Opinion
CV 21-00336 PHX JJT (CDB)
09-28-2021
Manuel Bustillos, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Petitioner Manuel Bustillos seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition Bustillos challenges his conviction on several offenses relating to molestation of his minor daughter, resulting in an aggregate sentence of eighty years' imprisonment. Respondents have answered the petition (ECF No. 9) and the deadline for filing a reply expired May 7, 2021.
I. Background
The following background is taken from the Arizona Court of Appeals' decision denying Bustillos' appeal:
Bustillos began sexually abusing D.B., his oldest daughter, when she was about 10 years old. On one such occasion, Bustillos took D.B. alone into a bedroom and placed his mouth on her vagina. The sexual contact was interrupted when D.B.'s brother briefly opened the door. After each occurrence of abuse, Bustillos told D.B. to not tell anyone because she would be in trouble. On at least one occasion, D.B. also noticed Bustillos looking at her through her bedroom window.
In the summer of 2013 (when D.B. was 15 years old), after she had learned about sexual assault through a school program and noticed that Bustillos began to look at and treat her younger sister, N.B., the same way he treated her, D.B. called the police. When the police arrived, they interviewed D.B. and N.B., as well as their brother and mother. Police also interviewed Bustillos, who denied having sexual intercourse with D.B., but admitted that he touched her breasts once and her vagina twice when she was 13 years old. Relating to misconduct with D.B., the State charged Bustillos with four counts of sexual conduct with a minor, one count of molestation of a child, and one count of public sexual indecency. Regarding N.B., the State charged Bustillos with one count of molestation of a child.State v. Bustillos, 2017 WL 2871572, at *1-3 (Ariz.Ct.App. July 6, 2017).
The count regarding N.B. was severed before trial and dismissed at sentencing, as the State elected not to proceed on that charge. (ECF No. 101 at 10 n.2).
Prior to trial, Bustillos' counsel moved for a Rule 11 evaluation, and Bustillos was found incompetent but restorable. Bustillos participated in the Maricopa County Correctional Health Services Restoration to Competency Program (“RTC”) and was later found competent, based upon counsel's stipulation to the report of Dr. Freitas. (ECF No. 9-1 at 93) (in some places in the record the physician's name is improperly spelled “Fritas”).
Approximately one week before trial, the State moved to admit evidence of other acts under Arizona Rule of Evidence (“Rule”) 404(b) and (c). The State sought to admit evidence of a police interview of Bustillos's son received the day before, in which the son alleged that more than five years earlier, he walked into his parents' room to find D.B. alone with Bustillos, who was bent down, pulling the elastic band of the front of her shorts outward, and “looking down” in her shorts. Bustillos's son described what he saw, including the shorts D.B. was wearing, where the two were standing in relation to the bedroom door, and that Bustillos looked up at him when he opened the door.
The son also stated that he saw Bustillos look through D.B.'s bathroom window while she showered “plenty of times” and that he saw Bustillos looking through D.B.'s bedroom window many times as well. He knew D.B. was in the bathroom when Bustillos watched through the window because the son would go inside and knock on the door to see who was in there. The son explained that Bustillos would do this by standing on a brick outside the windows. The son denied having seen Bustillos do anything to his other sister, though. When asked by the interviewing detectives why he
was only now disclosing this information, the son responded that he was tired of holding it in.
This evidence, the State argued, showed Bustillos's aberrant sexual propensity. The State argued that the evidence was admissible under Rule 404(c) because the other acts had an evidentiary value that outweighed the danger of unfair prejudice, they occurred in the proximate time of the charged offenses, and were similar to the charged offenses. The State also argued that the other acts evidence was admissible under Rule 404(b) as evidence of absence of mistake or accident.
In response, Bustillos requested to interview his son, as well as his wife and daughter, N.B., to corroborate the reliability of the son's allegations. He also requested an evidentiary hearing to determine the reliability of the three witnesses. Bustillos argued that the nature of the interview was not one that implicated victim's rights protections, but instead was for an evidentiary hearing to determine the credibility and reliability of the proffered evidence. Because evidence cannot be introduced under Rule 404 unless clear and convincing, Bustillos argued, he had a right to subpoena witnesses who do not have the right to refuse, and that not being permitted to conduct those interviews would prejudice him.
