Rumbaugh v. Procunier , 753 F.2d 395 ( 1985 )

POLITZ, Circuit Judge:

This matter was returned to this panel for disposition in accordance with the special order we entered on remand, Rumbaugh v. McKaskle, 730 F.2d 291 (5th Cir.1984). We now consider the appeal of Harvey and Rebecca Rumbaugh from the decision of the district court, Rumbaugh v. Estelle, 558 F.Supp. 651 (N.D.Tex.1983), denying their request to present a next friend petition for writ of habeas corpus on behalf of their son, Charles Rumbaugh, a death-sentenced state prisoner. Charles Rumbaugh continues to refuse to seek collateral review of his conviction and sentence and continues to resist the efforts of his parents to secure that review. Harvey and Rebecca Rumbaugh maintain that their son lacks the mental capacity to waive or forgo his rights to collaterally attack his death sentence. After an exhaustive review of this record, including a review of the tortuous and bizarre course this litigation has followed, we conclude that the district court was correct in finding and concluding that Charles Rumbaugh possesses the requisite mental competence to decline to exercise his rights to secure collateral review of his conviction and sentence. Accordingly, we affirm.

Facts and Procedural Background

Charles Rumbaugh was first convicted of capital murder and sentenced to death by a Texas state court on April 4, 1975. This conviction was reversed on appeal by the Texas Court of Criminal Appeals on the ground that inadmissible evidence had been admitted. Rumbaugh v. State, 589 S.W.2d 414 (Tex.Cr.App.1979). At the retrial Rum-baugh was again convicted of capital murder and sentenced to death. The second conviction was affirmed on direct appeal, Rumbaugh v. State, 629 S.W.2d 747 (Tex. Crim.App.1982). Following affirmance of the second conviction Rumbaugh asked his court-appointed counsel to take no further steps to attack his conviction and sentence. When counsel ignored this request and moved for a rehearing, Rumbaugh wrote the Clerk of Court for the Texas Court of Criminal Appeals and requested that all motions filed by his counsel be withdrawn and that a mandate of affirmance issue forthwith. The court obliged and the mandate issued. Rumbaugh then wrote the state trial judge requesting that his execution be set without further delay. Rum-baugh’s execution was set for July 23, 1982. Rumbaugh refused to authorize anyone to file a petition for writ of certiorari or to seek a stay of execution.

On July 16, 1982, Harvey and Rebecca Rumbaugh filed a next friend application for state habeas relief. Their petition was denied without hearing or written reasons on July 19,1982. Later that same day, the Texas Court of Criminal Appeals denied the senior Rumbaughs’ motion for stay of execution and application for habeas relief. No reasons were assigned. On July 20, 1982, the district court for the Southern District of Texas granted Harvey and Rebecca Rumbaugh’s motion for stay of execution and transferred the case to the Northern District of Texas, Amarillo Division.

The district court in Amarillo appointed counsel to represent Charles Rumbaugh and held a preliminary hearing to determine the procedures to be followed in this relatively unusual situation. Upon conclusion of that hearing the district court ordered Charles Rumbaugh transferred to the United States Medical Center, Springfield, Missouri, to be examined for the specific purpose of determining his mental competence to waive further review of his conviction and sentence.

Charles Rumbaugh was taken to Springfield and there examined by a team of psychiatrists and psychologists. The written reports of Drs. Logan and Reuterfors were presented to the court and the parties. At a hearing on February 4, 1983, a psychiatrist and two psychologists, called by the petitioners, none of whom had examined Charles Rumbaugh, testified as to their interpretations of the Springfield medical reports and gave their opinions on the mental state of Charles Rumbaugh. A doctor called by the state gave counter-testimony. At the conclusion of that conflicting testimony, the district court continued the hearing so that Dr. Logan could personally appear and explain his diagnosis and prognosis.

The hearing resumed on February 24, 1983, with Dr. Logan present. After Dr. Logan finished his testimony, Charles Rumbaugh voluntarily took the stand and advised the court of his position in the matter:

Well, I don’t feel I’m depressed right now. I haven’t been taking any medication for approximately thirty days. I was taking medication, an antipsychotic drug, and I haven’t experienced any problem since I quit taking it.

