Summary
In Lambert, the petitioner argued that he was entitled to habeas relief because the state trial court had used the "clear and convincing evidence" standard when determining his competency.
Summary of this case from Bowens v. CainOpinion
Civil Action No. 99-1236, Section "A"
March 20, 2001.
ORDER AKD REASONS
This matter is before the Court on petitioner's application for habeas corpus relief filed pursuant 28 U.S.C. § 2254. Having reviewed the complete record, including the petition, the State's Answer, the Petitioner's Traverse, the State's opposition and supplemental briefs, the entirety of the state record, and the applicable law, this Court has determined that this matter can be disposed of without an evidentiary hearing. For the reasons set forth herein below, the Court has determined that the petition should be denied and his application dismissed with prejudice.
BACKGROUND
Petitioner, David Lambert ("Lambert"), is a state prisoner presently incarcerated in the Louisiana State Penitentiary, Angola. Petitioner's incarceration is the result of his conviction on two counts of first degree murder (i.e., Count 1 and 2 being the first degree murders of Mary Lambert and Rebecca Hebert on October 8th, 1992 at approximately 12:45 p.m.) all in violation of La. R.S. 14:30 pursuant to his June 23rd, 1994 pleas of guilty. Having waived all delays in sentencing, Lambert was sentenced immediately following his pleas to life imprisonment at hard labor for each Counts 1 and 2, to be served concurrently with each other, without benefit of parole, probation, or suspension of sentence.
The results of the Scientific Analysis Report of the Louisiana State Police Crime Lab revealed two (2) .38 caliber bullets removed from the body of Mary Arnone Lambert. [State Court Record (St.Rec.) Vol. 4 of 4].
The results of the Scientific Analysis Report of the Louisiana State Police Crime Lab revealed one (1) .38 caliber lead bullet core removed from the body of Rebecca Hebert. [St.Rec. Vol. 4 of 4].
The narrative of the Initial Investigative Report of the Tangipahoa Sheriff's Department dated October 8, 1992 indicates that Deputy Don Petty was dispatched that day at to Bennett Drive in Roseland to investigate a complaint of a double homicide. Upon arrival at the scene at 1:09 p.m., he found two white females, bleeding profusely and not breathing, located in front seat of a blue, 4-door, 1981 Chevrolet registered to David and Mary Lambert at Bennett Dr. Investigation revealed the identities of deceased victims as Mary A. Lambert in the driver's position and Becky (Rebecca) Hebert in the passenger's seat. Two bullet holes were observed in the windshield on the passenger's side along with a bullet fragment on the hood of the passenger side of the vehicle. See, Tangipahoa Sheriff's Dept. Initial Investigative Report [St.Rec. Vol. 4 of 4]. Thereafter, Lt. Larry Westmoreland and Detective Mark Apperson of the Tangipahoa Sheriff's Office (TPSO) were advised by police radio at 1:15 p.m. that the suspect in two counts of first degree murder was headed south on I-55 towards Hammond, Louisiana in a 1976 Chevy Pickup. With assistance, they stopped the pickup at 1:28 p.m. at the southbound rest area, placed David Lambert under arrest, he was advised of his rights and the charges against him. Lambert then stated that he shot his wife and her friend, and led the officers to the merger of Highway 40 with I-55 southbound and pointed out the gun he used in the double homicide, a 38 Charter Arms five shot pistol laying next to the merge sign, which firearm was purchased the day before on October 7, 1992 by David Lambert from Thompson's Sporting Goods in Amite. Upon booking, Lambert made a recorded confession at the parish jail See Transcript of 10-8-92 Taped Interview of David E. Lambert, Sr. filed in the State Record June 23, 1994 [St.Rec. Vol. 3 of 4]; see also TPSO's Arrest Report Supplemental Report; State's Answer to Bill of Particulars, at items 12 and 26; State's Supplemental Answer to Motion for Bill of Particulars; [St.Rec. Vol. 4 of 4]; and Transcript of the December 3, 1993 Hearing on Defendant's Consolidated Motions, at pp. 101-202 [St.Rec. Vol. 2 of 4]
See November 20, 1992 Grand Jury Indictment of David Lambert on two-counts of first degree murder [St.Rec. Vol. 4 of 4]
See Tangipahoa Parish Clerk of Court, Criminal Minutes of June 23, 1994 in Docket 65, 997 [St.Rec. Vol. 3 of 4]; and June 3rd, 1994 Transcript of Plea/Sentencing in State of Louisiana v. David Lambert, No. 65, 997 "C", Twenty-First Judicial District Court for the Parish of Tangipahoa, State of Louisiana. (St.Rec., Volume 1 of 4, at pp. 27, 31, and 34]
Id., at 34-35.
PROCEDURAL HISTORY
1. Two-Count Indictment Charging First Degree Murder .Petitioner was charged on November 20, 1992 via Tangipahoa Parish Grand Jury with two counts of first degree murder in violation of L.R.S. 14:30: (1) the first degree murder of his wife, Mary A. Lambert on or about October 8, 1992; and (2) the first degree murder of her friend Rebecca Hebert Sullivan on or about October 8, 1992. [St.Rec. Vol. 4 of 4].
2. Arraignment and Pretrial Motions .
Petitioner's $1,000,000.00 bond was revoked on October 29, 1992 pending application for bail and a contradictory hearing. On November 25, 1992, defense counsel filed a Motion and Order to Transfer Accused for Psychological Examination in anticipation of entering a plea of not guilty and not guilty by reason of insanity to aid counsel in determining the appropriate type of plea.
See, Motion and Order to Revoke Defendant's Bond, filed October 29, 1992 [St.Rec. Vol. 4 of 4]
See, Motion and Order to Transfer Accused for Psychological Evaluation to aid counsel in determining the type of plea to be entered at the arraignment, filed November 25, 1992 [St.Rec. Vol. 4 of 4]
On November 30, 1992, petitioner appeared in open court for arraignment accompanied by retained counsel, Ron Macaluso, and pled not guilty and not guilty by reason of insanity to the indictment. On December 14, 1992, defense counsel, Ron S. Macaluso, also filed a number of pre-trial motions including a Motion to Reduce Bond, Motion for Statements, Motion for Defendant's Prior Criminal Record, Motion for Reports of Examinations and Tests, Motion for Independent Examination of Evidence, Motion for Evidence of Other Crimes, Motion for Disclosure of Exculpatory Evidence, Motion to Suppress Evidence, Notice of Intent to Reserve the Right to File a Motion to Quash, Motion for Oyer of Confession, Motion for Production of Documents and Tangible Objects, Motion for a Bill of Particulars, and a Motion to Suppress Confession. [St.Rec. Vol. 4 of 4].
See, Court Minutes of November 30, 1992 [St.Rec. Vol. 3 of 4].
3. January 22, 1993 Motion to Transfer for Psychiatric Treatment and Emergency Hearing of January 25, 1993 .
On January 22, 1993, defense "counsel filed a Motion to Transfer Defendant for Psychiatric Treatment, and thereafter a formal Motion and Order to Appoint Sanity Commission. At a specially scheduled hearing on January 25, 1993, the Honorable Edward B. Dufreche, Division "E", took up the matter of the defense motion to transfer the defendant for psychiatric treatment.
See Motion to Transfer for Psychiatric Treatment, filed January 22, 1993 [St.Rec. Vol. 4 of 4]; Transcript of Notes of Evidence of January 25, 1993 Hearing, at 2 [St.Rec. Vol. 2 of 4].
Defense counsel Gary Jordan appeared at the January 25, 1993 hearing on behalf of Ron Macaluso, for the defendant, David Lambert, who was also present in court. At the outset, defense counsel noted that the hearing was precipitated by the defense motion to transfer the defendant for psychiatric treatment, which was premised on the fact that the defendant had threatened suicide to some deputies at the Tangipahoa Parish facility, and for that reason the hearing was scheduled as an emergency basis. Defense counsel further urged the court to grant the motion on an emergency basis on the basis of the coroner's, Dr. Cephalu's, cryptic note of 1/22/93 dashed out on a prescription form, which apparently urged defense counsel to attempt to get Lambert transferred to a facility where the defendant could get more medical treatment and personal help.
