Opinion
No. C 00-4833 MMC (PR)
July 9, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Robert Carl Welcome ("petitioner") is a California prisoner proceeding pro Se, who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court dismissed the petition because it appeared that a habeas petition challenging the same conviction was pending in the Supreme Court of California. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). The Court reconsidered and vacated the dismissal when it became clear that the state habeas petition had in fact been denied before petitioner filed the instant federal petition. The Court also ordered respondent to show cause why the petition should not be granted based on petitioner's three claims. Respondent has filed an answer, a long with a memorandum and exhibits. Petitioner has filed a traverse.
BACKGROUND
Petitioner was convicted in Santa Clara County Superior Court of assault with a deadly weapon, various related gun charges and sentence enhancements, and being under the influence of methamphetamine. Thereafter, the sanity phase of the trial was conducted, and the jury found petitioner sane at the time he committed these offenses. Petitioner's direct appeal to the California Court of Appeals was denied. The Supreme Court of California denied petitioner's petition for direct review and his subsequent petition for a writ of habeas corpus.
FACTUAL BACKGROUND
This factual background is derived from the opinion of the California Court of Appeal (hereinafter "Slip Op."), which has been lodged as respondent's Exhibit A.
Aaron Arrighi was petitioner's neighbor for many years. Over those years, their relationship began to deteriorate. In late 1994 or early 1995, petitioner threatened Arrighi's father. In late 1995, Arrighi complained to the police that petitioner was playing loud music, and petitioner got extremely upset. On a subsequent occasion, during a dispute over a fence separating their properties, petitioner threatened to hurt Arrighi. On February 7, 1996, Arrighi obtained a restraining order against petitioner. During the course of a four-month period in 1996, Arrighi called the police 30 to 40 times to complain about petitioner.
At petitioner's trial, Arrighi testified that on November 10, 1996, at approximately 7:00 a.m., he was warming up the engine of his truck outside his house. He saw petitioner in front of petitioner's house with a rifle; petitioner then kicked in a window and jumped through it into the house. Arrighi tried calling his wife from his cellular phone to warn her about petitioner's behavior, but the line was busy. Arrighi drove off to buy cigarettes. When he returned, petitioner was back in front of petitioner's house with the rifle. Petitioner appeared to be shooting at Arrighi's house. Arrighi next heard a shot hit his truck. Arrighi jumped out of his truck, ran behind his brother's dump truck, which was parked nearby, and dialed 911. As he ran, Arrighi heard more shots being fired at him. Arrighi ran into his house through the back door, yelling to his family to get down.
Manuel Zambrano, another neighbor, testified that he was walking his dog nearby at the time and heard three gunshots and a man shouting: "Where's my wife." He heard two more shots and decided to return home, at which time he noticed two bullet marks in the wall of his house facing petitioner's property.
Officer Jess Sanchez responded to Arrighi's 911 call. He testified that he arrived at the scene around 7:00 a.m. and saw petitioner in his front yard with a rifle. Petitioner went into the house and came back out without the rifle. Petitioner told Sanchez that his girlfriend was missing. Sanchez handcuffed petitioner. Deputy Sheriff Tim Hooper also responded to the 911 call. Hooper and Sanchez entered petitioner's house, where they found an M-1 carbine with a "banana" clip in it, a Garland M-1 rifle, a 9 mm. semi-automatic pistol with a laser site, and a .45 caliber pistol with a jammed round in its chamber. They found empty shell casings from the M-1 carbine in petitioner's front yard. They noted bullet holes consistent with the M-1 rifle in Arrighi's truck and in his brother's dump truck, as well as bullet in the fence between Arrighi's and petitioner's property that were consistent with the M-1 carbine. They observed additional bullet holes in Arrighi's shed.
Hooper testified that he took petitioner to the hospital. Petitioner told him that had kidnaped her. Petitioner also stated that when he went outside, fifteen armed men, whom he believed were led by Arrighi, held him up at gunpoint, and that there were snipers. Petitioner "made a break for it" by jumping through his living room window and started firing his pistol through the front door. He then got his M-1, went outside and began shooting at Arrighi. Petitioner told Hooper that he was going to kill Arrighi. Hooper testified that at the hospital, a nurse gave petitioner an injection that put him to sleep. When petitioner woke up that afternoon, he appeared normal. Officer Kent Kasper, who took petitioner from the hospital to jail, testified that he did not observe anything unusual in petitioner's behavior.
