CATHERINE D. PERRY, District Judge.
Jamel Whitt is serving life sentences in custody of the Potosi Correctional Center for the double murder of his grandmother and her boyfriend. Whitt brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Whitt's first ground for relief — error by the trial court in not sua sponte ordering a second competency hearing — fails because the court properly relied on medical evidence that Whitt was competent. Whitt's second ground for relief — insufficient evidence of deliberation in the killing of the boyfriend — fails because there was evidence that the victim was stabbed over thirty times. Whitt's third ground for relief — ineffective assistance of trial counsel for failing to assert the defenses of diminished capacity or mental disease — fails because trial counsel made a reasonable decision to eschew that defense in favor of another defense. Whitt's fourth ground for relief — ineffective assistance of trial counsel for failing to call witnesses to show Whitt's incompetency — fails because Whitt was not prejudiced by the decision. Finally, Whitt's fifth ground for relief — ineffective assistance of trial counsel for failing to seek suppression of Whitt's confessions — also fails because Whitt was not prejudiced by the admission of the confessions. I will deny the petition.
Whitt was charged in state court with two counts of murder in the first degree
In affirming the conviction and sentence, the Missouri Court of Appeals, Eastern District, described the competency proceedings as follows:
The complaint charging Defendant was filed April 24, 2005. On or about April 25, 2005, the trial court issued the following order:
The trial court also granted Defendant's Motion for Appointment of Psychiatrist, continued the cause, and committed Defendant to the Department of Mental Health (DMH) for a mental examination pursuant to Sections 552.020 and 552.030. Defendant's cause was removed from the trial docket and placed on the Mental Examination Docket on April 25, 2005.
At a certification hearing held on July 25, 2005, Defendant filed a Motion to Declare the Defendant Incompetent. Based on a previously filed psychiatric evaluation report and the record, the trial court found that Defendant lacked the mental fitness to proceed and ordered the cause suspended. The court ordered that the Defendant be committed to DMH; and ordered DMH to evaluate Defendant's mental ability and capacity within six months, and to submit to the trial court a progress report within 30 days of the evaluation. The cause was placed on the Mental Inactive Docket.
On August 30, 2006, the trial court took up the Review of Competency to Stand Trial filed by DMH and Fulton State Hospital. After considering a Pre-Trial Mental Evaluation report prepared by Erica Kempker, Psy. D. (Dr. Kempker) and Jeffrey S. Kline, Ph. D., dated August 2, 2006, the trial court found Defendant remained incompetent to proceed to trial and ordered Defendant's continued commitment to DMH with reevaluation within six months.
State v. Whitt, 330 S.W.3d 487, 488-90, 92 (Mo. Ct. App. 2010). The Court of Appeals set forth the following facts detailing the evidence of the crimes:
State v. Whitt, 330 S.W.3d 487, 490-92 (Mo. Ct. App. 2010).
In addition to the evidence recited above, a civilian named Duvalle Perry testified that he had been sitting in a car outside of the apartment at 4730 Lewis Place when Whitt approached and asked for a cigarette. Whitt said that he had just killed his grandmother's boyfriend and had thrown his clothes down the trash chute. Perry testified that he went into his nearby house, dialed 911, and took the phone to Whitt, who told the emergency operator what had happened. Whitt then asked for the phone to call his aunt, and Perry overheard Whitt say into the phone that he had killed his grandmother's boyfriend. During these events, Whitt appeared to be crying and remorseful; Whitt responded sensibly to questions; and Perry could understand Whitt's statements. Tr. 29-33.
Title 28 U.S.C. § 2254(d) mandates that a federal court grant habeas relief on a claim that was adjudicated on its merits by the state courts only "when the state court's decision [is] contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court [of the United States], or the [state court] decision [is ]based on an unreasonable determination of the facts in light of the evidence presented in the state court." de la Garza v. Fabian, 574 F.3d 998, 1001 (8th Cir. 2009); accord Christenson v. Ault, 598 F.3d 990, 994 (8th Cir. 2010). "A state court decision is contrary to clearly established federal law if it reaches a conclusion opposite to one reached by the [United States] Supreme Court on a question of law or decides the case differently than the [United States] Supreme Court has decided a case with a materially indistinguishable set of facts." de la Garza, 574 F.3d at 1001; accord Losh v. Fabian, 592 F.3d 820, 823 (8th Cir. 2010). "A state court decision involves an unreasonable application of clearly established federal law if, in the federal court's independent judgment, the relevant state court decision not only applied clearly established federal law incorrectly, but also did so unreasonably." de la Garza, 574 F.3d at 1001. "The unreasonable application inquiry is an objective one." Id.; see Losh, 592 F.3d at 823 (under the unreasonable application clause of § 2254, a habeas petition may be granted "only if the state court applied the correct governing legal principle in an objectively unreasonable manner").
