Opinion
No. M2000-00735-SC-DDT-DD.
January 17, 2007.
BEDFORD COUNTY ORIGINAL APPEAL NO. M2000-00735-SC-DDT-DD.
ROBERT E. COOPER, JR., Attorney General Reporter.
MICHAEL E. MOORE, Solicitor General.
JENNIFER L. SMITH, Associate Deputy Attorney General, Criminal Justice Division, Nashville, TN 37202-0207.
MOTION TO RE-SET EXECUTION DATE
The State of Tennessee requests the setting of a new execution date for Daryl Keith Holton for the 1997 first-degree murders of Stephen, Brent, Eric and Kayla Holton. State v. Holton, 126 S.W.3d 845 (Tenn.), cert. denied, 543 U.S. 816 (2004). On September 18, 2006, the United States Court of Appeals for the Sixth Circuit stayed this Court's earlier execution date to allow an expedited appeal concerning whether the federal district court properly dismissed a petition for writ of habeas corpus filed by attorneys with Federal Defender Services of Eastern Tennessee, Inc., without Holton's consent or authorization. On January 9, 2007, the Sixth Circuit affirmed the district court's dismissal of the unauthorized petition. In addition, the Sixth Circuit's order reiterated Holton's position — clearly stated in testimony before the federal district court and in letters filed in the Sixth Circuit — that he does not wish to pursue further appeals of his convictions and death sentence. A copy of the Sixth Circuit's order is attached as Appendix 1.
In the three years since this Court affirmed Holton's convictions and death sentences, Holton has consistently and repeatedly refused to allow the filing of post-conviction petitions on his behalf in either state or federal court. On May 16, 2005, the Bedford County Circuit Court stayed Holton's execution based upon the filing of an unsigned, unverified, and untimely post-conviction petition by the Tennessee Post-Conviction Defender. This Court granted the State's application for extraordinary appeal and, on May 4, 2006, vacated the lower court's order and dismissed the petition after finding that "the post-conviction court lacked the authority to consider the petition filed on behalf of Holton where the petition was not signed or verified by Holton and where the Defender failed to establish a `next friend' basis upon which to proceed." Daryl Keith Holton v. State, No. M2005-01870-SC-S10-PD, 2003 WL 24314330 (Tenn. May 4, 2006). On May 25, 2006, more than a year after the trial court's unlawful stay, the Court re-set Holton's execution for September 19, 2006.
Tenn. Code Ann. § 40-30-120 provides, "[u]pon the filing of a petition for post-conviction relief, the court in which the conviction occurred shall issue a stay of the execution date which shall continue in effect for the duration of any appeals or until the post-conviction action is otherwise final."
In the meantime, on September 30, 2005, while state proceedings were ongoing, attorneys with the Federal Defender Services of Eastern Tennessee, Inc., filed a petition in federal district court for habeas corpus relief in Holton's name but without his consent. Daryl Keith Holton v. Ricky Bell, Warden, No. 1:05-cv-00202 (E.D. Tenn.). In the first of two federal hearings on the State's motion to dismiss that unauthorized petition, Holton testified on July 31, 2006, that he did not wish to proceed with the petition filed by the federal defender or to present any claims for federal habeas relief at that time. (App. 2, p. 7) Holton also affirmed his earlier statement in an October 19, 2005, letter to undersigned counsel that, "I did not and do not authorize the filing of a federal habeas petition on my behalf." (App. 2, p. 4; App. 3, p. 1) Nevertheless, the district court directed that Holton submit to a competency evaluation by a court-appointed expert to determine his competence to forgo further appeals under the standard set forth in Rees v. Payton, 384 U.S. 312 (1966). The court's expert testified at a second hearing held on September 5, 2006, that his evaluation had revealed that Holton is not currently suffering with any mental disease, disorder, defect or other condition that affects his competence, that he is "especially informed" of his legal position and options, and that he fully understands the legal reasons for and the consequences of his execution and death. (App. 4, p. 5) Before dismissing the petition from the bench, the district court further observed:
I have seen and heard you [Holton] explain your thought processes and the basis for your decisions. I don't think anybody in this courtroom who has seen or heard your testimony could doubt that you have the ability to reason and to think rationally. There may be those who disagree with your decision, but it is not up to them to make the decision for you. It is your decision and yours alone to make. . . . Based upon your own stated desire not to pursue a habeas corpus petition, I am going to dismiss the petition.
