Opinion
No. C 01-2272 SI
October 21, 2003
JUDGMENT
The petition for writ of habeas corpus has been denied. Accordingly, judgment is entered in favor of respondent and against petitioner Lorenzo Cobbs.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
On June 11, 2001, Petitioner Lorenzo Cobbs filed a petition for writ of habeas corpus. Having carefully considered the papers submitted, the Court hereby DENIES Mr. Cobbs' petition for the reasons set forth below.BACKGROUND
On August 19, 1998, petitioner was charged with one count of robbery for taking a gold necklace from the neck of a thirteen year old boy on July 25, 1998. Resp.'s Ex. 1 (Clerk's Transcript, hereinafter "CT") at 21-26. At that time, petitioner was alleged to have two prior strikes and serious felonies, several prior prison terms, and a criminal history dating back to 1981. Id. Petitioner was also on parole at the time he committed this offense, having been released from Solano State Prison on July 20, 1998.
Two months before his parole, San Quentin prison officials prescribed anti-psychotic drugs to petitioner. Pet. at 9. Upon being transferred from San Quentin to Solano prison, petitioner was taken off the medications forty-five days prior to his release. Id. Petitioner has had a long history of mental health treatment while in prison, including the prescription of psychotropic drugs, dating back to the late 1980s. Resp.'s Ex. 4 (Kuper Decl.) at 4. At one time, petitioner was a boxer, and sustained several blows to the head. Id. In 1982, petitioner was involved in a car accident, during which he likely suffered a concussion. Id.
Following the entry of a not guilty plea on August 21, 1998, petitioner changed his plea on October 20, 1998 to nolo contendere on the robbery charge. Petitioner changed his plea after he and his attorney, Katherine Jacomb, discussed his trial defense options. Resp.'s Ex. 5 (Letter from Jacomb to Louis Hiken at 1). According to Ms. Jacomb, petitioner expressed repeated and specific interest in pursuing long-term rehabilitation treatment. Id. Therefore, petitioner and Ms. Jacomb determined that petitioner should change his plea to nolo contendere and subsequently undergo evaluation for his amenability to long-term treatment. Id. During the plea colloquy on October 20, 1998, petitioner responded affirmatively to the court's questions regarding his understanding of the nature of the charges, the array of his available defenses, possible sentencing, and his constitutional rights (i.e. to remain silent, to trial by jury). Resp.'s Ex. 3 (Reporter's Transcript, October 20, 1998) at 3-6.
At the same time, petitioner and Ms. Jacomb also discussed the possibility of a plea of not guilty by reason of insanity. Resp.'s Ex. 5 (Jacomb Decl. at 2). Petitioner told counsel that he was not in his "right mind" when he committed the crime. Although Ms. Jacomb noted that petitioner was somewhat mentally impaired, petitioner displayed an understanding of his legal situation, and did not inform Ms. Jacomb about his prior mental health history or prescription of psychotropic drugs.Id. (Letter from Jacomb to Louis Hiken at 1). At this time, Ms. Jacomb also informed petitioner that any insanity claim would likely fail due to testimony of the victim and a pursuing police officer that petitioner's actions were purposeful. Id. (Jacomb Decl. at 2). According to Ms. Jacomb, both she and petitioner agreed that an insanity plea would not serve petitioner's stated goal of admission to a rehabilitation facility. Resp.'s Ex. 5 (Letter from Jacomb to Louis Hiken at 1).
Ms. Jacomb states that petitioner expressed understanding that he must plead "open," or nolo contendere, in order to obtain any sentencing leeway under the three strikes law; petitioner appeared to understand the complex legal issues surrounding his case and possible sentencing. Id. Ms. Jacomb informed petitioner of the possibility that the court could choose not to exercise its sentencing discretion in petitioner's favor, Id. Ms. Jacomb hoped that the court would impose a 19 year suspended sentence with probation, strike petitioner's previous strikes and place petitioner in a residential drug program. CT at 31-35.
The sentencing hearing was scheduled for March 3, 1999. Id. at 53. Prior to the sentencing hearing, Jeffrey S. Kline, Ph.D., evaluated petitioner for approximately ten hours, spanning the days of February 15 through February' 18, 1999, and February 22, 1999. Resp.'s Ex. 5 (Kline Evaluation at 1). In his report, Dr. Kline noted that Ms. Jacomb specifically requested that he assess petitioner's amenability to treatment, as well as evaluate him for signs of brain damage, retardation, and other mental disorders. Id. at 3. Dr. Kline assessed petitioner without reference to any prior mental health or medical records, and during Dr. Kline's evaluation, petitioner explicitly denied any prior mental health history or treatment, Id. at 3-4.
