United States Court of Appeals
For the First Circuit
No. 00-2110
RONALD JOHNSON,
Petitioner, Appellee,
v.
PAUL E. NORTON, SUPERINTENDENT,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Chief Judge,
Lipez, Circuit Judge,
and Stearns,* District Judge.
James J. Arguin, Assistant Attorney General, with whom Thomas F.
Reilly, Attorney General, were on brief, for appellant.
Edward B. Gaffney, was on brief, for appellee.
* Of the District of Massachusetts, sitting by designation.
May 10, 2001
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TORRUELLA, Chief Judge. Prior to his appearance on the first
day of a criminal trial in Massachusetts state court, petitioner-
appellee Ronald Johnson was struck on the head by a fellow inmate. The
court denied Johnson's motion for a continuance and continued with jury
selection. During a break in the proceedings, Johnson collapsed and
the court suspended the trial so that Johnson could be treated.
Johnson returned to trial on the second day and was convicted by a jury
on the third. After exhausting his remedies in the state courts,
Johnson filed a petition for a writ of habeas corpus in federal
district court alleging that the trial court's failure to hold a
competency hearing sua sponte after he became ill violated his
Fourteenth Amendment right to due process. The district court
granted the writ, holding that the state court's denial of
Johnson's motion for a new trial on the same grounds was an
unreasonable application of Supreme Court precedent and was
based on an unreasonable determination of the facts. Johnson v.
Norton, No. 99-11249 (D. Mass. July 7, 2000). This appeal
followed. We affirm the decision of the district court.
BACKGROUND
On May 1, 1996, the Commonwealth of Massachusetts
issued a seven-count criminal complaint charging Johnson with
assault and battery by means of a dangerous weapon, assault with
a dangerous weapon and various firearms charges. Johnson's
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trial was originally scheduled to commence on July 22, 1996, but
he moved for a continuance to permit him to retain private
counsel. After his motion was denied by the trial judge,
Johnson filed an emergency petition for a continuance in the
Supreme Judicial Court of Massachusetts. A Single Justice of
that court denied the petition, and the case was called for
trial the next day, July 23, 1996.
A. Trial
On the first day of trial, Johnson's counsel informed
the court that Johnson desired to make a statement. Johnson
then acknowledged, "Yes, I would like to represent myself. And
I'm not ready for trial today. I got knocked out this morning
coming up from Middleton. I was assaulted by another inmate and
knocked out. I mean, I don't really know what's going on." The
judge informed Johnson that the trial would continue, and
proceeded to engage in a colloquy with Johnson regarding his
motion to seek new counsel. The judge informed Johnson that he
had already denied that motion the previous day, and moved on to
Johnson's request to subpoena a witness and obtain a copy of the
police report. Following this exchange, the judge entered into
a discussion with Johnson's counsel concerning various matters,
including the charge for possessing a handgun. Johnson
participated in this discussion, asking the trial judge whether
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the gun had been found and, when the judge revealed that it had
not, how he could have been charged with the crime. The judge
explained that the charge could be proven by witness statements,
and Johnson raised no further objection.
The trial then moved to jury selection. After the jury
was empaneled and sworn, the judge declared a recess. When the
session resumed, the judge told counsel that the court officer
had received a report from the nurse indicating that "the back
of [Johnson's] head is blown up and that's she recommending
[sic] that he be hospitalized." The nurse entered the courtroom
and reported that Johnson "passed out twice and he's vomiting
and he's a little shaky and he doesn't remember, he said he
passed out this morning." She suggested that Johnson might have
a concussion and should be "checked out."
The court suspended proceedings for the day, but
continued to discuss with counsel matters relating to scheduling
and witnesses. In the course of this discussion, the court was
informed that two jurors might have known one of the victims.
The judge asked defense counsel whether he would waive his
client's presence during the discussion of this issue. Defense
counsel responded that, "due to the fact that [Johnson had]
taken ill," he would waive his client's presence. Following an
unrecorded sidebar discussion, the judge informed the jury that
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Johnson had "become ill" and that, as a result, the trial would
be postponed until the next morning.