(App. 4, p. 9)
The Sixth Circuit's January 9, 2007, order affirmed the judgment of the district court and removed any legal impediment to Holton's lawful execution. Daryl Holton made competent decisions to forgo state post-conviction and federal habeas corpus review of his convictions and death sentence. In response to the State's previous motion to set an execution date, Holton submitted a letter to this Court stating that he "does not oppose the State's motion to reset an execution date." Moreover, there is no current legal or factual basis why a new execution date should be delayed or denied.
This Court should re-set Holton's execution forthwith.
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing has been sent via fax and by first-class mail, postage prepaid, to:
Daryl Keith Holton, No. 306263
Riverbend Maximum Security Institution
7475 Cockrill Bend Industrial Road
Nashville, TN 37209
on this /ill/ day of January, 2007.
JENNIFER L. SMITH
Associate Deputy Attorney General
APPENDIX 1 ORDER
Federal Defender Services (FDS) brought this appeal in the name of Daryl Keith Holton, a Tennessee prisoner under sentence of death. The district court found that FDS failed to demonstrate reasonable cause to believe that Holton was not competent to dismiss the federal habeas corpus petition filed by FDS, and dismissed the petition as unauthorized. The district court issued a certificate of appealability as to that issue, and FDS moved this court to expand the certificate of appealability. Holton has responded to this court's directives and filed letters pro se indicating that he does not wish to pursue this appeal or the expansion of the certificate of appealability.
Upon review, we affirm the district court's dismissal of the petition as unauthorized and deny FDS's motion to expand the certificate of appealability.
APPENDIX 2 Motions Hearing
Transcript of proceedings before the Hon. Thomas W. Phillips, U. S. District Judge, and the Hon. H. Bruce Guyton, U. S. Magistrate Judge, on July 31st, 2006.
Court Reporter:
Donnetta Kocuba, RMR, 800 Market Street, Suite 132, Knoxville, Tennessee 37902, 865-524-4590.
INDEX
Defendant withdraws motion to seal mental examination: 4
Defendant waives motion for hearing to be Ex parte: 4
Oral argument on pending motions:
by Mr. Ferrell — 4, 17 by Ms. Smith — 9, 21
Direct examination of Mr. Holton by Ms. Smith: 22
Respondent's Exhibit No. 1-Letter of 10/19/05 from Mr. Holton to Deputy Attorney General Smith: 29
Examination of Mr. Holton by the Court: 29
Recess: 30
Court's Ruling-evaluation ordered/no stay of execution: 31, 33
JUDGE GUYTON: No, I don't.
THE COURT: Ms. Smith, you wish to put on some evidence, do you?
MS. SMITH: I do, your Honor. We actually wish to call
Mr. Holton.
THE COURT: Okay. Mr. Holton, if you would please stand to be sworn.
COURTROOM DEPUTY: Do you solemnly swear that the testimony that you will give in the matter before the Court today will be the truth, the whole truth, and nothing but the truth, so help you God?
MR. HOLTON: Yes, I do.
THE COURT: Let's let him just testify where he is, Ms. Smith, rather than having him come to the witness seat.
MS. SMITH: All right, your Honor.
THE COURT: Just have a seat, Mr. Holton. Yes, please, if you would, push the microphone over in front of him so we can all hear him clearly.
DIRECT EXAMINATION
by Ms. Smith:
Q. Would you state your name for the record, please?
A. Daryl Keith Holton.
Q. Thank you. Mr. Holton, I'd like to hand you a document and see if you can identify this document.
MR. FERRELL: Your Honor, if I may just real quickly, I'd be willing to stipulate that this letter was written by Mr. Holton. I have no reason to believe that it wasn't, and, in fact-
THE COURT: Let's let Mr. Holton answer the question.
