Opinion
No. CV-98-412103S
October 22, 2009
MEMORANDUM OF DECISION
This case presents difficult problems at least for the Court. The petitioner entered a plea of nolo contendere in 1994 pursuant to a plea bargain agreement to a charge of arson in the second degree (§ 53a-112 CGSA). On October 14, 1994 she was sentenced to 7 years suspended after two years with three years probation, with conditions. She began her sentence on the latter date and was discharged from transitional supervision on March 22, 1996 to then begin her probation. On April 23, 1998 she filed this petition for habeas corpus via a pro se petition to vacate her guilty pleas. The probation terminated in March 1999.
She was first represented by a Public Defender in the Habeas Corpus Unit; an amended complaint was filed in September 2000. The case was continued numerous times, counsel having represented that the petitioner suffered from a mental impairment which adversely impacted her ability to proceed.
Present counsel, an Assistant Public Defender, replaced prior counsel. He filed a motion to stay proceedings which was granted. Several hearings were held before another Judge who advised the petitioner of the risks of proceeding; the petitioner objected to her lawyer's contention that she was mentally impaired. She also expressed dissatisfaction with her lawyer's efforts to persuade her not to proceed because of the risks in doing so. The lawyer requested that a guardian be appointed which the Court did on September 13, 2005. The guardian reported to the Judge that the petitioner wanted to proceed with the habeas proceeding; he stated he had explained all the possible legal consequences of proceeding further on the petition. The guardian stated that the petitioner "understands the decision that she is making."
The Judge then canvassed the petitioner, she insisted on litigation but the Judge then dismissed the petition.
The petitioner appealed and in 110 Conn.App. 134 (2008), the Appellate Court reversed the dismissal. The Court noted the petitioner had received a favorable plea bargain and had already served her sentence and also referred to the fact that in an April 2005 proceeding the trial Court expressed concern with the petitioner's decision to proceed with the petition. It held the trial Court had not dismissed the petition for a failure to prosecute but "dismissed the amended petition because it believed that the amended petition lacked merit and that it was in the petitioner's best interest to dismiss the matter . . ., " id., page 141. The Court cited Mercer v. Comm. Of Correction, 230 Conn. 88, 93 (1994), for the holding that a petitioner is entitled to present evidence in support of his or her claims. Mercer cited § 52-470(a) which explicitly provides for such a hearing — a habeas court "shall proceed in a summary way to determine the facts and issues of the case." Also see Negron v. Warden, 180 Conn. 153, 158 fn.2 (1980); Mitchell v. Commissioner, 93 Conn.App 719, 725 (2006). The Appellate Court said the petitioner did not have a hearing and was denied the opportunity to present evidence in support of her petition.
Therefore the Court reversed the judgment and remanded the case for "for an evidentiary hearing on (the petitioner's) amended petition for a writ of habeas corpus," id., pp 141-42. Implicit in the Court's decision is the position that it is certainly not a grounds to dismiss a petition on the basis that proceeding with the petition is not in the petitioner's best interest. Or to put it another way that a petitioner may proceed with his or her petition even though the result sought would not be in her best interest in her lawyer's view or that of a Judge hearing the matter.
Pursuant to the remand the case came back to Superior Court. The present attorney for Ms. Moye then filed a motion for a hearing on competency which requested a hearing "to assist counsel in the prosecution of this habeas corpus petition" and also renewed the request for the appointment of a guardian ad litem. A hearing was held March 31, 2009 before this Court, two doctors testified and submitted reports on the issue of Ms. Moye's competency. Ms. Moye, though present, did not testify.
(1)
The first issue to be addressed is whether the Court can consider the competency of a petitioner in a habeas proceeding.
It should be noted that, quoting prior case law the Court in Oliphant v. Commissioner of Correction 83 Conn. App 10, 14 (2004) said: "Because the history of Connecticut's habeas corpus jurisprudence is `wholly in accord' with federal habeas corpus jurisprudence' . . . we may rely on federal cases interpreting the contours of the great writ." also see Ford v. Commissioner 59 Conn.App. 823, 826 (2000). It should also be noted that the language of the so-called suspension clause regarding habeas corpus relief in the federal constitution (art I, § a) closely parallels that of article I, § 12 of our State Constitution.