Id., at 1 and 3.
See Defendant's Motion to Transfer for Psychiatric Treatment, with attachment [St.Rec. Vol. 4 of 4]; and January 25, 1993 Transcript of Hearing/Notes of Evidence on Defendant's Motion to Transfer for Psychiatric Treatment, at 2-3 [St.Rec. Vol. 2 of 4]
The State, which opposed the motion to transfer, was represented at the January 25, 1993 hearing by William Quinn. He responded to the defense argument first pointing out to the court that the case was a first degree murder case, and that the motion to transfer addressed the mental capacity of the defendant to proceed. In this vein, the State highlighted the fact that defendant had not been examined at all by a doctor within the last 45 days, and that the coroner's note was apparently precipitated by information received either from defense counsel or the Sheriff's Office and not by personal observation. Counsel for the State further noted on the record that the defendant or his attorneys hired both a psychiatrist and a psychologist within a few days of his arrest in connection with his insanity defense and that the appropriate vehicle for interjecting the question of mental capacity to proceed was filing a petition for the appointment of a sanity commission for purposes of examining the defendant and making a recommendation to the Court. Whereupon defense counsel agreeing that such was appropriate, made an oral motion to appoint a sanity commission and promised a faxed formal motion in short order, and based upon what defense counsel characterized as the "dire/emergency situation here," requested that such sanity hearing be fixed for hearing the first Wednesday in February.
See January 25, 1993 Transcript of Hearing/Notes of Evidence on Defendant's Motion to Transfer, at 3-5 [St.Rec. Vol. 2 of 4].
Id., at 5-6.
Id., at 7-8.
The hearing on the motion to transfer then proceeded with defense counsel calling Deputy Randy Pinion, Warden of the Tangipahoa Parish Jail, to testify regarding the defendant's recent suicide threat. Warden Pinion so testified and that it was the standard operating procedure of the Sheriff's Office in such cases to put the inmate in isolation and under surveillance, that such has been accomplished with respect to the defendant Lambert who remained both under lock-down and under surveillance.
See January 25, 1993 Transcript of Hearing/Notes of Evidence on Defendant's Motion to Transfer for Psychiatric Treatment, at 10 [St.Rec. Vol. 2 of 4 or Vol. 3 of 4].
Id., at 10-11.
Warden Pinion's testimony at the January 25, 1993 hearing put the last nail in the coffin of the defense Motion to Transfer. He testified that the defendant was no longer a potential suicide risk considering the circumstances of his confinement. It had previously brought to the fore during the hearing that the defendant had retained both a psychiatrist and a psychologist at his disposal, having hired both within no more than a few days of his arrest in connection with his insanity defense. Thus, the court determined, in light of the fact that Lambert was under lockdown and surveillance, the risk of suicide was nil. The court noted that considering the circumstances of Lambert's confinement at that time, it could not be seriously argued that the defendant presented any real or potential threat to himself.
See January 25, 1993 Transcript of Hearing/Notes of Evidence on Defendant's Motion to Transfer for Psychiatric Treatment, at 13 [St.Rec. Vol. 2 of 4 or Vol. 3 of 4].
In summary, at the close of the January 25, 1993 hearing, it was clear on the record that there was no dire emergency situation still in existence to reckon with to all present, and any objection or argument to the opposite effect by defense counsel would have been both a vain and futile effort and frivolous "to boot." All that remained for the hearing court to decide then, was when to set the sanity hearing, and it was fixed for February 8, 1993 right in line with defense counsel's suggestion. 4. Competency Hearing of February 24, 1993 .
Id., at 5, 13, and 14.
On February 8, 1993, the defendant along with retained counsel and the State, through William Quinn, was present for the Sanity Hearing. After hearing the testimony of Dr. Herman D. Colomb, which was adduced by the State, Judge Kuhn, then assigned as the state trial court, called a bench conference. The bench conference consisted of Judge Kuhn informing counsel that he had previously heard a matter involving the custody dispute involving the defendant. Understandably, the substance of the bench conference precipitated a defense motion to recuse, which was granted, and the matter was reallotted to Section "C" and set for oral hearing on February 22, 1993. On February 22nd defendant's competency hearing was continued and reset for two days later — February 24, 1993.
See February 8, 1993 Minutes in Docket Number 65997 before the Honorable James E. Kuhn to which judge the matter had been allotted [St.Rec. Vol. 3 of 4]; and Transcript of Proceedings on February 8, 1993 before Judge Kuhn [St.Rec. Vol. 4 of 4].
Judge Kuhn advised counsel for the parties, that in connection with the custody dispute involving the defendant's son, the Court necessarily spoke with the child regarding his relationship with his father, David Lambert Sr., the defendant in the criminal case which was then before Judge Kuhn on a sanity hearing. Transcript of February 8 Proceedings before Judge Kuhn, at 2 [St.Rec. Vol. 4 of 4].
See February 8, 1993 Minutes in Docket Number 65997 before the Honorable James E. Kuhn [St.Rec. Vol. 3 of 4]; Transcript of the February 8, 1993 Hearing before Judge Kuhn, at 2 [St.Rec. Vol. 4 of 4].
On February 24, 1993, the matter of the defendant's capacity to proceed was heard by the Honorable Robert Morrison, Division C, of the Twenty-First Judicial District Court for the Parish of Tangipahoa, State of Louisiana. The evidence before the court included medical evaluations by Drs. Herman Colomb, James Denney and Vincent Cephalu, all three having been appointed by the court pursuant to a defense motion to serve on a Sanity Commission to evaluate the defendant. Also, all three members of the Sanity Commission testified at the defendant's February 24, 1993 Competency Hearing.
See Transcript of February 24, 1993 Competency Hearing heard by the Honorable Robert Morrison, at i-ii [Vol. 1 of 4]; Motion to Appoint Sanity Commission filed January 22, 1993; and Order Appointing Sanity Commission signed January 25, 1993 [St.Rec. Vol. 4 of 4].
Dr. Colomb, board certified in the fields of psychiatry and neurology, who had also previously been qualified as an expert in the field of psychiatry on about fifty to sixty prior occasions and also served as such an expert in about forty or fifty Sanity Commissions prior to the February 24, 1993 hearing in Lambert's case, opined that the defendant Lambert had the present capacity to comprehend the proceedings against him, as well as the ability to assist in his own defense. Dr. Colomb then read into the record his formal report to the Court prepared in connection with his examination of the defendant). In a nutshell, Dr. Colomb testified that it was his opinion that Lambert was only pretending to have amnesia since his symptoms did not fit the normal pattern. Dr. Colomb explained that his examination of the defendant revealed that the amnesia exhibited by the defendant was so inconsistent, varying from complete amnesia in some areas to total recall in others, which did not fit a normal amnesiac pattern. He testified that Lambert was simply pretending to be insane and to have amnesia. Specifically noting the defendant's clear confession tape recorded while in custody after his arrest, which Dr. Colomb had the opportunity to review, both the audio-tape version and the written transcription of the audio-recording, he testified that the defendant, a practicing member of the Baptist faith, was able to assist in his defense, did know the usual and probable consequences of his act, does know right from wrong, and is sane at this time.
See Transcript of February 24, 1993 Competency Hearing heard by the Honorable Robert Morrison, at 13 [St.Rec. Vol. 1 of 4].
Id., at 14-23.
Transcript of February 24, 1993 Competency Hearing heard by the Honorable Robert Morrison, at 23 [St.Rec. Vol. 1 of 4].