MR. FERRELL: Okay.
Q. Mr. Holton, can you identify the document, please?
A. The parts that I can see do appear to be my handwriting, and it does appear to be the letter that I wrote.
Q. Sir, you can take it out of the covering. It's just a protective covering.
A. Just trying to be cautious.
Q.-and Mr. Ferrell can assist you with that.
A. It does appear to be the letter that I wrote.
Q. What is the date of that letter, please, sir?
A. It would be the 9th of-rather the 19th, excuse me, of October of 2005.
Q. And your signature does appear at the end of the letter?
A. It does.
Q. I'd ask, if you would, just to glance through the contents of the letter and to tell whether or not the contents remain true and accurate to the best of your information and belief. Can you read through that letter and-
A. I did glance through it and they do-they are the same.
Q. Okay. There's nothing materially changed from today from when you wrote that letter-
A. No.
Q.-in terms of the facts? Okay. When was the last visit that you received from Ernest Holton?
A. It would be the 6th of June in 2004.
Q. Okay. Is Mr. Ernest Holton currently on your approved list of visitors at Riverbend Maximum Security Institution?
A. There are two ways to answer that question. Someone who has an approved visitation application will be on a list. However, if it's not renewed within a certain period of time, I think, at last count, was every three years, then they remain on the list, but they're not allowed to visit.
Q. Is Mr. Ernest Holton currently authorized to visit you at Riverbend Maximum Security Institution?
A. Not to my knowledge, no.
Q. Have you received any other contact from Mr. Ernest Holton, either by telephone or letter, since June of 2004?
A. His wife, who had recently died in December of 2005, had sent me a money order for Christmas, and I believe that he was the one that wrote the salutation on the card.
Q. Okay.
A. I don't believe she was able to write that. It appeared to be his handwriting.
Q. And do you recall the date of that?
A. That would have been, I believe, the third week of December, 2005.
Q. 2005. Have you had any other contact-and you don't need to name them, but have you had any other visits from other family members?
A. Yes.
Q. In the last year, since last summer, for example?
A. Yes.
Q. Okay. How many visits have you had from your mother, for example?
A. I believe it's a little-a little more than once a month.
Q. So once a month you receive a visit from her?
A. At least.
Q. Okay. Any other family members visit you on a regular basis?
A. Yes.
Q. Okay. Mr. Holton, do you understand that you stand convicted of four counts of first-degree murder?
A. Yes, I do.
Q. Do you understand that you received as part of the state court judgment a sentence of death on each one of those convictions?
A. Yes, I do.
Q. Okay. Do you understand that at least until the running of your federal statute of limitations back in October of 2005 you had the option to come into federal court and challenge your state court convictions through the federal habeas corpus process?
A. I was very aware of that.
Q. Okay. Did you make any decisions up before the running of the statute of limitations regarding whether you intended to seekhabeas review with regard to your convictions?
A. I did.
Q. And what decisions did you make?
A. I decided that I wanted to procedurally default any previously determined issues raised in my direct appeal, and I certainly didn't want any of the issues presented in my state post conviction, the putative petition, to be raised in a habeas petition, federalhabeas petition, on my behalf.
Q. Did you wish to present any issues to the federal court with regard to your convictions and sentence?
A. Not at this time, no.
Q. Do you understand that by making such a decision you could be executed by the State of Tennessee without the benefit of federal review of potentially meritorious claims for relief?
A. I'm not being sarcastic. I would be aware of that if I was aware of any potentially meritorious issues. But, yes, I do, I am aware that this could result in my execution.
Q. Okay. So you've made your decision-or have you made your decision with full knowledge of your right to have federal review?
A. It's an ongoing process, but, yes, so far.
Q. Okay.
A. Once again, I'm-may I elaborate?
THE COURT: You may Go right ahead.
A. I don't believe this is the last shot. Mr. Ferrell, his intentions are generally characterized as well-intentioned. But I don't think that his petition is the last chance or last resort. There are a number of options, state options, left. I can name those. I believe there's even one federal option left.
