Bradberry v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 98-11330
Summary Calendar
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WILLIAM GARY BRADBERRY,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CV-2510)
_________________________
April 6, 2000
Before SMITH, BARKSDALE, and hearing. Finding no reversible error, we
PARKER, Circuit Judges. affirm.
JERRY E. SMITH, Circuit Judge:*
William Bradberry pleaded guilty to
molesting a child and received a life sentence.
On this appeal of the denial of habeas corpus
relief, he argues that the state trial court erred
in failing sua sponte to order a formal hearing
to determine his competency to enter a guilty
plea and that his counsel ineffectively
represented him in failing to request such a
*
Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.
I. (2) whether Bradberry’s attorney was
Bradberry filed two state applications for ineffective for failing to move for a
writs of habeas corpus. The first was filed in competency hearing upon learning this
Van Zandt County and challenged the validity information.
of a burglary conviction that had been used to
enhance his sentence. No findings of fact were II.
apparently made, and the Court of Criminal Bradberry’s petition is subject to review
Appeals denied the application without a under the Antiterrorism and Effect Death
hearing. The second challenged various Penalty Act of 1996 (the “AEDPA”), because
aspects of his sexual assault plea and the it was filed after April 24, 1996.1 See
validity of the enhancement charge, including 28 U.S.C. § 2254.
a challenge to his competency to stand trial.
AEDPA provides that a state prisoner may
The trial court made findings of fact and not obtain relief with respect to any claim that
conclusions of law without a hearing, was adjudicated on the merits in state court
recommending denial of the application. With proceedings unless the adjudication of the
respect to competency, the court stated that claim
“[a]pplicant’s testimony during the course of
Applicant’s trial . . . clearly shows that (1) resulted in a decision that was
Applicant was competent to stand trial.” The contrary to, or involved an unreasonable
Court of Criminal Appeals denied the application of, clearly established
application without written order. Federal law, as determined by the
Supreme Court of the United States; or
Bradberry filed his first federal habeas
petition pursuant to 28 U.S.C. § 2254, raising (2)resulted in a decision that was based
the claims set forth in his first state application. on an unreasonable determination of the
He then filed a second § 2254 petition, raising facts in light of the evidence presented in
essentially the same claims as those set forth in the State court proceeding.
the second state application. The magistrate
judge ordered consolidation of the cases, then
recommended dismissal, rejecting most of
Bradberry’s claims on the merits and finding
one claim procedurally barred.
Bradberry filed objections. The district
court conducted de novo review of the record,
adopted the findings of the magistrate judge,
and dismissed the petitions. Bradberry filed a
timely notice of appeal and a motion for leave
to proceed in forma pauperis (“IFP”). He
then moved for a certificate of probable cause
(“CPC”). The district court granted IFP status
and denied a certificate of appealability
(“COA”). This court granted a COA on the
following issues:
(1) whether the trial court was required
sua sponte to conduct a competency
hearing upon the elicitation of evidence 1
Will. v. Cain, 125 F.3d 269, 274 (5th Cir.
that Bradberry had attempted suicide 1997), cert. denied, 119 S. Ct. 144 (1998) (holding
several times in the year before the that AEDPA applies to a petition filed by state
hearing; and prisoner after April 24, 1996).
2
28 U.S.C. § 2254(d). Section 2254(d)(1) against him.’”4
provides the standard of review for questions
of law and mixed questions of law and fact, [W]hen a prisoner, either state or
whereas § 2254(d)(2) provides the standard of federal, seeking post-conviction relief,
review for questions of fact. Drinkard v. asserts, with substantial facts to back up
Johnson, 97 F.3d 751, 767 (5th Cir. 1996). his allegation, that at the time of trial he
Moreover, “a determination of a factual issue was not mentally competent to stand
made by a State court shall be presumed to be trial, and that there was no resolution of
correct,” and the petitioner “shall have the that precise issue before he was tried,
burden of rebutting the presumption by clear convicted and sentenced, the protection
and convincing evidence.” 28 U.S.C. of the Fourteenth Amendment to the
§ 2254(e)(1).2 We review the federal district Constitution requires that such
court’s findings of fact for clear error, but conviction and sentence be set aside
questions of law are decided de novo.3 unless upon adequate hearing it is shown
that he was mentally competent to stand
III. trial.
Bradberry asserts that the trial court erred
by failing to order sua sponte a competency Lee v. Alabama, 386 F.2d 97, 105 (5th Cir.
