F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAR 28 2002
                                       TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk


 LENA B. FERGUSON,

           Petitioner - Appellee,
 v.
                                                             No. 01-3058
 RICHARD KOERNER, Warden; and the                     (D.C. No. 95-CV-3323-DES)
 ATTORNEY GENERAL OF THE                                  (District of Kansas)
 STATE OF KANSAS,

           Respondents - Appellants.




                                    ORDER AND JUDGMENT*


Before EBEL, GIBSON**, and PORFILIO, Circuit Judges.




       In this case, the Warden of the Topeka Correctional Facility, Richard Koerner, and

the Attorney General of the State of Kansas, Carla Stovall (State, collectively), appeal the

granting of Lena B. Ferguson’s petition for a writ of habeas corpus under 28 U.S.C.


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

       The Honorable John R. Gibson, Circuit Judge for the United States Court of
       **

Appeals for the Eighth Circuit, sitting by designation.
§ 2254. Relief was premised on the district court’s conclusion the state trial court, in

violation of the Sixth Amendment, improperly denied Ms. Ferguson substitute counsel

after she and her appointed counsel informed the court of the total breakdown in

communications in between the defendant and her attorney.

       Seeking reversal of that judgment, the State here asserts the trial court’s refusal to

substitute counsel was fully supported by the substantial evidence that Ms. Ferguson’s

distrust of her counsel was irrational and a product of her contempt for the entire judicial

process. Moreover, the State contends the district court’s holding has improperly

expanded rights protected under the Sixth Amendment by requiring a “meaningful

relationship” between a defendant and her counsel.

       Nevertheless, we conclude the district court did not err because the peculiar facts

of this case disclose that despite substantial evidence, the state court failed to inquire into

the role Ms. Ferguson’s mental capacity played in her inability to communicate with her

appointed counsel. Its analysis of the breakdown of the relationship was therefore flawed

and unsupportable. We agree with the district court and affirm its judgment.

                                       I. Background

       On direct appeal, the Kansas Supreme Court affirmed Ms. Ferguson’s convictions,

rejecting her Sixth Amendment and competency claims. State v. Ferguson, 

, 694-95 (Kan. 1993). Among the facts the court recited relating to Petitioner’s

conviction was her admission of killing a man and setting him on fire. Subsequent


                                              -2-
investigation established the decedent was Petitioner’s former husband. From the outset,

Ms. Ferguson did not deny her entanglement in the crime. Although Ms. Ferguson told

investigators she did not intend to kill, there is no doubt in the record the crime was

flagrant.

       The crux of this case, however, lies within Ms. Ferguson’s psychological

problems, first diagnosed in 1983, several years before the crime of which she was

convicted. After an initial evaluation, Dr. Herbert Modlin1 of the Meninger Clinic

concluded Ms. Ferguson suffered from Mixed Personality Disorder with Paranoid and

Avoidant Features.2 During this time, Ms. Ferguson’s son was stationed in Saudi Arabia,

a fact which plunged her into a deep depression, including a loss of sleep precipitated by

recurring nightmares of his death. Her fears were exacerbated when her ex-husband

cancelled her long distance service, disconnecting her from any news of her son.




       1
        The Kansas Public Defender’s Office called Dr. Modlin the day after Ms.
Ferguson’s arrest. In that and a subsequent interview, Dr. Modlin reported Ms. Ferguson
was “depressed, tearful, and tense” about her son and exhibited signs of paranoia,
refusing meals, served by food handlers who did not wear gloves, medications, and
injections. She told Dr. Modlin the interview rooms were bugged.

       The American Psychiatric Association, Diagnostic and Statistical Manual of
       2

Mental Disorders 220-21 (3d ed. 1980) (DSM-III), the version used at the time of
treatment, defines this condition as a “chronic disturbance of mood involving either
depressed mood or loss of interest or pleasure in all, or almost all, usual activities and
pastimes.” The paranoia includes “unwarranted suspiciousness and mistrust of people
which makes the person reluctant to confide in others for fear the information will be
used against her. The avoidant features include a hypersensitivity to potential rejection or
humiliation.”

