[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-14908 August 10, 2005
_____________________________ THOMAS K. KAHN
D. C. Docket No. 01-02620 CV-1-ODE CLERK
ANTHONY GEORGE BATTLE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA
Respondent-Appellee.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(August 10, 2005)
Before EDMONDSON, Chief Judge, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
We hereby withdraw entirely our earlier opinion in this case.
Defendant-Appellant Anthony George Battle appeals from the denial of his
28 U.S.C. § 2255 motion collaterally attacking his second murder conviction and
accompanying death sentence, which were affirmed by this Court in United States
v. Battle, 173 F.3d 1343 (11th Cir. 1999). From a certificate of appealability
Battle presents six arguments to persuade us that his death sentence was imposed
improperly. None of the arguments persuade us, and we affirm the district court’s
judgment.
Background
I. The Facts Underlying Battle’s Conviction
Battle was serving a life sentence for the 1987 sexual assault and murder of
his wife, Minnie Foreman, a United States Marine stationed at Camp Lejune. By
1993 Battle had been placed in Cellhouse C at the United States Penitentiary-
Atlanta (“USP-A”). On 21 December 1994, correctional officer D’Antonio
Washington was found lying on the floor of Cellhouse C with blood spurting out
of his head. Battle was seen nearby standing beside a vending machine, his
clothes splattered with blood. Behind the same vending machine a hammer with
fresh blood on it was found. DNA analysis revealed the that the blood on Battle’s
clothing and on the hammer belonged to Officer Washington. A USP-A
2
inmate/trustee, who was authorized to carry tools, testified that he loaned the
hammer to Battle because Battle said he needed it to fix something in his cell.
Battle confessed to a correctional officer that same day that Battle had killed
Officer Washington. On 26 January 1995, federal agents interviewed Battle, who
told the agents that he felt he was getting “bossed around” at USP-A and that he
thought he might get more respect by killing officer Washington. Battle also told
the agents he was happy about Officer Washington’s death and had no remorse
whatsoever. During the interview Battle made no mention of the delusions he
later claimed contributed to the killing.
In November 1995, a grand jury indicted Battle for murder under 18 U.S.C.
§ 1118. The next month Battle filed a notice to rely on an insanity defense; the
government noticed its intent to seek the death penalty in July 1996.
II. The Competency Determination1
1
A comprehensive account of the voluminous testimony on the issue of Battle’s competency, both
at the competency hearing and at the trial, is found in United States v. Battle, 235 F. Supp. 2d 1301,
1306-25 (N.D. Ga. 2001), and United States v. Battle, 264 F. Supp. 2d 1088, 1108-27 (N.D. Ga.
2003).
3
Before trial, Battle was evaluated by three defense experts and two
government experts. The experts testified before a magistrate judge at the
competency hearing, which lasted about twelve days.
The defense offered psychiatrists Drs. Davis and Woods, along with
psychologist Dr. O’Hagan. Drs. Davis and Woods both interviewed Battle three
times; Dr. O’Hagan interviewed Battle six times over a course of two months.
Battle consistently reported a set of symptoms to the doctors: that he felt “pains
and sensations” due to microchip implants that had been put inside his body by
prison staff to monitor and control him. All defense experts agreed that, during
testing, Battle generally was cooperative and fully oriented. The defense doctors
all concluded Battle was suffering from paranoid schizophrenia and was
incompetent to stand trial.
The government offered psychiatrist Dr. Johnson and psychologist Dr.
Hazelrigg, both of whom were employed by the Bureau of Prisons. This
evaluation took place over seventy-five days during which Dr. Johnson saw Battle
about forty times and Dr. Hazelrigg about fifty times. Battle was likewise
cooperative with the government’s experts and reported to them the same
4
symptoms as he had given defense experts. Drs. Johnson and Hazelrigg also saw
Battle again about two weeks before the competency hearing.