Johnson was present in the courtroom the following
morning. Following a discussion of preliminary matters, defense
counsel moved for a mistrial, stating that he had been talking
to his client earlier and that "there [were] some serious
questions here of his mental capacity to assist . . . himself in
the conduct of this trial [and that] there's a question as to
his competency and mental capacity." The judge denied the
motion, stating that the court officer whom he had directed to
call the nurse at the detention facility had already informed
him that Johnson was "medically cleared" to appear in the
courtroom. The trial proceeded for the remainder of the day.
After the defense rested and the jury was dismissed, the judge
made the following address to counsel:
In light of the issue that was raised this
morning, I'm now having witnessed the entire
day's proceedings [sic], I just want to make
some findings for the record, in light of
the statement this morning that Mr. Johnson
was not competent to continue with the trial
today because of his injury. I just want to
state for the record that Mr. Johnson has
been extremely alert all day. He has been
writing notes to his counsel. He has been
extremely involved and focused on the trial.
Raising questions, asking his Counsel both
verbally and in writing to ask certain
questions. Raising his hand on numerous
occasions which I have no problem with. I
commend him for doing it and I think he's
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done an excellent job. But there's no
question in my mind as a matter of fact that
the Defendant has been quite able to assist
his lawyer in conducting the trial here
today and in fact on more than numerous
occasions, directed his lawyer to ask
certain questions, both in writing and
verbally.
On the third day of trial, the jury returned a verdict
against Johnson. Before sentencing, Johnson asked to address
the court. In his remarks, Johnson alleged that he did not have
a fair trial because two of the jurors may have known one of the
victims. The judge responded that he had inquired into the
matter and that both jurors had indicated that they would not be
influenced by any prior knowledge. The court sentenced Johnson
to two and a half years on the assault and battery with a
dangerous weapons charge and two and a half years for the
firearms charge, to be served consecutively. The court gave a
suspended sentence of ten years for the assault by means of a
dangerous weapons charge, and the remaining convictions were
entered and placed on file.
B. Motion for a New Trial
On March 19, 1997, Johnson, represented by new counsel,
filed a motion for a new trial, alleging, inter alia, that trial
counsel had improperly waived his right to be present at jury
selection and that he "never agreed to let the trial continue
after he was taken back [to the detention facility] after
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vomiting and fainting on the day the jury was selected."
Johnson further alleged that, since much of the jury selection
process was conducted at sidebar while he remained at the
defense table, he was "de facto" excluded from participating at
all. Johnson submitted an affidavit in support of his motion,
claiming that he was not content with the jury selected and that
his trial counsel did not explain that he could keep certain
persons off the jury. Johnson's trial counsel also submitted an
affidavit, stating that Johnson had not been competent to assist
in the jury selection process, and that Johnson's understanding
of the jury selection process was "imperfect." The trial
counsel added that "[d]uring that time, [he] was unable to
communicate effectively with [Johnson]" and, as a result,
Johnson "was unable to understand or participate, at all, in the
jury selection process."
On May 13, 1997, the same judge who presided at trial
held a hearing on Johnson's new trial motion. On the issue of
Johnson's participation during jury selection, the judge stated
that he "specifically" remembered seeing Johnson "confer with
his lawyer . . . during the jury selection." Though it was not
explicitly stated as a basis for the motion for a new trial, the
issue of Johnson's competency arose from counsel's response to
the judge's statement: he indicated that despite the judge's
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observations, trial counsel had been unable to communicate with
Johnson and that Johnson had passed out twice during the break
following jury selection.
The trial judge denied Johnson's motion for a new trial
based, inter alia, on the court's "specific recollection of
discussions between defense counsel and [Johnson] concerning the
composition of the jury during the selection process."
Commonwealth v. Johnson, No. 9560-CR-1269 at 4 (Mass. Dist. Ct.
June 19, 1997). The judge further noted that Johnson "was in
the courtroom at all times during selection of the jury and
counsel and did continuously engage in discussion with [his
lawyer] during the process." Id. With regard to trial
counsel's affidavit that Johnson was not competent to assist in
jury selection, the judge held that the statement "was not
really competent evidence as to [Johnson's ability] to assist
[counsel] during the selection process." Id. at n.2. The
judge went on to explain that:
The Court was never informed that the
[petitioner] was unable to understand or
participate at all in the jury selection
process, indeed, the conversations between
defense counsel and the [petitioner] during
jury selection stand in marked contrast to
an affidavit that appeared after the hearing
on the motion for a new trial.