After conducting a battery of psychological tests, Dr. Kline concluded that petitioner displayed some indication of dementia due to multiple etiologies (blows to head from boxing, possible concussion from car accident, and long-term substance abuse), that he was likely mildly retarded, and that his auditory, verbal and visual cognitive abilities were in the severely impaired range compared to other men in his age group. Id. at 9. Even so, Dr. Kline noted that, although still quite low, petitioner's verbal reasoning was strong relative to his other cognitive abilities. Id. Dr. Kline also concluded that petitioner displayed no signs of psychotic thought process or delusions. Id.
During the evaluation by Dr. Kline, petitioner expressed realistic ideas regarding what recovery would involve if placed in a rehabilitation program. Id. at 10. Dr. Kline did not believe, however, that petitioner was amenable to treatment in a program that was not sensitive to his "neurocognitive deficits and emotional dysregulation." Id. Although Dr. Kline believed that the prescription of psychotropic medication could facilitate petitioner's participation in such programs, he noted that most facilities discourage the use of antiaxiety medications due to their addictive quality. Id.
Ms. Jacomb states that she did not make any further inquiries into petitioner's mental health upon receiving Dr. Kline's report. Id. at 1-2. She asserts that this decision was based on both her own evaluation of her client's mental state and her fear that further interviews with Dr. Kline would uncover additional damaging evidence. Id. Ms. Jacomb did not present Dr. Kline's evaluation to the court prior to sentencing, because she felt that it would not help petitioner in his stated goal of receiving probation and being placed in a rehabilitation facility. Resp.'s Ex. 5 (Letter from Jacomb to Louis Hiken, July 9, 1999 at 1).
At a sentencing hearing on March 3, 1999, petitioner was sentenced to a prison term of thirty-five years to life. CT at 70-72. At the sentencing hearing, petitioner continued to express his desire for the court to place him in a long-term drug rehabilitation program, such as Delancy Street, and recounted for the court information conveyed to petitioner by a counselor for Delancy. Resp.'s Ex. 3 (Reporter's Transcript, March 3, 1999 at 1-2).
After the sentencing, petitioner concurrently filed an appeal and a petition for writ of habeas corpus with the California Court of Appeal.Resp.'s Ex. 4, Petitioner argued that he was insane at the time of the offense, that he was incompetent to enter the no contest plea, and that his sentence was cruel and unusual. Id. In light of this appeal, petitioner's court appointed attorney, Louis Hiken, arranged for Dr. Terry Kupers to evaluate petitioner's mental state at the time of the crime and his competency at the time of his plea.
To that end, Dr. Kupers reviewed a number of documents, including seventy-five pages of medical records regarding mental health treatment petitioner received from the CDC. Resp.'s Ex. 5 (Kuper's Declaration at 2). Dr. Kuper also conducted an approximately two hour interview of petitioner at San Quentin Prison on August 17, 1999, some ten months after petitioner entered his plea. Id. Dr. Kuper determined that petitioner suffered form a severe psychiatric disorder at the time he committed the crime, combined with longstanding dementia, alcohol intoxication, fatigue and possible drug use at the time of the crime. Id. at 10-11.
Dr. Kuper further concluded that petitioner was not competent at the time he entered his plea or at the time of sentencing, and did not possess the ability to participate in his own defense Id. at 11. Dr. Kuper supported his conclusions in part by the fact that petitioner had been deprived of previously prescribed psychotropic drugs forty-five days prior to his release from Solano Prison, and committed the crime five days subsequent to that release. Id. at 12. Furthermore, almost immediately upon incarceration for the crime for which the current sentence was imposed, the CDC diagnosed petitioner as having Substance Induced Psychosis and prescribed a powerful antipsychotic drug, Olanzapine. Id. at 12.
The California Court of Appeal denied both the appeal and the habeas petition; as to the appeal, it found petitioner's arguments to be based upon declarations and medical records outside the appellate record, which the court could not consider. Resp.'s Ex. 4. Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. Resp.'s Ex. 5. That petition was denied in a one-sentence order. Resp.'s Ex. 6.
On June 11, 2001, petitioner filed a petition for writ of habeas corpus in this Court. In it, petitioner argues that his counsel was ineffective for failing to investigate the state of his mental health, and that petitioner was incompetent to enter his plea of nolo contendere.
LEGAL STANDARDS
A. District Court Review Under 28 U.S.C. § 2254
District court review of petitions for writ of habeas corpus is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the AEDPA, a district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if 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). Habeas relief is warranted only if the constitutional error at issue is structural error or had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920(2001).
B. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. See id.
The Strickland framework for analyzing ineffective assistance of counsel claims is considered ! to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of 28 U.S.C. § 2254(d) analysis. See Williams (Terry) v. Taylor 529 U.S. 362, 404-08 (2000).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See id. at 687. The defendant must show that counsel's representation fell below an objective standard of reasonableness. See id. at 688. 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). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001) (finding no deficient performance by counsel who did not retain a ballistics expert on a menacing charge where the same expert had been used in the successful defense of the same defendant on a felon-in-possession charge); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). But cf, United States v. Palomba, 31 F.3d 1456, 1466 (9th Cir. 1994) (presumption of sound trial strategy not applicable where indicia of tactical reflection by counsel on issue absent from record). The reasonableness of counsel's decisions may be assessed according to professional norms prevailing at the time of trial. Silva v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002).