                                             -3-
       To defend the charges of first degree felony murder and aggravated arson, the trial

court appointed Ron Wurtz, a District Public Defender, who appeared at the first

preliminary hearing on February 15, 1991. From the outset, Ms. Ferguson complained

that because Mr. Wurtz was hired and paid by the State of Kansas, he could not possibly

represent her interests. On March 29, 1991, Mr. Wurtz filed a motion for continuance

alleging Ms. Ferguson’s “emotional turmoil” and the trauma of the events rendered her

incapable of assisting him in preparing for trial and crafting a defense. On April 16,

1991, Mr. Wurtz filed a second motion for a continuance based on Ms. Ferguson’s

hospitalization for treatment of her mental illness.3 Her psychiatrist, Dr. Gilbert Parks,

subsequently testified at the hearing on the motion that Ms. Ferguson was severely

depressed “with suicidal plan and ideations.” He opined not only was she so ill she could

not endure the stress of trial or assist in her defense, but also, she should not have any

contact with Mr. Wurtz4 unless counsel went through him. The court granted this


       3
        Mr. Wurtz also filed his first motion to withdraw, stating that Ms. Ferguson “has
no confidence in her present counsel or in any counsel who is employed by the Public
Defender's office. Said conflict and absence of confidence is [sic] so serious that the
attorney-client relationship is so adversely affected that there is effectively no counsel for
the accused.”
       4
        Mr. Wurtz testified at the habeas hearing he tried every means to persuade Ms.
Ferguson to cooperate but was usually arguing with her to help herself. In a prior
affidavit, Mr. Wurtz stated,

       I tried many methods to get Ms. Ferguson to communicate with me. I cried
       with her. I threatened her with the possibility of prison. I sent some of my
       staff to talk with her. I yelled at her. I even tried physical intimidation to
                                                                                 (continued...)

                                             -4-
continuance and set July 29, 1991, for trial unless Mr. Wurtz raised concerns about her

competency.

        On July 24 1991, Mr. Wurtz filed a motion to determine competency, stating in

part:

        The only method counsel has of trying to communicate with his client is by
        passing information to Dr. Parks. Dr. Parks is not a lawyer, and counsel
        cannot be personally satisfied that [petitioner] is receiving proper legal
        information with which she can make the decisions that are the client's to
        make, such as whether to testify or to enter plea negotiations. Counsel
        believes [petitioner's] mental condition precludes her from thus assisting in
        her defense.

On the following day, the trial court ordered Dr. James Horne, a court psychiatrist, to

evaluate Ms. Ferguson. After examination, Dr. Horne concluded Ms. Ferguson was

incompetent to stand trial because she suffered from a mental illness and exhibited signs

of paranoia. Though he judged her “oriented, cooperative, and alert,” Dr. Horne

recommended Petitioner was incapable of working with her attorney. On that basis, the

court found Ms. Ferguson incompetent to stand trial, committed her to the Larned State

Security Hospital, and ordered the staff to report on her progress within sixty days.




        (...continued)
        4

        get her to understand the consequences of not communicating with me by
        blocking her exit from the interview room and backing her into a corner.
        None of these methods worked, and I became increasingly frustrated.

Ms. Ferguson testified she asked him to get her counseling when she was in jail, but he
failed to provide anyone. She stated she saw Dr. Parks on her own initiative when she
was out on bond.

                                             -5-
      In that report submitted on October 21, 1991 (the Report), the evaluating staff

diagnosed Petitioner with Schizoaffective Disorder, Depressive Type, described in the

DSM-III as a disorder in which the individual suffers from delusions or hallucinations.

Nonetheless, the staff concluded she was competent to stand trial:

      [Ferguson’s] expressed unwillingness to cooperate with the attorney
      appears to be related to her strong feelings of being let down by him
      because he never contacted her and was not working in her best interest
      while she was in jail. There are no strong indications to suggest that her
      mental illness is the basis for her lack of trust in her attorney.

.

      Five days before trial began and shortly after Ms. Ferguson was discharged from

Larned, Mr. Wurtz again moved to withdraw as counsel. In support, he stated:

      Your Honor, my request to withdraw as counsel is somewhat tied up with the
      [competence] report, as the Court knows the contents of that report. I respectfully
      request permission to withdraw from this case as counsel for Ms. Ferguson for the
      reason that although the doctors think she's able to--she's able to cooperate with
      counsel, I have my own lay suspicions and sincere beliefs that she cannot
      cooperate with me.