The State objected, arguing that as victims (or the victims' guardian), neither Bustillo's wife nor N.B. had to consent to an interview, and that Bustillos's request was an attempt to obtain information irrelevant to the Rule 404 motion and in violation of victims' rights laws. The State also argued that only it carried the burden of proof to prevail on its motion, not the defendant. Because the State believed the son's interview to be “self-explanatory, ” it intended to introduce only the interview and previously admitted evidence for the court's consideration. Therefore, the State explained, it did not intend to call any witnesses to testify regarding the motion, so Bustillos had no right to call witnesses. The State agreed, however, to make the son available for an interview if needed.
Initially, the court agreed that while the witnesses could refuse an interview with Bustillos relating to the Rule 404 hearing, Bustillos could subpoena them and call them as witnesses. Nevertheless, the trial court instructed that if Bustillos interviewed his son and afterward felt that he needed additional information, he could make the request again. The court did not make a ruling on the motion at that time, however, accepting the State's request that it first read State v. LeBrun, 222 Ariz. 183 (App. 2009), for the proposition that neither live testimony or an evidentiary hearing is required.
After taking the matter under advisement, the trial court denied Bustillos's request for interviews of his wife and N.B. and an evidentiary hearing. The court ruled that Rule 404 required the State to present sufficient evidence “from which the court could determine that a jury would be able to
make a finding of clear and convincing evidence that the alleged incidents occurred.” Because of the nature of the State's burden, the court concluded that “this is not an opportunity for the defense to cross-examine the State's evidence or to present contrary evidence. I simply need to make the threshold finding …” Bustillos, however, did interview his son for purposes of the Rule 404 motion.
At the subsequent oral argument on the motion during the first day of trial, the State argued that each of the three necessary elements under Rule 404(c) were met. Bustillos argued that the proffered evidence was not reliable because the son had previously denied any allegation that Bustillos had done anything wrong, and only now, after living with his mother, D.B., and N.B., felt pressured to state otherwise. Bustillos also argued that his son's statement that he walked in on Bustillos pulling D.B.'s pants outward was inconsistent with D.B.'s recounting of the incident. The trial court noted it intended to rule on the motion the next morning, and in the meantime the court would listen to the interview recordings of the son's interview with the police detectives as well as defense counsel's interview of the son.
Before trial the next day, the court explained that although it had listened to the son's interview with the detectives and read transcripts of Bustillos's, N.B.'s, and D.B.'s interviews, it had not yet had the opportunity to finish listening to the son's interview conducted by defense counsel. Without objection from either party, the court started the trial and heard testimony from D.B. After she testified, the court determined that the other acts were admissible under Rule 404(c), explaining as follows: (1) based on the son's statements, “clear and convincing evidence from which the jury could determine that each of these acts were committed” existed; (2) each of the acts “indicate an [aberrant] sexual propensity;” and (3) admission of the other acts evidence would not be unduly prejudicial because they were contemporaneous and involved the same victim. Additionally, the court considered that Bustillos had admitted to committing several sexual acts against the victim. The trial court also found that the statements were admissible under Rule 404(b) to prove motive, intent, and lack of mistake.
After a 16-day trial, the jury convicted Bustillos of each charged offense and found that each count of sexual conduct with a minor occurred when D.B. was under 15 years old. The trial court then sentenced Bustillos to the presumptive terms for each conviction.Bustillos, 2017 WL 2871572, at *1-3.
Bustillos appealed, asserting the following claims:
1. The “trial court applied the incorrect standard of proof in determining whether to admit the son's interview under Rule 404(b) and (c).” Id., 2017 WL 2871572 at *3.
2. The trial court improperly failed to remove a juror for cause. Id., 2017 WL 2871572 at *5.
3. The trial court “‘improperly refused to consider mitigation' when the court suggested there was no causal nexus between mitigating circumstances and the offenses [Bustillos] committed.” Id., 2017 WL 2871572 at *6.