The case of Whitmore v. Arkansas, 495 U.S. 149 (1989), at least indirectly, offers some insight into the issue. Relying on common-law precedent and the language of 28 U.S.C. § 2242, which states who may make a habeas application, the Court held that in certain circumstances — including incompetence — and under defined conditions, a "next friend" has standing to maintain a habeas proceeding on behalf of another 495 US pp 161-66. Our Court in State v. Ross, 272 Conn. 577, 596-611 (2005) applied a Whitmore analysis to the "next friend" issue before it.
Our statute, § 52-466(a) contemplates "next friend" applications for habeas relief by its language.
It's difficult to understand the "next friend" analysis in Whitmore as implying anything else than a right to competence in habeas proceedings — if not why go through the exercise of permitting "next friend" litigation. How can the "next friend" litigate, for example, if he or she is even incapable of communicating with the real party in interest and if that is the case, should not the proceedings be stayed where, for example, factual information is necessary to fully litigate the petition which the incompetent cannot communicate in some instances because of the incompetency? Interestingly there appears to be a division among the circuits on the significance of a lack of competency to prosecute a habeas or assist his or her lawyer in doing so in a habeas proceeding. In Holmes v. Bush, 506 F.3d 576 (eA7, 2007) the Seventh Circuit said a habeas proceeding is after all a civil not a criminal proceeding. A habeas is initiated by the criminal defendant not the State — it is "odd," says the Court, to think someone who initiates a proceeding can then freeze it by claiming incompetence. Incompetence will not be allowed to delay or interrupt a habeas proceeding, although the claim can be prosecuted by his guardian; id. page 578. What on earth does that mean? Habeas is after all defined as the "great writ"; such an analysis ignores the fact that its purpose is to test whether important constitutional and statutory rights in a criminal proceeding have been violated. To characterize a habeas proceeding as "civil" is merely a conclusory position which ignores the fact that such a proceeding is inextricably bound up with the previous criminal litigation, aspects of which it challenges. Furthermore important constitutional rights cannot be always fully advanced in the criminal appeals process. Is competence to test their applicability not a prerequisite for fair operation of the "great writ"?
The Ninth Circuit's position on competency for habeas proceedings is set forth in Rohan v. Woodford, 334 F.3d 803 (2003). A recent Ninth Circuit case, Nash v. Ryan, (9-11-09, #6-99007) characterized Rohan as holding that "a capital habeas statutory right to counsel also encompassed the right to competence in habeas proceedings: the right to of the petitioner to be competent during those proceedings so as to be able to advise and consult with his (her) counsel regarding issues that might arise." Rohan reaches more directly the right to competency issue than mere analysis of the implication of "next friend procedure" made by this Court. In § 51-296 CGSA our state provides for a right to counsel for indigents in any habeas proceeding arising from a criminal matter, which would allow for the Rohan analysis to apply. Simply put if the legislatures, State and Federal, determined a person should have the right to a lawyer to test whether important statutory or constitutional rights have been violated on the way to securing a conviction, it does not comport with that high purpose to say that the lawyer should not be able to vindicate those rights because the client is incompetent. Can we allow a procedural system that permits the competent to test whether their constitutional or statutory rights have been violated but not the incompetent? To ask the question would appear to provide the answer.
Finally it should be noted that all of the federal cases discussed have involved death penalty cases and this includes Ross of course. But the Whitmore "Next Friend" analysis and the bearing of the right to counsel on the competency question have nothing to do analytically with whether a death penalty is involved. It would be difficult to say that in a death penalty habeas situation competency is at issue, but not if the petitioner is serving 10 years — how about 20 years — just probation is not enough, if not why?