      Since her release from the Larned State Security Hospital, I have
      communicated with her physician, Doctor Gilbert Parks, and that, as far as I
      know, is the only communication directly that I had with Ms. Ferguson until
      actually yesterday when I spoke with her briefly on the phone. Ah, I had
      passed several requests through Doctor Parks that she come in and talk to
      me. She has not done so. I do not know the reasons why except that she
      has a deep and abiding distrust of everything I do. She feels, Your Honor,
      that everything she tells me, that I pass on to the District Attorney. And the
      way she presents herself, I think she sincerely believes that. The district
      attorney can tell you whether it's true or not, which, of course, it's not. But
      she believes it. If she firmly believes that, it follows that she would be in
      fact protecting herself by not telling me what I need to know in order to put
      on a defense.

                                           -6-
Your Honor, back when I first represented her, within the first month, we
had communication. During that communication, she provided me with
some details which I needed in order to begin working up a defense. That,
however, was before I had completely investigated it myself. And as the
Court may understand, without me releasing any confidences in this request,
questions have come up which I believe that only Lena Ferguson can help
me deal with. She cannot do that. She says she cannot do that because she
does not trust me.

One of the grounds for allowing withdrawal of counsel is that the attorney-
client relationship has deteriorated to the point that it is effectively no
relationship at all. When I spoke with Ms. Ferguson yesterday over the
mix-up, and as I advised the Court, my failure to make sure she was notified
of the hearing set yesterday, she very clearly told me both today and
yesterday, that she believed that I had done that in order to make her look
bad. In her demeanor and in her statements, she appears to be sincere in
that.

Your Honor, a defense lawyer's relationship with his client is the key to a
good defense, not just a competent defense. It's certainly a key to a
competent defense. But really, in this case, it's a key to a defense at all.

                                    ....

In the present state of our relationship, as I see it, there being no
relationship, I don't believe I can effectively present a defense on her
behalf. And I sincerely believe that.

As I have been preparing for this intensively for the last week after the
Court has advised us of the trial--I was prepared once before, but it takes
some time to get back up to speed again--there are questions that I fear
without her having some trust in me, that I will ask one wrong question or
say one wrong thing that I would know to avoid if she could communicate
with me.

                                     ....

I am totally frustrated and I hope that doesn't get into it. But when I get
frustrated, that's a side event that causes me not to concentrate too. And I
worry about how effective I can be under these circumstances. And I

                                     -7-
       implore this Court to consider appointing counsel knowing that it would
       necessarily result in another postponement of the trial, but I think fairness
       requires that.

       At that time, Mr. Wurtz also stated Petitioner’s distrust “is deeper than simply who

is paying the bill.” He expanded, “[S]he has much--many more complaints about things

that have happened in the past.” Later in the hearing, Ms. Ferguson asked to be excused

from the proceedings. Given that request, Mr. Wurtz renewed his motion to withdraw,

stating that it was “extremely dangerous for a defense lawyer to consent to his client

leaving when there may be a question that needs to be answered” and that her request was

a “further demonstration . . . of the fact that [their] relationship is such that she cannot

help [him].” Nonetheless, the trial court denied the motion to withdraw and allowed Ms.

Ferguson to leave the hearing.5

       On November 18, 1991, the morning of the first day of trial, Mr. Wurtz again

moved to withdraw, stating in his supporting brief,

       [S]ince [petitioner's] release from jail she has consistently refused to discuss
       the matters which have resulted in the charges now pending against her.
       She has expressed the belief that present counsel is in league with the
       authorities who seek to punish her for the events which are the foundation

       5
        The court stated,

       If she elects not to discuss her case with Mr. Wurtz, or to fully cooperate, I
       can only conclude that it is her conscious decision not to do so, and it is her
       responsibility for taking that position. Mr. Wurtz has done nothing in this
       case to justify releasing him. He is a highly competent, highly experienced
       attorney. He has done everything in the Court’s view to represent his client
       effectively and diligently. And I find no ground, whatsoever, to grant this
       request.

                                              -8-
       for this action. She currently refuses to even come to counsel's office to
       permit counsel to explain the trial process, seek her input on jury selection,
       discuss the theory of the case which must be presented in light of her refusal
       to testify, and generally to assist counsel in even the most rudimentary
       matters.

Further, he stated to preserve client confidences he could not fully disclose the “incidents

supporting his belief;” thus, he could not provide Ms. Ferguson “constitutionally valid

assistance under the conditions” that then existed. Mr. Wurtz asserted he had nothing to

add factually to his previous motions, but that in his final preparation for trial, he did not

have Ms. Ferguson’s assistance in clarifying some questions in preparing for cross

examination.