Importantly, "[o]nly rulings in Supreme Court decisions issued before the state court acts are considered clearly established federal law, for a state court does not act contrary to or unreasonably apply clearly established federal law if there is no controlling Supreme Court holding on the point." Losh, 592 F.3d at 823 (citations omitted). The state court does not need to cite to Supreme Court cases, "`so long as neither the reasoning nor the result of the state-court decision contradicts them.'" Revels v. Sanders, 519 F.3d 734, 739 (8th Cir. 2008) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
"[T]he `summary nature' of the [state court's] discussion of [a] federal constitutional question does not preclude application of the AEDPA standard." Brown v. Luebbers, 371 F.3d 458, 462 (8th Cir. 2004) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011). Section 2254 (d) "does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'" Id. at 785.
Additionally, in a federal habeas action pursued by a state prisoner, "a determination of a factual issue made by a State court shall be presumed to be correct" unless rebutted by the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The deference owed by a federal habeas court to a state court's findings of fact includes deference to state court credibility determinations, Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc), and to "[a] state court's findings of fact made in the course of deciding" an ineffective assistance of counsel claim, Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004). Moreover, the presumption of correctness of findings of fact applies to the factual determinations made by both the state's lower and appellate courts. Smulls, 535 F.3d at 864-65.
An accused's Sixth Amendment right to the assistance of counsel is a right to the effective assistance of counsel. Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 2007) (citing Kimmelman v. Morrison, 477 U.S. 365, 377 (1986)). "To show a constitutional violation of the right to counsel a [petitioner] must show first, that counsel's performance was deficient, and second, that counsel's errors prejudiced the defense." Id. (citations omitted) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Kellogg v. Skon, 176 F.3d 447, 452 (8th Cir. 1999)).
To establish that counsel's performance was deficient, a petitioner must show that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Greiman v. Thalacker, 181 F.3d 970, 972 (8th Cir. 1999) (citing Strickland, 466 U.S. at 687). More specifically, a petitioner must demonstrate that "counsel's performance was so deficient as to fall below an objective standard of the customary skill and diligence displayed by a reasonably competent attorney." Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) (citing Strickland, 466 U.S. at 687-89). "Only reasonable competence, the sort expected of the `ordinary fallible lawyer,' is demanded by the Sixth Amendment." White v. Helling, 194 F.3d 937, 941 (8th Cir. 1999) (quoting Nolan v. Armontrout, 973 F.2d 615, 618 (8th Cir. 1992)). The court is highly deferential in analyzing counsel's conduct and "indulg[es] a strong presumption that counsel's conduct falls within the wide range of reasonable professional judgment.'" Armstrong, 534 F.3d at 863 (quoting Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)).
To establish prejudice, a petitioner must demonstrate "`a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Armstrong v. Kemna, 590 F.3d 592, 595-96 (8th Cir. 2009) (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1105 (8th Cir. 1996)). "`A reasonable probability is [a probability] sufficient to undermine confidence in the outcome.'" Id. at 596 (quoting McCauley-Bey, 97 F.3d at 1105); accord Carroll v. Schriro, 243 F.3d 1097, 1100 (8th Cir. 2001) (quoting Strickland, 466 U.S. at 694). The petitioner bears the burden of showing such a reasonable probability. Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992).
The question of prejudice from counsel's performance need not be reached if the performance was not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir. 1998). Conversely, the question of counsel's allegedly deficient performance need not be reached if a petitioner has failed to show prejudice. See Strickland, 466 U.S. at 697; Williams v. Locke, 403 F.3d 1022, 1025 (8th Cir. 2005).
Whitt raises five grounds for habeas relief. First, Whitt alleges error by the trial court for failing to require sua sponte a second competency hearing during trial. Second, Whitt alleges that there was insufficient evidence that he deliberated before killing Staples. The remaining three grounds allege that his trial counsel's performance was deficient for failing to raise the defenses of not guilty for reason of diminished mental capacity or mental disease, for failing to call witnesses as to Whitt's competency, and for failing to challenge his competency to waive his Miranda rights.