Additionally, there is always the option of presenting a claim, a theoretical claim, that would be entitled to equitable tolling. I'm not saying I have such a claim; I'm just saying that the option exists.
As far as state options, those are probably not relevant to this proceeding, but they are a petition for a writ of error coram nobis; in other words, if I had some type of new evidence that might entitle me to a new trial I might be able to petition that. I'm not commenting on the likelihood that I will do that or the pos-you know, the probability of success.
There is also the option for a petition for state habeas corpus relief. That would be matters strictly limited to the record. Executive clemency, there is that avenue of relief, petition for executive clemency both at the state level and on the federal level. Once again, I'm not saying that that's what I'm going to do. I'm just stating that I am aware of those options.
As far as the matter, I believe, that's before the Court today, a federal habeas petition, at this time I don't wish to have this petition pursued on my behalf, and I'm aware of the option to do that.
Q. It has been suggested in this proceeding that you are not able to make a rational choice because-due to a diagnosis of depression. Can you explain to the Court your reasons for choosing to forego federalhabeas corpus at this time?
A. Well, number one, I don't-I don't think that any of the issues presented in the state post conviction petition nor the state direct appeal represented my position, and generally those will be the only issues that would be available to be raised in the federalhabeas petition, at least to my understanding. None of them represent my position at all. I would not-It's been my aim to procedurally default those.
Furthermore, likelihood is, I'm not going to file any further action. I'm satisfied with the finding of the state court's jury and the sentences of death. I believe that the death sentence is appropriate for the crime which I was convicted. I just don't have a problem with it.
We could continue in the court or judicial process for a number of years and still arrive at the same result. I don't see that it's necessary. If I come up with anything new, I wouldn't hesitate to put it in a petition and send it to the Court, but I don't have that right now.
I'm not going to waste the Court's time with frivolous issues. Like it or not, you can have four convictions of first-degree murder and four death sentences and still have some scruples. I just happen to think I do.
MS. SMITH: Thank you. I don't have any further questions, your Honor.
THE COURT: Thank you. Ms. Smith. Any questions, Mr. Ferrell?
MS. SMITH: Well, actually, I'm sorry, your Honor, I forgot to move to admit into evidence the original letter with the envelope that Mr. Holton identified. If I could, I'd like to move that into evidence, please, your Honor.
THE COURT: It will be received and made a part of the record in this case.
MS. SMITH: Thank you.
(Respondent's Exhibit No. 1 received.)
THE COURT: Mr. Ferrell, do you have any questions?
MR. FERRELL: No, your Honor, at this time I don't have any questions.
EXAMINATION BY THE COURT
by Judge Phillips:
Q. Mr. Holton, how old are you, please?
A. Sir, I'm 44.
Q. And when is your birth date?
A. The 23rd of November, 1961.
Q. How far did you go in school, Mr. Holton?
A. I've got about 60 credit hours in college, no degree, no major.
Q. You mentioned that you had several options. You do realize, of course, that your execution date is September the 19th of this year, 2006?
A. Yes, sir.
Q. That's not a lot of time to pursue those options that you have enumerated, even if you decided you wanted to do that. Do you understand that what you are facing is your execution? Do you understand that?
A. I'm aware of that, yes, sir.
Q. Do you understand further that this court would like to make sure that you are competent to comprehend that decision before the execution-before the state goes forward with the execution? Do you understand that?
A. I'm getting that impression, yes, sir.
Q. Well, do you have an objection to being examined by a psychiatrist or a psychologist to determine if you are mentally competent to rationally make the decision to end your own life?
A. Yes, sir, I do.
THE COURT: Judge Guyton, do you have any questions of Mr. Holton?
JUDGE GUYTON: No.
THE COURT: Thank you, Mr. Holton. Do you have other evidence you'd like to present, Ms. Smith?
MS. SMITH: Nothing further, your Honor.
THE COURT: Mr. Ferrell, do you wish to present any evidence?
MR. FERRELL: Not at this time, your Honor, no, other than what was attached to our pleadings.
THE COURT: Okay. Ladies and gentlemen, we'll take a 15-minute recess, and we'll reconvene at ten o'clock.
