United States District Court, M.D. Pennsylvania
March 10, 2004.
HUBERT L. MICHAEL Petitioner
MARTIN HORN, Commissioner, Pennsylvania Dep't of Corrections; DONALD T. VAUGHN, Superintendent of the State Correctional institution atGraterford; JOSEPH P. MAZURKIEWICZ, Superintendent of the State Correctional Institution at Rockview Respondents
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
At issue in this matter is whether death-sentenced Hubert Michael is
competent and has knowingly, rationally, and voluntarily chosen to waive
pursuit of a collateral challenge to his state court conviction and
sentence. To decide these questions, I have carefully considered (a) the
report and corroborating testimony of Robert M. Wettstein, M.D., a
psychiatrist appointed by this Court to evaluate Mr. Michael in
accordance with Rees v. Pevton, 384 U.S. 312 (1966), and other
pertinent authority; (b) the testimony of Harry Krop, Ph.D., a forensic
psychologist presented by the Defender Association of Philadelphia,
Capital Habeas Corpus Unit (hereinafter referred to as the "CHCU"), whom
Mr. Michael seeks to dismiss as his counsel; (c) the record of
state court proceedings concerning Mr. Michael's competency; (d)
the exhibits presented at the hearing conducted by this Court; (e) this
Court's colloquy of Mr. Michael; and (f) the post-hearing submissions
made by Respondents, the CHCU and Mr. Michael. Based on my review of all
pertinent materials, I have concluded that Mr. Michael is competent and
his decision to forego a federal court collateral challenge to his state
court conviction and sentence is knowing, rational and voluntary.
The CHCU argues that even if Mr. Michael may dismiss it as his counsel
and abandon this litigation, it has presented a "non-waivable" claim,
which this Court must adjudicate. Specifically, the CHCU insists that
this Court address the merits of its claim that the prosecutor, defense
counsel, and the state trial court "colluded with each other to
impose a death sentence simply because Mr. Michael asked for
it." (Petitioner's Memorandum Regarding Non-Waivable Claim (Dkt.
Entry 109) at 2; emphasis in original.) Because governing Supreme Court
and Third Circuit precedent precludes this Court from adjudicating a
petition that Mr. Michael has knowingly, rationally and voluntarily
chosen not to pursue, e.g., Whitmore v. Arkansas,
495 U.S. 149 (1990); Gilmore v. Utah, 429 U.S. 1012 (1976);
United States v. Hammer, 226 F.3d 229 (3d Cir. 2000), the
habeas corpus petition filed by the CHCU without Mr. Michael's
authorization ill be dismissed without considering the merits of
the so-called "non-waivable" claim.
On the morning of July 12, 1993, Mr. Michael pulled up along side
16-year-old Trista Eng, who was walking to her summer job at a Hardee's
Restaurant.*fn1 Mr. Michael offered to drive her to work. Trista
accepted the invitation. Instead of taking Ms. Eng to her summer job, Mr.
Michael drove to a remote location in the State Game Lands in York
County. He then forced Ms. Eng out of the vehicle, and shot her three
times with a .44 magnum: once in the chest, once in the back, and once in
the back of the head. He then concealed the body in some weeds.
At the time of the murder, Mr. Michael was being prosecuted on a rape
charge. Asserting that sex with the rape complainant had been consensual,
Mr. Michael believed that he was the victim of an unjust prosecution. He
has explained the murder of Ms. Eng as an act of vengeance for the unjust
Several days after committing the murder, Mr. Michael fled the state in
a rental vehicle. He was apprehended by Utah state police on July 27,
1993. A .44 magnum was found in the rental car.
Mr. Michael was brought back to the Commonwealth and jailed in the
Lancaster County Prison on the pending rape charges. On August 24, 1993,
while incarcerated at the Lancaster
County Prison awaiting trial on the rape charges, Mr. Michael
confessed to his brother that he had murdered a young woman and hid her
body in the State Game Lands in York County. Mr. Michael's brother and
other family members searched the area described by Mr. Michael, and
eventually located a badly decomposed body wearing the remnants of a
Hardee's Restaurant uniform. Id. The Pennsylvania State Police
was summoned, and the body was later identified as that of Trista Eng. On
August 27, 1993, Mr. Michael was charged with first degree murder.
At about the time he was charged with the murder of Ms. Eng, Mr.
Michael fell down a flight of stairs at the Lancaster County Prison.
(P-6, Lancaster Co. Prison records introduced at the Sept. 26, 2002
hearing.)*fn2 The Lancaster County Prison records from August 27, 1993
through September 1, 1993 document concerns that Mr. Michael was
suicidal. On September 1, 1993, he was transferred to the "Medical
Housing Area" for "closer observation."*fn3
The Lancaster County Prison records, however, also document Mr.
Michael's assertion that the fall down the stairs was not deliberate.
According to the records, Mr. Michael stated that "if he wanted to kill
himself he wouldn't jump down the stairs because that wouldn't kill him."
Mr. Michael repeatedly denied any suicidal ideation.