Sanchez and Hooper both testified that when they arrested petitioner, he was very nervous and talkative, and that he was sweating. In their opinion, he was under the influence of methamphetamine. Other evidence showed petitioner's blood sample, taken at the hospital, tested positive for methamphetamine at a level more than twenty times the "cutoff" level for detecting its presence. Methamphetamine has a half life of between four and eight hours and is detectable in the blood for 24 hours. Petitioner's blood sample also tested positive for amphetamine, a metabolite of methamphetamine, and at approximately double the detection cut-off level. Methamphetamine intoxication can lead to hallucinations, paranoia, violence, and psychosis.
On November 13, 1996, petitioner was released on bail. On December 31, 1996, at 3:40 a.m., Officer Manuel Contreras went to petitioner's house in response to a report of gun shots. Contreras testified that petitioner appeared to be under the influence of methamphetamine and that petitioner appeared to be hallucinating. Contreras testified that petitioner told him that people were monitoring him and trying to kill him and that he was going to make a hand grenade.
It is not clear from the Court of Appeal opinion whether petitioner was taken into custody at this point. In any event, by January 4, 1997, four days later, petitioner was not in custody.
On January 4, 1997, at around 7:55 a.m., Officer Kenneth Nelson was dispatched to petitioner's house. When he arrived, petitioner's girlfriend, Benilda, came out of the house and told him that petitioner had gone "crazy" and was making a bomb. Inside the house, Nelson found a bottle containing bullets, nails, screws and primer caps. In petitioner's backyard shed, Nelson also found two bottles with cloth stuffed into them and containing flammable liquids. Petitioner told Nelson that "they weren't Molotov cocktails," and that if he wanted to make a real bomb he could.
Benilda, who married petitioner on January 17, 1997, testified that on January 4, 1996, petitioner had taken methamphetamine which made him "high" and "hyperactive"; that he placed primer caps and nails in a bottle and taped the bottle shut; and that he mixed oil and gasoline in soda containers and told Benilda to put them in the shed.
An expert testified that the bottle with the primer caps was not a functioning bomb because there was no triggering device, but that the two bottles in the shed could function as fire bombs.
DISCUSSION A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). In addition, habeas relief is warranted only if the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254 (e)(1).
B. Legal Claims 1. Competency Hearing
Petitioner claims that the trial court violated his right to due process by failing to initiate a hearing as to his competency to stand trial. A criminal defendant may not be tried unless he is competent. See Godinez v. Moran, 509 U.S. 389, 396 (1993) (citations omitted). The conviction of a defendant while legally incompetent violates due process. See Cacoperdo v. Demosthenes, 37 F.3d 504, 510 (9th Cir. 1994). The test for competence to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — whether he has a rational as well as factual understanding of the proceedings against him." Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985) (citing Dusky v. United States, 362 U.S. 402, 402 (1960)). Due process requires a trial court to conduct a competency hearing if the court has a good faith doubt concerning the defendant's competence. See Cacoperdo, 37 F.3d at 510.
A good faith doubt about a defendant's competence arises only if there is substantial evidence of incompetence. See Cacoperdo, 37 F.3d at 510. Several factors are relevant to determining whether a hearing is necessary, "including evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial." See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997) (citation and internal quotation omitted). Depending on the circumstances, any one of these factors standing alone may be sufficient to create a reasonable doubt regarding the defendant's competence. See id. at 1319. On habeas review, when considering a claim that the trial court should have held a competency hearing, a federal court considers only the information that was before the trial court. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th Cir. 1997).