The state appellate court denied the first two claims on the merits. Because Bustillos did not raise his third claim at sentencing, the appellate court reviewed for fundamental error and concluded:
The record here does not support Bustillos's suggestion that the trial court improperly required him to establish a causal nexus for the mitigating circumstances he urged the court to consider. Instead, the court declined to deviate from presumptive sentences because it implicitly concluded that the mitigating factors were not sufficiently compelling to warrant lighter sentences. The court explained that it considered Bustillos's age, rough upbringing, and cognitive deficits, but believed that none of these explained or justified the repeated acts that D.B. described in her testimony, which the court found credible. Bustillos was not entitled to a mitigated sentence merely because he presented mitigating factors, as a trial court may impose the presumptive sentence even if it finds mitigating factors exist but no aggravating factors. State v. Olmstead, 213 Ariz. 534, 535 [] (App. 2006) … Thus, the court did not err, much less fundamentally, when it declined to deviate from imposing presumptive sentences based on the mitigating factors it considered.Id., 2017 WL 2871572 at *6.
Bustillos sought state post-conviction relief, and was appointed or retained counsel. (ECF No. 9-1 at 90-91; ECF No. 1-3 at 35). Bustillos asserted he was incompetent at the time of trial and that his trial counsel was ineffective for stipulating to Dr. Freitas' opinion that he was competent. (ECF No. 9-1 at 93; ECF No. 1-3 at 35-52). Bustillos alleged:
… Bustillos' defense attorney placed him into competency proceedings prior to trial. There, two psychologists agreed that Bustillos was incompetent to stand trial. However, both determined that Bustillos was restorable. Bustillos
was then placed in the Restoration to Competency (RTC) program at the Maricopa County Jail. A month later, after no psychiatric evaluations or treatment, and only four “restoration to competency” sessions, the RTC psychologists reported that Bustillos was “restored” and that he was now competent to stand trial. Bustillos's attorney stipulated to competency.(ECF No. 1-3 at 2). Bustillos further alleged:
Bustillos' attorney retained a Spanish speaking psychologist, Dr. Julio Ramirez, to evaluate Bustillos pre-trial. Dr. Ramirez administered the Spanish Wechsler Intelligence Scale test to Bustillos and reported that Bustillos had an overall IQ of 61. Dr. Ramirez diagnosed Bustillos with borderline intellectual functioning, bipolar disorder (mixed with psychotic features), personality disorder otherwise not specified with paranoid and avoidant personality traits. After Dr. Ramirez's report, Bustillos was placed in competency proceedings. …
Once placed in the Restoration to Competency Program (RTC), Bustillos did not undergo a psychiatric evaluation to identify or treat his mental illness diagnosis. Therefore, throughout his entire pre-trial detention, Bustillos was left untreated for his psychiatric issues. Likewise, Bustillos' “restoration to competency” consisted of four meetings, only some of which had any legal education component. Although Bustillos was given a Spanish version of an RTC Study Guide to review, even though he told the staff member that he was illiterate.
In a matter of one month, Bustillos-an intellectually disabled man with an IQ of 61-was restored and found to be competent to stand trial on charges resulting in a life sentence. There was never any evidence or allegation that Bustillos was malingering.
In 2016, two years after Bustillos was convicted, Dr. Freitas [footnote 9: Dr. Freitas was the psychologist that reviewed the RTC file and determined that Bustillos was restored to competency] authored a scathing reveal of the Maricopa County RTC program. Freitas claimed that the RTC program in Maricopa County violated state statutes and lacked any treatment component: “any pretense that there had been a treatment connection has been systematically degraded …” Freitas further opined that in the more serious cases (class one and two felonies) the competency program is exposed as “incomplete” and “disconnected” because “there is no jail competency restoration treatment program.” …
Freitas simply acknowledged (in writing no less) what Bustillos' expert, Richard Frederick, [footnote 12: Richard Frederick is a licensed psychologist, and is board certified by the American Board of Professional Psychology in forensic psychology and assessment psychology. …] observed by reviewing Bustillo's [sic] RTC file, that no validated
assessment, or generally-accepted training program was ever implemented or followed with Bustillos while he was in the RTC program.(ECF No. 1-3 at 3-6) (emphasis in original). Bustillos argued:
A. With an IQ of 61, Bustillos was not and could not have been restored to competency by the Maricopa County Restoration to Competency Program as it existed at the time. Therefore, his trial and subsequent conviction were obtained in violation of his Due Process right guaranteed by both the United States and Arizona Constitutions.