A habeas petitioner has the burden of showing through evidentiary proof that counsel's performance was deficient. See Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir.), cert. denied, 498 U.S. 960 (1990).
Second, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. See Strickland, 466 U.S. at 688. The test for prejudice is not outcome — determinative, i.e., defendant need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. See id. at 693. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. See Strickland, 466 U.S. at 694;see, e.g., Jones v. Wood, 207 F.3d 557, 562-63 (9th Cir. 2000) (failure to investigate and present "other suspect" evidence); Hart v. Gomez, 174 F.3d 1067, 1073 (9th Cir. 1999) (failure to introduce evidence that corroborated testimony of a key defense witness whom the jury might otherwise not believe necessarily undermined confidence in the outcome);Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998) (failure to investigate and present alibi witnesses prejudicial where, without corroborating witnesses, defendant's bare testimony left him without a defense); United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) (failure to request jury instruction prejudicial where reasonable probability defendants would have been acquitted with instruction);Palomba, 31 F.3d at 1465-66 (error that may increase defendant's sentence prejudicial even if reversal would not shorten prospective jail time);Sanders, 21 F.3d at 1461 (counsel's failure to interview individual who had confessed to crime and whom three eyewitnesses had identified as culprit prejudicial); Smith v. Ylst, 826 F.2d 872, 875 (9th Cir. 1987),cert. denied, 488 U.S. 829 (1988) (mental incapacity of counsel does not require per se reversal of conviction; defendant has burden to point to specific errors).
A defense attorney has a general duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. See Strickland, 466 U.S. at 691, Turner, 158 F.3d at 456.Strickland directs that `"a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 491).
A claim of negligence in conducting pretrial investigation can form the basis for a claim of ineffective assistance. See United States v. Tucker, 716 F.2d 576 (9th Cir. 1983); Hines v. Enomoto, 658 F.2d 667, 676 (9th Cir. 1981). Counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client. Sanders, 21 F.3d at 1457. The duty of reasonable investigation extends to the issue of mental health. Seidel v. Merkle, 146 F.3d 750, 755-57 (9th Cir. 1998), cert. denied, 119 S.Ct. 850 (1999) (finding deficient performance by attorney who failed to investigate mental illness defense despite abundant signs of such illness, including medication of defendant by prison psychologist while awaiting trial, jail medical records and bail hearing report indicating defendant had been treated at V.A. hospital for mental disorder, and defendant's statement to counsel about symptoms related to his mental condition); Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992) (vacating judgment of district court where not possible to determine whether counsel's decision not to investigate was sufficiently informed or strategic); United States v. Burrows, 872 F.2d 915, 918 (9th Cir. 1989) (counsel's performance deficient where failure to investigate possibility of mental illness defense); Deutscher v. Whitley, 884 F.2d 1152, 1160 (9th Cir. 1989),vacated on other grounds, 506 U.S. 935 (1992) (no strategic decision where defense based on petitioner's psychiatric problems but counsel failed to even consider investigating evidence to bolster defense); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (failure to investigate possibility of mental impairment cannot be construed as trial tactic where relevant available documents not even reviewed by counsel).
Where the decision not to investigate further is taken because of reasonable tactical evaluations, the attorney's performance is not constitutionally deficient. See Siripongs v. Calderon, 133 F.3d 732, 734 (9th Cir. 1998). If counsel reviews the preliminary facts of the case and reasonably decides to pursue only one of two conflicting defense theories, for example, he need not investigate the abandoned defense theory further. See, e.g. Bean v. Calderon, 163 F.3d 1073, 1082 (9th Cir. 1998) (attorney's duty to further investigate diminished capacity defense ended when he chose to present an alibi theory rather than a diminished capacity defense based largely on defendant's representations that he was not present during the crime, defendant's refusal to blame his alleged co-burglar, and defendant's refusal to adopt the diminished capacity defense). Similarly, the failure to investigate a defense may not be ineffective assistance where it was due to the defendant's failure to inform the attorney of relevant facts and insistence on a particular course of action. See Langford v. Day, 110 F.3d 1380, 1386-88 (9th Cir. 1997) (attorney's failure to investigate a Miranda defense was not below the range of competence required where defendant failed to tell attorney about facts suggesting a Miranda violation and insisted on pleading guilty and seeking death penalty unless attorney could guarantee a short prison sentence); see also Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (attorney's failure to uncover family history of mental illness not unreasonable where investigation revealed no indication of such a history). But counsel is not free to accept unconvincing denials from a defendant without some minimal investigation of the facts. See Johnson v. Baldwin, 114 F.3d 835, 835-40 (9th Cir. 1997) (counsel's failure to investigate and discredit defendant's unconvincing denial that he was present at scene of alleged crime fell outside range of competent assistance because it deprived defendant of other defenses); cf Phillips v. Woodford, 267 F.3d 966, 978-80 (9th Cir. 2001) (no deference to counsel's decision not to investigate any defense other than the implausible alibi story offered by defendant which even counsel did not believe).
Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. See Cacoperdo v. Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994), cert. denied, 514 U.S. 1026 (1995) (decision whether to introduce medical evidence largely question of professional judgment).
C. Incopmpetency
1. Competency to Enter a Plea
The standard for competency to plead guilty is identical to the standard for competency to stand trial. See Godinez v. Moran, 509 U.S. 389, 396-99 (1993). The test for competency 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), cert. denied, 474 U.S. 1085 (1986) (citing Dusky v. United States, 362 U.S. 402, 402 (1960), and Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981)).
Due process requires a court to conduct a competency hearing on its own motion, before permitting a defendant to waive constitutional rights, whenever a reasonable judge would be expected to have a bona fide doubt as to the defendant's competence. See Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997); Moran v. Godinez, 57 F.3d 690, 695 (9th Cir. 1994), cert. denied, 516 U.S. 976 (1995) (citing United States v. Lewis, 991 F.2d 524, 527 (9th Cir. 1993) (competence to plead guilty), andChavez v. United States, 656 F.2d 512, 515-16 (9th Cir. 1981) (competence to plead guilty)). A bona fide doubt should exist when there is substantial evidence of incompetence. See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997). Although no particular facts signal incompetence, suggestive evidence includes a defendant's demeanor before the trial court, previous irrational behavior and available medical evaluations. See id. (citing Drope v. Missouri, 420 U.S. 162, 180 (1975); Lewis, 991 F.2d at 527: and Harding v. Lewis, 834 F.2d 853. 856 (9th Cir. 1987)). Where a trial court was aware that defendant was under the influence of drugs, had attempted suicide three months before the hearing and that he wanted to fire his attorneys, plead guilty to three counts of capital murder and prevent presentation of mitigating evidence, for example, the court's failure to hold an immediate competency hearing violated defendant's right to procedural due process.See Moran, 57 F.3d at 694-96; see also Miles, 108 F.3d. at 1112 (where three psychiatrists' reports noted petitioner was taking antipsychotic drugs and two reports warned that his future competence depended on his continuing to take the drugs, it was incumbent upon state trial court to inquire whether he had been taking the medication before accepting plea); but cf. Figueroa-Vasquez v. United States, 718 F.2d 511 (1st Cir. 1983) (prior drug use does not automatically render defendant incompetent or necessitate competency hearing). Counsel's failure to raise the issue does not waive the right to a competency hearing. See Miles, 108 F.3d at 1113.
2. Intelligent and Knowing Entry of Plea
The terms intelligent and knowing are sometimes used interchangeably. Compare Parke v. Raley, 506 U.S. 20, 28 (1992) (knowing and voluntary) with Hill 474 U.S. at 56 (voluntary and intelligent).
A finding that a defendant is competent to enter a plea, however, is not enough to satisfy due process. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. See Godinez, 509 U.S. at 400 (citations omitted). Due process requires that a guilty plea be both knowing and voluntary because it constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). It does not, however, require a state court to enumerate all the rights a defendant waives when he enters a guilty plea as long as the record indicates that the pica was entered voluntarily and understandingly. See Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 1986), cert. denied, 479 U.S. 1057 (1987);Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974). A trial judge may not accept a defendant's guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary; a silent record is invalid. See Boykin, 395 U.S. at 242. Boykin's presumption of invalidity does not extend to collateral challenges, however. See Parke v. Raley, 506 U.S. 20, 29-30 (1992). A habeas petitioner bears the burden of establishing that his guilty plea was not knowing and voluntary. See id. at 31-34.
Whereas competency involves a defendant's general ability to understand the proceedings against him, "[t]he purpose of the `knowing and voluntary' inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced." Godinez, 509 U.S. at 401 n. 12 (emphasis in original).
The long-standing test for determining the validity of a guilty plea is `"whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant'" Id. at 29 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). This requires a review of the circumstances surrounding the plea. See Brady v. United States, 397 U.S. 742, 749 (1970). But of particular importance is that defendant enter a guilty plea with sufficient awareness of the relevant circumstances and likely consequences, see id at 748, and that he understand the law in relation to the facts, see McCarthy v. United States, 394 U.S. 459, 466 (1969); see, e.g. Haves v. Kincheloe, 784 F.2d 1434, 1438-40 (9th Cir. 1986) (failure of judge, prosecutor and defense counsel to inform defendant of elements of second degree murder rendered plea involuntary), cert. denied, 484 U.S. 871 (1987). A guilty plea not made voluntarily and intelligently violates due process. See Boykin, 395 U.S. at 242.
