F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 29 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
CHARLES C. REED,
Petitioner-Appellant,
v. No. 96-6402 (D.C. No. CIV-93-969-C) RON CHAMPION; ATTORNEY (W.D. Okla.) GENERAL,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
After examining the appellant’s brief and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
This case, wherein petitioner seeks habeas relief under 28 U.S.C. § 2254, is
before us on appeal for the second time. 1 The first time, we reversed in part the
district court’s denial of the petition, and remanded the case for further
consideration of two claims: (1) petitioner’s challenge to the validity or
feasibility of his retrospective competency hearing, and (2) his challenge to the
sufficiency of the evidence supporting one of his grand larceny convictions.
On remand, the district court determined that the retrospective competency
hearing passed constitutional muster and thus concluded that petitioner was not
entitled to habeas relief on that issue. Petitioner’s sufficiency of the evidence
claim, however, was found to be meritorious, and the district court ultimately
ordered the state to file the appropriate charging documents for the lesser
included offense of petit larceny or, in the alternative, to order petitioner’s
permanent release from custody on the challenged count, within 60 days, to avoid
issuance of the writ.
1 This is actually petitioner’s third appeal, but the first two were consolidated for decision.
-2- During the course of that 60-day period, 2 on April 16, 1996, the United
States Supreme Court issued its decision in Cooper v. Oklahoma, 116 S. Ct. 1373
(1996), holding unconstitutional the Oklahoma law that presumes a defendant
competent unless he proves otherwise by clear and convincing evidence.
Petitioner immediately filed with the district court a request for reconsideration of
the competency hearing issue, noting accurately that, at his retrospective
competency hearing, he was held to that now-unconstitutional standard of proof.
The court denied petitioner’s request for reconsideration on exhaustion grounds,
explaining that:
[t]he competency issue raised previously by petitioner before this Court pertained to whether it was feasible for the state court to conduct a retrospective hearing to determine the competency of petitioner to stand trial. Petitioner has not satisfied his burden of showing that the Cooper issue raised by petitioner in his motion for reconsideration is an issue he raised in state court post-conviction proceedings.
District Court Record, doc. 63 at 1. Petitioner then filed a motion asking the
district court to hold his petition in abeyance pending the exhaustion of his
Cooper claim. This motion was also denied, and judgment was ultimately
entered, noting petitioner’s release from custody on the invalid felony conviction
and denying the petition in all other respects.
2 The state court actually entered an order releasing petitioner from custody on the invalid conviction on March 29, 1996, but the federal district court was not informed of that fact by the state until June 19, 1996.
-3- Petitioner now appeals from (1) the district court’s denial of his petition on
the competency hearing issue, (2) the district court’s refusal to reconsider its
ruling on the competency hearing issue in light of Cooper, and (3) the district
court’s refusal to hold his petition in abeyance pending exhaustion of his Cooper
claim. The district court denied a certificate of appealability on December 26,
1996. We have since held that with respect to petitions, like this one, that were
filed before the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), it is
a pre-AEDPA certificate of probable cause that is required, rather than an
AEDPA certificate of appealability. See United States v. Kunzman, 125 F.3d
1363, 1364 n.2 (10th Cir. 1997). In any event, the preliminary issue before us is
whether petitioner has made a substantial showing of the denial of a constitutional
right. See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117
S. Ct. 746 (1997), overruled in part by Lindh v. Murphy, 117 S. Ct. 2059, 2061
(1997). Having carefully reviewed petitioner’s brief and the record, we conclude
that petitioner has failed to make such a showing.
In challenging the feasibility of his retrospective competency hearing,
petitioner relies, as he did in his earlier appeal, on the three and one-half years
that elapsed between his trial and his required competency hearing, and the
intervening death of two key witnesses, trial counsel and the examining
-4- psychiatrist. Our earlier decision in this case made it clear that the mere lapse of
time does not necessarily preclude a valid competency hearing. See Reed v.
Champion, 1995 WL 4007, at *3 (10th Cir. Jan. 6, 1995) (citing Barefield v. New
Mexico, 434 F.2d 307, 309 (10th Cir. 1970); Crail v. United States, 430 F.2d
459, 461 (10th Cir. 1970)). In addition, by our remand of the case to the district
court for further consideration, we implicitly declined to hold that the
unavailability of the examining psychiatrist and/or trial counsel rendered the
retrospective competency hearing per se inadequate.