At the competency hearing Dr. Johnson testified that she disagreed with the
defense experts’ diagnosis of paranoid schizophrenia. She said it was difficult to
diagnose schizophrenia in an outpatient setting and that the defense experts did
not spend enough time with Battle to substantiate their diagnoses conclusively.2
Both Drs. Johnson and Hazelrigg concluded that Battle suffered from personality
disorders with schizotypal qualities but that he was not schizophrenic. These
doctors opined that Battle was malingering in his symptom report about the
implants and opined that he was competent to stand trial.
The magistrate judge issued a lengthy report recommending that Battle be
found competent to stand trial. The district court “carefully reviewed the
transcript and exhibits from the competency hearing and adopted the Report and
Recommendation of [the magistrate judge].” Unites States v. Battle, 264 F. Supp.
2d 1088, 1119 (N.D. Ga. 2003). In concluding Battle was competent to stand trial,
the district court found persuasive the seventy-five-day observations of Drs.
2
Dr. Johnson had also evaluated Battle in 1987 (after Battle was accused of killing his wife) and
found personality disorders but no schizophrenia. Johnson noted that, although schizophrenic
symptoms can wax and wane, schizophrenia is a disease of general deterioration, especially without
treatment. Johnson found it significant that Battle, not having been treated for psychotic disorders
during the last nine years, had “not shown any deterioration in his functioning” over that time.
Battle, 264 F. Supp. 2d at 1113.
5
Johnson and Hazelrigg and that Battle had not reported the implants to prison
officials until after Washington’s murder. Id. at 1119-20.
III. The Trial
The time between the competency hearing and the trial was about three and
a half months. Rather than hold another competency hearing at the start of the
trial, the district court decided to observe Battle in court during jury selection to
determine if a further competency evaluation was needed. Battle initially
protested his being present in the courtroom for jury selection, but after an
involved colloquy with the court3 said, “Yes, I will participate in this. . . . I can be
here.” The court had ordered that Battle be medicated for the trial; but on the first
morning of trial, the marshal reported to the court that Battle had refused to take
his medication. The district court arranged to get advice on the psychiatric
implications of Battle being unmedicated and ultimately discovered that Battle had
not been on medication regularly or, at least, not for a long time. The court
rescinded its order to medicate Battle involuntarily and ordered only that Battle be
3
In this colloquy, Defendant indicated that he had “been through this once before so I’m aware
of what is to be taking place.”
6
provided with medication during trial.4 After the first day of voir dire, the defense
asked for a continuance to have Battle evaluated again by one of the defense
experts. Denying the request, the district court concluded that its observation of
and interaction with Battle “reinforced the Court’s view that Defendant was
competent to stand trial.” Battle, 264 F. Supp. 2d at 1128.5
At times during the trial, Battle exhibited disruptive behavior, mainly by
speaking out in front of the jury to correct or to agree with a witness. And before
the jury was brought in for opening statements, Battle told the court he wanted to
be excused saying, “I’m not in agreement with my attorneys and the evidence that
they have here on my behalf” and “[t]here’s more credible evidence I would have
preferred to have here in this case.” Battle then told the trial court that he felt
“pains and sensations” and that it was difficult for him to stay focused. The court
observed Battle rocking back and forth in his chair at times during the trial.
Battle frequently indicated dissatisfaction with his lawyers: his lawyers
were unwilling to present a defense based upon the implants Battle said he
believed to be inside him. Battle also indicated his dissatisfaction with his
4
The district court indicated that its concern for Battle’s medication was about courtroom security,
not about Battle’s competency. Battle, 264 F. Supp. 2d at 1128, 1172-74.
5
The court also noted that Battle’s lawyers were free to have Battle examined in the evenings after
the trial had recessed if they wished.
7
lawyers’ intent to portray him as schizophrenic. Nonetheless, Battle’s lawyers
proceeded with an insanity defense at trial based on Battle’s giving them “implicit
authority early on in rambling conversation.” Neither Battle nor his lawyers told
the trial court that Battle disagreed with the presentation of an insanity defense.
Over the objection of his lawyers, Battle testified as the first defense witness
at the guilt phase of trial. He confessed to the murder of Officer Washington and
acknowledged that he knew it was wrong to kill another human being. Battle also
told the jury about his belief in the implants. The jury found him guilty.