Id. The judge concluded that Johnson "was deprived of no
constitutional rights during the jury selection process." Id.
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C. The State Court Appeal
Johnson appealed his convictions as well as the denial
of his motion for a new trial to the Massachusetts Appeals
Court. In his appeal Johnson claimed that the trial judge erred
when he failed to hold a competency hearing sua sponte after
Johnson became ill on the first day of trial. The appeals court
rejected this claim, concluding that "it was not error for the judge to
proceed with trial" without holding a competency hearing after Johnson
returned on the second day. Commonwealth v. Johnson, No. 97-P-1450
(Mass. App. Ct. May 5, 1998) (memorandum and order). The Supreme
Judicial Court of Massachusetts denied Johnson's application for leave
to obtain further appellate review. Commonwealth v. Johnson, 700
N.E.2d 268 (Mass. 1998). Johnson then filed a petition seeking a writ
of habeas corpus.
D. The Federal District Court Opinion
The district court granted Johnson's petition,
concluding that despite the state court's determination that
Johnson was competent to continue with trial on the second day,
sufficient doubt existed as to Johnson's competency during jury
selection to warrant a competency hearing. In particular, the
court noted that at the start of the first day of trial, the
state trial judge was aware that Johnson had suffered a head
injury. Johnson, No. 99-11249 at 9. The state court was also
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informed of Johnson's subsequent fainting and vomiting after he
was taken to the holding cell. Id. Finally, the state court
received the examining nurse's diagnosis of a possible
concussion and the need for x-rays and further medical
attention. Id. Taken together, "a substantial body of evidence
on the first day of trial cast doubt on Johnson's ability to
understand the proceedings against him." Id. (emphasis added).
The federal district court added that neither the nurse's
report concerning Johnson's condition the following day nor the
state court's sua sponte observations of Johnson's demeanor were
adequate substitutes for an evidentiary hearing. Id. at 10.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) places new restrictions on a district court's power to grant
writs of habeas corpus to state prisoners.1 Under 28 U.S.C. §
2254(d)(1), a district court may issue the writ only where a state
court's adjudication on the merits "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
1 Since Johnson's habeas petition was filed after the effective date
of the AEDPA, the provisions of that Act apply to this appeal. Lindh
v. Murphy, 521 U.S. 321, 336 (1997).
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United States."2 A state court decision is "contrary to" clearly
established federal law "if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts." Williams v.
Taylor, 529 U.S. 362, ___; 120 S. Ct. 1495, 1523 (2000). Under the
"unreasonable application" clause, a writ may issue "if the state court
identifies the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle to the facts
of the prisoner's case." Id. We review a federal district court's
legal conclusions in a habeas proceeding de novo. Simpson v. Matesanz,
175 F.3d 200, 205 (1st Cir. 1999).
It has long been held that the conviction of an accused
person legally incompetent to stand trial violates due process. Pate
v. Robinson, 383 U.S. 375, 378 (1966). The test for legal competence
is "whether [the defendant] has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding and
whether he has a rational as well as factual understanding of the
proceedings against him." Drope v. Missouri, 420 U.S. 162, 172 (1975).
The Massachusetts Appeals Court recognized that under Pate, "[i]n those
2 The district court may also issue the writ if the adjudication
"resulted in 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), a provision we do not address in
this opinion.
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situations where there exists doubt as to whether the defendant
satisfies this test, the judge must, on his own initiative, conduct a
full hearing on the issue." Johnson, No. 97-P-1450 at 4 (citations
omitted). Since the state appeals court correctly identified the
Supreme Court rule governing the case at bar, we must determine whether
its decision constituted an "unreasonable application" of that rule.3
Williams, 120 S. Ct. at 1521. Consequently, we must ask whether the
state court's application of Supreme Court precedent was "objectively
unreasonable." Id. at 1523.
