The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Tulare County District Attorney charged Petitioner with murdering Henry Cryder (Cal. Pen. Code,*fn1 § 187(a)), attempting to murder Kenny Williams, Charles Marshall, and Beau Bramlett (§§ 664, 187(a)), assaulting Elizabeth Perez with a deadly weapon (§ 245(a)(2), and kidnapping Jose and Alberto Perez (§ 207(a)). Each count included sentencing enhancement allegations based on Petitioner's use of a firearm during the commission of the crimes (§§ 12022.3(a)(1), 12022.53(b) & (d)). (LD 1.)
Five days before the trial was scheduled to begin, Petitioner's counsel filed a motion to suspend proceeding on the ground he was incompetent to stand trial. (Id.)
The court held a bench trial to determine Petitioner's competency, and the court ultimately found Petitioner competent to stand trial.
Petitioner then pled no contest to all the counts and enhancement allegations, in exchange for an indicated sentence of 50 years to life. Petitioner was sentenced to prison for the indeterminate term of 50 years to life.
The California Court of Appeal, Fifth Appellate District affirmed the judgment, but remanded the case back to the trial court for the limited purpose of determining presentence custody credits.
The California Supreme Court denied review.
Petitioner filed the instant federal petition for writ of habeas corpus on October 4, 2011.
Respondent filed an answer to the petition on December 7, 2011. Petitioner did not file a traverse.
During the competency proceedings, two experts testified on [Petitioner's] behalf: Thomas Middleton, Ph.D., a psychologist, specializing in neuropsychology, and Albert Globus, M.D., a forensic psychiatrist with particular experts in Positron Emission Tomography (PET). These experts had originally been retained by defense counsel to evaluate defendant in 2007, and their evaluations had led to defendant's motion to withdraw his not guilty plea and to enter a plea of not guilty by reason of insanity.
In their testimony, Dr. Middleton and Dr. Globus described the extensive testing undergone by [Petitioner], including a PET scan, which supported their assessment that [Petitioner] suffered from organic brain damage, resulting in severe impairment to his memory and cognitive thinking skills. Dr. Globus opined that the brain damage had been present since birth or sometime early in [Petitioner's] life, and that [Petitioner's] later use of controlled substances caused further brain damage. Although not mentally retarded, [Petitioner] functioned at a borderline level with an IQ of 78. While they did not originally assess [Petitioner] for his competency to stand trial, both defense experts agreed that the mental deficits they observed in [Petitioner] in 2007, were the types that would persist and render him currently incompetent to stand trial.
In addition, Dr. Globus evaluated [Petitioner] for his competency to stand trial in May 25, 2008. Dr. Globus testified that [Petitioner's] "memory defect first and foremost and also his poor cognitive ability . . . point strongly to his inability to be able to do the mental manipulations or the mental functions that are necessary to competency, that is to rationally assist his attorney in the preparation of his defense and advise the attorney about what is happening in the courtroom." Dr. Globus explained: "One requires a certain vocabulary, a certain educational level, a certain knowledge of the different roles, social roles of the people in the court, and the capacity to follow the line of questioning and keep in memory the pertinent facts and to manipulate those thoughts to produce some sort of commentary that would help you in his defense." Dr. Globus concluded: "I think that is well beyond [Petitioner's] capacity even when totally sober."
Dr. Middleton reached a similar conclusion, testifying that [Petitioner] "likely has substantial defects that would interfere with his ability to follow the courtroom proceedings." Dr. Middleton explained: "In a courtroom environment there are multiple parties speaking, there's information that has to be absorbed and integrated and the speed of which that is needed is reflected not only in the memory test, but also in the tests of executive functions." Although "[i]n a quiet room with repetition [Petitioner] can follow and absorb information[,] . . . his executive functions become the limiting factor in a courtroom where it's fast-paced, there's . . . multiple stimuli and he has to be able to show processing that would be able to keep up with that. He simply isn't able to do that." Dr. Middleton explained that while [Petitioner] was able to absorb some information, he was unable "to integrate and apply that information" and was not "able to understand the proceedings against him." Dr. Middleton concluded: "Based on my comprehensive neuropsychological evaluation due to his dementia as well as his psychotic disorder, as well as his post-traumatic stress disorder, he simply doesn't have the rational capacity to participate meaningfully in his defense."
The Prosecution Witnesses
One expert testified for the prosecution: Paula Willis, Ph.D., a clinical psychologist, whose "experiences have all been in the focus areas of corrections and forensic work." Dr. Willis testified that since 2000, she had conducted approximately 200 competency evaluations and had previously qualified as an expert in the field.
Dr. Willis was "asked to do a 1368 evaluation of [Petitioner]." As a result of her evaluation, Dr. Willis concluded that [Petitioner] was competent to stand trial. Dr. Willis described the various components of the evaluation, which began with a face-to-face clinical interview at the jail. She also reviewed the reports of Dr. Globus and Dr. Middleton, as well as those of Dr. Bindler and Dr. Velosa, whom the trial had appointed to evaluate [Petitioner] on the question of sanity pursuant to sections 1026 and 1027. [FN 3] In addition, Dr. Willis conducted a mental status exam and a standardized competency test.
[FN 3] The findings of Dr. Bindler and Dr. Velosa are not part of the record on appeal.
Dr. Willis testified that when she administered the competency test to [Petitioner], he did to appear to have any difficulty understanding the nature of, or his current position relative to the court proceedings. When asked if [Petitioner] understood how the proceedings were conducted, Dr. Willis responded, "No and yes." She explained: "He did get tripped up. He appeared to get tripped up on certain terms, and although he did provide answers, they were very simple concrete answers, and he appeared to not understand fully the plea process, but that is just one area." Dr. Willis concluded that defendant could rationally assist his attorney in his defense. In administering the mental status exam and interviewing [Petitioner], she looked for "any kind of psychoses and irrational thoughts, delusions, that kind of thing." Dr. Willis described what she found:
"I found that he did not have any delusions. He reported to me symptoms that were consistent with drug use, and he was aware of these symptoms, which tells me it was not driven by a clinical disorder like schizophrenia or something like that. It was, you know, colored spots coming out of the wall, which is very consistent with someone that uses PCP and inhalants. And he also said that he heard voices, especially at night. And . . . it had gone down since he started his medication, they weren't bothering him anymore."
Dr. Willis testified that [Petitioner] was able to interact rationally with her. She did conduct formal testing of his memory, but part of the mental status exam addressed the issue. Dr. Willis explained:
"My testing, when I'm looking for that, is I do it in the Mental Status Exam, which is when you're asking them to recall, for instance, words, you know, after awhile you ask them words again, and then they repeat them to you. So you're looking at that and then also the immediate memory, which is like digit span, saying numbers forward, saying numbers back.
"And then what I do, and what many of my colleagues do, is we ask some questions in kind of a casual manner so they don't feel like they're being tested. So you just ask some questions about, you know, what did you have for breakfast this morning? And who - - you know, what did you do last night? How are you sleeping? Have you had visitors? When do they come? Those kinds of questions. And you go back, you know, recent and then a few months. He was able to describe a lot of details about everything back.
"Q. [By the prosecutor]: Okay. So you didn't notice any major problems with his memory?
"A. No, I don't think he - - he scored real high on remembering the digit - - his digits I think it was, but he did okay. It wasn't perfect.
"Q. Okay. Anything about that that you could call into your mind a question as to whether or not he could ...