Unpublished Disposition, 917 F.2d 1308 (9th Cir. 1983)

No. 89-35646.

United States Court of Appeals, Ninth Circuit.

Before HUG and NELSON, Circuit Judges, and WALKER,^*  District Judge.

After his conviction for two counts of aggravated murder, petitioner Clifton W. Zang filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. He claimed deprivation of his constitutional right to a fair trial because the state trial court accepted his guilty plea when he lacked the capacity to make a reasoned choice and ineffective assistance of counsel. The district court granted summary judgment against petitioner. We affirm the district court's ruling in all aspects.

I. BACKGROUND.

Petitioner was charged with two counts of aggravated murder in Washington County Circuit Court for the shooting deaths of his former girlfriend, Donna Stewart, and her friend, Erik Buehner.

Prior to their murders, the victims had obtained restraining orders against petitioner. Shortly thereafter, on March 23, 1983, petitioner unsuccessfully attempted to see Ms. Stewart on her break at work. While waiting, petitioner fell asleep in his car in the parking lot at Ms. Stewart's place of employment. Upon awakening the next morning, petitioner discovered that his car would not start. Petitioner hitched a ride to Ms. Stewart's apartment. That morning, Ms. Stewart's apartment was ransacked and Ms. Stewart and Mr. Buehner were shot to death upon returning to her apartment. Petitioner drove Mr. Buehner's car from Ms. Stewart's apartment to the parking lot where he had left his car. He then broke into his car to obtain shells for a .22 gun, returned to Mr. Buehner's car and shot himself in the head. Petitioner was taken to a hospital, where he remained unconscious for eight days. When petitioner regained consciousness, he was completely blinded from the gunshot wound and was unable to remember the events surrounding the deaths of Ms. Stewart and Mr. Buehner.

On or about April 5, 1983, John Ray was appointed to represent petitioner. Dr. Edward Colbach was appointed to evaluate Mr. Zang's psychiatric health and wrote two reports, dated May 20, 1983 and June 10, 1983.

Petitioner's trial for aggravated murder began on June 9, 1983. On June 10, 1983, Dr. Colbach interviewed petitioner and found him emotionally distraught and tearful as he attempted to recall the events on the day of the shooting incident. On June 14, 1983, Mr. Zang appeared hysterical in court, and the trial was postponed until June 16, 1983. The state trial judge refused to entertain a change of plea at that time due to petitioner's extreme emotional state.

On June 16, 1983, petitioner appeared before the state trial court and entered a plea of guilty to two counts of intentional murder. At this proceeding, the court spent over an hour explaining to petitioner the possible sentences which could be imposed and determining whether petitioner was mentally capable of deciding to change his plea. The court relied on petitioner's demeanor and conduct, his apparent ability to understand the potential sentences which he would face, and the rational reasons for his change of plea. During the colloquy, petitioner asserted repeatedly that he understood the court's statements and responded appropriately to the court's questions. When asked about his reasons for changing his plea, petitioner answered that his ambition was to become the first blind professional bowler and his guilty plea might result in a shorter term of imprisonment. In response to the court's question whether petitioner would admit to the lesser included offense of murdering Erik Buehner, petitioner stated:

I had no desire to kill him, either. But, apparently I did. That is why--that is something that doesn't seem to clarify to me, manslaughter, murder, aggravated murder, it's all life. You take someone's life and that's not right. I don't care if you have been on drugs or whatever, you have killed someone. That is wrong.

After reviewing the psychiatric reports and Dr. Colbach's qualifications, the state trial court found that petitioner was competent to plead guilty and waive his constitutional rights. Petitioner was then sentenced to two concurrent life sentences.

After imprisonment, petitioner filed for state post-conviction relief, alleging that his guilty plea was not the result of a knowing and voluntary waiver of rights because he was mentally incompetent at the time. Petitioner testified that he had no recollection of shooting anyone and only pled guilty because everyone kept telling him that he had committed the murders. Petitioner also testified to several instances of his lawyer's failure to investigate. After a hearing on petitioner's competency, the post-conviction trial court denied relief. The Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review. Petitioner then sought federal habeas corpus relief. United States District Judge Marsh adopted Magistrate Hogan's findings of fact and recommendations and granted a motion for summary judgment against petitioner.