Due process requires a court to hold a competency hearing sua
sponte whenever evidence raises a sufficient doubt as to the competence
of the accused.4 Drope, 410 U.S. at 180; Pate, 383 U.S. at 385. "There
3 AEDPA's alternative ground does not come into play here because the
facts of this case are "materially distinguishable" from those in
either of the governing Supreme Court precedents. See Drope, 420 U.S.
at 180 (analyzing weight given to defendant's suicide attempt and
irrational behavior); Pate, 383 U.S. at 385 (competency evaluated in
light of defendant's previous confinement as a psychopath).
4 No consistent phrase has been used to describe the precise quantum
of doubt necessary to prompt a competency hearing. See, e.g., Griffin
v. Lockhart, 935 F.2d 926, 929 n.2 (8th Cir. 1991) (reviewing various
standards). The Supreme Court in Pate used the language of the
Illinois statute under consideration, which required "bona fide" doubt.
383 U.S. at 385. However, the Court in Drope was careful to point out
that this standard was not constitutionally mandated. 420 U.S. at 172-
73. We agree with the Eighth Circuit that "bona fide" doubt is not
entirely useful in practice: "[T]he question whether an evidentiary
hearing is required does not depend on the sincerity, genuineness, etc.
of the judge's doubt -- we can assume any judge's doubt has these
qualities." Griffin, 935 F.2d at 929 n.2. It also seems unwise to
simply employ the relevant state court standard, since doing so would
result in varying degrees of strictness for an otherwise objective
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are, of course, no fixed or immutable signs which invariably indicate
the need for further inquiry to determine fitness to proceed; the
question is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated." Drope, 410 U.S. at
180. Possible factors for the judge to consider are "a defendant's
irrational behavior, his demeanor at trial, and any prior medical
opinion on competence to stand trial." Id.
The appeals court appears to have heeded this advice in its
opinion. In particular, the court based its decision on the following
factors. First, the judge relied on a report from the nurse that
Johnson was "medically cleared" to attend the trial. Second, the trial
test. We thus follow the Eighth Circuit's approach and adopt a
standard of "sufficient doubt," the phrase used to express the Court's
holding in Drope, 420 U.S. at 180, and used in subsequent Supreme Court
cases. See Griffin, 929 at n.2 (citing Ford v. Wainwright, 477 U.S.
399, 417 (1986)).
Although the appeals court applied the test of "substantial doubt"
-- a standard never used by the Supreme Court -- it is not
consequential here. First, to the extent that this point has not been
firmly articulated by the Supreme Court, the general rule is still
"clearly established." See O'Brien, 145 F.3d at 24 (noting that the
term "clearly established . . . cut[s] a wider swath" under §
2254(d)(1) than in qualified immunity context). Second, it is not
enough that the state court applied Supreme Court precedent erroneously
or even incorrectly, "the application must also be unreasonable."
Williams, 120 S. Ct. 1522. Here, it was reasonable for the appeals
court to assume that state law governed the requirements for sua sponte
competency hearings. See, e.g., Drope, 420 U.S. at 180 (evaluating
Missouri statute protecting legally incompetent persons from standing
trial). Moreover, since the error alleged in this case is the appeals
court's failure to evaluate competency in the relevant time period, the
precise standard of doubt used by the court is not at issue.
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judge observed that "[t]here [was] no indication the defendant was
acting in an impaired manner at the beginning of the second day."
Johnson, No. 97-P-1450 at 5. Third, the appeals court opined that
since the trial judge was able to observe Johnson's behavior at the
pretrial hearing and during the trial, he "could have compared the
defendant's demeanor and responses before and after the injury" and
conclude therefrom that there was no competency issue. Id. The
judge's findings on Johnson's behavior on the second day, the court
believed, supported this rationale. Finally, the court noted that
"[n]o evidence of impairment was offered in connection with the
defendant's motion for a new trial."5 Id.