hearing before accepting his guilty plea. He 1967) (en banc) (emphasis added, footnote
suggests that “[e]xtensive evidence” was omitted). The movant must present facts
presented to the trial court regarding his sufficient “to positively, unequivocally and
incompetency, including the records of Dr. clearly generate a real, substantial and
Reagan Andrews, the Veteran’s legitimate doubt as to [his] mental capacity . .
Administration psychiatrist who had seen . to meaningfully participate and cooperate
Bradberry for years; and of recent suicide with counsel.” United States v. Williams, 819
attempts. Bradberry asserts that because the F.2d 605, 609 (5th Cir. 1987) (quotation and
trial court did not ask him whether he citation omitted).
understood t he nature of the proceedings or
their impact or whether Bradberry was on A habeas petitioner may obtain relief if he
medication, the evidence “strongly suggests” can show that the state procedures were
that he was not competent to enter a guilty inadequate to ensure that he was competent to
plea. stand trial. In some instances, such an
understanding arises if the trial court failed to
The conviction of a legally incompetent conduct a competency hearing. Carter v.
defendant violates constitutional due process. Johnson, 131 F.3d 452, 459 n.10 (5th Cir.
See Pate v. Robinson, 383 U.S. 375, 378 1997), cert. denied, 523 U.S. 1099 (1998)
(1966). The competency standard for pleading (pre-AEDPA case).
guilty is the same as the competency standard
for standing trial: “whether the defendant has A state court must conduct an inquiry into
‘sufficient present ability to consult with his the defendant’s mental capacity sua sponte if
lawyer with a reasonable degree of rational the evidence raises a bona fide doubt as to
understanding’ and has a ‘rational as well as competency. Carter, 131 F.3d at 459 n.10. In
factual understanding of the proceedings determining whether there is a bona fide
doubt, the court considers (1) any history of
irrational behavior, (2) the defendant’s
demeanor at trial, and (3) any prior medical
2
Formerly 28 U.S.C. § 2254(d). opinion on competency. Davis v. Alabama,
3
Earhart v. Johnson, 132 F.3d 1062, 1064 (5th
4
Cir.) (citation omitted), cert. denied, 525 U.S. 933 Godinez v. Moran, 509 U.S. 389, 396 (1993)
(1998); Clark v. Scott, 70 F.3d 386, 388 (5th Cir. (quoting Dusky v. United States, 362 U.S. 402,
1995). 402 (1960)).
3
545 F.2d 460, 464 (5th Cir. 1977). If the That the court had all of this information,
court received evidence, viewed objectively, and that it carefully reviewed Bradberry’s
that should have raised a reasonable doubt as psychiatric and medical evaluations before
to competency, yet failed to make further allowing him to testify, require a conclusion
inquiry, the defendant has been denied a fair that Bradberry suffered no violation of due
trial. Carter, 131 F.3d at 459 n.10. process rights under Davis. Although he
obviously had a history of irrational and
The record provides much evidence that troubled behavior, he handled himself
Bradberry was competent to plead. The state coherently at trial.
court denied habeas relief because it found that
Bradberry’s testimony at his guilty plea and Moreover, Andrews was aware of this
sentencing showed he was competent to assist history and felt that Bradberry was capable of
counsel and understand the charges against assisting in his defense. Although Bradberry
him. In fact, Bradberry did testify coherently asserts that Andrews was not judging
and rationally at his guilty plea hearing, which “competence” under a legal standard,
suggests that he was competent to stand trial. Andrews’s notes reveal that Bradberry had
made a specific appointment for a formal
The trial court also considered, before evaluation at his attorney’s request and was
taking Bradberry’s plea, Andrews’s report “able to discuss his options and possible plans
from his years of therapy sessions with coherently.”