Petitioner argues that the trial court should have had a good faith doubt as to his competence due to the evidence that at the time of the offenses in question, petitioner had paranoid hallucinations that he was being attacked by armed men and that Arrighi had hired hit men to attack him. The evidence also indicated, however, that petitioner was under the influence of methamphetamine at that time and that methamphetamine can induce paranoid hallucinations. The trial took place more than four months after the date of the offense, by which time petitioner was no longer using methamphetamine. Petitioner argues nonetheless that the delusions brought on by the methamphetamine lingered, such that he was mentally incompetent at the time of trial. In support of this argument, petitioner points to the testimony of Dr. MacMaster, the expert who testified in support of petitioner's insanity defense, that it was possible for cognitive damage done by the methamphetamine to be permanent, as evidenced by petitioner's continued insistence at the time of trial on the truth of his hallucinations. Reporter's Transcript (lodged with Respondent's Exhibits) ("RT") 800-03, 807, 810-11, 816-17. Petitioner additionally cites the declaration of Dr. Hubbard, who examined petitioner two years after his trial and opined that petitioner was unlikely to have been able to assist counsel at trial because he continued to be deluded about Arrighi hiring hit men. Petition, Exh. K.
Petitioner obtained this declaration to support his state habeas petition.
Notwithstanding the views expressed by Drs. Hubbard and MacMaster, the trial court, at the time of trial, did not have before it substantial evidence that petitioner was incompetent. First, there was no assertion by petitioner or his counsel that he was incompetent to stand trial, that he could not understand the proceedings, or that he could not assist counsel in preparing his defense. Cf. Torres v. Prunty, 223 F.3d 1103, 1109 (9th Cir. 2000) (holding trial court should have conducted competency hearing where defense counsel suggested hearing to trial court based on defendant's belief that judge and defense counsel were conspiring against him). In fact, defense counsel decided not to challenge petitioner's competency because petitioner understood the proceedings and ably assisted in his defense by helping identify defense witnesses, rationally discussing the facts of the case and the elements of the charged offenses, and assisting in selecting jurors. The trial court could reasonably give significant weight to the fact that defense counsel did not raise petitioner's incompetence because counsel was "in the best position to evaluate" petitioner. Id. Counsel's assessment of petitioner's competence also refutes Dr. Hubbard's postulation that petitioner likely would have been unable to assist in his defense.
Defense counsel submitted a declaration to this effect, attached as Exhibit 1 to respondent's return to the state habeas petition, which is lodged in this Court as Exhibit B to the answer.
Second, the trial judge, in denying petitioner's state habeas petition, remembered petitioner as "somewhat talkative" but not "acting out in any way." RT 2/1/2000 at 12. There is no evidence in the record contradicting the trial judge's statement or indicating that petitioner displayed unusual or self-defeating behavior in the courtroom. Cf. Torres, 223 F.3d at 1109-10 (finding indicia of incompetency where defendant insisted on wearing jail-house clothing and being handcuffed, threatened to assault his attorney, and was so disruptive that he had to be removed from the courtroom).
Finally, the opinions of Dr. MacMaster and Dr. Hubbard that petitioner continued to be delusional at the time of trial are outweighed by other expert opinions to the contrary. Dr. Harper, the prosecution's expert, testified that petitioner's delusions were due to the influence of methamphetamine at the time of the offense and that petitioner did not have any permanent mental disease or defect. RT at 923-27. Additionally, petitioner was examined by a health care professional in January 1997 when he was taken into custody. The results of that evaluation showed that he was not suffering from psychosis, depression or a delusional disorder at that time. RT 859-60. Dr. Armstrong, who had treated petitioner for AIDS for several years, testified that petitioner was communicative, alert and appeared normal. Other evidence also indicated that petitioner's delusions were confined to occasions when he was under the influence of methamphetamine. Petitioner was released from the hospital in December 1997 as soon as the effects of methamphetamine wore off, and petitioner's wife testified that petitioner was normal when he was not on methamphetamine. RT 859-60, 867, 887-88. Moreover, the opinions of Drs. MacMaster and Hubbard have less probative value to the extent they are based on petitioner's own statements at the time of trial that he continued to believe that Arrighi was trying to kill him and had hired armed men. As MacMaster conceded on cross-examination, petitioner lacked credibility and might have been lying about his continued belief that Arrighi had hired hit men. RT 867-68, 870-71. Finally, Dr. Hubbard's retrospective assessment of petitioner is entitled to less weight than the contemporaneous assessments of other doctors. See, e.g., Johnston v. Singletary, 162 F.3d 630, 639 (11th Cir. 1998) (giving more weight to contemporaneous assessments of defendant's competency than to retrospective assessments that defendant lacked competency).