On cross-examination, Dr. Colomb testified regarding Dr. Gerald Weiner's p February 3, 1993 Psychological Evaluation which he had the opportunity to review prior to his hour-long examination of defendant. Dr. Colomb testified that it was his opinion that Dr. Weiner's psychological evaluation of the defendant, which was essentially that Lambert was only mildly depressed and malingering, was complete and no further testing was indicated. That Dr. Weiner administered only four, out of the usual battery of five tests, was of no consequence in Dr. Colomb's opinion. Dr. Colomb explained his opinion that Dr. Weiner's assessment of the defendant was accurate. In so doing, Dr. Colomb noted that the results of the battery of four tests which was completed ( i.e., the MMPI, the Rorschach, the TAT, and the WAIS) uniformly depicted an individual who was malingering or trying to fake mental illness.
See Dr. Gerald Wiener's February 3, 1993 Psychological Evaluation of David Eugene Lambert, Sr. [St.Rec. Vol. 2 of 4].
Transcript of February 24, 1993 Competency Hearing heard by the Honorable Robert Morrison, at 24 [St.Rec. Vol. 1 of 4].
See Transcript of February 24, 1993 Sanity Hearing heard by the Honorable Robert Morrison, at 25-26 [St.Rec. Vol. 1 of 4]
Id. As to the calculated I.Q. Score of 57 reported by Dr. Weiner, which would place the defendant in the "imbecile" category, Dr. Colomb testified that the score was a correct calculation, but that it was not a valid indicator and did not reflect the defendant's true intellectual abilities. Dr. Colomb explained, as did Weiner's evaluation, that Lambert's initial responses to the items of the intelligence test mimicked those of a Social Security claimant attempting to fake stupidity in order to obtain benefits. Dr. Weiner's February 3, 1993 evaluation supplied some examples Lambert's exaggeration which included his professing not to know the following: the colors of the American flag; what a flag was; how many months were in a year; how to define winter; and claiming to have never heard the word "winter." Lambert's showing on the Wide Range Reading Exam, a far-better performance, was not that of an individual with an I.Q. in the 50's range. Dr. Weiner observed that apparently, the defendant did not know how to be consistent. See, Dr. Weiner's February 3, 1993 Psychological Evaluation, at 3 [St.Rec. Vol. 2 of 4]. In addition to finding his responses on the Sentence Completion test were entirely evasive, Dr. Weiner further reported that as to the MMPI data, when interpreted by the computer, which only in a rare case agreed with his interpretation, in Lambert's case the computer read out was that the profile was invalid because the patient had checked off every item suggesting that psycho pathology exists, and as to other items, such were checked off in an inconsistent manner. In short, Dr. Weiner reported that it was clear that Lambert was exaggerating psycho pathology, and that the MMPI clearly picked that out. Dr. Weiner further observed that if Lambert's protocol were to be considered valid, this would be reflected in his results on the Rorschach inkblot test with bizarre or peculiar Rorschach perceptions. Lambert's Rorschach perceptions were neither bizarre, nor peculiar, and were rather all of good formal quality, his perceptions being of the kind made by most others, or he perceive nothing at all, which was considered an indication of his attempt to be guarded in order to feign illness. Id., at 4-5. Dr. Weiner concluded that Lambert's depression was not severe, if indeed it did exist at all, and that there was every indication that Lambert was faking both psycho pathology and intellectual impairment. Id., at 5.
Dr. Colomb testified that in his opinion Lambert exhibited purposeful selective amnesia and that there would be no useful purpose in further testing and evaluation of the patient. Based upon his independent evaluation of Lambert, bolstered by the psychological evaluation conducted by Dr. Weiner, Dr. Colomb opined that Lambert was pretending/malingering and further psychological testing or evaluation was unnecessary. Dr. James B. Denney, also qualified as an expert in the field of Psychiatry, testified that he had qualified as an expert in the field of Psychiatry well-over 200 times and served on well-over 200 Sanity Commissions. Dr. Denney, like Dr. Colomb, testified that his conclusions and opinions were formed independently as to the ultimate facts reported by Dr. Weiner. It was Dr. Denney's opinion that the defendant was competent to stand trial and he confected a formal 5-page report to the court in that vein, which was read into the record.
Transcript of February 24, 1993 Competency Hearing, at 26 [St.Rec. Vol. 1 of 4].
Id., at 33.
See Transcript of February 24, 1993 Competency Hearing, at 36 [St.Rec. Vol. 1 of 4].
Id., at 37-44.
Dr. Denney reported that Lambert endorsed a laundry list of depressive symptoms, indicated that he was having visual hallucinations of monkeys and snakes, as well as auditory hallucinations. Dr. Denney stressed, as a most important fact, that the hallucinations did not seem to distress Lambert or interfere with his ability to participate in his hour-long interview. Dr. Denney further observed that Lambert had good rapport but was purposefully evasive, his speech was within normal limits, his mood was mild to moderately depressed, his affect was flat — mildly peculiar — but not bizarre, and his judgment was adequate. As to orientation and intellect, Dr. Denney observed a lack of cooperation and specifically noted that Lambert's effort was suspect, explaining that Lambert could do simple math but could not identify the President of the United States or the Governor of Louisiana. The defendant professed understanding that first degree murder had something to do with killing someone and knowing that it is wrong to kill someone.
Id., at 40-41.
Id., at 41-42.
As did Drs. Weiner and Colomb, Dr. Denney noted that Lambert's effort was poor, if not suspect, when it came to answering questions regarding courtroom procedure. He concluded that there was an "obvious attempt on the patient's part to malinger the impression of not being competent." He commented that diagnostically, Lambert did present a challenge, and reiterated that Lambert presented more than high suspicion of malingering, noting that Lambert's ability to answer similes and to abstract in an adequate way, was indicative of a reasonable level of intellect ability.
See Transcript of February 24, 1993 Competency Hearing, at 43 [St.Rec. Vol. 1 of 4].
Dr. Denney explained on cross-examination that Lambert presented a challenge diagnostically because Lambert was trying to give a false impression and that Dr. Denney was quite sure of his impression that the patient was malingering. Id., at 49.
Dr. Denney ruled out Major Depression as a diagnosis and could not attribute Lambert's alleged memory loss to any head trauma in the past, since he reported no problem with his memory prior to the subject criminal charges being brought to bear. He opined that with minimal instruction Lambert could certainly understand courtroom procedure, he clearly understood the charges against him, and that he was capable of comprehending the finer points between first and second degree murder. Dr. Denney further reported that whatever psychological processes were going on in Lambert's head (i.e., alleged hallucinations and lack of memory), such did not interfere with the defendant's present ability to cooperate and assist counsel with his defense or to stand trial. Dr. Denney found it "absolutely noteworthy" that Lambert, who claimed to have visual and auditory hallucinations, had no indication whatsoever of loose association and/or bizarre thought or language content. Dr. Denney further noted that a complete report to the court would require his specific reference to the results of Dr. Weiner's Psychological Testing Results, showing that: (1) Lambert's MMPI results were an obvious bad fake; and (2) his Rorschach perceptions, which were devoid of any bizarre content, clearly contradicted any suggestion of either a psychotic process or major depression. Dr. Denney concluded with his professional opinion that Mr. Lambert was competent to stand trial.
Transcript of February 24, 1993 Competency Hearing, at 43-44 [St.Rec. Vol. 1 of 4].
Dr. Denney later explained that Lambert was feigning not to understand anything and that he really did not believe the defendant needed any more instruction on courtroom procedure. Id., at 50.
Id., at 48.
Dr. Denney succinctly explained that the type of hallucinations Lambert reported were inconsistent with his clinical presentation. Id.
See Transcript of February 24, 1993 Competency Hearing, at 44 [St.Rec. Vol. 1 of 4].