       The trial court again denied the motion, emphasizing that Mr. Wurtz was a highly

qualified attorney, a fact which it believed removed any reasonable basis for substituting

him. In support, it remarked that Mr. Wurtz succeeded in reducing Petitioner’s bond to

secure her release. The trial court then based its conclusion solely on testimony that was

offered at a hearing held a week before Dr. Parks saw Petitioner and before either of her

hospitalizations occurred.6 Trial proceeded, culminating in a guilty verdict.




       6
        The court stated,

       She has shown no lack of diligence, no dereliction of duty. I can only
       gather and conclude that her failure to communicate satisfactorily with Mr.
       Wurtz is not only unreasonable, but the result of a conscious decision by
       her. Now if that’s her conscious decision, then I don’t think the
       consequences of that decision should be visited on the Court or deprive the
       Court of its ability to try the case.

                                             -9-
       In rejecting the Sixth Amendment claim, the Kansas Supreme Court set forth some

of this history but characterized it, much like the trial court had, to reflect Petitioner’s

dissatisfaction with Mr. Wurtz’s competence as a lawyer. Quoting the Report, the

Supreme Court observed:

       The district court judge who received this recommendation, unlike the staff
       members who made it, was aware that Ferguson's complaints of her
       counsel's lack of diligence were not supported by the facts. He knew that
       Ferguson's bond had been reduced and she had been released from jail.
       With regard to her complaint that her competency evaluation should have
       occurred at an earlier time, the district court knew that her personal
       psychiatrist, Dr. Parks, testified on May 1 that she understood the nature
       and purpose of the legal proceeding against her and that, with (his)
       treatment for a month or two, she would be able to assist in her defense.
       The district judge knew that Dr. Parks had testified in May that Ferguson
       had a “suspicious distrust almost at a paranoid level which makes it difficult
       for her to cooperate with anyone at this point.”

(emphasis added). Citing Thomas v. State, 

(Fla. 1982), and State v. Long, 

(Mont. 1983), the court concluded although

the breakdown in communication between Ms. Ferguson and Mr. Wurtz was “absolute,

her refusal to cooperate is not of itself basis for reversal on grounds of ineffective

assistance of 

. Observing that “arguably” the trial court should

have appointed substitute counsel, it opined “[t]here is no reason to believe such a

substitute counsel would fare any better than trial counsel did.” 

under § 2254

       Petitioner then proceeded with her federal habeas action. After her petition was

dismissed for failure to exhaust state remedies, this court reversed and remanded the case,

                                             - 10 -
holding all of Ms. Ferguson’s “new evidence” simply supplemented rather than

fundamentally altered her claim. Ferguson v. McKune, No. 99-3214, 

(Aug. 10, 2000) (unpublished). In that appeal, as here, the State argued Petitioner

transformed her Sixth Amendment claim from one based on distrust of an attorney paid

by the State, to one mired in the details of her poor relationship with Mr. Wurtz. We

responded:

       Our review of the record does not bear this out. Mr. Wurtz clearly,
       repeatedly, and emphatically informed the trial court that there were other
       reasons petitioner did not trust him and would not cooperate with him.
       Indeed, he stated that petitioner's distrust of state-paid attorneys was not the
       overriding reason for their bad relationship. Rather, it was the Kansas
       courts that focused the attention on petitioner's distrust of an attorney in the
       state's employ. The fact that the Kansas courts chose to concentrate on
       petitioner's professed distrust of such an attorney, however, is not
       dispositive of our exhaustion analysis. We conclude that petitioner
       exhausted her Sixth Amendment claim in the state forum.

, at * 8.

       After remand, an evidentiary hearing was held by a Magistrate Judge who

forwarded a recommendation the writ be granted. In adopting that recommendation,

Ferguson v. Koerner, 

, 1214 (D. Kan. 2001), the district court

employed the four-step inquiry we set forth in Romero v. Furlong to decide whether the

complete breakdown in communications rendered the attorney’s representation

constitutionally ineffective. 

, 1113 (10th Cir. 2000). Those four factors

are: (1) whether petitioner made a timely motion requesting new counsel; (2) whether the

trial court adequately inquired into the matter; (3) whether the conflict between the

                                            - 11 -
petitioner and her attorney was so great it resulted in a total lack of communication; and

(4) whether petitioner substantially and unjustifiably contributed to the breakdown in

communication. 

court agreed with the State that only the second factor was at issue in

this case, that is, whether the trial court adequately inquired into the matter. It found the

trial court correctly inquired into Ms. Ferguson’s distrust based on her attorney’s state

funding. Nonetheless, it concluded the trial court unequivocally failed to inquire into Mr.