Also the right to counsel analysis in Rohan providing the basis for a habeas court to consider competency, is based on just that — the right to counsel — and has no necessary relationship to whether the habeas petitioner is facing the death penalty.
Lozada v. Warden, 24 Conn.App. 723 (1991), offers an interesting perspective on this although it arises in a different context. There the state argued that there is no constitutional right to counsel in a habeas proceeding citing Pennsylvania v. Finley, 481 U.S. 551. The state extended the argument by claiming that as a result of this "there is no requirement that counsel at a habeas hearing be effective." The Court did not agree and said the following:
Although there is no constitutional right to habeas counsel, a statutory right to such counsel has been created in this state by General Statutes 51-296 . . . There is no merit to the state's contention that although the petitioner has a statutory right to counsel, the statute does not include a requirement that counsel render effective assistance. To adopt this reasoning would require us to condone ineffective representation. This argument ignores the principle that statutes are not to be construed so as to reach a bizarre result.
How can a lawyer be "effective" if the client cannot communicate with the lawyer and how can effectiveness be rationally analyzed and judged without this basic requirement for representation? Counsel being provided for by statute, competency in the Rohan sense must be able to be considered in a habeas proceeding and the death penalty factor has nothing to do with the analysis and cannot counter the conclusion that competency can be considered.
Our statute providing for habeas relief, § 52-466 and § 51-296 establishing a right to counsel in such proceedings make no reference to the death penalty. Neither does 28 USC 2242, the federal statute providing for habeas relief.
In any event the Court concludes it can consider the competency of a petitioner in a habeas corpus proceeding. Of course this is not a "next friend" situation. Ms. Moye brought her own petition and she is represented by the public defender's office. And as the Court noted in Ross a trial court in its discretion can hold a competency hearing when an allegation of incompetence has been made, 272 Conn. at page 607; it merely said "participation in such a hearing by (a) person seeking next friend status is not constitutionally required if that person has not presented meaningful evidence of incompetence," id.
Here a competency exam was requested, the request was granted, and the Court held a hearing to determine competency. The Court will now try to address that issue.
(2)
What are the standards to be applied to determine competency in a habeas proceeding? Section 54-56(d) does not directly apply; the statute is directed at criminal proceedings and says a defendant cannot be tried, convicted, or sentenced if he or she is not competent. A habeas is a civil proceeding initiated by the petitioner and the competency question must be viewed in light of the particular relief sought.
The competency considerations to be applied in the habeas context are discussed in Rohan ex rel Gates v. Woodford, 334 F.3d pages 818-19. In language applicable to capital and non-capital petitioners the Court said . . ."we hold that where an incompetent capital habeas petitioner raises claims that could potentially benefit from his ability to communicate rationally, refusing to stay proceedings pending restoration of competence denies him his statutory right to assistance of counsel, whether or not counsel can identify with precision the information sought," id., page 819. The Court at page 818 gave the basis of its ruling discussing the claims actually made:
At least some of the claims in Gates' petition could potentially benefit from his assistance. His principal contention, for example, is that he was incompetent to stand trial and that his trial counsel were constitutionally ineffective for failing to pursue a competency hearing. Like most ineffective assistance claims, this one depends in large measure on facts outside the record . . . To prevail, Rohan would likely have to show Gates was incompetent at trial. If Gates were competent today, he could provide information to bolster that claim. His own testimony about his former state of incompetence, for example, would (to the extent credited by the court) support his position. He could also direct counsel to circumstantial evidence of his incompetence at the time.
Gates's private knowledge could also be relevant to his trial counsel's deficiency in failing to pursue a competency hearing. Whether trial counsel were constitutionally ineffective may depend on the interactions with Gates. The more obvious his incompetence at the time, the more likely that they were deficient for failing to recognize it. Unless Gates can offer his side of the story, we can rely only on trial counsel's version of events.