The question as to whether a meaningful retrospective hearing is possible
necessarily involves a case by case determination, and depends on whether “the
state of the record, together with such additional evidence as may be relevant and
available, permits an accurate assessment of the defendant’s condition at the time
of the original state proceedings.” Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir.
1996); see also Wheat v. Thigpen, 793 F.2d 621, 630 (5th Cir. 1986) (meaningful
hearing is possible “where there is sufficient data available to guarantee
reliability”; the question is “whether the quantity and quality of available
evidence [is] adequate to arrive at an assessment that [can] be labeled as more
than mere speculation”) (further quotation omitted). Among the factors
considered in determining whether a meaningful hearing may be held are “the
existence of contemporaneous medical evidence, the recollections of non-experts
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 29 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
CHARLES C. REED,
Petitioner-Appellant,
v. No. 96-6402 (D.C. No. CIV-93-969-C) RON CHAMPION; ATTORNEY (W.D. Okla.) GENERAL,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
After examining the appellant’s brief and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
This case, wherein petitioner seeks habeas relief under 28 U.S.C. § 2254, is
before us on appeal for the second time. 1 The first time, we reversed in part the
district court’s denial of the petition, and remanded the case for further
consideration of two claims: (1) petitioner’s challenge to the validity or
feasibility of his retrospective competency hearing, and (2) his challenge to the
sufficiency of the evidence supporting one of his grand larceny convictions.
On remand, the district court determined that the retrospective competency
hearing passed constitutional muster and thus concluded that petitioner was not
entitled to habeas relief on that issue. Petitioner’s sufficiency of the evidence
claim, however, was found to be meritorious, and the district court ultimately
ordered the state to file the appropriate charging documents for the lesser
included offense of petit larceny or, in the alternative, to order petitioner’s
permanent release from custody on the challenged count, within 60 days, to avoid
issuance of the writ.
1 This is actually petitioner’s third appeal, but the first two were consolidated for decision.
-2- During the course of that 60-day period, 2 on April 16, 1996, the United
States Supreme Court issued its decision in Cooper v. Oklahoma, 116 S. Ct. 1373
(1996), holding unconstitutional the Oklahoma law that presumes a defendant
competent unless he proves otherwise by clear and convincing evidence.
Petitioner immediately filed with the district court a request for reconsideration of
the competency hearing issue, noting accurately that, at his retrospective
competency hearing, he was held to that now-unconstitutional standard of proof.
The court denied petitioner’s request for reconsideration on exhaustion grounds,
explaining that:
[t]he competency issue raised previously by petitioner before this Court pertained to whether it was feasible for the state court to conduct a retrospective hearing to determine the competency of petitioner to stand trial. Petitioner has not satisfied his burden of showing that the Cooper issue raised by petitioner in his motion for reconsideration is an issue he raised in state court post-conviction proceedings.
District Court Record, doc. 63 at 1. Petitioner then filed a motion asking the
district court to hold his petition in abeyance pending the exhaustion of his
Cooper claim. This motion was also denied, and judgment was ultimately
entered, noting petitioner’s release from custody on the invalid felony conviction
and denying the petition in all other respects.
2 The state court actually entered an order releasing petitioner from custody on the invalid conviction on March 29, 1996, but the federal district court was not informed of that fact by the state until June 19, 1996.
-3- Petitioner now appeals from (1) the district court’s denial of his petition on
the competency hearing issue, (2) the district court’s refusal to reconsider its
ruling on the competency hearing issue in light of Cooper, and (3) the district
court’s refusal to hold his petition in abeyance pending exhaustion of his Cooper
claim. The district court denied a certificate of appealability on December 26,
1996. We have since held that with respect to petitions, like this one, that were
filed before the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), it is
a pre-AEDPA certificate of probable cause that is required, rather than an
AEDPA certificate of appealability. See United States v. Kunzman, 125 F.3d
1363, 1364 n.2 (10th Cir. 1997). In any event, the preliminary issue before us is
whether petitioner has made a substantial showing of the denial of a constitutional
right. See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117
S. Ct. 746 (1997), overruled in part by Lindh v. Murphy, 117 S. Ct. 2059, 2061
(1997). Having carefully reviewed petitioner’s brief and the record, we conclude
that petitioner has failed to make such a showing.