In November of 1993, Mr. Michael escaped from the Lancaster County
assuming the identity of another inmate who was scheduled to be
released. (Dr. Wettstein Report at 7.) He was apprehended in New Orleans
in approximately March, 1994. Upon being returned to the Commonwealth, he
was jailed in the York County Prison.
While incarcerated in the York County Prison, Mr. Michael was
prescribed Benadryl 50 mg for a skin rash. After hoarding the pills, Mr.
Michael, on July 13, 1994, ingested 60 Benadryl tablets. Mr. Michael was
hospitalized for this incident, which was viewed as an attempted
suicide.*fn4 There is, however, no evidence that Mr. Michael received
any psychiatric treatment at this time.*fn5 (1/13/97 PCRA Tr. at 107.)
Mr. Michael first stood trial on the Lancaster County rape charge. In
September, 1994, he was convicted of rape, and subsequently sentenced to
a prison term of 20 years.
Jury selection on the homicide charge commenced in Berks County on
October 11, 1994.*fn6 During jury selection, Mr. Michael's counsel
informed the trial judge that Mr. Michael had elected to plead guilty to
first degree murder and kidnapping. As explained by the Pennsylvania
[A] review of the guilty plea colloquy establishes
that the trial court questioned [Michael] at
length regarding whether his guilty plea was
knowing and voluntary including, inter
alia, that he had discussed the matter
carefully with his attorney, that he understood
the charges against him including the charge of
first degree murder, his right to a jury trial or
bench trial, the presumption of innocence, the
Commonwealth's burden proof, the right to confront
the Commonwealth's witnesses, his waiver of those
rights, his limited rights upon pleading guilty,
the voluntariness of his plea, the elements of
first degree murder, that the penalty for first
degree murder is either life imprisonment or death
which would be determined at a separate hearing,
that his rights at the sentencing hearing
includ[ed] the right to present any mitigating
circumstances, and that he was satisfied with
Michael I, 544 Pa. at 108 n.2.
Within a week of pleading guilty, Mr. Michael advised the trial judge
that he wanted to withdraw his guilty plea, asserting that he was not
competent at the time of entering the plea and was having difficulty
communicating with trial counsel. See Commonwealth v. Michael,
562 Pa. 356, 362-63, 755 A.2d 1274, 1277 (2000) (hereinafter Michael
II). The request was denied. Pursuant to Mr. Michael's request, the
trial court scheduled selection of a jury to determine whether the death
penalty should be imposed.
On March 3, 1995, during a pre-sentencing conference, Mr. Michael
informed the court that he did not want his attorney to present evidence
of mitigating circumstances. Michael II, 562 Pa. at 365. The
trial court, however, instructed defense counsel to be prepared to
present evidence of possible mitigating circumstances, and informed Mr.
Michael that he retained the
right at the sentencing hearing to present evidence of mitigating
On March 20, 1995, the date set for jury selection on the sentencing
phase of the case, Mr. Michael informed the trial court that he had
decided to waive his right to be sentenced by a jury, would stipulate to
the existence of the two aggravating circumstances alleged by the
Commonwealth, and would stipulate that there were no mitigating
circumstances. As described by the Pennsylvania Supreme Court:
Again the record reveals that the sentencing court
conducted an extensive colloquy in order to make
certain that [Michael's] stipulation was knowing
and voluntary. The sentencing court expressly
questioned [Michael] regarding whether he
understood his right to present mitigating
circumstances, his right to be sentenced by a
jury, and that the jury might sentence [him] to
life imprisonment rather than death if mitigating
circumstances were presented. [Michael], however,
responded that he understood these rights and the
benefits of having mitigating circumstances
introduced at his sentencing hearing but declined
his right to do so. He further stated that he was
satisfied with counsel.
Michael I, 544 Pa. at 109 n.4. The trial court accepted
Mr. Michael's waiver of a right to a jury trial on the sentencing phase
of the case, and, finding that aggravating circumstances outweighed
mitigating circumstances, imposed the death penalty.
On March 24, 1995, Mr. Michael signed an affidavit which confirmed his
understanding of his right to litigate, before a jury or a judge, the
question of his guilt, the degree of murder, and whether the death
penalty was warranted. Id. at 111 n.6. The affidavit further
confirmed that Mr. Michael had instructed his counsel not to call
witnesses or present any evidence during
the sentencing hearing. Id. The affidavit concluded:
12. Should I receive a sentence of death, I have
instructed my attorney . . . to forward this
Affidavit to the Supreme Court of Pennsylvania.