(Recess had at 9:44 a.m. and Court reconvened 10:27 a.m.) APPENDIX 3
APPENDIX 4
Transcript of proceedings before the Honorable Thomas W. Phillips on September 5, 2006.
INDEX
BRUCE G. SEIDNER 7
CROSS EXAMINATION(By Mr. Ferrell) 15
CROSS EXAMINATION(By Mr. Holton) 52
CROSS EXAMINATION(By Ms. Smith) 53
(Exhibit No. 1 was received in evidence.) 62
(Exhibit No. 2 was received in evidence.) 63
RECROSS EXAMINATION(By Mr. Ferrell) 63
(Exhibit No. 3 was received in evidence.) 71
pleasant, appropriate, respectful model prisoner, someone who takes full advantage of opportunities to exercise, listens to the radio, talks appropriately. There are no, there is no evidence or external evidence of any mental health problems. There is no objective evidence I could find that would suggest a mental disorder or defect in terms of those sorts of observations.
I did do an MMPI-2 and it is not suggestive of the kind of mental disorder or defect that rises to a level of any question of his rational process. I do believe that there is a previous and credible history of depression and a previous and credible history of drug abuse, arguably, dependency.
At present I find nothing in my interviews of Mr. Holton to suggest that he does not have a rational process. Would another individual make the same choices as he? You know, arguably, yes. Are his choices consistent with his rational process? Yes. He was questioned extensively about this in the trial transcript November 19, 1999, and January 14, 2000, by the court and he more than holds his own in terms of his knowledge of the legal process. I don't anticipate there would be any disagreement that he is someone who, you know, has a very strong knowledge base.
In talking to him about how he views his situation, I could find no evidence of psychopathology, unusual thinking, you know, the sort of, you know, rigid and variant process that is associated with some mental disorders. My opinion which I gave is that I could find nothing to challenge his competence, in fact, I found much that underline his capacity as quite competent.
Q. Dr. Seidner, if you would, please, based upon your background, training and education, considering the information that you have reviewed in preparation for interviewing Mr. Holton and in view of your actual interview of him and testing of him would you relate within a reasonable degree of psychological certainty your findings as to the three questions presented to you by the court.
A. The first question was whether Mr. Holton suffers from mental disease, disorder or defect. It is my opinion that Mr. Holton does not currently present with a mental disease, disorder or defect. For example, he does not currently present with depression or symptoms of PTSD. While I do believe he is credibly diagnosed with a personality disorder at present, this does not rise to the threshold of the meaning of mental disease, disorder or defect relevant to issues of competence.
Two, whether a mental disease, disorder or defect prevents Mr. Holton from understanding his legal position and the options available to him. It is my opinion that there is no condition that affects Mr. Holton's competence. He is fully competent and especially informed about his legal position and the options available to him.
The third question, whether a mental disease, disorder or defect prevents Mr. Holton from making a rational choice among his options. It is my opinion that Mr. Holton is fully rational. He is especially informed of his legal options. He is especially aware of the consequences of his legal options. He has no unusual beliefs about death and fully understands the legal reasons for and consequences of his execution and death. He is not overborne by guilt, delusion or irrational thinking. He is not a "death row volunteer." His adjustment to death row has been as good as one could expect.
THE COURT: Thank you, Dr. Seidner. Your report will be received and made a part of the record in this case. I guess we probably need to since it is a psychological evaluation, place it in the record under seal.
(Psychological report filed under decision.
Now, Mr. Holton, you understand that this is a proceeding that could result in this court issuing a stay of your execution, and your execution is scheduled for September the 19th of this month. You understand that, is that correct, sir?
MR. HOLTON: Yes, sir.
THE COURT: Well, Mr. Holton, if this were a run-of-the-mill criminal case, there would be no question but that you are competent. You're oriented as to time and place, you know the nature of the proceedings that you are involved in, you have been able to follow those proceedings and you understand the issues involved. Your prior testimony to the court and in response to questioning by the counsel of the State of Tennessee at our hearing on July the 31st leads the court to the conclusion that you are quite intelligent, articulate and capable of fully understanding your position. I think you have the ability to assist your attorney in your own defense, if you chose to do so.