During the penalty phase of trial, the court excused two jurors for
inappropriate behavior and replaced them -- before penalty phase deliberations --
with two alternate jurors who had been present during the presentation of evidence
at both the guilt and penalty phases. Battle also testified at the penalty phase,
where he told the jury about Officer Washington, “The guy, you know, he acted
like a dog. You know, he talked to you like a dog and, you know, he died like a
dog.” The jury recommended the death penalty, and the court sentenced Battle
accordingly. Upon receiving his death sentence, Battle responded, “Could I just
do away with the appeals and everything at this moment?”
IV. The Appeals
8
Battle did appeal, however, raising thirteen separate issues on the
direct appeal. We affirmed his conviction and sentence. United States v. Battle,
173 F.3d 1343, 1345 (11th Cir. 1999). He later, in the district court under 28
U.S.C. § 2255, sought collateral review of the legality of his conviction and
sentence. After reviewing the evidence adduced at trial, hearing testimony at the
motion hearing and argument from counsel, the district court denied relief.
Discussion
In his argument that the district court erred in declining to set aside his
conviction and death sentence, Battle raises six issues: (1) Whether the district
court erred in finding Battle competent to stand trial and in failing to hold another
competency hearing at the beginning of trial; (2) Whether Battle’s Fifth and Sixth
Amendment rights were violated by presentation of an insanity defense; (3) (a)
Whether the indictment’s failure to include capital statutory aggravating factors
provides Battle with grounds for relief, and (b) Whether the Federal Death Penalty
Act is unconstitutional; (4) Whether the district court erred in dismissing two
jurors and seating alternate jurors for penalty phase deliberations; (5) Whether the
district court erred in declining to have Battle’s § 2255 motion randomly assigned
9
to another judge; and (6) Whether the district court erred in limiting the scope of
post-conviction discovery.6
I. The Competency Claims
Battle argues that his due process rights were violated because the district
court found Battle competent to stand trial and declined to hold another
competency hearing at the beginning of trial. In so arguing, Battle blurs the
inquiry between a procedural competency claim, which can be waived, and a
substantive competency claim, which cannot.7 We see merit in neither claim.
Battle contends the district court -- in view of his conduct at the beginning
of and during trial -- should have concluded that his conduct raised a “bona fide
doubt” about his competency to stand trial and should have held a competency
hearing sua sponte or at the request of counsel. See James v. Singletary, 957 F.2d
1562, 1570 (11th Cir. 1992). This claim is a procedural competency claim,
6
After careful review of the law and record, we readily conclude issues (3)(b), (5) and (6) lack
serious merit and will say no more about them.
7
Battle does not specify the source of this due process right and cites cases reviewing state court
convictions invoking due process protections under the Fourteenth Amendment. Because we are
reviewing a federal court conviction, we will construe Battle’s due process claim as one under the
Fifth Amendment. See Clark v. Beto, 359 F.2d 554, 557 n.9 (5th Cir. 1966).
10
otherwise known as a Pate claim. Id. at 1570-71 (explaining procedural
competency claim under Pate v. Robinson, 86 S.Ct. 836 (1966)). Because Battle
failed to raise this claim on direct appeal, Battle, 173 F.3d at 1345 n.2, he has
waived it. See James, 957 F.2d at 1572 (observing that “Pate claims can and must
be raised on direct appeal”).8
Battle also contends that he was tried and convicted while he was, in fact,
incompetent. This claim is a substantive competency claim. Medina v. Singletary,
59 F.3d 1095, 1106 (11th Cir. 1995). Battle also failed to raise this claim on direct
appeal. But this kind of claim “is not subject to procedural default and must be
considered on the merits.” Id. at 1111.
Incompetency means “suffering from a mental disease or defect rendering
[defendant] mentally incompetent to the extent that he is unable to understand the
nature and consequences of the proceedings against him or to assist properly in his
defense.” 18 U.S.C. § 4241(a). “[A] petitioner raising a substantive claim of
incompetency is entitled to no presumption of incompetency and must demonstrate
his or her incompetency by a preponderance of the evidence.” Medina, 59 F.3d at
1106 (quotations and citation omitted). To show entitlement to a hearing on his
8
Even had Battle properly preserved this claim, we agree with the district court that the claim
would fail on the merits. See Battle, 264 F. Supp. 2d at 1128-29.