As his first ground for relief, Whitt contends that the trial court erred by failing to sua sponte conduct a second competency hearing during the trial. Although Whitt did not raise the issue at the trial court level, the Missouri Court of Appeals addressed this issue on direct appeal and found that the trial court did not commit error, plain or otherwise, in failing to order an additional competency evaluation sua sponte. Whitt, 330 S.W.3d at 493-94. A decision on the merits by state court overrides a bar to federal review derived from procedural default. Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir. 1997) (citations omitted). But see id. at 1152 (noting disagreement amongst panels).
Failure by the trial court to conduct a competency evaluation in the wake of evidence of incompetence violates the defendant's constitutional right to due process. See Pate v. Robinson, 383 U.S. 375, 385 (1966); see also Beans v. Black, 757 F.2d 933, 935 (8th Cir. 1985) ("Clearly a defendant is entitled to a hearing to determine his competency to stand trial when sufficient evidence is presented raising a `bona fide doubt' as to his competency."). Competency to stand trial is a factual issue. Beans, 757 F.2d at 935. Thus, I defer to the decision of the state court unless that decision was contrary to or involved an unreasonable application of federal law as determined by the United States Supreme Court, or involved an unreasonable determination of facts. Id.; 28 U.S.C. § 2254(d).
The habeas petitioner has the burden to prove that "objective facts known to the trial court raise sufficient doubt to require a competency hearing." Branscomb v. Norris, 47 F.3d 258, 262 (8th Cir. 1995). The Supreme Court has held that a trial court must remain vigilant to changed circumstances of competency. In Drope v. Missouri, the Court held that given the accused's actions, including attempted suicide, combined with unrebutted psychiatric and lay testimony of incompetence, as well as the inability of the trial court to observe the accused during trial, the trial court should have ceased trial pending a further competency hearing. 420 U.S. 162, 180-81 (1975).
Whitt argues that his statements to the court before and after trial, including his desire to "plead the Fourteenth Amendment," his inability to recall how long trial had lasted, and his desire to be sentenced to "10 or 20 years" for first-degree murder should have shown that he was incompetent to stand trial. The Missouri Court of Appeals analyzed these statements and found them unpersuasive. That court cited Dr. Kempker's testimony that Whitt was not only competent, but that Whitt had a history of feigning exacerbated symptoms when under clinical observation. "[A] medical opinion on the mental competency of an accused is usually persuasive evidence on the question of whether a sufficient doubt exists." Griffin v. Lockhart, 935 F.2d 926, 930 (8th Cir. 1991). Whitt's counsel obtained psychological examinations by two different doctors, but presented no evidence that Whitt was incompetent to stand trial.
Considering the evidence before the trial and appellate courts, I cannot say that either made unreasonable determinations in finding that no need existed for an additional competency hearing. Nor was the failure to order a competency hearing in violation of clearly established law: the facts here are wildly different from those in Drope. Whitt has not shown a violation of due process; he is not entitled to relief on Ground One.
As his second ground for relief, Whitt asserts that he was denied due process because the evidence at trial was insufficient to show that he killed Rodney Staples after deliberation upon the matter. Whitt points to the absence of threats or previous hostility between Whitt and Staples and the "lack of evidence of a prolonged struggle." This issue was raised and addressed on direct appeal and so is preserved for review here.
In evaluating the sufficiency of the evidence, the correct standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Gibbs v. Kemna, 192 F.3d 1173, 1175 (8th Cir. 1999) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Under Missouri law, deliberation "requires only a brief moment of `cool reflection' and may be inferred from the fact that a defendant had the opportunity to terminate an attack after it began." State v. Cole, 71 S.W.3d 163, 169 (Mo. banc 2002). Although the presence of numerous wounds is not dispositive, it may support an inference of deliberation. Id.