This is not the run-of-the-mill case. It is a death case. My focus has to be on whether or not you have the capacity to make a rational choice to do what you are asking to do. The question is not whether I or anyone else would make the same choice, it is whether you have the ability to make that choice.
The burden is on Mr. Ferrell to show that there is some reason to doubt your competence and to doubt that you have the capacity to make this decision. The evidence must be sufficient to raise a serious doubt or give reasonable cause to believe that you are incompetent.
The only evidence in the record to suggest that you are incompetent is an affidavit of Dr. George W. Woods, Jr. and an addendum to that affidavit that has been filed here today, who performed a preliminary neuropsychiatric evaluation of you at Mr. Ferrell's request, and who gives his preliminary opinion that you may be suffering from a mental disease or defect rendering you mentally incompetent. Dr. Woods' suggestion of incompetence does not, however, in my mind, give rise to a reasonable doubt that you are competent today, particularly in light of the testimony of Dr. Seidner and your own testimony today and your own testimony in the previous hearing on July the 31st, 2006.
In fact, the record reveals that, with the exception of Dr. Woods, every psychiatrist and psychologist who has examined you as to your competence to stand trial, your competence to waive your right to pursue a direct appeal of your conviction and sentence and your competence not to pursue federal habeas corpus relief has found you to be competent.
According to the psychological evaluation by Dr. Seidner, after meeting with you for a total of approximately nine hours, reviewing all of your medical and prison records and administering appropriate psychological tests, it is the finding of Dr. Seidner that you do not currently present with a mental disease, disorder or defect, you do not currently present with depression or symptoms of post traumatic stress disorder and while you have been credibly been diagnosed with a personality disorder, such disorder does not rise to the threshold of the meaning of mental disease, disorder or defect relevant to issues of competency.
In addition, Dr. Seidner has found that there is no condition that affects your competence, you are fully competent and especially informed about your legal position and the options available to you. Dr. Seidner found that you are fully rational, especially informed of your legal options, especially aware of the consequences of your legal options and have no unusual beliefs about death and fully understand the legal reasons for and consequences of your execution and death. You are not overborne by guilt, delusion or irrational thinking.
Dr. Seidner opines that you are not a "death row volunteer" and has suggested that you are contemplating your legal options once unencumbered by what you describe to Dr. Seidner as uninvited and unwanted action of the Federal Defender Services. Consequently, Dr. Seidner finds you fully competent to waive your appeal for habeas review.
In addition, I have seen and heard you testify, I have seen and heard you explain your thought processes and the basis for your decisions. I don't think anybody in this courtroom who has seen or heard your testimony could doubt that you have the ability to reason and to think rationally. There may be those who disagree with your decision, but it is not up to them to make the decision for you. It is your decision and yours alone to make.
The court finds that there is no reasonable cause to believe that Mr. Holton is not competent to choose not to seek federal habeas review of his death sentence. There is thus no reason to have a full competency hearing on Mr. Holton's competence. Consequently, Mr. Holton, I find there is no indication that you are presently suffering from any mental disease, defect or disorder which substantially affects your ability to make decisions on your own behalf. Based upon your own stated desire to not pursue a habeas corpus petition, I am going to dismiss the petition.
Accordingly, the respondent's motion to dismiss the petition for writ of habeas corpus shall be granted. All other pending motions will be denied as moot.
The court will make as a part of the record of these proceeding and Dr. Seidner's testimony the transcript of hearing conducted on November 13, 1999, and January 14, 2000, and the order of Judge Charles Lee, the circuit judge who heard the defendant's original — who heard Mr. Holton's original case, as well as the findings of Dr. Seidner, his report will be made as a part of the record of this case as well and placed under seal.
(Exhibit No. 3 was received in evidence.)
THE COURT: There was one other item,
Ms. Smith.
MS. SMITH: The current CV, Your Honor.
THE COURT: Yes, the current CV of Dr. Seidner.
Anything further we need to take up at this time on behalf of defendant, Mr. Ferrell?