11
substantive incompetency claim, Battle must present “clear and convincing
evidence creating a real, substantial and legitimate doubt [about] his competence
to stand trial.” Id. (quotations and citation omitted). This standard of proof is
high; and “the facts must positively, unequivocally, and clearly generate the
legitimate doubt.” Id. (quotations and citation omitted). “A district court’s
determination that there is insufficient evidence to generate a substantial and
legitimate doubt as to a petitioner’s competence to stand trial is reviewed for clear
error.” Id.
To meet his burden, Battle mainly relies on (1) his self-reported symptoms
to his lawyers about the implants and his frustration with his lawyers’ failure to
find the implants or to present the implants to the jury, coupled with (2) his
disruptive courtroom behavior during trial. He also points to the history of mental
illness, the alleged error in his competency determination, and his lawyers’
representations that he was not competent during his trial.
That Battle at times exhibited an antagonistic relationship with his lawyers
over their representation of him is no indicator of incompetency. Many criminal
defendants differ with their lawyers on how best to represent them. In addition,
the district court found that Battle did not exhibit an unequivocal complaint about
the implants until August 1995 in an interview with a defense psychiatrist -- well
12
after the murder and initial investigation -- and found Battle was faking this
reported symptom.
Neither do Battle’s courtroom outbursts, odd behavior, and history of
mental illness mandate a finding of incompetency. “[N]ot every manifestation of
mental illness demonstrates incompetence to stand trial; rather, the evidence must
indicate a present inability to assist counsel or understand the charges. . . .
Similarly, neither low intelligence, mental deficiency, nor bizarre, volatile, and
irrational behavior can be equated with mental incompetence to stand trial.”
Medina, 59 F.3d at 1107 (quotations and citations omitted) (emphasis added).
Not long before the trial, Battle did receive a fair and thorough competency
determination. This hearing lasted about twelve days and involved many
witnesses, five of whom were either psychiatrists or psychologists who had
evaluated Battle. After considering the extensive testimony from both sides, the
district court found the government’s witnesses -- who had evaluated Battle over a
longer and more consistent period of time -- more persuasive and found Battle
competent. The record supports the district court’s decision; faced with
“diametrically opposite expert testimony,” a district court does not clearly err
simply by crediting one opinion over another where other record evidence exists to
13
support the conclusion. Johnson v. Singletary, 162 F.3d 630, 639 (11th Cir.
1998).9
After revisiting the extensive factual history of Battle’s murder trial (over
which it presided) and hearing new testimony at the 2255 proceeding on Battle’s
behalf, the district court found that Battle not only had the ability to understand,
but actually did understand, the nature of the charges against him and their
resultant potential consequences. Likewise, the district court found Battle had the
ability to, and did indeed, assist his counsel in preparing for his trial by discussing
the facts of his case in detail before trial and by cooperating with defense
investigators. Moreover, the trial judge observed and interacted with Battle
throughout the trial and found Battle’s responses to the court and his decisions to
be rational. Nothing in the record -- even taking one thing with another --
indicates the district court clearly erred in its findings. In sum, Battle has failed to
hurdle the high standard required to prevail on a substantive competency claim.
9
At the 2255 proceeding, the district court also admitted into evidence a declaration by one of
Battle’s trial lawyers, public defender Stephanie Kearns, that stated Battle was “mentally ill” at the
time of trial. The district court found Kearns’s declaration unpersuasive and found it odd that Kearns
is now stalwart in her assertion that Battle was incompetent at trial despite her choice not to raise
Battle’s competency as an issue on direct appeal. We conclude Kearns’s declaration is unpersuasive
for an additional reason: mental illness, as a matter of law, does not preclude a finding of
competency to stand trial.
