Gallant v. ME Warden

Court of Appeals for the First Circuit·Decided July 5, 1996·No. 96-1005·Published

Opinion

USCA1 Opinion

July 5, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 96-1005

ALFRED A. GALLANT, JR.,
Plaintiff, Appellant,

v.

CORRECTIONS, ME WARDEN,
Defendant, Appellee.
____________________

No. 96-1048

ALFRED A. GALLANT, II,
Plaintiff, Appellant,

v.

GENE CARTER, CHIEF JUDGE,
Defendant, Appellee.
_____________________

No. 96-1162

ALFRED A. GALLANT, II,
Plaintiff, Appellant,

v.

DONALD ALEXANDER, JUDGE,
Defendant, Appellee.
_____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge] ___________________
[Hon. D. Brock Hornby, U.S. District Judge] ___________________
____________________

Before

Selya, Cyr and Boudin,
Circuit Judges. ______________
____________________

Alfred A. Gallant on memorandum in support of certificate of ___________________
probable cause and on brief pro se.
Gail Fisk Malone, Assistant United States Attorney, on memorandum ________________
in support of motion for summary disposition for appellee Gene Carter.

____________________

____________________

Per Curiam. In No. 96-1048, plaintiff Alfred Gallant __________

appeals from a court order dated December 20, 1995 denying

his motion to proceed in forma pauperis (IFP). As plaintiff _________________

paid the filing fee that same day, his appeal is frivolous.

Plaintiff's motions to proceed IFP on appeal are denied, ______

appellee's motion for summary disposition is allowed, and the _______

challenged district court order is summarily affirmed. See ________ ___

Loc. R. 27.1.

In No. 96-1162, plaintiff appeals from a judgment

dismissing, on the ground of frivolousness, his action under

42 U.S.C. 1983 against the state court judge who presided

over his state habeas proceedings. For the reasons recited

by the district court in its order dated February 7, 1996,

the judgment is summarily affirmed. See Loc. R. 27.1. _________ ___

Plaintiff's motions to proceed IFP on appeal and for

appointment of counsel are denied. ______

In No. 96-1005, plaintiff seeks a certificate of

probable cause in order to appeal from the district court's

denial of his petition for a writ of habeas corpus. Having

reviewed the record in full, we discern only one issue of any

conceivable merit: whether plaintiff was improperly denied

his Sixth Amendment right of self-representation under

Faretta v. California, 422 U.S. 806 (1975). The trial court _______ __________

rejected this claim on the ground that plaintiff's request to

proceed pro se had not been "intelligently" made; it noted in ______

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this regard that plaintiff was suffering from mental

impairments and had disavowed any intention of mounting a

defense in order to "protest" what he regarded as a "sham"

trial. The Maine Supreme Judicial Court (SJC) affirmed on

the ground that plaintiff's request had not been

"unequivocally" advanced. See State v. Gallant, 595 A.2d ___ _____ _______

413, 416 (Me. 1991). As we find that the trial court's

rationale is immune from challenge in a federal habeas corpus

proceeding, we need not address the grounds relied on by the

SJC.

A review of the record makes clear that the trial court,

although deeming plaintiff mentally competent to stand trial,

considered him mentally incompetent to defend himself

effectively. Such a determination runs afoul of Godinez v. _______

Moran, 509 U.S. 389 (1993), where the Court held that the _____

competency standard for waiving the right to counsel is

identical to that for standing trial. Yet plaintiff's

conviction and sentence had become final prior to issuance of

the Godinez decision. And the Godinez holding, we conclude, _______ _______

constitutes a "new rule" that, under Teague v. Lane, 489 U.S. ______ ____

288 (1989), cannot be applied retroactively by a federal

habeas court.

"[A] case announces a new rule if the result was not

dictated by precedent existing at the time the defendant's ________

conviction became final." Caspari v. Bohlen, 114 S. Ct. 948, _______ ______

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953 (1994) (quoting Teague, 489 U.S. at 301). "The question ______

is 'whether a state court considering [the defendant's] claim

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USCA1 Opinion




July 5, 1996          [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 96-1005



                               ALFRED A. GALLANT, JR.,

                                Plaintiff, Appellant,



                                          v.



