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Cole v. Roper

United States Court of Appeals, Eighth Circuit

April 14, 2015

Andre Cole, Petitioner - Appellee
Donald P. Roper, Respondent - Appellant

Petition for certiorari filed at, 04/14/2015

Page 708

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For Andre Cole, Petitioner - Appellee: Carol R. Camp, Joseph Luby, DEATH PENALTY LITIGATION CLINIC, Kansas City, MO.

For Donald P. Roper, Respondent - Appellant: Caroline Coulter, Assistant Attorney General, Gregory Michael Goodwin, Assistant Attorney General, Stephen David Hawke, Assistant Attorney General, Michael Joseph Spillane, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO; Bill Lawrence Thompson, SUPREME COURT OF MISSOURI, Jefferson City, MO.

Before BYE, BEAM, and GRUENDER, Circuit Judges. GRUENDER, Circuit Judge, concurring, with whom Judge Beam joins. BYE, Circuit Judge, dissenting.


Page 709

BEAM, Circuit Judge.

On March 23, 2015, Andre Cole, a Missouri prisoner subject to a sentence of death scheduled to be carried out April 14, 2015, filed in the Missouri Supreme Court a petition for a writ of habeas corpus, claiming he was incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). In support of his petition in Missouri state court, Cole submitted a report by Dr. William S. Logan, a forensic psychiatrist, who interviewed him for two-and-one-half hours. Dr. Logan concluded that Cole's mental state prevented him from comprehending or forming a rational understanding of the reason for the execution to which he has been sentenced. Cole also submitted the affidavits of his current and former counsel who state that Cole's mental condition has deteriorated over the last four years and that he suffers from auditory hallucinations.

In response, the state submitted the record of a routine wellness check conducted by Dr. Alwyn Whitehead, a psychologist employed by Corizon Medical Services. The wellness check was conducted at Cole's cell door. Dr. Whitehead reported that Cole denied " any hallucinatory experiences and there were no overt symptoms of severe depression, mania, or psychosis." Dr. Whitehead conducted the entire wellness check in fifteen minutes. The state also submitted recordings and transcripts from four telephone calls made by Cole to unknown persons wherein Cole discussed various topics, including execution issues in other states, that he was placed on " pre-execution" status, the execution drugs, and his opinion that the prosecutor's story that he stabbed the victim while he had a gun did not make sense. Cole then filed a supplemental report from Dr. Logan responding

Page 710

to the state's submissions, and Dr. Logan concluded that nothing filed by the state altered his original conclusions regarding Cole's mental state.

Because a petition for writ of habeas corpus is an original action in Missouri, the Missouri Supreme Court served as the fact-finder for Cole's competency challenge. Mo. S.Ct. Rule 84.22 and 91.01. The court analyzed Cole's claim within the framework of Ford and Panetti, specifically noting the presumption of competency afforded to a prisoner who has previously been judged competent to stand trial, which can only be overcome by a substantial threshold showing of insanity. Ford, 477 U.S. at 426. The Missouri Supreme Court also found that unlike the petitioners in both Ford and Panetti, Cole was afforded the opportunity to offer his own expert opinion and attorney affidavits in support of his claims. Accordingly, the court found that " even assuming Mr. Cole's evidence makes a substantial showing of incompetency, he has received all process to which he is entitled under Ford and Panetti." State ex rel. Cole v. Griffith, No. SC94880, (Mo. April 9, 2015). The court went on to thoroughly review Cole's and the state's proffered evidence and found that Cole rationally understood his death sentence and the reasons for it.

Cole filed the current supplemental petition for habeas corpus pursuant to 28 U.S.C. § 2254, along with a motion for stay of execution. The district court concluded that the Missouri Supreme Court unreasonably applied Ford and Panetti by not " refer[ring] the matter to a qualified fact-finder for a fair hearing at which each of the parties could present evidence relevant to Cole's competency." Cole v. Griffith, No. 4:05CV131, *14 (E.D. Mo. April 13, 2015). Curiously, the district court suggests that if the Missouri Supreme Court had done far less and explicitly found that Cole had not made a threshold showing of incompetency, its reasoning would have passed constitutional muster. Accordingly, the district court granted Cole's motion for a stay of execution. The state appeals.

Under 28 U.S.C. § 2254, a federal court cannot grant habeas relief on any claim that was adjudicated on the merits in state court unless the decision was " contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). " Under § 2254(d)(1)'s 'unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Thus, " [a] state court decision may be incorrect, yet still not unreasonable, and we will grant relief only if the state court decision is both incorrect and unreasonable." Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir. 2010). Because the Missouri Supreme Court's decision does not fit within any of these exceptions, it is entitled to deference and Cole is not entitled to relief.

Panetti instructs that " 'a constitutionally acceptable procedure may be far less formal than a trial.'" Panetti, 551 U.S. at 949 (quoting Ford, 477 U.S. at 427) (Powell, J., concurring)). The " basic requirements" of due process include " an opportunity to submit 'evidence and argument from the prisoner's counsel, including expert psychiatric evidence that may differ from the State's own psychiatric examination.'" Id. at 950

Page 711

(quoting Ford, 477 U.S. at 427); see also Panetti, 551 U.S. at 951 (" [The state court] failed to provide petitioner with an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts." ); Ford, 477 U.S. at 424 (Powell, J., concurring) (explaining that the determination of sanity " appear[ed] to have been made solely on the basis of the examinations performed by state-appointed psychiatrists" ).

Even if the state court incorrectly decided the due process issue, it was not an unreasonable application of Ford or Panetti to reach the merits of Cole's incompetency claim without a more formal hearing. Because it is an original proceeding, the Missouri Supreme Court initially evaluated Cole's motion and then sequentially, as the finder of fact and concluder of law under Missouri's habeas rules, examined the record and determined that Cole remained competent. Cole submitted Dr. Logan's expert opinion, and Dr. Logan had a chance to respond to the state's evidence. In addition, Cole's counsel presented written arguments about Dr. Logan's opinion. The Missouri Supreme Court's determination that this constituted all of the hearing and/or process required by Panetti and Ford does not violate § 2254(d). In fact, Cole received far more process than the petitioners in Ford and Panetti, and the specific procedural deficiencies present in those cases are not present here. Without more direction from the Supreme Court about the contours of due process in this context, we cannot say that the Supreme Court of Missouri unreasonably applied Ford or Panetti.

Furthermore, a federal court is bound by the state court's factual findings unless the state court made 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)(2). Factual determinations made by state courts are presumed correct and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. Nicklasson v. Roper, 491 F.3d 830, 834 (8th Cir. 2007); see also § 2254(e)(1). A factual determination is not unreasonable " merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). The existence of some contrary evidence in the record does not suffice to show that the state court's factual determination was unreasonable. Id. at 302-03.

The Missouri Supreme Court did not make an unreasonable determination of facts in light of the evidence presented to it. Because Cole has previously been determined competent to stand trial, he faced a presumption of competency. Ford, 477 U.S. at 426. The Missouri Supreme Court's finding that Cole's proffered evidence did not rebut the presumption of competency is itself presumed to be correct. And Cole has not presented clear and convincing evidence to the contrary in his federal habeas proceeding, especially in light of the state's proffer of Cole's recorded telephone conversations. The Missouri Supreme Court reasonably determined that Cole rationally understood his death sentence and the reasons for it as demonstrated, among other things, by a recorded conversation as recently as March 9, 2015. In this conversation, he ...

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