To take another example, Gates alleges that his trial counsel presented inadequate mitigating evidence during the penalty phase. Once again, if Gates were competent, he could support this claim. He is better positioned than anyone to identify aspects of his personal history that should have been, but were not, elicited. And again, he is in a unique position to testify about the extent of his trial counsel's efforts to elicit that mitigating evidence from him.
We can only speculate what evidence Gates might offer. But that doesn't detract from the probability that some corroborating evidence within his private knowledge exists.
The amended petition in this case must be examined under the Rohan standard, in the first count it is claimed counsel was ineffective for failing to investigate her mental state prior to her entry of a nolo plea to the arson charge for which she was sentenced. Because of this counsel did not adequately consult with petitioner concerning her entry of a plea, did not ensure that her plea was knowing, intelligent, and voluntary. The claim is that this constituted ineffective assistance in that there is a reasonable probability that but for counsel's errors the proceeding's outcome would have been different and that petitioner would not have entered a nolo contendere plea but would have taken the case to trial. A second count alleges as a result of the petitioner's previous allegations her plea was not knowingly, intelligently, and voluntarily made.
The Court held a competency hearing in this matter and will make a determination about competency in light of the allegations of the petition, the reports by the two doctors and the evidence presented by these doctors at the hearing.
This has been a difficult case for the court to try to resolve partly because the two doctors had different views on the competency issue and one doctor felt more testing was necessary. The court will try to employ the Rohan considerations first discussing the reports submitted and then the testimony presented by the doctors at the hearing. It will then consider other factors in addition to the Rohan test.
(3) (a)
Dr. Kapoor submitted a report dated February 19, 2009. This Doctor reviewed treatment records from October 2005 to the date of the report and the report submitted by Dr. Kelly who also submitted a report. Dr. Kapoor also reviewed Psychological Evaluations by Michael Hoge, Ph.D. from 1994 to 2001 and Psychological Evaluations by Cheryle Gelenter Ph.D. who also did psychological testing. Also reviewed were letters from a Dr. Veety in 1994 to Dr. Gelenter. She also spoke to Ms. Moye's mental health clinician at the Connecticut Mental Health Center (CMHC) for 15 minutes on February 17, 2009.
Dr. Kapoor states that reports in the early 1990s, closer to the time of her plea, indicated she had deficits on reality testing, her thoughts can be fragmented and circumstantial and was somewhat preoccupied with theoretical matters to the exclusion of concrete facts. More recently she has been diagnosed with a variety of mental illnesses at CMHC such as schizotypal personality and schizo affective disorder and depression with psychotic features. She does not have a good history in taking her medications.
Her present clinician at CMHC described Ms. Moye as a "diagnostic puzzle" but noted she has been stable and functioning well in recent months.
As a result of her interview Dr. Kapoor concluded Ms. Moye was "fluent and articulate" and "her thought processes were linear and logical except when discussing her legal case "at which point she became much more tangential, disorganized, and hyper abstract." Her thought contact "was notable for an over-arching theme of injustice, racial disparity, and social activism." She did not demonstrate "bizarre delusions" but her discussions about the criminal justice system demonstrated a "persecutory delusion."
Interestingly Dr. Kapoor went on to say that "on cognitive testing Ms. Moye demonstrated no deficits. She was fully orientated as to time place, and situation. Her attention and working memory were intact . . . her long term memory was also intact . . . her fund of knowledge was assessed as being in the average range."
In the next portion of the letter Dr. Kapoor indicates Ms. Moye was well informed about the nature of a habeas proceeding, that her mental state at the time of the plea was a key issue in her habeas petition and she realized if she was successful she would have a trial. She knew the role of various courtroom personnel.
Interestingly the report notes that problems arose "when (Ms. Moye) was asked to engage in a more detailed discussion of why she had pursued this case for 10 years despite having completed her original sentence long ago." At that point "Ms. Moye became more disorganized and began to articulate a delusional belief about the `real meaning' of her case." Coercion had been exerted on her to drop this case. The people who treated her unfairly don't want that to be exposed, they want her to go away. A former lawyer, the Judge, could not be trusted; they were Caucasian and did not want to have injustices toward African Americans exposed.