And I think I understand my situation very well and I believe my decision is a logical and rational one.

And it doesn’t really matter to me what this Court decides today because I’ve already made the decision to take matters into my own hands.

So it doesn’t make any difference.

* * * * * *

All I really wanted to say is that it doesn’t matter to me; that I’ve already picked my own executioner and I’ll just make them kill me. If they don’t want to do it ... if they don’t want to take me down there and execute me, I’ll make them shoot me.

* * * * * *

I think I’ll make them shoot me right now.

Charles Rumbaugh then pulled a homemade knife-like weapon from his pocket and advanced on the deputy U.S. Marshal, shouting “Shoot!” The Marshal was forced to shoot Rumbaugh. After life-saving measures were taken, over Charles Rumbaugh’s demands that no attempts be made to save his life, and he was removed by ambulance to the hospital, the hearing continued. Dr. Logan, who had witnessed the entire episode, was recalled to the stand. He testified that the bizarre occurrence did not shake his opinion but actually reinforced his conclusions that Rumbaugh was acting knowingly and intentionally with full knowledge and appreciation of the situation in which he found himself.

The district court sifted and weighed the evidence and concluded that Charles Rum-baugh was mentally competent to make the decision to forgo further judicial proceedings. This finding resulted in a preemption of his parents’ next friend petition and it was dismissed.

Rumbaugh’s parents appealed the finding of competence. After oral argument and while the matter was under submission to this court, Rumbaugh filed a pro se application for a writ of habeas corpus in state court, simultaneously requesting that this court be notified of his act. He argued that the state filing mooted the issues on appeal requiring a dismissal of the appeal. We responded with the special order earlier noted, 730 F.2d 291, remanding the application of Harvey and Rebecca Rumbaugh to the district court with instructions to monitor the progress of the state habeas petition. We instructed the district court to return the record to this court for disposition of the appeal in the event that any act or omission of Charles Rumbaugh prevented a decision on the merits of his state habeas application. Several months later, the state court dismissed the habeas petition in response to a motion by Charles Rumbaugh in which he stated that he had filed the state action to force dismissal of his parents’ federal petition and, failing in that endeavor because of the provisions of the special order, he desired to withdraw his state petition. In accordance with our special order, the matter was returned in due course to this panel for disposition of the appeal by Harvey and Rebecca Rum-baugh.

Discussion

If Charles Rumbaugh lacks the mental competence to waive his rights to further judicial review of his conviction and sentence, his parents have standing to bring an action for habeas relief as next friends. If he has that competence, his parents have no standing to bring the present action. Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976).

The Standard for Competency to Waive the Right to Attack a Conviction and Sentence

The Supreme Court announced the standard to be used in deciding whether a person is mentally competent to choose to forgo further appeals and collateral attack upon his conviction and sentence in Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966).¹ The test is

whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.

384 U.S. at 314, 86 S.Ct. at 1506. This test requires the answer to three questions:

(1) Is the person suffering from a mental disease or defect?

(2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?

(3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options?

If the answer to the first question is no, the court need go no further, the person is competent. If both the first and second questions are answered in the affirmative, the person is incompetent and the third question need not be addressed. If the first question is answered yes and the second is answered no, the third question is determinative; if yes, the person is incompetent, if no, the person is competent. We find no reported case applying the Rees standard to a defendant’s decision to forgo further appeals and collateral proceedings which decides how a court should treat a mental disease which does not impair the cognitive function but impacts only on the volitional, the person’s ability to make a rational choice among available options.² We must now address that issue. We find it to be essentially a factual question. The district court’s finding is thus protected by the shield and buckler of Fed.R.Civ.P. 52(a), and must be accepted unless shown to be clearly erroneous. Floyd v. United States, 427 F.2d 63 (5th Cir.1970).