B. Bustillos' attorney was ineffective for stipulating to competency. The sixty-day restoration (consisting of two learning sessions) for a client whose IQ was within the intellectually disabled range should have been challenged on its face.
C. Dr. Frietas, the psychologist responsible for determining if Bustillos or other inmates were restored to competency after the Restoration to Competency program published an opinion paper in 2016 detailing that the Maricopa County RTC program was incapable of providing inpatient restoration treatment. This paper … written for the ACLU and sent to the Maricopa County Attorney's Office, was never disclosed to Bustillos or his attorneys after his conviction. In the paper, Freitas claims that the Maricopa County RTC program failed to achieve an acceptable inpatient restoration treatment program and that the psychologists were advised by Correctional Health Services to lower their professional standards. Had Bustillos known his evaluator held these opinions, he would have substantially impeached Dr. Frietas' opinion of his competency.(ECF No. 1-3 at 3).
Dr. Freitas' “scathing reveal” was appended to Bustillos' post-conviction petition under seal, but the doctor's report is not in the record in this § 2254 matter.
In denying post-conviction relief, the state habeas trial court found: “Both of [Bustillos'] claims are based on subsequent assessments of Dr. [Freitas] and an expert retained by the defendant that the Restoration Program was inherently flawed and could not have restored the defendant to competency.” (ECF No. 9-1 at 94). The court concluded: “Because the issue of defendant's competency during trial was not raised during trial or sentencing, could have been raised on appeal and does not fall within the particular exceptions outlined under Rule 32.2 defendant is precluded from raising his competency in a petition for post-conviction relief.” (ECF No. 9-1 at 94-95). The court also concluded that, even if this claim was not precluded, Bustillos had “failed to establish any material issues of fact [or] law which would entitle him to relief.” (ECF No. 9-1 at 95).
The state habeas trial court also found and concluded:
Defendant also claims that his trial counsel was ineffective for stipulating to the admission of Dr. [Freitas]' report during his competency hearing and failing to object to the effectiveness of the Restoration Program to restore him to competency. Arizona courts have long held that counsel's stipulation to the admission of a competency report fully comports with due process. State v. Contreras, 112 Ariz. 358, 542 P.2d 17 (1975). Furthermore defendant points to no facts available at the time of defendant's participation in the Restoration Program or competency evaluation which should have required his trial counsel to question the efficacy of the Restoration Program. Neither articles nor assessments expressing an opinion critical of the Restoration Program authored two years after defendant's competency determination constitute newly discovered evidence, of any kind.(ECF No. 9-1 at 95).
Bustillos, through counsel, petitioned for review raising claims identical to those raised to the habeas trial court. (ECF No. 1-3 at 2-17). The appellate court granted review but denied relief on March 5, 2020. State v. Bustillos, 2020 WL 1061211, at *1 (Ariz.Ct.App. Mar. 5, 2020). The appellate court summarily concluded the habeas trial court had not abused its discretion by denying Bustillos state post-conviction relief. (Id.). The Arizona Supreme Court denied review on December 21, 2020. (ECF No. 1-2 at 35).
II. Federal Habeas Claims
In his § 2254 petition Bustillos asserts he is entitled to federal habeas relief because he presented a colorable claim that he was not competent at the time of his trial to the state courts, alleging he could not and had not been restored to competency because of his IQ and the deficiencies in the state RTC program. Bustillos contends that “[w]ith an IQ of 61 [he] was not and could not have been restored to competency by the Maricopa County Restoration to Competency Program as it existed at the time. Therefore, his trial and subsequent conviction were obtained in violation of his due process right[s].” (ECF No. 1 at 7). Bustillos asserts there is a presumption that, once a defendant is found incompetent, evidence of restoration is required and that no such evidence was presented in his case. (ECF No. 1 at 8). Bustillos also contends his low IQ was a mental capacity issue and rendered him unable to understand the nature of the proceedings against him and assist in his defense, citing Arizona Revised Statutes § 36-551. (ECF No. 1 at 6).