She has ambivalent feelings toward her present lawyer, he is vulnerable to people pressuring him to have her drop the case. She said she was a civil rights crusader. She also said if she was successful in her petition "20 years in jail would be fine" — no matter what happens it would prove "that the system is unjust to black people."
The summary indicates Ms. Moye has a complicated history of mental illness. The best description of Ms. Moye is that she is pre-occupied with abstract or theoretical matters. The last paragraph is interesting, at least to the Court. It says that "during my evaluation, Ms. Moye demonstrated an adequate factual understanding of the circumstances surrounding her habeas petition, but she failed to demonstrate a rational understanding of the circumstances." This is apparently meant to refer to Dr. Kapoor's following observations about Moye's delusional theories of the real meaning of her petition to expose injustices to African Americans. Thus a complicated conspiracy of Judges, prosecutors, and public defenders have pressured her to drop her case. Moye was "unable to entertain the possibility that advice to drop her petition could be anything other than evidence of a conspiracy." Based on this the doctor concluded "Ms. Moye did not demonstrate a rational understanding of her legal circumstances or the capacity to assist her attorney in moving forward with her case." The doctor noted however, that when she interviewed Ms. Moye she had not taken her psychiatric medication for over a month — "her situation may improve if she is more compliant with psychiatric treatment in the future."
Dr. Sonya Kelly also submitted a psychiatric evaluation of Ms. Moye. She examined Ms. Moye for about two and one-half hours in January 2009. She also reviewed the reports of Mr. Hoge a professor of psychology at Yale which were prepared in 2004 and in January 2009 also spoke to a cousin of Ms. Moye who offers her social support and expresses interest in and gives periodic advice on Moye's legal situation. Dr. Kelly reviewed Moye's "life circumstances" which include her involvement in her church and educational efforts. The doctor noted Ms. Moye's growing awareness of oppression of African Americans and her identification of her case with other historic examples of injustices visited upon African Americans. Ms Moye told the doctor she currently received psychiatric treatment, takes medication and acknowledged having a mental illness.
The mental status evaluation indicated to the doctor that the structure of her thoughts was "goal directed, logical, and coherent." There was "no evidence of disorder in the structure of her thoughts." There was no evidence of delusions — i.e. "fixed false beliefs." Interestingly the doctor noted what the Court interprets as self-corrective steps, thus, at one point it is noted that Moye "demonstrated a mild tendency to circumstantialities but was able to respond easily to efforts to restructure her;" also "when questioned regarding paranoid beliefs, she stated, `if someone is laughing, (I sometimes think) it might be about me. But then I say (to myself); some people don't even know I'm alive and then (I know) it's not about me . . .'" She experienced some auditory hallucinations but it was limited to the calling of her name. Moye had an alert level of consciousness, her attention and concentration was intact, further testing indicated that Moye responded well to problems requiring abstract thinking and general insight and judgment.
The doctor then engaged in a fairly detailed account of Moye's "understanding of her current legal circumstances." Moye gave a "coherent account of her initial arrest on the charge and arraignment on arson in the second degree and subsequent plea of guilty at the time of the original charge." She articulated why she felt she should not have been allowed to plea nolo contendere to the charge — this was due to her life circumstances and her mental state. She remembered statements made by a social worker and another court official who seemingly supported her need for treatment and probation as opposed to incarceration. She said that the injustice visited on her was an indication of the general injustice that African Americans experienced in the court system.
Ms. Moye did appreciate the roles of Judge and prosecutor. She was aware that a previous Judge was "angry" with her for not dropping the habeas action.
She liked and trusted her present lawyer as an individual but had reservations about his representation based on his affiliation with the Public Defenders' office and "his sense of duty to the court." She was upset that a conservator had been appointed for her in the past. Despite her reservations about her present lawyer and how her case was being handled "she expressed strong positive feelings about (him)."
