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July 5, 1996 [NOT FOR PUBLICATION]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). ____________
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counsel are denied. The motion for recusal is denied as ______ ______
moot.
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