The opinion of the court was delivered by: Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court
(1) ORDER DENYING PETITIONER COMPETENCY HEARING
(2) ORDER DENYING PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL; AND
(3) ORDER GRANTING RESPONDENT'S MOTION TO FILE DOCUMENTS UNDER SEAL
On March 26, 2012, Petitioner, a state prisoner proceeding pro se, submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. (Doc. No. 1, Petition ("Pet.") & Doc. No. 2.*fn1 ) Petitioner challenges his conviction of murder in the first degree involving the intentional and personal discharge of a firearm that caused bodily injury under California Penal Code sections 187 and 12022.53(b)-(d). (Pet. at 2.) On April 4, 2012, the Court granted Petitioner in forma pauperis status. (Doc. No. 3.)
The following matters are pending before the Court: (1) a question of Petitioner's competence, (2) Petitioner's motion for appointment of counsel, and (3) Respondent's motion to file documents under seal.
For the reasons set forth below, this Court DENIES Petitioner a competency hearing, DENIES Petitioner's motion for appointment of counsel, and GRANTS Respondent's motion to file documents under seal.
Based on the information provided in the Petition, this Court questioned Petitioner's competence in representing himself in this matter. (Doc. No. 5 at 2.) For instance, on page five of
Petition, fellow inmate Buck Aaron states that Petitioner is "unable to assist himself alone, and to his mental state he can not comprehend on a level that is even close to being adequate to his legal claims. . . ." (Pet. at 5.) It is also alleged that Petitioner is currently "on psychiatric care/medications. . . ." (Id.) Further, according to the Petition, Petitioner was found incompetent stand trial three separate times between 2004 and when he was finally found competent in 2007 tried in 2008. (Id. at 19-20.) Attached to the Petition is a declaration by Mr. Aaron, submitted under penalty of perjury, that states (1) Petitioner cannot "communicate rationally enough most of time, to comprehend the need for filing in this action or determine when they are due . . .[,]" (2) Petitioner is "on medications and under psychiatric care at this time and has been since his arrival the California prison system[,]" and (3) Petitioner "is only able to communicate rationally some the time by speaking slowly to [Petitioner] and waiting for his slow answers. . . ." (Id. at 36.)
Accordingly, on April 16, 2012, the Court ordered Petitioner to submit additional evidence current incompetence, including declarations, exhibits and argument to establish that he currently suffers from a mental illness, and that the mental illness prevents him from being able to understand respond to Court orders. (Doc. No. 5 at 3.) On May 14, 2012, Petitioner filed his additional evidence: (1) a declaration by a fellow inmate, Mr. Aaron, (2) a declaration by his trial attorney, David Semco, and (3) a portion of his mental health records. (Doc. No. 7.)
The declaration by Mr. Aaron is the same declaration Mr. Aaron previously submitted with Petition. Again, it states that Petitioner cannot "communicate rationally enough most of the to comprehend the need for filing in this action or determine when they are due . . .[,]" that Petitioner is "on medications and under psychiatric care at this time and has been since his arrival the California prison system[,]" and that Petitioner "is only able to communicate rationally some the time by speaking slowly to [Petitioner] and waiting for his slow answers. . . ." (Pet. at 36 &
The declaration by Petitioner's trial attorney, Mr. Semco, is neither signed nor dated. (Doc. 7 at 5.) Based on the fax information, the declaration was made on or about July 21, 2008. (Id.) declaration states that Mr. Semco was appointed to represent Petitioner on December 16, 2006, and thatMr. Semco found it difficult to work with Petitioner. (Id.) Further, the declaration states
Shack was totally irrational and delusional with respect to the court system and how it related him ... and consistently expressed delusional beliefs regarding his legal circumstance." (Id.) Last,
Semco also declared that in March of 2007, Petitioner was granted a mental competency hearing under California Penal Code section 1368, and was ordered to be treated with antipsychotic medication pursuant to California Penal Code section 1370. (Id.)
The provided mental health records include portions of suicide risk assessment checklists December 2008, and mental health treatment program updates and interdisciplinary progress from 2010, 2011 and January 2012.*fn2 The mental health records indicate Petitioner is diagnosed with schizoaffective disorder, depressed type, and prescribed medication. (Doc. No. 7 8.) Further, the mental health records state Petitioner has limited vocabulary and poor comprehension of the written word, but can understand communications when spoken slowly in simple English or by rephrasing sentences. (Id. at 14, 34.) On July 22, 2010, a mental health treatment program update noted Petitioner inconsistently took his medication and failed to attend group therapy sessions at the treatment center most likely due to his paranoid delusions and fears being killed. (Id. at 14.) More recently, however, an interdisciplinary progress note dated August 30, 2011 indicated Petitioner is "doing okay," has an appetite, is sleeping better, and his ...