Although the court's reasoning may have been sound, it erred
in one crucial respect: the ultimate question asked by the state court
was whether the judge "err[ed] in proceeding without an evidentiary
hearing [on competency]" on the second day of trial. Id. (emphasis
added). Thus, though the court may have correctly determined that
there was no doubt concerning Johnson's competence to continue with
5 The trial judge also commented on this fact in dismissing the trial
counsel's affidavit as tardy and "not competent." Johnson, No. 9560-
CR-1269 at 4. Though this reason was not central to either court's
decision, cf. Pate, 383 U.S. at 384 (addressing argument that counsel's
failure to specifically request a hearing constituted a "waiver" on the
issue of competency), it is irrelevant. Not only could a motion for a
new trial based on incompetency be sufficient to raise the issue to the
court, see id., but such a request is not germane to the present
question, namely, whether the court was required to make the decision
on its own.
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trial after he collapsed, its decision did not address whether
Johnson's injury raised sufficient doubt concerning his competency on
the first day of trial, prior to his collapse. Indeed, neither the
trial judge nor the appeals court squarely addressed how Johnson's
collapse, and the nurse's subsequent opinion that the head trauma
incurred by Johnson might possibly be a concussion requiring
hospitalization, might have affected his ability to understand and
participate in the jury selection proceedings immediately preceding
those events.
According to appellants, this infirmity was cured through the
colloquy which took place at the beginning of the first day of trial.
Johnson's ability to ask questions regarding the nature of his case and
the charges against him, they argue, demonstrates that he was fully
able to understand the proceedings, and thus raised no doubt as to his
competency on the first day. This reasoning misses the point. As the
Supreme Court has clearly cautioned, "[e]ven when a defendant is
competent at the commencement of his trial, a trial court must always
be alert to circumstances suggesting a change that would render the
accused unable to meet the standards of competence to stand trial."
Drope, 420 U.S. at 181. There is no better illustration of this maxim
than the instant case. Even if we accept that Johnson met the standard
for competency at the start of the first day of trial, the undisputed
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fact remains that a few hours later, he passed into unconsciousness.6
In the unlikely event that we would, in the absence of expert opinion,
entertain the notion that Johnson's illness occurred instantaneously,
i.e., that he was perfectly lucid until the exact moment he collapsed,
such a possibility is belied by the record: the trial court told the
jury that "[they] might have noticed that he was feeling ill in the
courtroom." Thus, we know that at some point between the start of the
trial and the end of jury selection, Johnson began to experience the
symptoms which led to his passing out and, later, vomiting. At what
point this deterioration began and to what degree it influenced his
understanding of the proceedings, we cannot know.7 Most importantly,
the nurse's report provided objective medical evidence that Johnson may
have been physically incapacitated during jury selection. In short,
this was not, as in Pate and Drope, a question of a defendant's state
of mind with respect to possible mental illness; it was a manifest
medical condition which raised a sufficient doubt as to Johnson's
competency during the jury selection process.
6 Although there is no allegation that Johnson dissembled his trauma,
we note that the trial judge explicitly dismissed any such possibility,
observing that there was "physical corroboration" of the injury.
7 Johnson's only statement during this time was the following response
to the clerk's instruction that he could exercise two peremptory
challenges: "Can I have, can I have, my lawyer only write two of these
(inaudible). Still hasn't write the rest of them. I don't know, I
don't know the jurors," which we agree with the district court was not
entirely responsive.
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Our conclusion does not, as appellants contend, substitute
our own factual determinations for those of the trial judge. It is
true that the judge observed Johnson conferring with his lawyer
throughout jury selection.8 However, "while [this observation] might
be relevant to the ultimate decision as to [competency], it cannot be
relied upon to dispense with a hearing on that very issue." Pate, 383
U.S. at 385-86 (stating that factors favoring a finding of competency
do not justify ignoring uncontroverted evidence to the contrary). In
other words, a court's factual findings cannot cure sufficient doubt
concerning competency in the absence of an evidentiary hearing.
For the reasons stated herein, we agree with the district
court that the state court's decision constituted an unreasonable
application of clearly established Supreme Court law and affirm the
issuance of the writ.
8 We do not analyze this factor separately, as did the district court,
under § 2254(d)(2). First, the appeals court's decision on the merits
of the competency claim was not "based" on this fact: indeed, it was
not even considered since the court did not address the first day's
proceedings in that part of its opinion. See Johnson, No. 97-P-1450,
at 4-5. More saliently, because accepting the judge's observation as
true would not cure the legal error, further review is unnecessary.
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