The Evidence

During the court-ordered stay at Springfield, Charles Rumbaugh was tested and observed by a team of psychiatrists and psychologists who were charged by the court to determine his competence consistent with the teachings of Rees. The trial judge’s order to the Springfield staff is a verbatim statement of the Rees standard.³ The evaluation resulted in a 12-page psychiatric evaluation by Dr. Logan and a 9-page psychological evaluation by Dr. Reuterfors. The team also composed 22 questions which Rumbaugh answered in detail over a period of several days. The questions and answers were presented to the district court. Dr. Logan’s final opinion advised:

This examiner feels that Mr. Rumbaugh is currently profoundly depressed. Mr. Rumbaugh, despite this depression, does have the capacity to appreciate his position and his choice regarding continuing to decline further litigation is rational in light of his past experience and presuming one can rationally make a decision to die. It must be emphasized, however, the extent of Mr. Rumbaugh’s depression does substantially affect his capacity in the premises. Mr. Rumbaugh’s perception of his current situation as hopeless, although realistic in light of his past experience is a reflection of this depression.

Dr. Reuterfors’ report reflected a similar apparent anomaly:

(1) it is the opinion of the undersigned examiner that Mr. Rumbaugh is currently capable of appreciating his position and making a substantially and sufficiently rational choice with respect to continuing or abandoning further litigation.

(2) it is the opinion of the undersigned examiner that Mr. Charles Rumbaugh is presently suffering from a major mental illness which may substantially affect his capacity in the premises.

The district court was understandably puzzled by these seemingly self-contradictory responses to the Rees-directed question it had posed. And, as earlier noted, at the hearing after the Springfield evaluation, one psychiatrist and two psychologists who had not examined Rumbaugh, offered their interpretation of the Springfield reports. After reviewing the reports and Rumbaugh’s answers to the battery of questions, these medical experts expressed the opinion that Rumbaugh was not capable of making a rational choice about further litigation. Based on these same reports, another medical expert called by the state opined that Rumbaugh was capable of making a rational decision to forgo further judicial proceedings.

The trial court cut the gordian knot by continuing the hearing and directing that Dr. Logan personally appear and explain his report. At the continued hearing, Dr. Logan testified at length, including this colloquy:

Q. And what was your determination?

A. My determination was that he had a very rational understanding of his current legal position. He had an excellent knowledge of past events that had happened in his case; he had a very good understanding of his current situation, both legally and in terms of his own mental health.

However, the second part of the question asked whether he had any mental illness that could ... that may affect him in the premises. And I answered yes to thal. I said I believe he was suffering from a severe depression and that, indeed, did have some influence on his decision.

Q. Now, of course, under the standard of competency to stand trial test, you would have found that he was competent to stand trial and to confer with his lawyers and so on?

A. Yes.

Q. Explain, if you can, Doctor, the conflict ... or apparent conflict in your determination?

It may not be a conflict. It appears so to me.

A. Okay. The fact that someone has a mental illness in all cases does not preclude their ability to have a rational understanding of their current situation or logical understanding of their current situation.

The majority of the time, I believe, Mr. Rumbaugh is functioning at a level where he does have a rational understanding of what’s going on in his case and his current situation.

The way in which his depression could influence him is that it may act as a coercive force and impairing his ability to exercise free will to make a decision, perhaps a way to explain it would be to use an analogy that comes from a different realm.

Many patients that are dying with terminal cancer are very depressed. Their cognitive abilities are not necessarily impaired. They have a very rational understanding of their situation. They realize that they are due to die within, perhaps, a short period of time, that the treatment with chemotherapy or radiation therapy may be painful and uncomfortable and it may impair what little life they have left and in some cases they may decline any further treatment and essentially choose to die.

Their depression in that case, however, although realistic, does influence their decision.

* * * * * *

Q. And that that mental illness affects his competency in the premise?

A. In the way I have so stated. In fact, I don’t think it impairs him for the majority of the time. There are periods when he has brief paranoid psychoses where he has auditory hallucinations but that’s not all the time. Those are circumscribed episodes.