Ms. Moye understood "the concepts of change, plea, conviction, disposition, incarceration, the guilt phase of the trial, the concept of plea bargaining, and the penalty phase of a trial." She seemed familiar with "the concept of Evidence and how it is used in a criminal proceeding."
When questioned about the risks of pursuing this proceeding and the chance of receiving lengthy incarceration she relied on her faith in God and said even incarceration would be an expression of His will. She understood "the significant potential for an adverse outcome to a second trial" but said she "would rather be incarcerated than accept this injustice."
The doctor reached the following conclusions on Ms. Moye's competency relative to this hearing:
Based on the above, it is my opinion that the issue of whether Ms. White is competent to proceed with her current petition is a difficult recommendation to make; on the one hand, she reportedly suffers from mental illness and does appear to experience, at very least, intermittent psychotic symptoms that are not currently treated, are intermittent in nature, do not trouble her subjectively, and do not appear currently to influence her decision making capacity. On the other hand, she endorses a rational for pursuing her petition that appears to place her higher ideals of justice and fairness in relation to race and crime above her own best interest, and accordingly at risk. There does not appear to be any psychotic basis for this rationale, but she does not appear flexible in her thinking about differentiating her best interest from what she believes are societal best interests regarding justice and fundamental fairness. She relies on God and her faith in God to influence ultimate outcome and yet expressed reservations about the motives of others (including officers of the court and her attorney) in attempting to advise her regarding her best interest. Her reservations about the motives of others do not appear to derive from untreated paranoia but her cognitive style appears somewhat rigid and she does not demonstrate the kind of flexibility in her thinking that would allow her to weigh easily her own interests against her social justice objectives. This may be more deeply rooted in her personality structure than in a specific mood disorder or psychotic disorder. Without the benefit of formal psychological testing, it is difficult to determine clinically, on the basis of information currently available, whether she may have a personality disorder that may be interfering with ability to understand the proceedings against her and to meaningfully work with her attorney to pursue her best legal interests.
She concluded that:
The Court may wish to consider seeking more formalized psychological/psychometric testing through a licensed clinical psychologist to elucidate more formally and more quantitatively her intellectual functioning, personality functioning and cognitive style. Results of such an evaluation, in conjunction with the current evaluation may clarify some of the above outlined issues. Additionally or alternatively, consideration may be given to a second independent assessment through the New Haven Office of Court Evaluations, First Floor, Connecticut Mental Health Center, 34 Park Street, New Haven, Connecticut.
(b)
A hearing was held in this matter. Dr. Kelly testified first. She has done hundreds of criminal competency exams as well as hundreds of civil competency exams for probate court. This case was her first competency exam for a habeas proceeding. Dr. Kelly is an Assistant Professor at UConn, and has a certificate in Forensic Psychiatry. She has understood her task as being asked to look at the issue of Ms. Moye's ability to assist counsel in proceeding with the habeas petition. She described the methodology she used in preparing her report.
The doctor testified that in discussing the motivations behind her actions Moye drifted more and more towards the social justice explanation and drifted away from her personal interests — "her interest in the social justice issue threatened to eclipse her ability to look after her personal interest in weighing the advantages and disadvantages" of proceeding with the habeas action.
But in response to the Court's questioning the doctor said the foregoing does not necessarily mean Moye's decision to proceed was based on mental illness and to the doctor "that's what makes this so difficult" (for the Court also it might be added). The doctor did conclude Moye had a mental illness, there was evidence of psychosis but the episodes were intermittent.
Cross examination by the Assistant State's Attorney indicated that in Dr. Kelly's opinion Ms. Moye had a factual understanding of the habeas proceedings and the possible consequences of her pursuing this proceeding. The hallucination experiences had nothing to do with the case and just involved the calling of her name by a deceased aunt and uncle.