14
II. The Insanity Defense Claim
Battle claims that his Fifth and Sixth Amendment rights were violated: he
contends his lawyers presented an insanity defense at trial over his objection. We
review for clear error the district court’s finding of fact about Battle’s consent to a
particular defense; we review de novo the district court’s legal conclusions about
Battle’s constitutional claims. Thompson v. Nagle, 118 F.3d 1442, 1447 (11th
Cir. 1997).
Battle relies on his lawyers’ post-conviction declaration saying he did not
want an insanity defense. The district court, however, found that Battle did
consent, at least tacitly, to an insanity defense -- although at times he was
ambivalent about it. After reviewing the record we conclude that the district
court’s factual finding that Battle consented to the presentation of an insanity
defense was not clearly erroneous.
Noting that Battle neither publically objected to an insanity defense (as he
publically objected to many things during the trial that he did not like) nor testified
to that effect at his 2255 proceeding, the district court nonetheless accepted the
idea that Battle did not “want” to be portrayed as insane because he felt such a
label was insulting. The 2255 court also accepted that Battle was dissatisfied with
15
his trial lawyers’ defense strategy because they refused to present evidence about
the implants to the jury. But these things are different ideas than that Battle’s
lawyers actually overbore his will and presented an insanity defense over his
objection.10
We cannot conclude that the district court clearly erred in finding that Battle
consented to the insanity defense.11
III. The Failure to Indict Aggravating Factors
Battle argues his death sentence should be vacated because, he contends, the
government did not include in the indictment the aggravating factors necessary to
support his death sentence. See e.g., 18 U.S.C. §§ 3591(a)(2)(A) (“intentionally
10
The record instead indicates that Battle’s ambivalence before and during the trial stemmed from
his frustration at the lack of an “implant” defense, not from the rejection of an insanity defense. For
example, just before opening statements and as part of Battle’s request to be excused from the
proceedings in protest of his lawyers’ handling of his case, Battle told the court, “I’m not in
agreement with my attorneys and the evidence that they have here on my behalf” and that, “[t]here’s
more credible evidence I would have preferred to have here in this case.” After the court told him
he needed to stay, Battle responded, “It’s not so much I’m not in agreement with my attorneys. I’m
in slight pain. I feel slight pain sensations, also. So I’m in a little discomfort also, and . . . I would
have to really go to great length to endure the situation.” (Emphasis added). Battle attributed the
“sensations” to the implants.
11
Because of our conclusion, we have no occasion to address Battle’s Fifth and Sixth Amendment
claims.
16
killed the victim”), 3592(c)(3) (“Previous conviction of offense for which a
sentence of death or life imprisonment was authorized.”). Battle reasons that,
because the Supreme Court in Ring v. Arizona, 122 S.Ct. 2428, 2443 (2002),
characterized the aggravating factors necessary to support the death penalty under
Arizona law as “‘the functional equivalent of [] element[s] of a greater offense,’”
id. (quoting Apprendi v. New Jersey, 120 S.Ct. 2348, 2365 n.19 (2000)), for Sixth
Amendment jury-trial guarantee purposes, it follows that the Federal Death
Penalty Act (“FDPA”) intent and statutory aggravating factors must be charged in
the indictment for Fifth Amendment grand-jury clause purposes.
This appeal is not one of direct review. It is one of collateral review per §
2255. Battle’s argument is based on the Supreme Court's decision in Ring. But
Ring was decided after Battle’s case was final on direct review. And Ring
announced a new procedural rule that does not apply retroactively to cases already
final on direct review. Schriro v. Summerlin, 124 S.Ct. 2519, 2526 (2004)
(analyzing Ring’s retroactivity under Teague v. Lane, 109 S.Ct. 1060 (1989)).
Thus, Ring -- even if it otherwise extends to the facts of a case like this one --
could not invalidate Battle’s conviction and sentence now.
By the way, we doubt Battle could show prejudice, even if his argument was
not barred by Teague. The indictment did include this statement: “[T]he
17
defendant, Anthony George Battle, while confined in a federal correctional
institution, . . . under a sentence of life imprisonment imposed on January 25,
1988, . . . did unlawfully and with malice aforethought commit the murder of
D’Antonio Washington, by beating D’Antonio Washington with a hammer, in
violation of Title 18, United States Code, Section 1118.” And the evidence was
strongly against Battle.