DISCUSSION
A. Ineffective Assistance of Counsel
To prevail on his claim for ineffective assistance of counsel, petitioner must show that his attorney's performance was deficient and that the deficient performance prejudiced petitioner. See Strickland, 466 U.S. 668, 687-688. Judicial scrutiny of attorney conduct is highly deferential, and absent strong evidence to the contrary, there is a presumption that the counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. Based on the facts in the present case, this Court does not find that petitioner was denied his Sixth Amendment right to effective assistance of counsel.
The Strickland framework for evaluating claims of ineffective assistance of counsel at trial also applies to claims of ineffective assistance during the plea process. See Hill v. Lockhart, 474 U.S. 52, 57 (1985).
First, petitioner must demonstrate that Ms. Jacomb's performance fell below an objective standard of reasonableness based on prevailing professional norms. See Strickland at 688; Silva v. Woodford, 279 F.3d 825, 46 (9th Cir. 2002). Reasonableness is assessed, not based on what defense counsel could have done, but rather on whether the choices that defense counsel made were reasonable in light of all attendant circumstances. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).
Petitioner's claim of ineffective assistance of counsel rests primarily on Ms. Jacomb's failure to investigate petitioner's mental health history. Petitioner's Traverse and Reply to Order to Show Cause (hereinafter "Ptr.'s Reply") at 7. He argues that he told Ms. Jacomb that he was not in his "right mind" at the time of the crime. Pet. at 10. Petitioner also asserts that, even if Ms. Jacomb initially felt there were insufficient signs of a mental health history, that Dr. Kline's report contained enough information to put Ms. Jacomb on notice of petitioner's mental state. Petitioner suggests that his attorney should have revised the defense strategy, made a request to withdraw his plea, substituting it for an insanity plea, and presented Dr. Kline's report to the court to raise a bona fide doubt as to his competency. Id. at 10-12.
Respondent argues in opposition that there was no compelling evidence of petitioner's incompetency, and that the only contrary evidence was Dr. Kuper's "retrospective report." Resp.'s Oppo. (hereinafter "Oppo.") at 19. Respondent further asserts that petitioner cannot show that his attorney failed to investigate because she obtained the evaluation by Dr. Kline, containing indications of petitioner's competency. Id. at 20.
Ms. Jacomb met with petitioner to discuss possible defense strategy. Resp.'s Ex. 5 (Letter from Jacomb to Louis Hiken, July 9, 1999) at 1. Throughout that discussion, and through sentencing, petitioner maintained that his goal was for the court to place him on probation in a long-term rehabilitation program.Id. Moreover, while Ms. Jacomb did note signs of mental impairment, she also observed petitioner's ability to understand complex legal issues related to his case, including the range of sentencing possibilities and that he must enter a plea of no contest to make those options available.Id. at 1-2. Ms. Jacomb also noted signs of intact long-term memory. Id. Furthermore, when petitioner expressed the goal of long-term treatment, Ms. Jacomb informed petitioner that this was a "long-shot," especially because sentencing discretion under the three strikes laws had already been exercised in his favor previously. Id. at 2. Even though Ms. Jacomb felt that the possibility of placement was remote, she secured Dr. Kline to evaluate not only petitioner's amenability to such a program, but also to evaluate his general mental state.
Ms. Jacomb also discussed the possibility of a plea of not guilty by reason of insanity with petitioner. Id. at 1. Petitioner agreed with counsel that an insanity plea would defeat his claim that he was amenable to a treatment facility. Id. Ms. Jacomb informed petitioner that an insanity plea would likely be unpersuasive because of the testimony that petitioner's actions appeared purposeful. Id. Although highly relevant, at the time petitioner and counsel discussed the insanity plea, petitioner did not inform Ms. Jacomb of his previous mental health history, and subsequently denied such history to Dr. Kline. Petitioner claims that his denial was based on Ms. Jacomb's indication that an insanity plea would likely defeat his goal of placement in long-term rehabilitation. Ptr.'s Reply at 8. While this argument may explain why he failed to reveal his history to Dr. Kline, it does not explain petitioner's failure to reveal his mental health history to his own attorney, so that she could accurately assess petitioner's viable defense options.
Because Ms. Jacomb did not know petitioner's mental health history, due both to his failure to inform her and to his lack of outward and obvious manifestations of the possible presence of such history, and because petitioner continued to assert that his goal was treatment, Ms. Jacomb did not pursue an evaluation of petitioner with an insanity defense in mind. Instead she secured an evaluation that concentrated on petitioner's amenability to treatment, and more generally, on his mental status as a whole. If counsel reviews preliminary facts, decides to pursue only one of two conflicting defense theories — here, deciding that referral to treatment was highly unlikely if petitioner pursued an insanity plea — the abandoned defense need not be investigated further. Turk v. White, 105 F.3d 478, 480-81 (9th Cir. 1997).