Bradberry (which continued until
approximately seven months before trial). It All of this tended to show that Bradberry
indicated that Bradberry suffered from post- was able to consult rationally with his lawyer
traumatic stress disorder (“PTSD”), and understood the proceedings against him.
depression, and “organic brain syndrome” See Godinez, 509 U.S. at 396. Moreover, the
resulting from head injuries in Vietnam and a trial court viewed Bradberry’s behavior
1983 suicide attempt that resulted in severe throughout the proceedingsSSalways aware of
blood loss. his background and his propensity for strange
behaviorSSand found nothing to make him
The doctor stated that Bradberry had many question his original determination that
physical problems, suffered memory deficits, Bradberry was competent.
and functioned at the emotional level of a nine-
or ten-year-old. Despite these problems, The trial court was, withal, justified in
Andrews believed that Bradberry was relying on the submitted psychiatric
“competent to participate in his own defense.”5 evaluations and on its own in-court
The trial court was also aware, from observat ions. The only piece of psychiatric
Bradberry’s medical history, that he had evidence presented to the court that had not
attempted suicide several times and used to get been available to Bradberry’s therapist in their
into bar fights with the hope that someone extensive consultations was Bradberry’s wife’s
would kill him. testimony during the plea proceedings that her
husband had tried to commit suicide “several
times” within the past year, although she did
5
not specify dates. (Bradberry confirmed that
Bradberry makes much of the fact that he had attempted suicide in early 1994 and
Andrews discussed with him the benefits of being also apparently tried to kill himself in early
appointed a “guardian.” In context, Andrews was 1995.) Andrews’s evaluations noted no
stating that Bradberry had had difficulty managing
his financial affairs since his divorce and the suicide attempts after 1983 and does not
suggestion was made that his sister be appointed reveal knowledge of a more recent attempt.
his “guardian” for his financial dealings only. This
statement does not lend much support for This new suicide-attempt information
Bradberry’s assertion that he was incompetent to provides Bradberry’s only argument that his
stand trial. constitutional rights were somehow violated.
4
In Drope v. Missouri, 420 U.S. 162 (1975), recognized, does not necessarily have much
counsel had filed a pretrial motion stating that weight in determining whether a defendant is
his client might be incompetent and included a rationally “available” for proceedings. See
psychiatric report revealing problems but Drope, 420 U.S. at 181 n.16. That Bradberry
generally suggesting that Drope was had again attempted suicide after the end of his
competent. Id. at 175. The Court did not extensive psychiatric evaluation, but at a time
hold that the trial court had erred in failing to remote from the actual plea and sentencing
examine the competency issue further before proceedings, may be slightly probative of a
the trial based on that evidence. Id. at 177-78. changed rationality with regard to entering a
plea, but nothing in our precedent suggests
that this requires a trial court to hold a new
During the course of his trial, however, competency hearing rather than relying on a
Drope attempted suicide, choked his wife, and recently completed evaluation. This is true
acted irrationally in other ways. Id. at 179-80. especially given that the evaluation included
His suicide attempt removed Drope from the recordation of a past suicide attempt and a
courtroom for a portion of his trial. Because diagnosis of continuing suicidal tendencies,
those irrational events did not occur “in a and had found that they did not represent a
vacuum,” the Court held that the suicide negation of Bradberry’s legal competency.
attempt raised sufficient doubt and required
further inquiry by the court into competency. IV.
