Rather, shortly before
his plea hearing, Judge Powell apparently found that Farabee was
still mentally ill and will remain committed after serving his jail
sentence. See Appellant’s Br. at 4, 11 n.4; Reply Br. at 3, 12.1
Throughout his commitment Farabee was given powerful anti-psychotic
drugs with serious side effects.2 Moreover, during the time when
Farabee should have prepared his subsequent legal papers, he was
1
The majority notes that Judge Powell’s 2000 order is not in
the record. Ante at n.2. Yet given the plainly quoted language of
the July 21, 1999 order, Virginia squarely shoulders the burden of
showing that the order of mental illness has been lifted. It has
not, of course, shown this.
2
Despite knowing that Farabee was a mental patient, the
sentencing judge never once inquired about Farabee’s medications
nor noticed the Ninth Judicial Circuit’s recent decision to
continue Farabee’s commitment. See J.A. 39-51.
14
sent to the prison’s psychiatric unit because he attempted suicide
by eating glass and batteries and slitting his wrists.
I do not know what more the majority wants from Mr. Farabee.
The majority concedes that mental incapacity may constitute cause
to excuse procedural default. Ante at 8 (citing Thomas v.
Cunningham, 313 F.2d 934, 937 (4th Cir. 1963) and United States v.
Sosa, 364 F.3d 507, 512 (4th cir. 2004)). The majority, however,
finds that “Farabee has not demonstrated that any mental illness
actually caused his procedural defaults.” Id. I disagree.
Farabee’s procedural problems all arise from his failure to
directly appeal his sentence. But during the time he had to file
this appeal he was committed to Central State Hospital. Thus, the
majority would have us believe Virginia’s extraordinary proposition
that a person it deems of insufficiently sound mind to live outside
of a mental institution or, for example, transfer title in land, is
simultaneously sane enough to properly prosecute appeals.3
Next, the majority concludes that Mr. Farabee’s most recent
suicide attempt “[a]t most . . . establishes that Farabee was in no
3
In the majority’s words, the claim is that Farabee could have
been kept committed simply because of the possibility that “he
would engage in conduct posing a risk of injury to himself or
others.” Ante at 8. But a prisoner’s showing of adjudged insanity
or involuntary commitment should at least set a strong, but perhaps
rebuttable, presumption of “profound mental incapacity.” This
would again shift the burden to the state –- plainly in a better
position than a mental patient –- to establish that its ward was
somehow simultaneously competent to prosecute appeals but too
mentally ill to circulate with society.
15
condition to prepare or file the petition on that date or in the
several days before and after that date.” Id. at 9. This, of
course, discounts the baseline fact that before, during, and
apparently after his suicide attempt Farabee was adjudicated too
mentally ill to warrant punishment by a Virginia Circuit Court
judge. The majority’s final argument is that Farabee could
prosecute his appeals “in important respects.” Ante at 11. But
this is textbook bootstrapping: I fail to see why the fact that
Farabee filed some procedurally improper briefs counts as evidence
that he was sane enough to not excuse filing other procedurally
improper briefs.
Virginia cannot be allowed to have it both ways: it cannot
keep a man committed and simultaneously claim that he is perfectly
competent to timely represent himself in appellate proceedings
within their courts. Such overreaching is simply a symptom of the
sad conflation of prison and involuntary commitment for treatment
of mental illness. Virginia essentially keeps Farabee in
inescapable no-man’s land, calling him too sane to excuse a
procedural error but not sane enough to live outside a mental
hospital. I can only conclude that such an approach violates
Farabee’s due process rights. Accordingly, I dissent.
16