I feel like underlining thal. The majority of the time, he is depressed and the way that affects him is that it may act ... his own psychological pain may act as a coercive force that influences him not to want to say, live in his current condition for an additional, say, six years to exhaust his further appeals that are open to him.

* * * * * *

Q. ... I think what we’re all trying to understand is to what extent; for example, the depression constituted a coercive force.

A. To the extent, if he were not so depressed, if he did not suffer from frequent bouts of paranoia or auditory hallucinations, he probably would decide to continue with appeals.

Q. Could you repeat that again for me, please?

A. Yes. It affects him to the extent that were his depression not present, were his periods of paranoia not present, were his periods of auditory hallucinations on occasion not present, were he not so hopeless about his position, he might be able to better mentally cope with spending an additional eight years on death row in Huntsville and continue with the appeals.

But his mental condition is not that would permit him to do so.

* * * * * *

Q. Would you also believe his hopelessness is based on the realistic appreciation of what those circumstances are?

Is that correct?

A. Unfortunately, I think to a large extent, it is realistic.

* * * * * *

Q. I believe that you testified a little bit ago that it was ... that it was questionable ... or that Mr. Rumbaugh was probably not acting out of free will in deciding that he’s going to waive his further appeals?

A. Diminished. Okay. Free will is on a continuum, I believe.

* * * * * *

A. But the question ... the second part of the question was very ... was worded in such a way that it said, is he suffering from a mental disease that may substantially affect. It was very broad.

Q. Okay. By may, do you ... is it also possible that it may not; is that what you’re saying?

A. No. I think in his case, it has to be a factor that has to be looked at and addressed by the Court. I think it does influence him to a certain degree, maybe even a substantial degree.

* * * * * *

Q. Do you think that ... do you think that a terminal cancer patient experiencing pretty severe depression can make a rational choice to end his own life?

A. Yes, I believe he can. I don’t think the fact that someone is depressed or they’re facing overwhelming life circumstances means that they’re irrational about any choice to either live or die necessarily.

Some people may be. Like if Mr. Rumbaugh was in a psychotic state where his perception of the world was grossly distorted and one would certainly argue then that perhaps his decision in any regard, either to continue with appeals or not to continue appeals was not based on rational reason.

But at least the reasons he gave to me during this course of evaluation seemed to be pretty rational reasons for pursuing his course of action.

And I think there was a list of questions we submitted to him, I think it’s very important for all parties concerned to review his answers to those because I think they were very cogent answers for the most part.

Q. So I believe in your report and in your testimony, it’s your professional opinion that any depression that Mr. Rumbaugh may be experiencing at the present time does not impair his ability to make a rational choice about what to do, to understand the situation that he’s in and to realistically assess the options available to him, is that correct?

A. His assessment of his options, his current legal situation was very factual, it was very logical.

* * * * * *

Q. He then basically in your opinion does recognize the ... his mental condition as deteriorating where he’s at?

A. Yes, he does.

Q. And that that in effect is partially or at least has some influence on his desire to waive his appeals?

A. Yes. Not only his current conditions influence him but also he’s fairly pessimistic, realistically so, unfortunately, about his future prospects, even if the appeals were successful.

* * * * * *

THE COURT: Doctor, let [me] tell you what I’m hearing you say and you tell me if I’m hearing you correctly.

THE WITNESS: Okay.

THE COURT: What I’m hearing you say is that Mr. Rumbaugh has been miserable for a very long time.

THE WITNESS: That’s true.

THE COURT: That he’s miserable now. THE WITNESS: Yes.

THE COURT: And he expects to be miserable in the future.

THE WITNESS: Yes.

THE COURT: That based on the personality that he has and based on the circumstances in which he’s now placed, that that assessment that he will be miserable in the future is realistic.

THE WITNESS: Yes, it is.

THE COURT: And that he has ... he is able to think coherently.

THE WITNESS: Yes.

THE COURT: He’s able to understand what’s going on.

THE WITNESS: Yes.

THE COURT: And his decision is rational based on what he presently faces.