II. ANALYSIS.

A. Whether the state trial court erred in finding that Zang was competent to plead guilty.

A federal court considering habeas proceedings must presume the correctness of the state court's findings of fact. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539 (1981). An exception to this presumption of correctness arises when a federal court concludes that the state court finding was not "fairly supported by the record." 28 U.S.C. § 2254(d) (8); see also Sumner, 449 U.S. at 597; Maggio v. Fulford, 462 U.S. 111 (1983) (per curiam). In such circumstances, a federal court must explain the reasoning which led it to conclude that at least one of the first seven factors under 28 U.S.C. § 2254(d) was present and that the state court finding was not fairly supported by the record. Sumner, 449 U.S. at 593. A state court's determination of an accused's competency to plead guilty is accordingly granted a high degree of deference. Marshall v. Lonberger, 459 U.S. 422, 432 (1982).

An accused's competence to stand trial is established if the he has "sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding and have a rational as well as factual understanding of the proceedings." Chavez, 656 F.2d at 518. The competency standard for entering a guilty plea is more stringent. In order to waive his constitutional rights, a defendant must be able to understand the nature and consequences of his waiver and plea and make a rational choice among the alternatives presented. Chavez, 656 F.2d at 518; Sailer v. Gunn, 548 F.2d 271 (9th Cir. 1977); Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973); De Kaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977).

The following evidence was before the state trial court when it accepted petitioner's guilty plea on June 16, 1983:

(1) Dr. Weisert's April 14, 1983 report stating that "Mr. Zang is able to understand the nature of the proceedings against him, can assist and cooperate with his counsel and can participate in his defense, and also, that opinion is corroborated by the hospital staff disposition board;"

(2) Two reports from Dr. Colbach, dated May 20, 1983 and June 10, 1983, which noted that petitioner demonstrated no signs of any serious organic brain damage nor any serious mental illness, but that he was distraught, depressed, and suffered from a lapse of memory regarding the shooting incident. The reports stated that petitioner might be able to claim extreme emotional distress at the time of the shooting, which might constitute a mitigating circumstance;

(3) Petitioner's general demeanor and conduct in court, which revealed that he could understand the alternative sentences which could be imposed and that he was able to respond coherently to the court's questions;

(4) Petitioner's attempted suicide shortly after the shooting incident which resulted in permanent blindness; and

(5) Petitioner's hysterical conduct in court just a few days earlier on June 14, 1983.

In reviewing the record, we find that the state court's conclusion that petitioner was competent for purposes of entering a guilty plea was fairly supported by the record. The state trial judge expressly applied the competency standard of petitioner's "ability to make a reasonable choice among the alternatives that are presented and the ability to understand the nature of the consequences of the waiver and also the consequences of entering a plea to some other charge." Excerpt of Record 10. The only arguable manifestation of petitioner's claimed incompetence at the hearing was his explanation for wanting to change his plea to guilty: that he hoped to spread a message of love to the public by becoming the first blind professional bowler and that his guilty plea might result in an earlier release from prison. However unusual such an ambition may be, it nevertheless states a rational basis for petitioner's change of plea. Although petitioner was in a state of depression and emotional turbulence earlier, which resulted in the discontinuance of his trial, his mien at the June 16, 1983 proceedings and the records of petitioner's psychiatric evaluations led the court to determine that he was competent to enter a guilty plea. The transcript of the proceedings reveals that petitioner understood and responded appropriately and coherently to the court's questions. Furthermore, Sec. 2254(d) does not permit federal habeas courts to reevaluate the credibility and demeanor of witnesses before the state trial court. Marshall v. Lonberger, 459 U.S. at 434. Thus, we affirm the district court's finding that petitioner was competent to plead guilty.

B. Whether the state trial court erred in failing to hold a hearing regarding Zang's competency to plead guilty.

Whenever there is "substantial evidence" that a defendant may be mentally incompetent to stand trial, due process requires an evidentiary hearing regarding competency. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). The Ninth Circuit in Moore v. United States, 464 F.2d 663 (9th Cir. 1972), concluded that the trial court's failure to hold a Pate evidentiary hearing, in light of substantial evidence of the defendant's long-standing mental incompetency, required that the defendant's guilty plea and conviction be vacated and the defendant be rearraigned. In De Kaplany, 540 F.2d 975, the court concluded that where the district court conducted a thorough, retroactive hearing on petitioner's competency to plead guilty, the petitioner was not deprived of his due process right to a fair trial. Thus, the court upheld the validity of the petitioner's guilty plea.