                               CORRECTIONS, ME WARDEN,

                                 Defendant, Appellee.

                                 ____________________



        No. 96-1048



                                ALFRED A. GALLANT, II,

                                Plaintiff, Appellant,



                                          v.



                              GENE CARTER, CHIEF JUDGE,

                                 Defendant, Appellee.

                                                     
                                _____________________



        No. 96-1162



                                ALFRED A. GALLANT, II,

                                Plaintiff, Appellant,



                                          v.



                               DONALD ALEXANDER, JUDGE,

                                 Defendant, Appellee.

                                                     
                                _____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________



                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________

                                 ____________________



Alfred  A.  Gallant on  memorandum in  support  of certificate  of
            ___________________

        probable cause and on brief pro se.

            Gail Fisk Malone, Assistant United States Attorney, on  memorandum
            ________________

        in support of motion for summary disposition for appellee Gene Carter.


____________________


____________________



Per Curiam.   In  No. 96-1048, plaintiff  Alfred Gallant
                 __________



            appeals  from a court  order dated December  20, 1995 denying



            his  motion to proceed in forma pauperis (IFP).  As plaintiff
                                   _________________



            paid the filing fee  that same day, his appeal  is frivolous.



            Plaintiff's  motions to  proceed  IFP on  appeal are  denied,
                                                                  ______



            appellee's motion for summary disposition is allowed, and the
                                                         _______



            challenged district  court order is summarily  affirmed.  See
                                                           ________   ___



            Loc. R. 27.1.



                 In  No.  96-1162,  plaintiff  appeals  from  a  judgment



            dismissing, on the ground  of frivolousness, his action under



            42 U.S.C.   1983  against the state court judge  who presided



            over his state  habeas proceedings.  For  the reasons recited



            by  the district court in  its order dated  February 7, 1996,



            the  judgment  is summarily  affirmed.    See Loc.  R.  27.1.
                                         _________    ___



            Plaintiff's  motions  to  proceed   IFP  on  appeal  and  for



            appointment of counsel are denied.  
                                       ______



                 In  No.  96-1005,  plaintiff  seeks  a  certificate   of



            probable   cause in order to appeal from the district court's



            denial  of his petition for a writ  of habeas corpus.  Having



            reviewed the record in full, we discern only one issue of any



            conceivable  merit: whether  plaintiff was  improperly denied



            his   Sixth  Amendment  right  of  self-representation  under



            Faretta  v. California, 422 U.S. 806 (1975).  The trial court
            _______     __________



            rejected this claim on the ground that plaintiff's request to



            proceed pro se had not been "intelligently" made; it noted in
                    ______


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this  regard  that   plaintiff  was  suffering  from   mental



            impairments  and had  disavowed any  intention of  mounting a



            defense  in order to "protest"  what he regarded  as a "sham"



            trial.  The  Maine Supreme Judicial  Court (SJC) affirmed  on



            the   ground  that   plaintiff's   request   had   not   been



            "unequivocally"  advanced.   See State  v. Gallant,  595 A.2d
                                         ___ _____     _______



            413,  416 (Me.  1991).   As  we find  that the  trial court's



            rationale is immune from challenge in a federal habeas corpus



            proceeding,  we need not address the grounds relied on by the



            SJC. 



                 A review of the record makes clear that the trial court,



            although deeming plaintiff mentally competent to stand trial,



            considered  him  mentally   incompetent  to  defend   himself



            effectively.  Such  a determination runs afoul  of Godinez v.
                                                               _______



            Moran, 509 U.S.  389 (1993),  where the Court  held that  the
            _____



            competency  standard  for waiving  the  right  to counsel  is



            identical  to  that  for  standing trial.    Yet  plaintiff's



            conviction and sentence had become final prior to issuance of



            the Godinez decision.  And the  Godinez holding, we conclude,
                _______                     _______



            constitutes a "new rule" that, under Teague v. Lane, 489 U.S.
                                                 ______    ____



            288  (1989), cannot  be  applied retroactively  by a  federal



            habeas court. 