Furthermore, the failure to investigate a defense may not amount to ineffective assistance where petitioner's failure to inform the attorney of relevant facts and his insistence on a particular course of action caused the lack of investigation. Langford v. Day, 110 F.3d 1380, 1386-88 (9th Cir. 1997). While it is true that petitioner did not outright refuse other plea options, he was insistent in his desire to receive probation and rehabilitation. Coupled with the fact that petitioner failed to disclose his highly relevant mental health history and prior treatment, it does not appear that Ms. Jacomb's reasoning in deciding how best to serve her client was insufficient or below professionally acceptable norms. Ms. Jacomb now asserts that had she been aware of petitioner's previous mental health history and treatment, she would have more strongly discouraged petitioner's treatment goal in favor of a possible insanity plea. Resp.'s Ex. 5 (Jacomb Declaration at 3-4). However, the fact remains that by petitioner's own doing, Ms. Jacomb did not know of petitioner's history at the time she provided him with legal counsel, and her decisions regarding defense strategy were not unreasonable in light of the information she actually possessed at the time.
Assessing attorney performance requires reconstructing the circumstances of counsel's challenged conduct and evaluating the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 690. In other words, every effort must be made to eliminate the distorting effects of hindsight. This proposition is especially relevant in this case, where in hindsight, Ms, Jacomb herself admits that had she possessed the information regarding her client's mental health history, she would have made, different strategic defense choices. Under all the facts of this case, the Court finds that petitioner has failed to present evidence to overcome the presumption that Ms. Jacomb's conduct fell within the "wide range of reasonable professional assistance," in light of all attendant circumstances and the fact that Ms. Jacomb's choices represented sound tactical decisions.
Petitioner asserts that after receiving and reviewing Dr. Kline's evaluation, Ms. Jacomb should have taken further action to investigate the mental health history of her client and should have attempted to withdraw his plea in order to pursue an NGI verdict. Ptr.'s Reply at 10-11. Indeed, there are findings in Dr. Kline's report that may indicate the need to probe further into petitioner's mental state, such as indications of dementia, significant anxiety and personality dysfunctioning. Resp.'s Ex. 5 (Kline Evaluation at 9). However, Dr. Kline also noted several aspects of petitioner's behavior and mental state indicating that there was no need for further investigation: Dr. Kline found no evidence of psychotic thought process or delusions and found petitioner to be cooperative, oriented, and behaviorally organized. Id. at 8-9. When Dr. Kline's evaluation did not recommend petitioner for long-term treatment, Ms. Jacomb felt that the report would not serve her client's goals and the agreed-upon defense strategy. Id. (Letter from Jacomb to Louis Hiken at 1). Ms. Jacomb also feared that further interviews with Dr. Kline would likely uncover more damaging information about her client, and, as a result, did not pursue further investigation. Id.
Even assuming Ms. Jacomb's conduct in failing to investigate petitioner's mental status further was unreasonable in light of the information in Dr. Kline's report, her failure to investigate did not prejudice the defense. In order to show prejudice and satisfy the second part of the Strickland test for evaluating ineffective assistance of counsel, petitioner must demonstrate that counsel's constitutionally ineffective performance affected the outcome of the plea process. See Hill v. Lockhart, 474 U.S. at 59. In other words, petitioner must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.
In the present case, petitioner had a long history of crime, most of it violent, dating back to 1981. Petitioner was also on parole at the time he committed the crime for which he is currently incarcerated. A trial court had previously exercised three strikes sentencing discretion in favor of petitioner. The testimony of both the victim and the pursuing officer indicated that petitioner's actions were purposeful, ! despite his obvious alcohol intoxication. CT at 17; Resp.'s Ex. 5 (Jacomb Decl. at 2). During the sentencing hearing, the trial court judge specifically noted that even if statutorily permitted to exercise discretion in sentencing, he would not do so. Resp's Ex. 3 at 6. While petitioner need not show that it was more likely than not that different conduct by counsel would have altered the outcome, petitioner's burden goes beyond a mere showing that his defense was impaired. Strickland, 466 U.S. 693. Here, petitioner only presents the possibility that a different defense strategy, incorporating his mental health history, could have been pursued. Although it is a close question, this Court is not convinced that but for Ms. Jacomb's failure to unearth petitioner's mental health history, it is reasonably probable that the result would have been different, or that petitioner would not have entered his plea of no contest and would have insisted instead on going to trial. See Resp.'s Ex. 5 (Kline Evaluation at 8-9); Hill v. Lockhart, 474 U.S. at 59.
For these reasons, this Court finds that Ms. Jacomb made a reasonable tactical and strategic decision regarding her client's defense, based on the information available to her at the time, and that such conduct was not unconstitutionally deficient or prejudicial. Therefore, petitioner was not deprived of his Sixth Amendment right to effective assistance of counsel, and the state court's decision on this point demonstrates no unreasonable application of the law.
