Filed: Jul. 10, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 10, 2006 Charles R. Fulbruge III Clerk No. 06-70031 BOBBY WILCHER, Petitioner-Appellant, versus JAMES V ANDERSON, Superintendent, Mississippi State Penitentiary, Respondent-Appellee. - Appeal from the United States District Court for the Southern District of Mississippi (3:98-CV-236WS) - Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judges. PER CURIAM:* Against his clie
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 10, 2006 Charles R. Fulbruge III Clerk No. 06-70031 BOBBY WILCHER, Petitioner-Appellant, versus JAMES V ANDERSON, Superintendent, Mississippi State Penitentiary, Respondent-Appellee. - Appeal from the United States District Court for the Southern District of Mississippi (3:98-CV-236WS) - Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judges. PER CURIAM:* Against his clien..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2006
Charles R. Fulbruge III
Clerk
No. 06-70031
BOBBY WILCHER,
Petitioner-Appellant,
versus
JAMES V ANDERSON, Superintendent, Mississippi State
Penitentiary,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
(3:98-CV-236WS)
--------------------
Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Against his client’s wishes, Counsel for Petitioner-Appellant
Bobby Glen Wilcher applied for a certificate of appealability
(“COA”) to appeal the district court’s Order Dismissing Petition
for Writ of Habeas Corpus. That Order was issued after the court
conducted a hearing on Wilcher’s pro se filing styled “Motion To
Drop All Remaining Appeals And To Allow The State To Immediately
Proceed With Petitioner’s Execution.”
At the hearing, Wilcher explained that he had not terminated
Counsel’s representation because he (Wilcher) understood that doing
*
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that this opinion should not be published and is not precedent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.
so would prolong the appellate proceedings that he desired to end.
Counsel for Wilcher is before us to appeal the district court’s
finding that Wilcher is mentally competent to voluntarily dismiss
his habeas petition and submit to being executed.
While this application was pending before us, counsel for
Wilcher filed a pleading —— after hours on Friday, July 7, 2006 ——
styled Petitioner’s Motion To Reinstate Appeals and Stay Execution,
and accompanied by Wilcher’s bare-bones affidavit signed and
notarized the same day. This latest filing begins “Petitioner-
Appellant Bobby Wilcher hereby withdraws his pro se motion to
terminate all appeals ....” Yet, Counsel has filed no motion for
Wilcher in this court for authority to “withdraw” Wilcher’s pro se
motion that was filed in and granted by the district court, and has
cited no authority for this court to allow withdrawal of the motion
(or vacatur of the Order granting it, which is before us on
application for COA filed against Petitioner’s earlier-stated
wishes). This sudden about-face strikes us as nothing more than an
Eleventh-hour death row plea for mercy finally elicited from
Wilcher by Counsel; the accompanying affidavit states only a
conclusional flip-flop by Wilcher, who had cogently and voluntarily
testified at length in the district court hearing only weeks
earlier that enough was enough, and that he wished to abandon all
appeals and submit to execution forthwith.
Having carefully reviewed counsel’s application and supporting
documents, the State’s response, the transcript of the hearing in
2
the district court, and the district court’s Order, we conclude
that the district court committed no error, and that reasonable
jurists would not disagree with the propriety of that court’s
Order. We therefore deny the application for COA.
The long-established legal standard concerning the competency
of a death row inmate to abandon further appeals of his sentence 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.”2 We have held that “a habeas court
must conduct an inquiry into the defendant’s mental capacity ... if
the evidence raises a bona fide doubt as to his competency,” noting
that “the extent and severity of the petitioner’s history of mental
health problems which have been brought to the court’s attention
influence the breadth and depth of the competency inquiry
required.”3
The district court entered its finding of Wilcher’s mental
competency under the Rees standard after extensively questioning
him in person in open court, observing his demeanor, and reviewing
2
Rees v. Peyton, 384 U.S. 312, 314 (1966).
3
Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000). In
Streetman v. Lynaugh,
835 F.2d 1521, 1525 (5th Cir. 1988), we
observed that a district court is required to order a psychiatric
examination “only once a certain threshold showing [of a lack of
competency] has been made ....”
3
past mental examinations. We are satisfied that the inquiry
conducted by the district court was constitutionally sufficient, as
the evidence presented to the court did not raise a bona fide doubt
as to Wilcher’s competency.4 There was not, for example, evidence
of a long history of uncontrolled mental health problems,5 and
Wilcher was physically present at the hearing and was personally
examined in depth by the district court.6
That able and persuasive Counsel was finally successful in
convincing Wilcher to do an about-face scant days before his
requested execution is not surprising —— but is without authority
under applicable law and is to no avail.7
4
See Mata, 210 F.3d at 329-30 (setting forth as factors to
be considered in determining whether there is a “bona fide doubt”
as to competency: (1) any history of irrational behavior, (2)
defendant’s demeanor at trial, and (3) any prior medical opinion
on competency) (citing Davis v. Alabama,
545 F.2d 460, 464 (5th
Cir. 1977)).
5
Although Wilcher has been prescribed Tegretol as treatment
for bipolar disorder, the district court implicitly found that
his condition is stabilized and under control.
6
In Mata, we reversed the district court’s order dismissing
the petition for habeas corpus because the evidence presented to
the court included thirty years of documented mental health
problems, repeated suicide attempts, numerous hunger strikes, and
the district court neither ordered an expert psychological
examination nor conducted its own examination. 210 F.3d at 331.
7
We note that Counsel did not present Wilcher’s change of
heart as, for example, a successive application for a writ of
habeas corpus; but even that would fail to meet the applicable
standard. See 28 U.S.C. § 2244(b)(2) (claim that was not
previously presented shall be dismissed unless it relies on a new
rule of constitutional law or is predicated on newly-discovered
facts demonstrating actual innocence).
4
We therefore DENY Petitioner’s motions for stay of execution,
DISMISS his request to reinstate his appeals, and DENY his
application for COA to appeal the district court’s Order dismissing
his petition for a writ of habeas corpus.
5