                 "[A] case announces  a new  rule if the  result was  not



            dictated by  precedent existing  at the time  the defendant's
            ________



            conviction became final."  Caspari v. Bohlen, 114 S. Ct. 948,
                                       _______    ______


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953  (1994) (quoting Teague, 489 U.S. at 301).  "The question
                                 ______



            is 'whether a state court considering [the defendant's] claim



            at  the time  his  conviction became  final  would have  felt



            compelled  by existing  precedent to  conclude that  the rule



            [he]  seeks was  required by  the Constitution.'"   Goeke  v.
                                                                _____



            Branch, 115  S. Ct. 1275,  1277 (1995) (per  curiam) (quoting
            ______



            Saffle v. Parks, 494 U.S. 484, 488 (1990)).  
            ______    _____



                 Here, we cannot say that the state court would have felt



            compelled,  prior  to Godinez,  to  deem  the two  competency
                                  _______



            standards  equivalent.    The  Godinez  Court  itself,  after
                                           _______



            surveying  the caselaw, took note of the divergent views that



            then prevailed.   See 509 U.S. at 395 n.5.   And this circuit
                              ___



            was one  of the ones there identified as adhering to the view



            that  the two  competency standards  might not  be identical.



            See  United States v. Campbell,  874 F.2d 838,  846 (1st Cir.
            ___  _____________    ________



            1989) (observing that "the competency required to stand trial



            may not always be coterminous with the  capacity necessary to



            proceed pro se") (quoted in part in Godinez, 509 U.S. at  395
                    ______                      _______



            n.5); see also  United States  v. Pryor, 960  F.2d 1, 2  (1st
                  ________  _____________     _____



            Cir. 1992) (finding of competency to waive counsel "more than



            covered" competency to stand trial). 



                 In turn, neither  of the "two  narrow exceptions to  the



            nonretroactivity  principle" applies here.   Caspari,  114 S.
                                                         _______



            Ct.  at 956.   The  first pertains  to  new rules  that place



            certain types  of private  conduct "beyond  the power of  the


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criminal law-making authority to proscribe," Teague, 489 U.S.
                                                         ______



            at 307 (internal quotation  omitted); this is inapplicable on



            its  face.    The  second pertains  to  "watershed  rules  of



            criminal procedure implicating  the fundamental fairness  and



            accuracy of the criminal proceeding."  Caspari, 114 S. Ct. at
                                                   _______



            956 (internal quotations omitted).  It is not certain whether



            Faretta itself  would fit  into this  second category.1   But
                                                                  1
            _______



            however this may be,  it is apparent to  us that the  Godinez
                                                                  _______



            decision,  which simply  fine-tunes  the competency  standard



            underlying   Faretta,   is   not   "such   a   groundbreaking
                         _______



            occurrence,"  Caspari, 114 S. Ct.  at 956, as  to trigger the
                          _______



            second Teague exception.
                   ______



                 We have considered plaintiff's remaining allegations and



            find  them  even less  availing.    Accordingly, inasmuch  as



            plaintiff has  failed to make  a "substantial showing  of the



            denial of  a federal  right," Barefoot  v. Estelle, 463  U.S.
                                          ________     _______



            880,  893  (1983),  the  application  for  a  certificate  of



            probable cause is denied  and the appeal is terminated.   The
                              ______                    __________



            motions  to  proceed on  appeal  IFP and  for  appointment of



                                
            ____________________



               1   The Sixth Amendment right  to self-representation, for
               1

            all  its importance  in upholding  "the inestimable  worth of

            free  choice,"  Faretta, 422  U.S.  at  834, is  plainly  not
                            _______

            designed  to enhance  the  reliability  of the  truth-finding

            process;  as  the  Faretta  Court noted,  "in  most  criminal
                               _______

            prosecutions  defendants could  better defend  with counsel's

            guidance than by  their own unskilled efforts,"  id.  Indeed,
                                                             ___

            various  courts declined  to give  retroactive effect  to the

            Faretta  decision itself  primarily  for this  reason.   See,
            _______                                                  ___

            e.g.,  Martin v.  Wyrick, 568  F.2d  583, 587-88  (8th Cir.),
            ____   ______     ______

            cert. denied, 435 U.S. 975 (1978). 
            ____________



                                         -6-



counsel  are denied.   The  motion for  recusal is  denied as
                         ______                                 ______



            moot.


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