The Court of Appeals noted that Staples was stabbed or cut in excess of thirty times. Whitt, 330 S.W.3d at 494. One injury was so severe that a portion of Staples's lung protruded from the cut. Whitt told Officer Buford that the stabbings occurred in at least two sessions. Evidence of blood on at least four different knives, two of which had bent or broken blades, and a pair of bloody scissors support an inference that at some point, Whitt changed weapons. There exists sufficient evidence for the fact-finder to have found that Whitt killed Staples after deliberating on the matter. As such, it was not "an unreasonable determination of the facts" for the Missouri Court to find that deliberation had been proven beyond a reasonable doubt. de la Garza, 574 F.3d at 1001. Whitt fails to show that he was denied due process, and he is not entitled to relief on Ground Two.
As his third ground for relief, and in light of his diagnoses of schizophrenia, anti-social disorder, and borderline intellectual functioning, Whitt alleges that his trial counsel was ineffective for not pursuing defenses of not guilty due to mental disease or diminished capacity. This issue was properly exhausted and so may be reviewed on the merits.
The motion court examined the evidence and noted that Whitt's competency had been assessed several times over the course of several years. These assessments included the one by Dr. Kempker immediately before trial that found Whitt to be a "malingerer" who feigned psychological symptoms when it was to his benefit. Given such detrimental medical evidence, the court found it to be reasonable trial strategy not to pursue the defense sought by Whitt. Whitt v. State, No. 1022-CC01956, slip op. at 4-5 (22d Cir. Ct. Mo. Mar. 8, 2011). The appellate court, citing Strickland, found that Whitt had not overcome the heavy presumption that defense counsel's decision was reasonable. In addition to Kempker's testimony, the court cited testimony from those interacting with Whitt shortly after the stabbings that he had appeared remorseful, answered questions coherently, affirmed that he understood his Miranda rights, said that he had killed Staples in defense of his grandmother, and only became upset after he was instructed to disrobe for booking. Given that evidence, the court could not find deficient counsel's decision to eschew the defense of not guilty due to mental disease or diminished capacity.
Under Missouri law, a mental disease or defect provides a defense if the charged person "was incapable of knowing and appreciating the nature, quality, or wrongfulness" of the illegal conduct. Compton v. State, 172 S.W.3d 927, 929 (Mo. Ct. App. 2005); R.S. Mo. § 552.030. In contrast, diminished capacity is not really a "defense"; rather, evidence admissible under that category addresses whether the defendant was capable of reaching the state of mind that is an element of the offense. State v. Walkup, 220 S.W.3d 748, 755 (Mo. banc 2007); R.S. Mo. § 552.015.2(8).
Both the motion court and the appellate court correctly stated the Strickland standard or the analogous standard under state law, which grants a strong presumption that defense counsel's strategy was reasonable. See Strickland, 466 U.S. at 669. As noted by the courts, the record is replete with evidence detrimental to the defense of not guilty by reason of mental disease or diminished capacity. Testimony by Perry that Whitt was crying and appeared remorseful after admitting that he had killed Staples undermines the requirement that the defendant be unable to appreciate the wrongfulness of the conduct. Other facts include testimony from Buford that Whitt understood that he was waiving his Miranda rights and only became upset when ordered to disrobe as part of booking, which goes to mental capacity generally. In contrast, there was some evidence supporting counsel's decision to argue that Whitt killed in defense of his grandmother.
There is a "strong presumption" that trial counsel's conduct is reasonable, Armstrong, 534 at 863, and the evidence supports that presumption. The conclusion of the Missouri courts that Whitt did not receive ineffective assistance of counsel based on choice of defense was not predicated on an unreasonable determination of fact, nor was it contrary to or an unreasonable application of federal law. Whitt has not established a violation of his due Sixth Amendment right to counsel, and he is not entitled to relief on Ground Three.
As his fourth ground for relief, Whitt alleges that his trial counsel was ineffective for failing to call Whitt's mother and prior doctors who had initially found him incompetent to stand trial to testify that Whitt was genuinely incompetent to proceed.
Whitt asserted this ground in his motion for post-conviction relief in state court and renewed the ground on appeal. On post-conviction appeal, the court noted that Whitt failed to allege the content of the proposed witnesses' testimony. Absent that context, the court was unable to say that the failure to elicit testimony from the witnesses prejudiced Whitt. The motion court determined that the nonexpert testimony of Whitt's mother would be insufficient to overcome the expert testimony of Dr. Kempker. It also found that testimony from doctors who had last treated Whitt two years before trial was not relevant to his competency at the time of trial. Since at least one state court reached the claim on the merits, I too may address the merits. Battle v. Delo, 19 F.3d 1547, 1554 (8th Cir. 1994), modified, 64 F.3d 347 (8th Cir. 1995).