B. Competency to Enter a Plea
To demonstrate that he was incompetent to enter his plea of nolo contendere, petitioner must show that he lacked the "present ability to consult with his lawyer with a reasonable degree of rational, as well as factual understanding of the proceedings against him." Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985). Petitioner was entitled to a competency hearing before waiving his constitutional rights only if a reasonable trial court judge would be expected to have a bona fide doubt, supported by substantial evidence, as to petitioner's competence.Moran v. Godinez, 57 F.3d 690, 695 (9th Cir. 1993). The factors a court may consider in determining if there is evidence of incompetence may include petitioner's demeanor before the trial court, previous irrational behavior and available medical evaluations. Drope v. Missouri, 420 U.S. 162, 180(1975).
Petitioner argues that there were several indications of his incompetency to enter a plea. He points to his extensive mental health history and that he was taken off of psychotropic drugs forty-five days prior to his release from Solano prison. Pet. at 9. Petitioner asserts that his one word responses at the plea colloquy are an insufficient indication of his competency, and that the trial court should not have accepted Ms. Jacomb's opinion of his mental state due to her failure to fully investigate his mental health. Ptr.'s Reply at 18. Petitioner further alleges that if Dr. Kline's report had been presented, it would have provided enough information to raise a bona fide doubt as to his competency. Id. at 12. Petitioner presents Dr. Kuper's report in support of the fact that the trial court should have had a bona fide doubt as to his incompetency to enter a plea. Id. at 19-20.
Respondent asserts to the Court that petitioner's responses at the plea colloquy and sentencing are indicative of petitioner's competency. Oppo. at 3. Respondent also argues that the trial court was not aware of information that would otherwise indicate petitioner's incompetence, especially considering that Ms. Jacomb did not express any concerns regarding her client's mental health. Id. at 7, 16. Furthermore, respondent asserts that even if the trial court had reviewed petitioner's prison medical records, it would have found that the records contained several notations that petitioner was malingering, or that it was unclear whether petitioner was malingering or psychotic. Resp.'s Ex. 5 (Kuper Report at 4). Similarly, had the trial court reviewed Dr. Kline's report, it would have found that it contained several indications of petitioner's competency. As to Dr. Kuper's report that petitioner was incompetent, respondent counters by arguing that Dr. Kuper's evaluation was conducted almost ten months after sentencing, and that its primary focus was on petitioner's mental state at the time of the crime, not whether petitioner was incompetent to enter a plea. Id. at 17.
This Court finds that, in this case, there was insufficient evidence to raise a bona fide doubt as to petitioner's competency to enter a plea. Therefore, the trial court acted reasonably in finding that petitioner was competent and in not undertaking sua sponte a competency inquiry into petitioner's mental health.
The trial court's competency assessment was reasonable based, first, on the plea colloquy and sentencing hearing. Petitioner asserts that the fact that he could give affirmative and acceptable responses both during the plea colloquy and sentencing is not conclusive in determining his competency or the soundness of his mental state. Ptr.'s Reply at 18. Nonetheless, the responses elicited from petitioner during his plea colloquy, albeit one word answers, were virtually identical to responses elicited from defendants in any similar plea colloquy. Furthermore, petitioner was able to give more than one word responses during the subsequent sentencing hearing, where petitioner recounted a detailed and coherent response to questions posed by the court regarding the drug rehabilitation program. Petitioner displayed a capacity to both understand and respond to questions regarding his plea and sentencing, and at no time demonstrated any behavior raising a doubt as to his competency. The trial court's assessment of petitioner's competency was reasonable based on petitioner's behavior and responses at the plea colloquy and sentencing hearing
The trial court also did not have petitioner's mental health records or Dr. Kline's report to aid in its evaluation of petitioner's competency. Petitioner asserts that had the court received Dr. Kline's evaluation, it would have been sufficient to raise a bona fide doubt as to his competency. However, as respondent points out, there were also several indications in Dr. Kline's report of petitioner's competency. Oppo. at 16-18. Dr. Kline found that petitioner displayed no signs of psychotic thought process or delusions. Resp's Ex. 5 (Kline Evaluation at 9). Dr. Kline determined that, although still quite low, petitioner's verbal reasoning was strong relative to his other cognitive abilities. Id. Petitioner was also cooperative, oriented, and behaviorally organized during the evaluation. Id. at 8.
While petitioner uses Dr. Kuper's evaluation to support his incompetency argument, the evaluation by Dr. Kuper was based primarily on medical records and an approximately two hour interview with petitioner conducted almost ten months post-sentencing. Dr. Kuper's report would not have been available for review at the time of sentencing. Dr. Kuper's report also focused primarily on petitioner's mental state at the time of the crime, not at the time of sentencing. Furthermore, when assessing petitioner's competency to enter a plea, Dr. Kuper pointed primarily to the fact that petitioner had been deprived of psychotropic drugs forty-five days before his release from prison, and that petitioner's downplay of his mental history was evidence that he was unable to participate in his own defense. However, as respondent points out, this downplay is also easily interpreted as indication of petitioner's ability to understand what was required to further the agreed-upon defense strategy of probation and rehabilitation. Oppo. at 17.