Bustillos appears to reference Arizona Revised Statutes § 36-551.01(A), which provides:
A person with a developmental disability in this state shall not be denied as the result of the developmental disability the rights, benefits, and privileges guaranteed by the constitution and laws of the United States and the constitution and laws of this state. The rights of persons with developmental disabilities which are specifically enumerated in this chapter are in addition to all other rights enjoyed by such persons. The listing of rights is not exclusive or intended to limit in any way rights which are guaranteed to persons with developmental disabilities under state and federal laws.To the extent Bustillos argues his right to due process was violated because of an alleged violation of this state statute, he fails to state a cognizable claim for federal habeas relief. Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. 4-5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Additionally, alleged errors in the application of state law are not cognizable in federal habeas corpus. E.g., Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Additionally, interpreting § 36-551, the Arizona Court of Appeals has concluded that the “mere existence of a mental defect, such as an intellectual disability, ‘is not grounds for finding a defendant incompetent to stand trial.'” State v. Young, 2014 WL 6790746, at *3-5 (Ariz.Ct.App. Dec. 2, 2014), citing Ariz. R. Crim. P. 11.1, and Atkins v. Virginia, 536 U.S. 304, 318 (2002) (“Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial.”), and State v. Grell, 212 Ariz. 516, 525 (2006) (“A defendant deemed to have mental retardation, however, is not shielded from trial.”).
Respondents contend Bustillos failed to raise his due process claim in the state courts in a procedurally correct manner, i.e., in his appeal, noting the state habeas trial court found the claim precluded as waived by the failure to raise the claim on appeal. (ECF No. 9 at 13-14).
III. Analysis
A. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement of the facts supporting the claim. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). In non-capital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals in his direct appeal or a properly-filed state action for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An implied procedural bar may be applied to unexhausted claims where state procedural rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998); Date, 619 F.Supp.2d at 766.
A petitioner meets the “fundamental miscarriage of justice” exception by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted and emphasis added). To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
The state habeas trial court, in the last “reasoned” opinion issued by a state court, found Bustillos' due process claim both procedurally barred and without merit. The Court may, absent a showing of cause and prejudice, deny the claim based on the state court's finding of a procedural default:
… “[U]nless a [state] court expressly (not implicitly) states that it is relying upon a procedural bar, we must construe an ambiguous state court response as acting on the merits of a claim, if such a construction is plausible.” Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir. 2008).
Here, the state court expressly invoked a procedural bar in addressing [the petitioner's] prosecutorial misconduct claim ... Although the court went on to discuss the merits of the claim, because it separately relied on the procedural bar, the claim is defaulted. ...Zapata v. Vasquez, 788 F.3d 1106, 1111-12 (9th Cir. 2015). See also Apelt v. Ryan, 878 F.3d 800, 825 (9th Cir. 2017).
Bustillos has not filed a reply in this matter, addressing Respondents' contention that he failed to properly exhaust his due process claim in the state courts. Accordingly, Bustillos fails to show cause for or prejudice arising from his procedural default of his claim in the state courts. Moreover, Bustillos is unable to establish prejudice because the claim is without merit. Nor does Bustillos assert a fundamental miscarriage of justice will occur absent consideration of his due process claim.
B. Merits of due process claim
Bustillos' claim may alternatively be denied as without merit. See 28 U.S.C. § 2254(b)(2) (“[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Runningeagle v. Ryan, 686 F.3d 758, 769 n.3 (9th Cir. 2012).
Bustillos contends his right to due process was violated because he was tried and convicted when he was actually incompetent to stand trial. Bustillos argues the trial court erred in finding he had been restored to competency, given his low IQ and the information presented in his state habeas petition regarding the county's RTC program.
It is undisputed that “the conviction of an accused person while he is legally incompetent violates due process.” Pate v. Robinson, 38 U.S. 375, 378 (1966). The test for competence to stand trial is whether the defendant demonstrates the ability to consult with his lawyer with a reasonable degree of rational understanding, and has a rational as well as factual understanding of the proceedings against him. E.g., Godinez v. Moran, 509 U.S. 389, 396 (1993); Drope v. Missouri, 420 U.S. 162, 171 (1975); Dusky v. United States, 362 U.S. 402, 402 (1960); Deere v. Cullen, 718 F.3d 1124, 1145 (9th Cir. 2013); Williams v. Woodford, 384 F.3d 567, 608 (9th Cir. 2004). Whether a defendant is capable of understanding the proceedings and assisting his counsel may be assessed from evidence of any irrational behavior, his demeanor in court, and any prior medical opinions on his competence. Drope, 420 U.S. at 180. Rather than attempting to assess a defendant's mental health, “[r]equiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel.” Godinez, 509 U.S. at 402.