Dr. Kapoor was then called to testify. The doctor repeated much of what she said in her report. When talking about her legal circumstances Moye became a little more disorganized and emotional and displayed looseness of association — jumping from one thing to another without a clear connection between the things being discussed. Dr. Kapoor did cognitive testing but not psychological tests which assess personality, intelligence, cognition, reasoning. Dr. Kapoor realized Dr. Kelly recommended further testing and discussed the appropriateness of such testing with a psychologist but she had access to testing of this type done on Moye in the past and the results of such testing do not change over time. She did not know if Kelly had access to the past testing. Dr. Kapoor said the difference of opinion between her and Dr. Kelly comes from the fact that she, Kapoor, had access to CMHC treatment records, old psychiatric evaluations, and she spoke to Ms. Moye's children which Dr. Kelly did not.
Dr. Kapoor went on to testify that Moye displayed a factual understanding of the procedures. She did feel that Ms. Moye, with regards to her pursuit of this litigation, has a persecutory delusion and every new person involved in these proceedings becomes "incorporated into this conspiracy" aimed at getting her to abandon the habeas all this being done to hide injustices to African Americans and her effort to expose these injustices.
Pages 38 and 39 of the transcript underline the difficulties presented here. Attorney Moye's attorney asked Dr. Kelly whether the social justice issues which Moye feels this case is about could be separated out in the sense of whether it would be possible for Ms. Moye to "proceed with the habeas petition but be limited only to the issue of her mental state in 1994 and how it affected her plea" (of nolo contendere in that year).
The doctor said it is a close call and when Moye talked about this (apparently addressing the habeas claims as they relate to the 1994 plea) she got emotional and disorganized — it would be difficult for her to limit herself to that issue. When the court followed up by saying it would be difficult for her to participate and cooperate with her lawyer in handling the issues in the habeas question (in the form of a question), the doctor answered yes. But then the doctor volunteered that the attorneys she worked with in the past all got involved in her delusional system. Thus every time an attorney advises her that pursuing the habeas is not a good idea "that becomes evidence of their involvement in the conspiracy and that's what I'm concerned about, what would happen moving forward."
As the Court will further discuss, there are two different issues involved here (1) whether Ms. Moye can assist her lawyer in litigating the claims made in the habeas proceeding and (2) whether she would be able to rationally consider and discuss any advice given as to whether the habeas proceeding should be pursued apart from any merits it might have.
As to the latter, an example the doctor gave is although she had an understanding factually that she could receive much more time if she prevailed on the habeas, the doctor felt the possibility of receiving after trial 20 years on an arson one charge was not really believed by Moye and it might be an attempt to intimidate her apparently into dropping the habeas action. Beyond that Moye said if she got 20 years that would only prove her point.
Ultimately, as in her written report, the doctor said Moye did not display a rational understanding of the habeas proceedings nor could she assist her lawyer in proving or presenting her claim. Interestingly, however, this was not entirely responsive to Ms. Moye's lawyer's question which inquired as to whether Moye could assist him but also whether she could make an informed decision about proceeding and weighing the risk and benefits thereof.
The Court at the end of her examination read her the test set forth in the leading case of Dusky v. U.S., 362 U.S. 402 (1960) albeit modified for a habeas proceeding — (1) did she have a present ability to consult with her lawyer with a reasonable degree of rational understanding and (2) whether Ms. Moye has a rational as well as factual understanding of the proceedings being taken (really advanced) in her behalf.
The doctor said there is no question she meets the factual understanding standard but testified that "I think the rational part is where she fails."
(4)
This has been an extremely difficult case for the Court to decide and it has tried to set forth all its reasoning so any error can be more readily ascertained.
If we focus on the Rohan standard which concentrates on Moye's ability to assist her lawyer in advancing the claims set forth in her habeas petition, which this Court quoted from 334 F.3d page 818 or the factual understanding component of Dusky v. U.S. it seems apparent to the Court that Moye has a factual understanding of the claims she is making regarding ineffective assistance leading her to have entered a plea. Dr. Kapoor who ultimately concluded in her report that Ms. Moye was not competent even said Moye engaged in a rational and detailed discussion of the evidence in her criminal case. Dr. Kelly agreed with this assessment.