Id. The duty of an attorney to a defendant who
desires to enter a plea of guilty is to ascertain
As Drope indicates, and this circuit has whether the plea is voluntarily and knowingly
explicated, a suicide attempt by itself is not made.6 In Hill v. Lockhart, 474 U.S. 52
necessarily sufficient to create “reasonable (1985), the Court held that the two-prong test
cause” for a competency hearing. See United enunciated in Strickland v. Washington,
States v. Davis, 61 F.3d 291, 304 (5th Cir. 466 U.S. 668 (1984), applies to guilty pleas.
1995). Instead, that evidence must be weighed Under Washington, a defendant must show
in conjunction with all the testimony and that counsel’s performance was deficient and
evidence presented with respect to mental that the deficient performance prejudiced the
stability and competence. Id. defense. Id. at 687. This circuit has textured
the Washington test for cases in which the
The facts here do not reach the seriousness question is whether the defendant was
of those revealed in Drope. Bradberry’s competent to stand trial or enter a plea:
suicide attempts, however multiple, occurred
in the months before the sentencing, not during [A] claim of incompetence is difficult to
the period surrounding his plea and analyze under the ‘outcome’ test of
proceedings. The court here was able to [Washington], because whether the
monitor and evaluate Bradberry’s behavior defendant was guilty or innocent is
throughout the proceedings; he was never irrelevant if he was convicted while
absent. Most importantly, the psychiatric incompetent. [The defendant] can
evaluations employed by the court to succeed in establishing that he was
determine Bradberry’s competency to stand prejudiced by his attorney’s failure to
trial already accounted for the fact of his investigate only if he can demonstrate a
suicide attempt and suicidal tendencies. reasonable probability that he was
incompetent to plead guilty.
As noted above, the question of
competency to plead is one of whether the
defendant can rationally understand his plea
and participate with his lawyer in undertaking 6
United States v. Diaz, 733 F.2d 371 (5th Cir.
the plea. Suicide indicates depression and 1984); Moya v. Estelle, 697 F.2d 329 (5th Cir.
other disorders, but, as the Drope Court 1983).
5
Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir. mental and emotional history and had taken
1994). that history into consideration, rendered
ineffective assistance by failing to insist that
The burden of proof in a habeas proceeding the court hold an unnecessary formal hearing
attacking the effectiveness of trial counsel is on the matter.
on the petitioner, who must demonstrate that
ineffectiveness by a preponderance of the AFFIRMED.
evidence. Martin v. Maggio, 711 F.2d 1273
(5th Cir. 1983). In determining the merits of
an alleged Sixth Amendment violation, courts
“must be highly deferential” to counsel's
conduct. Washington, 466 U.S. at 687. In
fact, “a conscious and informed decision on
trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of
counsel unless it is so ill chosen that it
permeates the entire trial with obvious
unfairness.”7 Finally, counsel is not required
to engage in the filing of futile motions and
should not be required to raise futile defenses.
See Murray v. Maggio, 736 F.2d 279, 283
(5th Cir. 1984).
Bradberry’s counsel did not render deficient
performance by failing to move for a
competency hearing. In fact, the failure to
raise the issue of competency at trial is
persuasive evidence that no Pate violation
occurred. Reese v. Wainwright, 600 F.2d
1085, 1092 (5th Cir. 1979). Given
Bradberry’s testimony and demeanor during
the hearing, the medical records from Andrews
stating that Bradberry was competent despite
his various diagnoses, and the complete
absence of any lay testimony suggesting that
Bradberry was incompetent or that he could
not understand the nature of the criminal
proceedings against him, it was not
unreasonable for counsel to fail to move for a
competency hearing.
The court did not err in deciding from the
relevant evidence that Bradberry was
competent. Given this understanding, it would
be difficult indeed to find that counsel, aware
that the court knew much about Bradberry’s
7
See Garland v. Maggio, 717 F.2d 199, 206
(5th Cir. 1983) (citing Fitzgerald v. Estelle,
505 F.2d 1334 (5th Cir. 1975); Daniels v. Maggio,
669 F.2d 1075 (5th Cir. 1982)).
6