In answer to questions on cross-examination, Dr. Denney agreed with Dr. Colomb, that the fact that in the context of his Psychological Evaluation, one out of the usual battery of five tests was not taken by Lambert, was of no consequence in this patient's case. Dr. Denney testified that the tests performed by Dr. Weiner in this instance were a quite adequate predicate to an opinion as to Lambert's competency. Dr. Denney further testified on cross-examination that as to Lambert's ability to distinguish between first and second degree murder, his professional opinion was that Lambert was feigning not to know the difference and further instruction was unnecessary. Dr. Denney explained that Lambert was "unwilling to make any effort" and "tried to evade the subject" of the questions asked in connection courtroom procedure, and that "supports the view that he is malingering."
Id., at 45.
Id., at 46.
See Transcript of February 24, 1993 Competency Hearing, at 46-47 [St.Rec. Vol. 1 of 4].
Dr. Denney explained that no one, not even Dr. Weiner, felt that the Lambert's I.Q. score of 57 was true indicator of Lambert's real I.Q. Other indications discerned in Dr. Weiner's evaluation were to the contrary ( i.e., that Lambert's comprehension, judgment, and ability to abstract far exceeded an I.Q. score of 57). Dr. Denney further testified that no further testing was warranted in Lambert's case.
Id., at 47.
Id.
Dr. Vincent Cephalu, a family practitioner and the parish coroner, was then called to testify by the defense. Dr. Cephalu testified that he had participated with about 50 sanity commissions. The court allowed Dr. Cephalu to testify as an expert in the field of psychiatry, over the State's objection. Dr. Cephalu testified that he had seen Lambert on about 20 occasions since the day he was incarcerated. When questioned at the outset regarding the substance of his initial report to the court, Dr. Cephalu first words from the witness box were: "[I]n my opinion, he's malingering a lot." He explained that initially, he felt Lambert would have a difficult time assisting counsel because he would not make eye contact, would not discuss questions, and seemed incoherent. Dr. Cephalu invalidated his February 8, 1993 opinion and explained that in the last several weeks he had the occasion to observe Lambert in the cell, and that Lambert was completely different and not behaving the way he was when Dr. Cephalu initially spoke with him.
The State did not object to any testimony in his field of family practice, but did object to his being qualified as an expert in the field of psychiatry. Id., at 53.
See Dr. Vincent N. Cefalu's Report addressed to the Court, dated February 8, 1993 (St.Rec. Vol. 2 of 4].
See Transcript of February 24, 1993 Competency Hearing, at 54 [St.Rec. Vol. 1 of 4].
Id., at 54-55.
Id., at 55-56.
When asked by defense counsel if he believed further evaluation was indicated in the case of Lambert, Dr. Cephalu responded: "Again, I'm not a psychiatrist. But I really don't think it would do any good because I'm convinced he's malingering more than anything." The court then questioned Dr. Cephaiu regarding his modified opinion since the issuance of his report. Again, Dr. Cephalu explained that in the last few weeks he has had the opportunity to observe Lambert and he is completely different now ( i.e., answering questions asked by the people that are watching him). Dr. Cephalu's testimony was that he believed that his opinions expressed in his February 8, 1993 report to the court were no longer valid.
Id.
Id., at 57.
In summary the evidence before the Court as a result of the Competency Hearing was uniformly (i.e., 100%) to the effect that the Lambert was competent to stand trial and could assist counsel in the preparation of his defense. Two psychiatrists and one general practitioner expressed their opinion, that the defendant was "malingering" or faking mental illness/impairment. Dr. Cephalu invalidated his initial February 8, 1993 report to the court, so that the evidence adduced bearing on the defendant's sanity/competence to proceed was uniformly that he was competent to proceed, capable of assisting counsel in his own defense, and that no further psychiatric/psychological testing and/or evaluation was necessary.
It is not surprising then, that the State's argument to the court following the evidence presented at the hearing was that:
The evidence without impeachment has been universally and 100 percent to the effect that this defendant does have the present mental capacity to proceed, [and] can assist counsel. In each instance the doctors have testified he is a malingerer.
Now, that being the case . . . the evidence establishes by clear and convincing evidence that the defendant does have the mental capacity to proceed.
This matter, your Honor, we ask the Court to make a determination that this defendant does have the capacity to understand the proceedings, can assist counsel. And let's get this matter moving on to its next stage. . . .
It is noteworthy that the Article 648 A of the Louisiana Code of Criminal Procedure then provided in pertinent part that unless the court determines by clear and convincing evidence that the defendant does not have the mental capacity to proceed, the criminal prosecution shall be resumed. This standard, which presumed a defendant to be competent to stand trial, unless he proves his incompetence by clear and convincing evidence, was declared unconstitutional by the Supreme Court in Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) The Oklahoma Court held that such a standard allows a defendant to be put to trial even in a case where it is more likely than not that the defendant is incompetent, and thus, it violates due process fundamental right to be tried only while competent, which outweighs the state's interest in efficient operation of its criminal justice system. Later, in State v. Frank, 679 So.2d 1365 (La. 1996), the Louisiana Supreme Court recognized that Art. 648 A violates the Due Process Clause to the extent that it requires the defendant in a criminal prosecution to prove his incapacity to proceed only by a clear preponderance of the evidence.
Transcript of the February 24, 1993 Competency Hearing, at 60 [St.Rec. Vol. 1 of 4] (emphasis added).
Defense counsel made a Herculean effort to counter the State's argument in summation at the close of the hearing that the evidence was 100% that Lambert was competent to proceed. Defense counsel argued that: (1) Dr. Weiner calculated Lambert's I.Q. at 57; (2) the reports of both psychiatrists, Drs. Denney and Colomb, establish that Lambert cannot remember facts; and (3) that more psychological testing and psychiatric evaluation was indicated in Lambert's case.
The testimony and evidence before the state court, all of which was reiterated above, was uniformly to the effect that the defendant did not cooperate and showed poor effort or none at all upon psychological testing by Dr. Weiner and during his psychiatric interviews. Evidence that the defendant grossly exaggerated his mental incompetence on the Wechsler was ummpeached. The evidence was also uniformly that Lambert was fully intelligible at all times, was licensed by the state as a commercial truck driver, operated a truck, held down a job, supported his family, and that his language development far-exceeded the level of mental retardation. Both psychiatrists and even Dr. Weiner, who administered the battery of tests, professed the invalidity of Lambert's I.Q. Score of 57. The evidence that Lambert's intellectual abilities far-exceeded that score and that he was malingering was uncontroverted. Dr. Cephalu, who had seen Lambert on approximately 20 occasions, agreed that what he observed upon his first visits with the defendant was the result of malingering, and the behavior he observed during the last few weeks leading up to the hearing confirmed that in his opinion the defendant was malingering. Distilled to its essence the uncontroverted evidence was that Lambert portrayed to clinicians what he felt would be assessed as a psychiatric illness, however, his conduct bore no resemblance to any such illness and was rather the kind usually observed in individuals who are malingering and trying to pretend to be mentally ill or psychologically impaired, when they are not.
The evidence was uniformly that the defendant was purposefully selective in his ability to remember and that he pretended to have amnesia to avoid a finding of competence. In addition to the testimony of the various members of the Sanity Commission in this vein, there was also the tape-recorded confession of the defendant made after the incident in question, which the witnesses referred to, which confession by the defendant recounted every move he made the day of the double homicide, complete with his accurate/vivid recollection of where along his route out of town he pitched the .38 caliber murder weapon and the fact that en route to the Tangipahoa Parish Jail he led his arresting officers back to that precise location where the officers in fact retrieved the murder weapon. This tape-recorded confession of the defendant, as well as its written transcription, was considered by the members of the Sanity Commission in connection with their evaluations of the defendant's competency.
Both psychiatrist's on the Sanity Commission testified that no further testing or evaluation was indicated in Lambert's case and such would serve no useful purpose. Dr. Cephalu, who had seen the defendant on some 20 occasions between the time of his arrest and the competency hearing, agreed that no further testing was warranted in Lambert's case.