In her testimony Dr. Kapoor did question Moye's ability to assist her attorney on presenting the substance of the habeas claim and supporting factually her position of inadequate assistance of counsel in her 1994 plea. The doctor said Moye would tend to mix two issues together — her ideation of social injustice would interfere with her presentation on the alleged wrongs on which she based her habeas petition.
To the Court, at least, this was not fully explained. Moye certainly could communicate the facts surrounding the allegations in her petition to the lawyer and if called to testify the trial Court could take steps by her or counsel prevent the running together of Moye's social injustice beliefs and the factual basis of her actual petition.
But this is not the only issue of competency presented. If the reports of the two doctors are read closely their concerns about competency really are based on her inability (Dr. Kapoor) or feared inability (Dr. Kelly) to entertain or rationally consider any advice that might be offered not to pursue her case — not based on its merits but on the possibility that if she prevailed on the habeas she might be retried and be exposed to the possibility of lengthy incarceration.
True this is a habeas proceeding initiated by the petitioner and it also true that a habeas action is a civil proceeding. But in the context of this case the proceeding could have important criminal repercussions if the petitioner were to prevail. The state by statute allows for the appointment of a lawyer to represent the petitioner and people in her position, here the public defender's office. Any lawyer in the role of representing the petitioner in this case would have the responsibility of advising the petitioner of the risks of conviction, that is, here, the consequences of pursuing her petition to possible final success. The petitioner would certainly be entitled to receive that advice constitutionally. If she had not, is successful on this habeas, is then tried for arson one and receives substantial incarceration, could she not raise her failure to receive adequate advice on this subject in challenging her later conviction?
Or to put the same thing another way, it would not seem to comport with the common-law origins of habeas corpus and its constitutional and statutory basis in a system that provides counsel to habeas petitioners, to take a position that says there is no due process right recognizing the need for the ability to communicate with one's lawyer concerning not only the factual and legal basis for the habeas but the risks attendant to pursuing it. Lawyers everyday in criminal proceedings have to advise their clients on the risks of going to trial as opposed to entering a plea; the client must be competent to weigh those risks in a way that is not hampered by mental disease. Although habeas proceedings are called civil for reasons heaving nothing to do with due process or habeas considerations, should not a lawyer be obligated to explain the risks of proceeding on a habeas petition and have a client competent to engage in the discussion?
See for example U.S. ex rel Heral v. Franzen, 607 F.2d 633, 638 (eA7, 1981); Aelard v Helgeunoe, 572 F.2d 1, 3 (cA 1, 1978).
In this case there is one doctor with excellent credentials who seemed to find the petitioner competent in certain respects but had obvious reservations and suggested further testing or examination and another doctor, who did a more extensive examination of records and reports who found, Ms. Moye incompetent. Based on the examination of the letters submitted by the doctors and their testimony the Court concludes Ms. Moye is not competent in the limited aspect discussed above and takes what it considers a middle position on what should be done. It would be improper to dismiss the petition although it was initiated by the petitioner; the "great writ" would have to be given another less grandiose name if dismissal were to be granted for incompetence to pursue it or because some Court decided it was in the petitioner's best interest. The only solution that seems appropriate, at least to the Court, is to stay the proceedings, see Rohan, 334 F.3d pp 818 et seq.
The Court would note that over eight months have passed since these doctors did their assessment. It would request the New Haven Office of Court Evaluations at Connecticut Mental Health Center to perform an evaluation and conduct any necessary testing with respect to the particular issue which presents the problem of competency in this case — Moye's ability to demonstrate a rational understanding of her legal circumstances or her capacity to rationally discuss and weigh the advisability of continuing with this action. If she is not so competent what is the prognosis and what are the conditions that will restore her to competency in this respect? Of course if she is competent in the above referenced respect there is no basis to stay these proceedings and the habeas matter will proceed to conclusion, if Ms. Moye wishes to continue pursuing it. Regarding the question of further testing and who should do it the Court would be grateful to counsel for any suggestions they might have.