Wurtz’s representations that other factors contributed to the breakdown in

communications. In support, the district court cited Mr. Wurtz’s November 13 statement:

“the fact of payment of counsel, only [Petitioner] can answer whether that makes a

difference to her, and the Court may obviously inquire. But that is not what I have found

to be an overriding concern in her expressions of discontent with me.” The district court

pointedly observed this statement provoked no further inquiry by the trial court, which

instead relied upon its memory of a hearing seven months previously. The district court

also observed on the morning of trial the court “declined, again relying on its prior

understanding, to inquire into the matter.”

       Guided by the factual contrasts presented by Romero, in which relief was denied,

the district court noted, in Ms. Ferguson’s case, the motion to substitute counsel was

renewed “on several occasions, and most importantly, indicated additional factors were

contributing to the communication breakdown between Mr. Wurtz and herself.” 131 F.



                                              - 12 -
Supp. 2d at 1214. Upon these facts, the district court stated, it was “not reluctant to

conclude that the trial court should have expanded the scope of its inquiry and considered

matters beyond the already settled state funding issue.” 

       Like Romero, this case is pre-AEDPA; thus, the standard of review Romero

enunciated applies here:

       As a federal court conducting a review in habeas of state court
       determinations, our role is secondary and limited. Although we review
       legal conclusions de novo, a state court's factual findings are entitled to a
       presumption of correctness. Mixed questions of law and fact are reviewed
       de novo, but the presumption of correctness will continue to apply to any
       findings of fact underlying mixed 

(citing Castro v. Ward, 

, 815-16 (10th Cir. 1998)). Thus,

here, too, “[t]he substance of our review is confined” to whether Ms. Ferguson is “in

custody in violation of the Constitution or laws or treaties of the United States.” Id.; 28

U.S.C. § 2254(a) (1994).

       Although the State concedes Romero is “good law,” it urges, “its analytical

framework must be applied in a habeas case with a more demanding standard of review.”

That contention is fatuous. As noted, Romero is a habeas case. By setting the stage in

that fashion, however, the State seems bent upon convincing us that somehow an abuse of

discretion standard sneaked in and infected the district court’s analysis and review.

Unequivocally, the district court set forth the correct standard, however.

       Against this background, the State argues the district court simply “substituted its

decision for that of the state trial court,” rejecting factual findings and engaging in

                                             - 13 -
“unwarranted fact-finding on its own.” It maintains the trial court did not abuse its

discretion in refusing to appoint substitute counsel in light of the uncontroverted fact the

absolute breakdown in communications was tied entirely to Ms. Ferguson’s “own

irrational and uncooperative behavior.” However, this and other of the State’s arguments

ignore the critical point that it is clear from the record, as it would have been clear to the

trial court had it made further inquiry. Petitioner’s irrational and uncooperative behavior

was the product of her mental illness and not of a rational mind.

       It cannot be gainsaid that open and free communication between client and counsel

is the touchstone of the lawyer’s effectiveness. In this case we are certain that touchstone

was missing because of Ms. Ferguson’s illness. That illness provoked delusional beliefs

that prevented her from communicating with counsel so that he could effectively defend

her. We do not share the state court’s comfort that Mr. Wurtz was able to fully represent

his client’s interests simply because he was able to achieve some minor successes along

the way without Petitioner’s help. The overriding fact is Mr. Wurtz went to trial without

a prepared defense because his client’s sickness impeded her ability to communicate and

furnish counsel the necessary assistance. Likewise, we also disagree with the state court

there was no reason to believe different counsel would have been better able to represent

Ms. Ferguson effectively. Indeed, we believe the record demonstrates the factors

underlying her delusional rejection of Mr. Wurtz were attributable to him alone and were

not a foreseeable deterrent to other counsel. We conclude a more judicious inquiry into


                                             - 14 -
all the reasons provoking Mr. Wurtz’s attempts to withdraw from the case would have

illuminated these facts.

       We conclude the district court correctly followed and applied the rule of Romero.

Its judgment is AFFIRMED.



                                         ENTERED FOR THE COURT


                                         John C. Porfilio
                                         Senior Circuit Judge




                                          - 15 -