The court ruled: "Based on the testimony of the witnesses, the Court finds the defendant does have the capacity to proceed." The state court did not specifically refer to any particular standard of proof applicable to the defendant ( i.e., whether proof of incompetence by clear and convincing evidence or proof of such by a simple preponderance of the evidence). Whereas in Lambert's case the testimony/evidence presented at the hearing was uncontrovertedly and unammously that the he was competent to stand trial and assist in the preparation of his defense, reference to standard which evidence of incompetence must approximate was unnecessary. There was no evidence of incompetence or mental impairment adduced at the hearing.
See Transcript of Competency Hearing of February 24, 1993, at 65 [St.Rec. Vol. 1 of 4].
In an order filed June 27, 1997, denying petitioner's application for post-conviction relief premised on the applicability of the Supreme Court's decision in Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1990, the state habeas court, Judge Morrison, the same judge that presided over Lambert's February 24, 1993 competency hearing, explained that his ruling finding the defendant competent to proceed was "[b]ased upon the unammous testimony of the two psychiatrists and the parish coroner at that proceeding. . . ." Judge Morrison further observed that:
Defendant's contention, both before the state habeas court and this court, was that the state court erred in using a constitutionally deficient standard of proof in adjudicating him competent to stand trial. In this vein, Lambert argued that his conviction should be reversed based on the Supreme Court's holding in Oklahoma, supra, which clearly proscribed the standard set forth in Section A of Article 648 of the Louisiana Code of Criminal Procedure, which then provided that tne defendant's burden of proof of mental incapacity to proceed was by clear and convincing evidence.
See Judge Morrison's Order filed June 27, 1997 denying post-conviction relief, in docket no. 65997 "C", at unnumbered page 3 [St.Rec. Vol. 1 of 4].
[I]t is obvious to the Court that the Defendant did not prove incapacity by either clear and convincing proof or by a preponderance of the evidence. In fact, there was virtually no evidence presented that the Defendant did not have the capacity to proceed .5. Other Pretrial Motions and Proceedings .
See Judge Morrison's Order filed June 27, 1995 denying post-conviction relief, in docket no. 65997 "C", at unnumbered page 3 (emphasis supplied) [St.Rec. Vol. 1 of 4].
Motions were set for hearing on March 29, 1993. On that date the state trial court took up certain pretrial motions and ordered that the State furnish a transcript of the taped statement of the defendant along with the initial offense report, that the State disclose charges filed against the defendant or furnish a rap sheet, and that defense counsel be allowed the opportunity to make copies of negatives of photographs taken by and in the custody of the TPSO. The Court reset the defense motion to suppress statements and motion to quash based on the allotment system and the formation of the Grand Jury for May 5, 1993. Thereafter, the matters were continued and reset for September 9, 1993.
State Court Minutes in docket number 65997 dated February 24, 1993 [St.Rec. Vol. 3 of 4].
State Court Minutes in docket number 65997 dated March 29, 1993 [St.Rec. Vol. 3 of 4].
See State Court Minutes in docket number 65997 dated May 5, 1993, June 14, 1993, and July 12, 1993. [St.Rec. Vol. 3 of 4].
Pursuant to a defense motion to continue and over the objection of the State, the motions were continued and the court ordered a special hearing date set in the matter for December 3, 1993. On that day the remainder of the defense motions were taken up and the court ordered that the State provide to defense counsel an inventory of the truck, a written list of the various physical evidence, the autopsy report of Dr. Cephalu, a copy of the tape recording statement, the bahistics report and certain rights sheets. The statements made by the State during the hearing were taken by the court as formal responses to discovery. The Motion to Quash and Motions to Suppress were deemed submitted, counsel were permitted to file briefs with respect thereto, and trial was set for the week of July 25, 1994.
See State Court Minutes in docket number 65997 dated September 20, 1993 [St.Rec. Vol. 3 of 4].
See State Court Minutes in docket number 65997 dated December 3, 1993 [St.Rec. Vol. 3 of 4]; Transcript of Motions Heard in Docket Number 65997 on December 3, 1993 [St.Rec. Vol. 2 of 4].
On June 2, 1994, the court filed its written Reasons for Judgment denying the defendant's consolidated Motions to Suppress, finding that the officers had probable cause to stop and initially detain the defendant and that the statements made by the defendant immediately thereafter were unsolicited by the officer. The court's June 2, 1994 written reasons further denied the defendant's Motion to Quash, finding that the allotment system was fair and that based on the evidence it would have been impossible for the State to pick the judge to sit on this particular case.
See State Trial Court's June 2, 1994 Reasons for Judgment [St.Rec. Vol. 3 of 4].
On June 16, 1994, defense counsel filed a Motion to Adopt Subpoenas of State Witnesses and a Notice of Objection to the trial court's adverse ruling on previously filed Motions to Quash and to Suppress Confessions/Statements. [St.Rec. Vol. 3 of 4].
6. June 23, 1994 Re-Arraignment and Sentencing .
See June 23, 1994 Transcript of Plea/Sentencing in docket number 65997 [St.Rec. Vol. 3 of 4].
On June 23, 1994, the Lambert pled guilty to both first degree murder counts set forth in the indictment pursuant to a plea agreement with the State that it would not seek the death penalty in his case, in exchange for his guilty pleas. The defendant waived all delays and was sentenced immediately thereafter in the context of the same hearing to life imprisonment on each of the two counts, to be served concurrently, without the benefit of parole, probation or suspension of sentence. 7. Applications for Post-Conviction Relief .
See June 23, 1994 Transcript of Plea/Sentencing in docket number 65, 997 [St.Rec. Vol. 3 of 4].
On November 28, 1994, the defendant filed a Motion for Production of Documents, pro se, with the state trial court, requesting a copy of his guilty plea and sentencing transcript for the purpose of initiating an application for post-conviction relief. [St.Rec. Vol. 3 of 4]. The state court judge ordered transcription of the guilty plea and sentencing in case number 65997 and that upon completion such be provided to the defendant, David Lambert, without cost.
On April 19, 1995, the defendant filed his first application for post-conviction relief making the following assignments of error: (1) that the Sanity Commission was tainted and defendant's competency to assist counsel was not established; (2) ineffective assistance of counsel in connection with his representation at the sanity hearing; (3) his guilty plea was coerced; and (4) ineffective assistance of counsel in failing to pursue his Motion for Transfer for Psychiatric treatment and connection with his plea.
See Petitioner's Initial Application for Post-Conviction Relief filed in the Twenty-First Judicial District Court for the Parish of Tangipahoa, under Docket No. 65997 "C" [St.Rec. Vol. 1 of 4].
On April 27, 1995, Judge Morrison denied Lambert's first application for post-conviction relief finding his contentions not supported by the record and incorrect. Judge Morrison noted that the defendant was at all pertinent times represented by retained counsel, who thoroughly cross-examined the witnesses at the February 24, 1993 competency hearing in his case. Judge Morrison, the state habeas court, further pointed out that defense counsel did in fact object at the outset of the competency hearing to any reference to the February 3, 1993 report of the examining psychologist, Dr. Weiner, who was not present at the hearing or subject to the defendant's cross-examination. The court further pointed out that the doctors who testified at the hearing indicated that their evaluation and opinion was made independently of the findings of Dr. Weiner's February 3rd, 1993 Psychological Evaluation of the defendant.
See, April 27, 1995 Order denying Lambert's first state court application for post-conviction relief [St.Rec. Vol. 1 of 4].
Judge Morrison further found the defendant's guilty pleas were made knowingly, willingly, and with full knowledge of the consequences of his pleas upon rejecting the defendant's contentions that his pleas were the result of coercion. The transcript of the defendant's plea/ Boykin hearing belied the defendant's contention regarding his pleas.
Finally, as to Lambert's allegations of ineffective assistance of counsel, Judge Morrison noted the record indicates the opposite, both as to the quality of his representation at the competency hearing and the quality result achieved — that is, life imprisonment, in a case where there was a potential death penalty sentence in the cards. The state habeas court noted that there was no foundation for petitioner's argument in connection with his claim of ineffective assistance.