To obtain relief on a substantive incompetence claim, a habeas petitioner must present evidence “sufficient to positively, unequivocally, and clearly generate a real, substantial and legitimate doubt as to [his] mental capacity.” Watts v. Singletary, 87 F.3d 1282, 1290 (11th Cir. 1996). A habeas petitioner is entitled to an evidentiary hearing on the issue of competency to stand trial only if he presents sufficient facts to create a real and substantial doubt as to his competency, and in evaluating a substantive due process claim regarding competency the Court may consider facts not presented to the state trial court. Deere v. Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003) (“Woodford”). However, the federal courts “disfavor retrospective determinations of incompetence, and give considerable weight to [any] lack of contemporaneous evidence of a petitioner's incompetence to stand trial.” Williams, 384 F.3d at 608 (citation omitted). To the extent Bustillos relies on the evidence regarding the RTC program presented in his state habeas action, which he asserts supports the conclusion that he was incompetent at the time of his trial, this is at best a “retrospective” determination of incompetence, which is disfavored, and it does not constitute the requisite “persuasive evidence” to sustain Bustillos' due process claim. See id.
Bustillos fails to present any facts or evidence that create a “real and substantial doubt as to his competency” at the time of his trial, such as contemporaneous evidence of courtroom outbursts, incoherent testimony or pro se motions, or contemporaneous statements from his defense counsel. See Medina v. California, 505 U.S. 437, 450 (1992) (“defense counsel will often have the best-informed view of the defendant's ability to participate in his defense”); Boyde v. Brown, 404 F.3d 1159, 1167 (9th Cir.), as amended on reh'g, 421 F.3d 1154 (9th Cir. 2005) (“perhaps the most telling evidence that Boyde was competent at trial is that neither defense counsel-who would have had every incentive to point out that his client was incapable of assisting with his defense-nor the trial court even hinted that Boyde was incompetent.”); Williams, 384 F.3d at 608-09, citing Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991) (finding the fact that defense counsel considered the defendant competent to stand trial was significant evidence that the defendant was competent); Wright v. Secretary for Dep't of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002) (finding the “best evidence of [a petitioner's] mental state at the time of trial is the evidence of his behavior around that time, especially the evidence of how he related to and communicated with others then”). Cf. Davis v. Woodford, 384 F.3d 628, 645 (9th Cir. 2004) (recognizing the trial judge was in a key position to gauge whether a competency hearing was needed, and holding the trial judge did not err in declining to hold a competency hearing either prior to or during the penalty phase of the trial). Compare Woodford, 339 F.3d at 1086 (regarding competence to plead guilty); Blazak v. Ricketts, 1 F.3d 891, 897 (9th Cir. 1993) (finding evidence of past, pretrial incompetency based on mental illness relevant to a finding of incompetence to stand trial); De Kaplany v. Enomoto, 540 F.2d 975, 982 (9th Cir. 1976) (holding that even “more is required to raise a doubt than mere bizarre actions ... or bizarre statements.” (internal quotations and citation omitted)); Tillery v. Eyman, 492 F.2d 1056, 1057-58 (9th Cir. 1974).