IV. The Seating of Alternate Jurors for Penalty Phase Deliberations
Battle presents two arguments contending that the composition of his
penalty-phase jury was improper, thus requiring reversal of his sentence. First, he
argues that the trial court violated Rule 24(c) of the Federal Rules of Criminal
Procedure by failing to discharge the alternate jurors when the jury retired to
deliberate during the guilt phase of the trial. Second, Battle argues that the trial
court’s Rule 24(c) violation, followed by its seating two alternates for penalty-
phase deliberations, led to a violation of 18 U.S.C. § 3593(b), which provides that
a capital defendant’s sentencing hearing shall be conducted “before the jury that
determined the defendant’s guilt.” Id. § 3593(b)(1).
18
The version of Rule 24(c) in effect at the time of Battle’s trial provided that
“[a]n alternate juror who does not replace a regular juror shall be discharged after
the jury retires to consider its verdict.” Fed. R. Crim. P. 24(c) (1998).12 At the
outset we observe that Battle did not object to the trial court’s failure to discharge
the alternate jurors at the close of the guilt phase; so he has waived that objection.
Cf. United States v. Acevedo, 141 F.3d 1421, 1423 n.2 (11th Cir. 1998) (noting
possibility that counsel can waive a Rule 24(c) violation by failing to object).
Even had Battle preserved the claim, it would fail because a Rule 24(c) violation is
not a per se reversible error; and Battle has shown no prejudice.13 See id. at 1424.
Battle’s second juror-related claim is that the district court -- by seating two
alternate jurors before penalty-phase deliberations -- violated his statutory right to
have his sentencing hearing conducted “before the jury that determined [his]
guilt.” 18 U.S.C. § 3593(b)(1). The court seated these alternates after discharging
two jurors for just cause during the penalty phase of Battle’s trial. The alternates
12
That rule was amended in 1999 to allow a district court to retain alternate jurors after
deliberations begin so that an alternate juror may be substituted during deliberations if necessary.
Fed. R. Crim. P. 24(c)(3).
13
Battle claims prejudice by arguing the Rule 24(c) violation led to a § 3593(b) violation when
the court seated two alternates to deliberate during penalty phase. Because we see no prejudice to
Battle from the seating of the alternates, this claim fails.
19
had been present during the presentation of evidence for both guilt and penalty
phases; they were absent from the guilt-phase deliberations.
The Seventh Circuit has addressed this issue under strikingly similar
circumstances and concluded that a trial judge’s seating an alternate juror to be a
part of penalty-phase deliberations did not violate § 3593(b), observing that “[t]he
statute makes no provision for the situation that occurred here, leaving it to the
good sense of the judges to deal with.” United States v. Johnson, 223 F.3d 665,
670 (7th Cir. 2000).
We agree with the Seventh Circuit. Section 3593(b) guarantees capital
defendants a bifurcated proceeding: a guilt phase and a penalty phase. The
section does not, however, guarantee that the penalty decision will necessarily be
made -- as a matter of right -- by the same jury that determined the defendant’s
guilt. See 18 U.S.C. § 3593(b)(2)(C) (providing for sentencing hearing before
different, newly-impaneled jury if guilt-phase jury has been discharged for good
cause). The trial court’s retention of alternates was a wise decision and proved its
worth by allowing the court to avoid possibly declaring a mistrial after a complex
capital case had been ably presented by both parties over the course of several
weeks.
20
Moreover, Battle presents no serious argument that he was prejudiced. He
asserts that an alternate juror -- once seated -- would not have the benefit of guilt-
phase deliberations and that it might be difficult for that alternate to dissuade the
other jurors from recommending the death penalty if they are already in substantial
agreement. But in federal capital penalty-phase deliberations, a single juror has
the power to thwart a death sentence without persuading anyone: he simply needs
to vote against the death penalty and the defendant will then be sentenced to life in
prison. So, Battle’s prejudice argument is meritless.
Conclusion
For all of the foregoing reasons, we affirm the district court. The stay of
execution on Battle’s death sentence is lifted.
AFFIRMED.
21