See April 27, 1995 Order entered in Docket No. 65997 "C" of the 21st Judicial District Court for the Parish of Tangipahoa [St.Rec. Vol. 1 of 4].
This Court observes that a thorough review of the record reveals that Lambert's retained counsel filed every conceivable pretrial motion in existence which was even arguably applicable to the defendant's case, pressed for evidentiary hearing on each such motion, and for an emergency hearing if indicated. Counsel was present at every hearing, made appropriate objections, oral motions when appropriate, thoroughly cross-examined the witness, and made every non-frivolous argument which was pertinent.
Petitioner's second application for post-conviction relief, filed in the state district court on June 12, 1997, was premised on the Supreme Court's decision in Cooper v. Oklahoma, supra. On his second application to the state habeas court, Lambert argued that his conviction should be reversed since the court used an unconstitutional standard in adjudicating his competency (i.e., the clear and convincing standard set forth in Louisiana Code of Criminal Procedure Article 648 A. Lambert also reurged ineffective assistance in a number of particulars, with the additional allegation that defense counsel's failure to object to the constitutionally deficient standard prescribed by Louisiana Code of Criminal Procedure Article 648 A constituted a denial of his Sixth Amendment rights. Via Order filed June 27, 1997, Judge Morrison denied Lambert's second application without the necessity of an evidentiary hearing, specifically noting that a thorough review of the evidence presented at the competency hearing indicated that "[i]n fact, there was virtually no evidence presented that the Defendant did not have the mental capacity to proceed." Judge Morrison further observed that: "it is obvious to the Court that the Defendant did not prove incapacity" and that regardless of the standard which the defendant invokes, whether clear and convincing or the preponderance standard, the ummpeached evidence of competency to proceed permitted only one conclusion, a finding of competence in his case.
See Petitioner's June 12, 1997 Application for PostConviction Relief [St.Rec. Vol. 1 of 4].
See June 27, 1997 Order entered in Docket No. 65997 "C" of the 21st Judicial District Court for the Parish of Tangipahoa [St.Rec. Vol. 1 of 4].
Id.
After a Motion for Reconsideration filed June 28, 1997, the defendant filed his Application for Post-Conviction Relief from the Judgment of Conviction by Judge Morrison with the First Circuit Court of Appeal for the State of Louisiana, arguing that the trial court used a constitutionally deficient standard in adjudicating his competence, and denial of effective assistance of counsel in failing to object to the unconstitutional standard utilized by the Court which omission resulted in his conviction while he was incompetent to proceed. [St.Rec. Vol. 1 of 4].
On September 18, 1997, the First Circuit Court of Appeals denied Lambert's application. Lambert's application to the Louisiana Supreme Court was subsequently denied on December 11, 1998.
See September 18, 1997 Louisiana First Circuit Court of Appeal, Writ Denial, in matter numbered 97 KW 178, entitled "State of Louisiana, ex rel. David Lambert" [St.Rec. Vol 1 of 4].
See December 11, 1998 Louisiana Supreme Court, Writ Denial, in matter numbered 98 KH 2108, entitled "State of Louisiana, ex rel. David Lambert" [St.Rec. Vol 1 of 4].
In his federal application for federal habeas relief now pending decision, petitioner makes two claims: (1) trial court error in using a constitutionally deficient standard to adjudicate him competent to stand trial; and (2) ineffective assistance in that defense counsel failed to object to such unconstitutional standard. In summary, Lambert argues that as a result of such ineffective assistance he stands convicted, when the proceedings should have come to a halt on February 24, 1993 because of his alleged incapacity.
A review of petitioner's state applications for habeas relief and for writs of certiorari show that his claims were presented to the Louisiana Supreme Court. The State does not contest that petitioner has exhausted his claims in the Louisiana Supreme Court. Lambert's claims are properly before this Court. See Rose v. Lundy, 455 U.S. 509 (1982).
Petitioner's convictions and sentences became final on December 11, 1998, when his writ to the Louisiana Supreme Court was denied. See State ex rel. Lambert v. State, 729 So.2d 589 (La. 1998); La. C.Cr.P. article 922. Petitioner had one year to file his federal petition. Review of the record shows that petitioner has timely filed this federal petition for post-conviction relief on April 15, 1999, in accordance with Title 28, United States Code, Section 2244(d) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), P.L. 104-132, 110 Stat. 1220.
Minute Entry Order, entered November 17, 2000 [Fed.Rec.Doc. No. 9] which is dispositive of the time-bar issue raised in the State's initial response and Lambert's Traverse. This Court adopts and incorporates herein by reference the aforesaid November 17, 2000 minute entry order, holding that Lambert's federal application was timely filed.
ANALYSIS OF LAMBERT'S CLAIMS
A. AEDPA STANDARDS.
The United States Fifth Circuit Court of Appeals addressed the AEDPA's standard of review for issuing habeas relief in state court cases in Knox v. Johnson, 224 F.3d 470, 475 (5th Cir. 2000), as follows:
Under the AEDPA, we may not issue a writ of habeas corpus with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the State court's highest adjudication of the claim resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court . . .; or 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). As the Supreme Court has recently explained, a decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached [by the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We may issue a writ based on the State Court's unreasonable application of Federal law only "if the state court identifies the correct governing legal principal . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. We presume state court factual findings to be correct and will defer to these findings "unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (quoting 28 U.S.C. § 2254 (d)(2)).B. LAMBERT'S COMPETENCY TO STAND TRIAL.
The court of conviction/state habeas court in this case made the following explicit findings of fact and conclusions of law regarding Lambert's competence to stand trial only after appointing a Sanity Commission and conducting a full-blown hearing with respect to the defendant's competency to stand trial, to wit: (1) "Based on the unammous testimony of the two psychiatrists and the parish coroner [at the February 24, 1993 competency hearing], it is obvious to the Court that Defendant did not prove incapacity by either clear and convincing or by a preponderance of the evidence;" (2) "In fact, there was virtually no evidence presented that the Defendant did not have the mental capacity to proceed;" and (3) "Based on the testimony of witnesses, the Court finds the defendant does have the capacity to proceed."
See June 27, 1997 Order entered in Docket No. 65997 "C" of the 21st Judicial District Court for the Parish of Tangipahoa, at unnumbered page 3 (denying Lambert's application for postconviction relief on merits and specifically finding his challenge on the basis of the holding of Cooper v. Oklahoma was without merit specifically finding that there was virtually no evidence suggesting incompetence adduced at the competency hearing and that the unammous testimony/evidence was that the defendant was competent to proceed, and such a complete failure of proof on the issue of incompetence failed to meet both the preponderance of the evidence and the clear and convincing standard) [St.Rec. Vol. 1 of 4].
Id.
Transcript of Competency Hearing of February 24, 1993, at 65 [St.Rec. Vol. 1 of 4].
It is quite apparent from the record that there was an "adjudication on the merits" by the state habeas court on this exhausted and timely claim. Both of the state habeas court's orders denying post-conviction relief (i.e., Judge Morrison's April 27, 1995 Order and the June 27, 1995 Order) specifically addressed the merits of the issues raised by petitioner, including his ineffective assistance claims. Indeed, there is nothing in the case history, and also, nothing in the opinions issued by the state habeas court ( i.e., in this case the court of conviction), which suggested that the grounds for denying the defendant's state court applications for post-conviction relief were anything other than the merits presented.