Dr. Kline's report, on the other hand, evaluated petitioner shortly after he entered his change in plea and before sentencing. His assessment of petitioner spanned five days and took approximately ten hours. Although Dr. Kline primarily evaluated petitioner to determine his amenability to rehabilitation, he also performed a general evaluation of petitioner's overall mental status at Ms. Jacomb's request. The findings of Dr. Kline, even absent the benefit of medical records outlining petitioner's mental health history, give a better grounded and compelling assessment of petitioner's mental state at the time of the plea and sentencing than Dr. Kuper's report. This Court is also inclined to agree with respondent's assertion that had Dr. Kline felt there was any serious concern regarding petitioner's competency to enter a plea or stand trial, he would have indicated as such, especially since he knew that petitioner possibly faced a sentence of thirty-five years to life. Resp.'s Ex. 4 (Kline Evaluation at 1).
While the trial court did not consider petitioner's medical records, or the evaluation of Dr. Kline at sentencing, the judge did ask Ms. Jacomb about her opinion regarding her client's mental state. Ptr.'s Reply at 18. Ms. Jacomb stated no reservations about petitioner's competency to proceed in entering his plea or his ability to understand sentencing. Petitioner argues that Ms. Jacomb's lack of investigation rendered her incapable of formulating an opinion regarding his mental state. Id. However, petitioner also gave no indication to his counsel that further investigation into his mental health history was necessary. On the contrary, petitioner presented himself to Ms. Jacomb in a manner that indicated some mental impairment, but also an extended memory capability, non-delusional behavior, and the capability to understand complex legal concepts and assist in the development of his own defense strategy. Furthermore, Ms. Jacomb reviewed Dr. Kline's report, which contained indications that petitioner was competent. Without some outward display by petitioner of incompetency or the inability to comprehend the waiver of his rights, the trial court had no reason to suspect that there was any bona fide question as to the issue of petitioner's competency to enter his plea or understand sentencing, or to question Ms. Jacomb's assessment of her client's mental status.
In the present case, petitioner also did not inform counsel of his prior mental health history and treatment, even during their discussion of pursuing an NGI plea. Petitioner also failed to inform both Dr. Kline during his evaluation and the trial court, and in fact, appears to have downplayed his known mental condition for the strategic purpose of obtaining his desired sentencing outcome. Petitioner claims that his failure to disclose his mental health history was induced by Ms. Jacomb's indication that a not guilty by reason of insanity plea would not assist in petitioner's goal of placement in a long-term rehabilitation facility. Resp.'s Ex. 4 (Letter from Jacomb to Louis Hiken at 1-2). If anything, this is evidence in support of the fact that petitioner's level of competency was sufficient to allow him to aid in the formulation of his own defense strategy and to participate in its execution. When asked to evaluate Dr. Kuper's findings, Dr. Kline stated that "it is not unusual for individuals with intermittent psychotic symptoms to have the capacity to minimize their symptoms or conceal them if presented with an incentive to do so." Id. (Letter from Dr. Kline to Louis Hiken). Petitioner's ability to minimize his mental condition renders the trial court's evaluation of petitioner's competence reasonable.
C. Intelligent and Knowing Entry of Plea
Due process also requires that petitioner's nolo contendere plea was entered knowingly and voluntarily. Although petitioner did not raise this issue, this Court addresses whether or not petitioner's plea satisfies these due process requirements.
A defendant's plea was entered knowingly and voluntarily if the record of the plea proceeding reflects the defendant's desire to voluntarily waive right to jury trial, the right to confront accusers, and his privilege against self-incrimination. An assessment of a guilty plea's conformance with due process also requires that the plea represent a voluntary and intelligent choice among alternative courses of action, based on an examination of all of the circumstances surrounding the plea.See Parke v. Raley, 506 U.S. at 29-30.
In this case, the questions propounded by the trial court during the plea hearing inquired into petitioner's understanding of his constitutional rights. Resp.'s Ex. 3 (Reporter's Transcript of Proceedings at 3-4). The questions presented to petitioner at the plea colloquy also thoroughly examined his understanding of the charges against him, sentencing under the three strikes law, awareness of his alternative defenses, and that a plea of nolo contendere was the equivalent of a guilty plea. Id. at 3-6. Petitioner's affirmative and acceptable responses to these questions during the colloquy satisfy theBoykin, guidelines, and show that petitioner's waiver of his constitutional rights and his plea entry were knowing and voluntary. Furthermore, based on all of the attendant circumstances, the trial court had no reason to suspect that petitioner was incompetent to make a knowing and voluntary waiver of his constitutional rights, or to understand the nature of the sentence he faced by entering his no contest plea.
This Court finds that petitioner has not presented sufficient evidence to demonstrate that his plea was not made knowingly and voluntarily. Therefore, the trial court could have reasonably believed petitioner made a knowing and voluntary waiver of his constitutional rights by entering his nolo contendere plea.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is hereby DENIED. The Court finds no need for an evidentiary hearing in this matter. [Docket # 1]
IT IS SO ORDERED.