THE WITNESS: Yes, it is. Based on his past experience and what he presently faces, I believe it’s rational, or logical, at least.

THE COURT: All right. Do you want to elaborate on what I’m ... is there something I’m not hearing that you’re trying to say?

THE WITNESS: No, I think you’re hearing it very well.

As we appreciate Dr. Logan’s reports and testimony, and considering Rum-baugh’s written answers to the extensive questions posed, it appears that Charles Rumbaugh is able to feed relevant facts into a rational decision-making process and come to a reasoned decision; that one of the facts fed into the process is that Rum-baugh is mentally ill, he has severe depression, with no hope of successful treatment which would reduce his current mental discomfort to a tolerable level or enable him to exist in the general prison population or the outside world if his appeals were successful; that Rumbaugh’s assessment of his legal and medical situations, and the options available to him, are reasonable; but that if the medical situation vis-a-vis treatment were different, Rumbaugh might reach a different decision about continuing judicial proceedings. In other words, Rumbaugh’s disease influences his decision because it is the source of mental pain which contributes to his invitation of death.

Rumbaugh’s written answers to the questions and his statements to the doctors and to the court clearly reflect his awareness of his legal situation and of his right to file state and federal habeas petitions. His answers to the questions list several arguably sound grounds for attack which could not be summarily rejected. Rum-baugh indicates adequate awareness of this reality. He understands his situation and his options. His ability to make the life/death choice is apparent from his comments to Dr. Logan that if he thought that meaningful treatment were available and if it were offered, he would probably change his decision not to appeal. We find that decision to be the product of a reasonable assessment of the legal and medical facts and a reasoned thought process, albeit one that we would disagree with.

Our conclusion that the evidence supports the district court’s finding of competency is reinforced by Rumbaugh’s actions after the district court’s decision and while the appeal was under advisement. He filed an extremely coherent and well-reasoned pro se state habeas corpus petition. That petition states substantial grounds for attacking his conviction and sentence. When it became apparent that this appeal would not be dismissed because of the state petition, he withdrew his pro se petition, stating in his motion to dismiss that he believed the grounds substantial and well-founded but that he was making the choice not to appeal.

Rumbaugh has striven mightily to prove his mental competence to make his legal decisions. He convinced the district court who presided over the dramatic hearings. We cannot tag that finding as clearly erroneous. Nor can we conclude as a matter of law that a person who finds his life situation intolerable and who welcomes an end to the life experience is necessarily legally incompetent to forgo further legal proceedings which might extend that experience. Gilmore v. Utah.

AFFIRMED.

1 . Immediately prior to stating the test, the Supreme Court noted that it would “retain jurisdiction over the cause in this Court and direct the District Court to determine Rees' mental competence in the present posture of things____” 384 U.S. at 314, 86 S.Ct. at 1506.

Insofar as the published reports reflect, nothing further was done until April 10, 1967 when the Court ordered: "This case is held without action of the petition [the pending application for certiorari to the United States Court of Appeals for the Fourth Circuit] until further orders of the Court.” No. 9, Misc. Rees v. Peyton, 386 U.S. 989, 87 S.Ct. 1310, 18 L.Ed.2d 333 (1967).

The case continues to date in a pending status before the Court, carried on the Supreme Court’s Special Docket as item S-2. No further action has been reported.

2 . Lenhard v. Wolff, 444 U.S. 1301, 100 S.Ct. 241, 62 L.Ed.2d 11 (1979) (failure to prove mental illness), vacating stay of execution, 444 U.S. 921, 100 S.Ct. 241, 62 L.Ed.2d 177 (1979); Evans v. Bennett, 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979) (failure to prove mental illness), vacating stay of execution, 440 U.S. 987, 99 S.Ct. 1986, 60 L.Ed.2d 370 (1979); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (failure to prove mental illness); Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981) (remanded to take evidence on issue of mental illness and competency).

3 . The district court's order called for an examination to determine

whether Charles Rumbaugh has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand, whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.

558 F.Supp. at 652.