The fact that both the Louisiana First Circuit and the Louisiana Supreme Court simply denied petitioner's writ applications, without assigning any reasons therefor, is of no moment. This is not one of those cases involving a silent or ambiguous state habeas decision. In its Orders filed April 27, 1995 and June 27, 1997, the state habeas court/court of conviction specifically addressed the merits of both Lambert's claims: (1) alleged trial court error for utilizing an unconstitutional standard to determine competency to stand trial; and (2) ineffective assistance finding that petitioner's allegations were without foundation. Transcripts of all pertinent proceedings [i.e., the Transcripts of the January 25, 1993 Emergency Hearing on Defendant's Motion to Transfer for Psychiatric Evaluation, the February 24, 1993 Competency Hearing, and the June 23, 1994 Plea and Sentencing) were available and utilized by the state habeas court, and in light of the complete record there was no need for an evidentiary hearing.
This Court therefore applies the AEDPA's deferential standard of review, which precludes the grant of Lambert's habeas petition unless the state court's adjudication either: (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 in light of evidence presented in the State court proceeding. 28 U.S.C. § 2254 (d). As previously mentioned, state court factual determinations are accorded the presumption of correctness, unless rebutted by "clear and convincing evidence." 28 U.S.C. § 2254 (e)(1). Also, it is worthy of reiteration that as to state court factual determinations, the AEDPA prohibits the grant of relief unless the state court's factual determination is plainly unreasonable in the light of the evidence submitted to the state habeas court. 28 U.S.C. § 2254 (d) (2); Moore v. Johnson,
194 F.3d 586, 603 (5th Cir. 1999); Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996).
As previously mentioned, Lambert's first claim is that in adjudicating him competent to stand trial, the trial court erred by applying the wrong standard (i.e., requiring proof of incompetency by clear and convincing evidence). "'It is well-settled that Due Process prohibits prosecution of a defendant who is not competent to stand trial.'"
The constitutional standard 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 — and whether he has a rational as well as factual understanding of the proceedings against him."Carter v. Johnson, 131 F.3d 452, 459 (5th Cir. 1997) ( quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)); see also Moody v. Johnson, 139 F.3d at 481.
See Moody v. Johnson, 139 F.3d 477 (5th Cir.), cert. denied, 525 U.S. 940, 119 S.Ct. 359, 142 L.Ed.2d 297 (1998) ( citing Washington v. Johnson, 90 F.3d 945, 949-50 (5th Cir. 1996) and Cooper v. Oklahoma, 116 S.Ct. 1373 (1996)).
"The right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination." Cooper v. Oklahoma, 116 S.Ct. at 1377 n. 4 ( citing Pate v. Robinson,
383 U.S. 375, 384, 86 S.Ct. 836 (1966)).
All of that having been said, however, there is no case law generated by either the Supreme Court or the Fifth Circuit that requires a federal habeas court to conduct a de novo review of the state court's determination of competency to proceed. See Moody v. Johnson, 139 F.3d at 481 ( citing Carter v. Johnson, 131 F.3d at 460 (habeas petitioner is entitled to federal evidentiary hearing only by offering clear and convincing evidence of a threshold doubt of competency)). Also, a presumption of correctness applies in this particular case because the state trial judge appointed a Sanity Commission and thereafter, conducted a hearing and pursuant thereto, adjudicated the defendant competent to proceed, and denied defendant's application on the merits with written reasons therefor.
In the instant case during the January 25, 1993 emergency hearing on defendant's Motion to Transfer for Psychiatric Treatment, defense counsel made an oral motion to appoint a sanity commission and also filed a formal motion to the same effect. A hearing was set to determine competency. The competency hearing went forward on February 24, 1993, with both of the psychiatrists and the parish coroner (i.e., all appointees to the Sanity Commission) testifying that the defendant was a malingerer/"a bad fake", and that the defendant was competent to stand trial and capable of understanding the proceedings and charges against him. According to the testimony, the defendant's ability to remember and rational understanding of the facts was demonstrated by his audio-taped confession. According to all witnesses, Lambert was also capable of assisting counsel in the preparation of his defense. There was no evidence presented to the contrary.
Each of three experts testified at the hearing that they independently came to the conclusion that the defendant could comprehend the charges against him, was capable of understanding the proceedings against him, and was also capable of cooperating with and assisting counsel in his own defense. All were subjected to vigorous cross-examination by defense counsel on every facet of their opinion and report. However, the expert witnesses did not waiver under cross-examination, and their testimony as to the medical facts and their opinions as medical experts remained ummpeached.
This Court previously detailed at some length the evidence adduced at the February 24, 1993 competency hearing herein above at Section 4, pages 9 through 24. It will not be repeated. This Court observes that the State's characterization of the evidence adduced at the defendant's competency evidence as being uniformly that the defendant was competent to proceed and that such evidence was ummpeached cannot seriously be disputed.
Under the precise circumstances of this case, regardless of the standard deployed, a determination of competency would necessarily issue. The utter absence of proof registers no positive weight on any of the scales of justice. The complete failure of proof eviscerated any argument that the standard used to measure it was somehow an issue that warranted address. Clearly any challenge by defense counsel along those lines would have resulted in a hollow victory, if any, and the state habeas court basically said so, to wit: "[I]t is obvious to the Court that Defendant did not prove incapacity by either clear and convincing evidence or by a preponderance of the evidence." That factual finding by the state habeas court followed its observation that there was no evidence of incapacity presented at the hearing.
See June 27th, 1995 Order denying habeas relief, at unnumbered page 3 [St.Rec. Vol. 1 of 4].
Under the circumstances, Lambert has not demonstrated that the that the state court committed error. The Fifth Circuit observed in Reese v. Wainwright, 600 F.2d 1085, 1093 (5th Cir. 1979):
"[O]ne cannot fault a trial judge for failing to determine a question that he has no reason to believe is an issue."Id. ( quoting Davis v. Alabama, 545 F.2d 460, 464 (5th Cir.), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).
Habeas petitioners claiming incompetency bear a "'threshold burden of proof which must be satisfied before the habeas court has a duty to investigate the constitutional challenge further.'" Washington v. Johnson, 90 F.3d 945, 950 (5th Cir. 1996) (citations omitted). This threshold burden was described by the Fifth Circuit as follows:
This requires a showing that facts are "sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during trial."Id. (citations omitted. Petitioner's threshold burden is to create doubt warranting further examination in a habeas proceeding (i.e., petitioner must present enough probative evidence to raise a substantial doubt as to his competency at the time of trial). See Moody v. Johnson, 139 F.3d at 481. He then must prove that incompetency by a preponderance of the evidence. Id.
In the case of Cooper v. Oklahoma 116 S.Ct. 1373 (1996), the Supreme held unconstitutional an Oklahoma statute requiring a criminal defendant to prove his competency by clear and convincing evidence. Lambert contends that the-Supreme Court's decision in Cooper v. Oklahoma, supra, requires reversal of his conviction because the state trial court imposed a heightened burden of proof (i.e., clear and convincing evidence of incompetence) which was then prescribed by Louisiana's Code of Criminal Procedure Article 648 A and in effect at the time of his hearing.
As discussed above, the state habeas court made it clear that no heightened standard was required of petitioner. There was no evidence of incompetency, the evidence was uniformly to the opposite effect, and the state habeas court said so. Therefore, Cooper v. Oklahoma, supra, is inapplicable.
Whether a petitioner suffers from a mental disorder or incapacitating mental illness is a question of fact entitled to the presumption of correctness and reviewed under the clearly erroneous standard. Washington v. Johnson, 90 F.3d at 951. A competency determination is also a factual finding entitled to the presumption of correctness. Carter v. Johnson, 110 F.3d 1098, 1106 (5th Cir. 1997).
The mere fact that the state court resolves a habeas, and dismisses on the basis of the record without conducting an evidentiary hearing, does not disturb the presumption of correctness under § 2254(e)(1). The Fifth Circuit has consistently recognized "that a state court need not hold an evidentiary hearing to be entitled to the presumption of correctness; to the contrary, findings of fact based exclusively on affidavits are generally sufficient to warrant the presumption." See Carter v. Johnson, 110 F.3d at 1107 n. 11.