In both Pate v. Robinson and Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975), the Supreme Court reversed petitioners' convictions for the trial court's failure to hold an evidentiary hearing regarding petitioner's competence to stand trial. In Pate, the petitioner had a long history of mental illness resulting from a severe childhood head injury, had been convicted of killing his infant son, had attempted suicide, and four defense witnesses testified that in their opinion, Robinson was insane. In Drope, the petitioner had a history of pronounced irrational behavior: on the Sunday before trial he attempted to choke his wife, and shortly after trial commenced, he shot himself in a suicide attempt. In the present case, Zang had no prior history of mental illness. Despite having shot himself in the head in a suicide attempt and experiencing selective loss of memory thereafter, Zang appeared competent at the guilty plea hearing, and the state court was careful to elicit responses from Zang to determine his mental competency to enter a guilty plea.

However, where a substantial question regarding a criminal defendant's mental competency has arisen in a criminal proceeding, an evidentiary hearing is required. Evidence of an accused's incompetency encompasses "all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or ... in the form of medical reports of other kinds of reports that have been filed with the court." Moore, 464 F.2d 666. Although evidence of Zang's incompetence does not rise to the level of the indicia of incompetence involved in Pate or Drope, it nevertheless creates a reasonable doubt regarding Zang's competence to waive his constitutional rights. See Chavez, 656 F.2d at 519; Tillery v. Eyman, 492 F.2d 1056, 1059 (9th Cir. 1974). Therefore, an evidentiary hearing on Zang's competency to waive his constitutional rights and to plead guilty was required, and both the state trial court and the state held such hearings. The question is whether those hearings satisfied the requirement of a Pate evidentiary hearing.

In Pate, the Supreme Court did not expressly describe the nature of the required evidentiary hearing. However, in Chavez, the Ninth Circuit found that a hearing in which the district court did not expressly ask the petitioner if he had evidence concerning his competence that he wished to present, but did inquire into petitioner's understanding of the proceedings, his rights, his reasoning process, and his ability to cooperate with counsel, was sufficient to establish petitioner's competency.

Similarly, we hold that the state trial court's proceeding in which Zang pled guilty satisfied the requirement of a Pate evidentiary hearing, in light of the state trial court's thorough questioning, review of the psychiatric reports, and application of the correct standard for determining competence to waive constitutional rights. Since the state court hearing sufficed to establish Zang's competence to plead guilty, we hold that petitioner was not entitled to another evidentiary hearing on competence in the federal district court.

C. Whether the federal district court erred in failing to hold an evidentiary hearing before granting the government's summary judgment motion.

Petitioner contends that a habeas petitioner is entitled to an evidentiary hearing in federal court pursuant to Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). However, petitioner's reliance on Townsend is misplaced. An evidentiary hearing in federal district court is only required where the state trial court's findings of fact cannot be reconstructed from the record. In Townsend, the state trial judge did not render an opinion, findings of fact, nor conclusions of law. Because the record did not reveal the state trial court's basis for its findings, the district court's refusal to hold an evidentiary hearing regarding the voluntariness of the defendant's confession was reversible error. In the instant case, the record provided the district court with a full explanation of the state court's reasons for its determination of competency. Hence, the district court did not err in declining to hold another evidentiary hearing on petitioner's competency to plead guilty.

D. Ineffective assistance of counsel.

In a federal habeas challenge to a state criminal judgment, a state court finding that counsel rendered effective assistance is not binding on a federal court. Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Both the inadequate performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Id.

A habeas petitioner who challenges his conviction claiming actual ineffective assistance of counsel must demonstrate both that his lawyer's representation was deficient and that the deficient legal representation prejudiced his defense. Id. at 687. To determine whether legal assistance was deficient, the court must inquire "whether counsel's assistance was reasonable considering all the circumstances at the time of the assistance." Id. at 688. Furthermore, judicial scrutiny of legal assistance must be highly deferential; there is a strong presumption that counsel rendered adequate assistance. Id. at 690.

To establish prejudice, a petitioner must show there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Alternatively, a petitioner must establish that a reasonable probability exists that, absent counsel's errors, the finder of fact would have had a reasonable doubt regarding guilt. Id. at 695.

Petitioner claims that he was denied effective assistance of counsel because his lawyer, Mr. Ray, failed to investigate his case properly and allowed him to plead guilty when he was clearly incompetent and there was insufficient evidence to convict petitioner of intentional murder.

1. Failure to investigate thoroughly.

Petitioner contends that his trial lawyer did not investigate the following aspects of his case:

(1) Whether Ms. Stewart's apartment door locks had been changed since petitioner moved out;

(2) Whether petitioner's vehicle contained any forensic evidence;

(3) The existence of any impeachment evidence regarding witnesses who testified to petitioner threatening Ms. Stewart;

(4) The presence of any broken glass on petitioner's clothes at the time of arrest;

(5) Whether a handwriting analysis comparing petitioner's handwriting with the writings at the scene of the shooting and at the scene of petitioner's own shooting would reveal exculpatory evidence; and

(6) The financial backgrounds of petitioner and Ms. Stewart to rebut inaccurate evidence regarding the cause of their separation.