Furthermore, declarations or other evidence which fail to sufficiently support retrospective assessments of a defendant's mental state at the time of trial, by tying the defendant's mental state at that time to the facts of the case, do not constitute sufficient evidence to controvert the trial court's contemporaneous finding of competence. See Williams, 384 F.3d at 609. The evidence produced in Bustillos' post-conviction action did not adequately explain the effect of his impairments on his thoughts or actions at the time of the crimes, and failed to adequately explain how he could appear lucid during the crimes yet be unable to form the intent requisite to commit the crimes. Nor did this evidence explain how Bustillos' alleged impairments interfered with his understanding of the proceedings against him or with his ability to assist counsel in presenting a defense. Additionally, the declarations regarding the competency-restoration program did not, apparently, include a recitation of any manifestation of Bustillos' incompetence in the trial- court record. See Id. Retrospective “competency determinations, although disfavored, are permissible when it is possible to make an accurate retrospective evaluation, for example, by consulting contemporaneous medical reports.” Id. at 609-10. “Without the benefit of such contemporaneous reports, the passage of time and the difficulties inherent in evaluating the defendant's competence from a written record reduce the likelihood of an accurate retrospective determination.” Id., citing Pate, 383 U.S. at 387 (concluding that no meaningful retrospective competency determination could be made six years after trial). See also Boyde, 404 F.3d at 1166-67 (noting retrospective determinations of incompetence are disfavored and giving “considerable weight” to any “lack of contemporaneous evidence of a petitioner's incompetence to stand trial.” (internal citations and quotations omitted)).
Bustillos' allegation that he was incompetent to stand trial is premised primarily on the fact that at the time of trial his IQ score was 61. However, the United States Supreme Court has recognized that those with intellectual disabilities are “frequently ... competent to stand trial.” Atkins v. Virginia, 536 U.S. 304, 318 (2002). See also Boyde, 404 F.3d at 1166-67 (noting people with mental deficiencies are not necessarily incompetent to stand trial). The fact that a defendant might not understand his criminal proceedings unless they are explained to him in simple language might put an additional burden upon counsel, but does not establish that the defendant is incompetent to stand trial. See United States v. Glover, 596 F.2d 857, 867 (9th Cir. 1979). Additionally, persons with mental deficiencies are not necessarily incompetent to stand trial because the standard for competency to stand trial is lower than standard for a capacity to commit crime. See Hoffman v. Arave, 455 F.3d 926, 938 (9th Cir. 2006), judgment vacated in part on other grounds, 552 U.S. 117 (2008). In many reported cases involving a defendant with an IQ of 50 or below, i.e., below Bustillos' reported IQ of 61, the courts upheld a determination that the defendant was competent, or supported a conclusion that there was no bona fide doubt of the defendant's fitness to stand trial. See Deborah B. Dove, J.D., Competency to Stand Trial of Criminal Defendant Diagnosed as “Mentally Retarded´- Modern Cases, 23 A.L.R. 4th 493 (2021 update, originally published in 1983) (collecting cases). See also Competency to Stand Trial, 37 Geo. L.J. Ann. Rev. Crim. Proc. 424, 435 (2008).[ ] Courts seldom find mentally retarded defendants incompetent to stand trial on the basis of mental retardation, absent some additional emotional or mental disorder or physical disability. See Dove, Competency to Stand Trial of Criminal Defendant Diagnosed as “Mentally Retarded”-Modern Cases, 23 A.L.R. 4th at 498. Nor does a diagnosis of a mental illness such as depression, paranoia, anxiety, or dementia, standing alone, require a finding of incompetence. See Lee v. Ryan, 2019 WL 1529656, at *3 (D. Ariz. Apr. 9, 2019).
The Georgetown Law Journal article cites: Penry v. Lynaugh, 492 U.S. 302, 333-34 (1989) (finding defendant competent despite mental retardation), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); United States v. Rodriguez-Leon, 402 F.3d 17, 22-23 (1st Cir. 2005) (concluding there was no error in finding the defendant competent even though the defendant's IQ of 62 classified him as mildly retarded); United States v. Robinson, 253 F.3d 1065, 1067-68 (8th Cir. 2001) (concluding there was no error in finding the defendant competent despite mental retardation and anxiety disorder); Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995) (concluding there was no error in finding the defendant competent despite mental disorder).
IV. Conclusion
Bustillos procedurally defaulted his substantive due process claim in the Arizona state courts and he has not shown cause for, nor prejudice arising from his procedural default. Bustillos fails to show that a fundamental miscarriage of justice will occur absent consideration of the merits of his due process claim. Additionally, Bustillos' claim fails on the merits.
Accordingly, IT IS RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” The undersigned recommends that, should the Report and Recommendation be adopted and, should Bustillos seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.