The state habeas court/trial court, after having conducted a thorough review of the proceedings, denied relief on the basis of the record of the proceedings, which admitted only a finding of competence. Addressing the merits of Lambert's claim of error, the state habeas court held that there was no evidence of incompetency adduced. Both the Louisiana First Circuit and the Louisiana Supreme Court denied writs.
The state habeas court's ruling constitutes a finding of a complete and utter absence of proof of incompetency. A state court's finding against a habeas petitioner is not deprived of the presumption of correctness simply because the petitioner does not agree with it.
In the case at bar, the state court's finding of competency remains unassailed to date. Lambert has offered no evidence to rebut the facts upon which the state court based its finding of competence. Moreover, the transcript of the defendant's June 23, 1994 guilty pleas and sentencing in this case evidences a performance by the defendant which serves only to buttress the state court's earlier February 24, 1993 determination that Lambert was competent to proceed.
Even if Lambert had submitted some evidence of incompetence after the fact of his plea/conviction, and he has not, any such evidence of the post-conviction incapacity could not be parlayed by this Court into evidence that the defendant was somehow dysfunctional prior to his conviction, and thus, lacking a rational and factual understanding of the proceedings against him. See Profitt v. Waldron, 831 F.2d 1245, 1250 (5th Cir. 1987); and Reese, 600 F.2d at 1093.
The defendant's June 23, 1994 Plea/Sentencing Transcript belies his present contention that he was incompetent at the time of and/or prior to the time of his conviction. Petitioner does not argue, and the state court record does not admit, that anything occurred or was brought to the state court's attention between the time of Lambert's initial competency determination and the time of his June 23, 1994 pleas, which should have raised a reasonable doubt in the state court's mind as to the defendant's competency.
See June 23, 1994 plea/Sentencing Transcript, pp. 1-36 [St.Rec. Vol. 3 of 4].
To the contrary, the transcript of the lengthy and thorough June 23, 1994 boykinization proceeding shows that the state habeas court expressly discerned at that time, that Lambert possessed a rational and factual understanding of the proceedings against him. The state habeas court's inquiry at the time of his conviction pursuant to his pleas of guilty resulted in its finding that the defendant's pleas were being made knowingly, willingly and with full knowledge of the consequences of his pleas. "Such a conclusion by a state court, based upon a defendant's testimony, is entitled to a presumption of correctness." See Carter v. Johnson, 110 F.3d at 1107.
See Transcript of June 23, 1994 Plea and Sentencing, at pp. 1-32 [St.Rec. Vol. 3 of 4].
See April 27, 1995 Order denying petitioner's first application for habeas relief and rejecting Lambert's contention that his guilty pleas were coerced [St.Rec. Vol 1 of 4]; and Transcript of June 23, 1994 Plea and Sentencing, at pp. 1-36 [St.Rec. Vol. 3 of 4].
Lambert has not offered any evidence even at this writing to rebut the state court's findings of fact. He has failed to persuade this Court that he is entitled to any relief based on incompetency. Lambert's first assignment of error regarding an alleged constitutionally deficient standard utilized in adjudicating his competency is wholly without merit for all of the reasons discussed above.
C. ALLEGED INEFFECTIVE ASSISTANCE OF RETAINED COUNSEL.
Lambert avers that his retained counsel was ineffective because he failed to object to the unconstitutional standard allegedly used to adjudicate his competency. However, and as previously discussed, the state habeas court found that there was virtually no evidence that petitioner was incompetent, and that the evidence of his competency was ummpeached. The state habeas court specifically held that Lambert was competent to proceed whether adjudicated under the clear and convincing or the preponderance of the evidence standard, and that was so because of the utter absence of proof which suggested that he was operating under any mental incapacity.
Again, these findings (i.e., factual determinations of the state habeas court) are entitled to the presumption of correctness, and Lambert has not introduced the requisite clear and convincing evidence to prove that such findings are erroneous. Therefore, because the factual determination that Lambert was competent to stand trial is conclusive and binding on this Court, it necessarily follows that retained trial counsel was not constitutionally ineffective in his failure to object at the competency hearing regarding the applicable standard applicable or to further contest the competency of the defendant to stand trial.
As previously mentioned, in light of the complete failure of proof of incompetence, the issue of what standard applied to the defendant's proof of same, never came to the fore. It was a nonissue because there was no proof of incompetence to measure/weigh. It would be difficult to find error, and well-nigh impossible to discern prejudice, in a case such this, where the complete absence of proof of incompetency obviated any issue as to standard or measure of such proof.
At this juncture, the Court observes that defense counsel was not required to make any frivolous argument or to raise an objection regarding a constitutionally deficient standard embodied in Louisiana's Code of Criminal procedure Article 648 A. Drawing the distinction between a constitutionally adequate and a constitutionally deficient standard by which to measure nonexistent evidence could not have conceivably made any dLfference in the outcome. As previously stated, whether the preponderance of the evidence or the clear and convincing standard was applied, the defendant had failed to carry his burden.
Further considering the totality of the circumstances, and this Court must do so, it cannot be overlooked that the state court judge did not mention any standard at the time he dictated his finding of competency into the record. There was no apparent error warranting a defensive objection.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two prong test for evaluating claims of ineffective assistance of counsel. A petitioner seeking relief must demonstrate: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the petitioner. If the Court finds that the petitioner has made an insufficient showing as to either one of the two prongs of inquiry, it may dispose of the claims without addressing the other prong.
White v. Johnson, 153 F.3d 197, 208 (5th Cir. 1998) (citing Strickland, 466 U.S. at 697).
Pratt v. Cain, 142 F.3d 226, 231-33 (5th Cir. 1998) (citing Strickland, 466 U.S. at 697).
In deciding whether a counsel's performance was ineffective, a court must consider the totality of the circumstances. Strickland, 466 U.S. at 690. In any event, the petitioner must identify actual ineffectiveness, either through specific errors or omissions of counsel, and may not rely on the surrounding circumstances in order to prove ineffective assistance.
United States v. Cronic, 466 U.S. 648, 665, 104 S.Ct. 2039, 2050, 801 L.Ed.2d 657 (1984).
Under the performance prong of Strickland, it is necessary to judge counsel's challenged conduct on the facts of a particular case, viewed as of the time of counsel's conduct. An attorney's performance generally carries with it a strong presumption of adequacy and is only deficient if it is "objectively unreasonable." An analysis of counsel's performance must take into account the reasonableness of counsel's actions in the light of all the circumstances.
Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 108 (1993) (citing Strickland, 466 U.S. at 690).
United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1996).
Strickland, 466 U.S. at 688-89.
The burden of proof lies with the petitioner, and the petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable professional assistance. Counsel's performance cannot be deemed deficient for failing to press a frivolous point. Also, for the reasons discussed above in detail, the petitioner cannot show the requisite deficient conduct or prejudice required by Strickland. Petitioner fails to show that the state court's determination that there was no ineffective assistance, a mixed question of fact and law, was the result of an unreasonable application of Supreme Court law. In any event, Lambert's argument is insufficient to overcome the strong presumption of competency and the high burden of actual prejudice required to prove ineffective assistance of counsel. Indeed, given that the evidence of incompetency was nil, there can be no arguable deficiency in counsel's failure to object regarding the applicability of any standard, when there is nothing to measure.
Punch v. State, 1999 WL 562729 (E.D. La. July 29, 1999) (citing Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986)).
Sones v. Hargett, 61 F.3d 410 (5th Cir. 1995) (citing Koch v. Puckett, 907 F.2d 524 (5th Cir. 1990)).
Knox, 224 F.3d at 475.
CONCLUSION
Accordingly, and for all of the above and foregoing reasons and based upon this Court's review of state court record, the submissions of petitioner and the respondent, and the applicable law, the Court finds that the petitioner is not entitled to federal habeas relief.
IT IS HEREBY ORDERED that the application of David Lambert for Title 28, United States Code, Section 2254 relief be and it is hereby DENIED and his application is DISMISSED WITH PREJUDICE.