Whitt fails here to articulate what any of the witnesses might have said, though he believes the testimony would show that he was not faking his conditions. With nothing more, mere speculation that a witness might have testified in a way to support a theory of defense is "simply inadequate to `undermine confidence in the outcome.'" Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989) (quoting Strickland, 466 U.S. at 694). As such, the Missouri Court of Appeals's determination that petitioner's mere speculation as to what his mother's and former doctors' testimony would have been was insufficient to establish prejudice under Strickland was neither contrary to nor an unreasonable application of clearly established federal law.
Nor has Whitt established that the court's competency determination would have resulted in a different outcome absent counsel's failure to elicit lay testimony or out-of-date medical testimony. First, the credibility of Whitt's mother could have been called into question, negating any potential prejudice. See McCauley-Bey, 97 F.3d at 1106. Second, though the two doctors did find Whitt initially incompetent to proceed, the Court received testimony from Dr. Kempker, including reports from the facility in which Whitt had been held in the ensuing years, that Whitt's psychological difficulties had abated and that he had repeatedly demonstrated his ability to fake exaggerated symptoms of incompetency. Thus, the testimony of the doctors would have been weakened by facts uncovered in the intervening years. See id. (finding inference of prejudice diminished by interplay between witnesses). Whitt has not established a reasonable probability that, absent counsel's failure to call these witnesses, the result of the proceeding would have been different; Ground Four lacks merit.
Whitt argues that because he was found to be incompetent to stand trial shortly after his initial appearance in the criminal case, his counsel at trial was incompetent for failure to argue that his Miranda waivers were invalid and that his confessions should have been suppressed. This argument substantially tracks the argument made in Whitt's motion for post-conviction relief, and so is preserved for review here.
The motion court ruled on the merits that Whitt was competent to waive his Miranda rights; it based this determination on reports of Whitt's actions and his responses to questions posed near the time of the waiver. The post-convictionrelief appellate court, in turn, found that Whitt was not prejudiced by the admission of his confession to Officer Buford. The appellate court relied upon testimony adduced at trial from Officer Buford that Whitt had informed Buford that he "wanted to talk with someone because he had just killed his grandmother's boyfriend." This statement occurred before Whitt was arrested or otherwise placed into custody, and therefore it was not barred from admission under Miranda. The court also noted testimony from Perry that Whitt had informed Perry, a 911 operator, and a family member that he had killed Staples. The court finally noted that DNA evidence tied Whitt to the crimes.
The procedural safeguards prescribed by Miranda only apply to persons who are subjected to interrogation and who are in custody. Montejo v. Louisiana, 556 U.S. 778, 795 (2009); Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977). To be sure, police questioning always involves some degree of pressure to confess. Mathiason, 429 U.S. at 495. But in a noncustodial situation, there are no "inherently compelling pressures" to confess, which make these situations the least likely to pose a risk of coerced waivers. Montejo, 556 U.S. at 795. "When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering." Id.
Upon consideration, Whitt fails to satisfy the prejudice prong of the Strickland test. Even if Whitt's custodial statements should have been barred under Miranda, the government elicited admissible testimony from two different witnesses that Whitt twice admitted in a non-custodial setting to killing Staples. Moreover, the record reflects that blood samples from Whitt's clothes were spotted with DNA from his grandmother, samples from the clothes in the trash chute had DNA from Staples and Whitt on them, and that Whitt's own DNA was mixed with both victims' in blood samples taken from the apartment. Tr. 321-44. Under the above facts, there can be no "reasonable probability" that the trial outcome would have been different. Strickland, 466 U.S. at 694. Because Whitt fails to show that the outcome of his trial would have been any different had his counsel successfully challenged the admission of his custodial statement to Officer Buford or his later confessions, his claim for relief on this ground fails. I will deny the petition.
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28 U.S.C. § 2254 proceeding unless a circuit justice or judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the justice or judge must find a substantial showing of the denial of a federal constitutional right. Id. § 2253(c)(2); see Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). I find that reasonable jurists could not differ on any of Whitt's claims, so I will deny a Certificate of Appealability on all claims.
Accordingly,
A separate judgment in accordance with this Memorandum and Order is entered this same date.