Petitioner argues that an investigation of the above matters might have indicated that another person was responsible for the shooting deaths of Ms. Stewart and Mr. Buehner, and therefore, his attorney's failure to investigate constituted ineffective assistance of counsel.

The record reveals that Mr. Ray testified that occasionally petitioner would suggest other possible perpetrators of the murders. Each time, Mr. Ray discussed these possibilities with petitioner and the private investigator. On such occasions, Mr. Ray either investigated the matters or concluded that the suggestions were not worthy of investigation.

Mr. Ray's failure to investigate the above aspects of petitioner's case did not render his assistance deficient because these issues were not necessary to the preparation of a defense. The burden of proving guilt was upon the prosecution, and defense counsel's failure to investigate the possibility that another person was responsible for the killings was not unreasonable under the circumstances. Mr. Ray expressed his opinion there was sufficient evidence to convict petitioner of first degree manslaughter, murder or aggravated murder. Any factual investigations may well have revealed incriminating evidence which might have refreshed petitioner's memory of the events surrounding the shootings. Petitioner told Dr. Colbach that he remembered hitching a ride to Ms. Stewart's apartment, throwing some things around her apartment, seeing the dead bodies of the victims, and running to Mr. Buehner's pickup truck. In light of the circumstances at the time of trial, it does not appear that Mr. Ray's failure to investigate the questions raised by petitioner constituted deficient assistance of counsel.

2. Failure to prepare adequate psychiatric evidence.

Relying on Andrews v. United States, 403 F.2d 341 (9th Cir. 1968), petitioner argues that his lawyer's failure to request a psychiatric evaluation immediately before the guilty plea constituted ineffective assistance of counsel. However, Andrews is distinguishable in that Andrews had a long history of mental illness of which his attorney was aware and yet his attorney did not request any psychiatric investigation regarding his client's competency to stand trial. In the present case, petitioner's attorney expressly requested at least two psychiatric evaluations, one of which was requested just prior to the trial, indicating that Mr. Ray intended to determine petitioner's competency to stand trial.

Allowing petitioner to enter a guilty plea when petitioner appeared in all respects to be competent does not constitute ineffective assistance of counsel.

3. Sufficiency of evidence to convict for intentional murder.

Petitioner asserts that his attorney rendered deficient legal representation when he allowed petitioner to plead guilty to intentional murder when there was insufficient evidence to support such a conviction.

Dr. Colbach's May 20, 1983 report concluded that petitioner satisfied the major elements for a manslaughter defense based on extreme emotional disturbance and that petitioner's marijuana and alcohol use were not major causes of petitioner's loss of control. Dr. Colbach's June 10, 1983 report stated that petitioner had a very high blood alcohol level of .102 approximately one hour after the shooting and that the ultimate question was whether a jury would find that petitioner would have an affirmative defense based on extreme emotional disturbance.¹  At the guilty plea hearing, the state trial judge explained to petitioner that the burden of proving the affirmative defense of extreme emotional disturbance would be on the petitioner and that extreme emotional disturbance not resulting from a person's own reckless acts would constitute an affirmative defense to aggravated murder, but not to manslaughter.

Furthermore, Mr. Ray later testified that he believed that there was sufficient evidence to convict petitioner of first-degree manslaughter, murder or aggravated murder.

Reviewing the record, it does not appear that allowing petitioner to plead guilty to two counts of murder constituted deficient legal representation. Petitioner did not have a strong case for an affirmative defense of extreme emotional disturbance, as conceded in Dr. Colbach's June 10, 1983 report. Hence, he could well have been convicted of two counts of aggravated murder and faced a harsher sentence. Petitioner was competent at the time of the entry of his guilty plea and appeared to understand the state trial court's lengthy explanation of the possible sentences he might face if convicted by a jury. Thus, he chose to face a certain sentence rather than risking a longer sentence which might have resulted if he had chosen to continue with his trial. Mr. Ray's representation of petitioner is not rendered deficient by allowing his client to choose to forego a painful trial and plead guilty to a lesser included offense.

Therefore, because we hold that counsel's assistance in this case did not constitute deficient legal representation, we need not address the issue whether petitioner was prejudiced by counsel's professional errors. The district court's conclusion that petitioner was not deprived of effective assistance of counsel is AFFIRMED.