Bradberry v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 98-11330 Summary Calendar _______________

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 Williams 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).

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)).

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.

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).

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)).