In challenging the feasibility of his retrospective competency hearing,
petitioner relies, as he did in his earlier appeal, on the three and one-half years
that elapsed between his trial and his required competency hearing, and the
intervening death of two key witnesses, trial counsel and the examining
-4- psychiatrist. Our earlier decision in this case made it clear that the mere lapse of
time does not necessarily preclude a valid competency hearing. See Reed v.
Champion, 1995 WL 4007, at *3 (10th Cir. Jan. 6, 1995) (citing Barefield v. New
Mexico, 434 F.2d 307, 309 (10th Cir. 1970); Crail v. United States, 430 F.2d
459, 461 (10th Cir. 1970)). In addition, by our remand of the case to the district
court for further consideration, we implicitly declined to hold that the
unavailability of the examining psychiatrist and/or trial counsel rendered the
retrospective competency hearing per se inadequate.
The question as to whether a meaningful retrospective hearing is possible
necessarily involves a case by case determination, and depends on whether “the
state of the record, together with such additional evidence as may be relevant and
available, permits an accurate assessment of the defendant’s condition at the time
of the original state proceedings.” Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir.
1996); see also Wheat v. Thigpen, 793 F.2d 621, 630 (5th Cir. 1986) (meaningful
hearing is possible “where there is sufficient data available to guarantee
reliability”; the question is “whether the quantity and quality of available
evidence [is] adequate to arrive at an assessment that [can] be labeled as more
than mere speculation”) (further quotation omitted). Among the factors
considered in determining whether a meaningful hearing may be held are “the
existence of contemporaneous medical evidence, the recollections of non-experts
-5- who had the opportunity to interact with the defendant during the relevant period,
statements by the defendant in the trial transcript, and the existence of medical
records.” Reynolds, 86 F.3d at 803. Key to the determination is the availability
of evidence “derived from knowledge contemporaneous to trial.” Bruce v.
Estelle, 536 F.2d 1051, 1057 (5th Cir. 1976) (further quotation omitted)
(“Especially where medical information substantially contemporaneous to trial is
available, the chances for an accurate assessment increase.”); see also Cremeans
v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) (“[R]etrospective determination
may satisfy the requirements of due process provided it is based on evidence
related to observations made or knowledge possessed at the time of trial.”);
Moran v. Godinez, 57 F.3d 690, 696 (9th Cir. 1994) (“[M]edical reports
contemporaneous to the time of the initial hearing greatly increase the chance for
an accurate retrospective evaluation of a defendant’s competence.”).
In his report and recommendation, the magistrate in this case set out at
length the evidence presented at petitioner’s retrospective competency hearing.
There is no need to repeat it here. Having carefully reviewed the record, we agree
with the district court’s conclusion that in this case, even without the testimony of
trial counsel or the examining psychiatrist, there was a sufficient basis from
which to make a legitimate retrospective competency determination.
-6- Turning to petitioner’s challenge to the district court’s refusal to reconsider
its ruling in light of Cooper, we note that the court denied reconsideration
because it correctly concluded that the Cooper issue raised in the motion for
reconsideration was unexhausted. 3 Petitioner states on appeal that he has now
exhausted his Cooper claim, and has attached to his brief a copy of a state court
order (entered seven months after the district court denied his motion for
reconsideration and four months after judgment in his 2254 action), which
supports that statement, but also raises the issue of state procedural default. In
any event, if petitioner would like to pursue federal habeas relief on his now-
exhausted Cooper claim, he is free, pursuant to 28 U.S.C. § 2244(b)(3)(A), to ask
this court for an order authorizing the district court to consider a second
application for a writ of habeas corpus.
3 We reject the suggestion in petitioner’s brief that simply because both the feasibility issue and the standard of proof issue have their genesis in due process, they should be regarded as one issue for exhaustion purposes.
-7- The petitioner’s request for a certificate of probable cause is denied, and
the appeal is dismissed.
Entered for the Court
James E. Barrett Senior Circuit Judge
-8-