In sum, this was not a case where there was evidence of a lengthy history of acute psychosis and psychiatric treatment or extremely erratic and irrational behavior during the course of the trial. Cf., Odle v. Woodford, 238 F.3d 1084, 1087-89 (9th Cir. 2001) (granting writ where reasonable jurist would have had good faith doubt of defendant's competency in light of defendant's history of massive lobectomy, followed by severe personality change and series of psychiatric hospitalizations; suicide attempt while in jail awaiting trial; and expert testimony describing defendant's extensive brain damage); Tillery v. Eyman, 492 F.2d 1056, 1057-58 (9th Cir. 1974) (finding need for competency hearing where defendant screamed throughout nights, laughed at jury, made gestures at bailiff, disrobed in courtroom and butted his head through glass window). Rather, the evidence before the trial court at the time of trial indicated that any mental problems petitioner had at the time of the offense were temporary in nature and no longer in effect. In the absence of substantial evidence that petitioner could not rationally understand the proceedings or assist in the preparation of his defense, there was no reason to conduct a competency hearing. Accordingly, the trial court's failure to do so did not violate petitioner's right to due process.
2. Ineffective Assistance of Counsel
Petitioner claims that he received ineffective assistance of counsel because his attorney failed to investigate his competency and seek a competency hearing. A violation of the Sixth Amendment right to counsel based on trial counsel's ineffectiveness requires a showing that counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 686-93 (1984). Prejudice exists if there is a reasonable probability, in other words a probability sufficient to undermine confidence in the trial's outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694.
In assessing counsel's performance, the relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Where there is indicia of tactical reflection on the issue by counsel, judicial scrutiny of counsel's performance is deferential, with a presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Palomba, 31 F.3d 1456, 1466 (9th Cir. 1994); see also Strickland, 466 U.S. at 689. In the declaration he submitted in conjunction with petitioner's state habeas petition, defense counsel explained that since he was going to present an insanity defense, he considered raising petitioner's competency as well. Exh. 1 to Respt. Exh. B. Counsel explained that he ruled out raising the competency issue because, after reviewing the law and meetings with petitioner, he believed that petitioner was competent. Id. Counsel based this opinion on petitioner's ability to rationally discuss his case and the elements of the offenses, and because petitioner assisted him with identifying witnesses and selecting jurors. Id. Counsel's assessment was supported by the considerable evidence discussed above that the mental problems petitioner had manifested at the time of the offense were confined to the time that he was using methamphetamine, which he was no longer doing at the time of trial. Under such circumstances, counsel made a reasonable decision in choosing to use the methamphetamine evidence to establish petitioner's insanity at the time of the offenses rather than his incompetence at the time of trial. Accordingly, counsel's decision not to pursue a competency hearing did not constitute deficient performance.
Having concluded that petitioner has failed to show that counsel's performance was deficient, Court need not address the question of prejudice. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
3. Sentence
Petitioner contends that his sentence violates state law, citing California Penal Code §§ 654 and 12202.5(a). A claim that a sentence violates state law does not raise a federal constitutional question. Lewis v. Jeffers, 497 U.S. 764, 783 (1990). Nor does petitioner's sentence exceed state law so as to violate due process. This Court must defer to the California Court of Appeal's determination, (Slip Op. at 15-18), that petitioner's sentence was authorized by the California Penal Code. See Hicks v. Feiock, 485 U.S. 624, 629-30 n. 3 (1988); cf. Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir. 1990) (finding due process violated by plea of guilty in which defendant agreed to receive a sentence in excess of state law).Lastly, petitioner cites Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). In Apprendi, the Supreme Court held that a defendant has the right to a jury determination on sentence enhancements other than enhancements for a prior conviction. Id. at 2362-63. Here, petitioner received a jury determination on the enhancements. CT 298.
Accordingly, petitioner is not entitled to habeas relief on the basis of his claim of sentencing error.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
All pending motions are terminated.
The clerk shall close the file.
JUDGEMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED.
All pending motions are terminated.