13. It is my intent to inform the Pennsylvania
Supreme Court that I am satisfied with my pleas of
guilty and the sentence of death I receive in
order that the Pennsylvania Supreme Court affirm
as rapidly as permitted by law, the conviction and
14. Finally, my attorneys have reviewed this case
and this Affidavit with me and I am satisfied with
Although presented with this affidavit, the Pennsylvania Supreme Court
undertook an independent review of the record.*fn7 In an opinion issued
on April 17, 1996, the court found that the elements of first degree
murder were established; the sentence of death was not the product of
passion, prejudice or other arbitrary factor; the record established the
existence of at least one aggravating circumstance; and the sentence was
not disproportionate when compared to sentences imposed in similar
circumstances. Based upon these findings, the unanimous Supreme Court
affirmed the conviction and sentence, explaining that "[w]here there are
no mitigating factors and a finding of at least one aggravating
circumstance, the sentencing
court has no discretion but to impose the death penalty."
Id. at 113.
On July 31, 1996, Governor Thomas Ridge signed an execution warrant.
Mr. Michael's execution was scheduled for August 27, 1996 at 10:00 p.m.
On August 21, 1996, the CHCU filed in this Court a motion for stay of
execution and request for appointment of counsel. (Dkt. Entry 1.) On
August 22, 1996, in accordance with McFarland v. Scott,
512 U.S. 849 (1994), the execution was stayed and the CHCU was appointed as
counsel for Mr. Michael. (Dkt. Entry 4.)
On August 29, 1996, Respondents petitioned the Court to rescind the
appointment of counsel for Mr. Michael and to vacate the stay of
execution. (Dkt. Entry 8.) In support of this request, Respondents
presented Mr. Michael's letter to the York County District Attorney's
Office dated August 24, 1996, which stated:
On or about Wednesday, August 21 and Thursday,
August 22, I signed some papers that would give me
a 60 or 90 day stay of execution. These papers
were brought to me by some representatives of the
[CHCU]. I felt pressured to sign these papers by
certain family members and also some
representatives of the [CHCU].
After thinking this over, I have dismissed these
people from representing me in any court
proceedings. On a visit to Graterford on Friday,
August 23, I informed Pam Tucker, a representative
of [CHCU], that she and her associates were
dismissed from acting as my attorneys in any
future legal matter.
Furthermore, I do not want any court documents,
trial transcripts, police reports, or any other
papers released to any people who claim to
represent me. This also applies to my case in
as well. I do not give anyone my authorization
to obtain such documents on my behalf. When my
stay expires I wish to have the Governor re-sign
my warrant as soon as possible.
The CHCU responded by asserting that Mr. Michael was not competent. In
support of this assertion, the CHCU related that Mr. Michael's sisters
and brother had recounted that Mr. Michael had been the victim of an
abusive father, suffered bouts of depression, and abused drugs, including
cocaine, quaaludes, heroin, percodan and steroids. They also asserted
that he had sustained a serious head injury in his youth, and had become
withdrawn following his mother's death in 1988. The CHCU also referred to
Mr. Michael's vacillation during the course of the state court
proceedings: entering a guilty plea only on the date of jury selection;
trying to withdraw the plea less than a week later; requesting a jury
determination of the appropriate sentence; and then waiving that request
on the date of jury selection. The CHCU also related that Mr. Michael had
exhibited bizarre and erratic behavior in the presence of members of the
CHCU, but had authorized filings in state and federal court to contest
his conviction and sentence. (Dkt. Entry 12.)
By Order dated October 10, 1996, the CHCU was directed to meet with Mr.
Michael to determine his position with respect to its continued
representation of him. (Dkt. Entry 27.) On October 22, 1996, the CHCU
filed a statement of its position, along with a supporting declaration of
Attorney Billy H. Nolas. In his declaration, Attorney Nolas related that
he had met with Mr. Michael on October 17, 1996. According to Attorney
Nolas, during the meeting, Mr.
Michael "was agitated, incoherent, irrational, sad, unable to
control his varying emotions, and ultimately became catatonic and
completely uncommunicative." (Declaration of Billy H. Nolas, Esq. (Dkt.
Entry 30) at ¶ 9.) Attorney Nolas' declaration concluded that, on
October 21, 1996, Mr. Michael had authorized the CHCU to litigate his
post-conviction proceedings. Attorney Nolas asserted that "I do not
believe that there is any `waiver' issue before the Court and request, as
appointed counsel, that the Court allow us to complete and file Mr.
Michael's habeas petition." (Id. at ¶ 11.)
On October 25, 1996, the CHCU supplemented the statement previously
submitted and requested a status conference. (Dkt. Entry 31.) Attached to
the supplemental statement was a document signed by Mr. Michael, which
I, Hubert L. Michael, Jr., hereby retain Billy
Nolas to represent me for all purposes in regard
to PCRA proceedings presently ongoing in the Court
of Common Pleas of York County, Pennsylvania. I do
not authorize representation by any other
The first sentence of the statement was typewritten. The second
sentence of the statement was handwritten, apparently by Mr. Michael.
Because proceedings under the Pennsylvania Post Conviction Relief Act
("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq., had been
commenced in the Court of Common Pleas of York County, this Court, by
Order dated November 21, 1996, stayed this habeas corpus proceeding
pending the exhaustion of state court remedies. (Dkt. Entry 35.)
Respondents appealed the November 21, 1996 Order. By judgment order dated
June 16, 1997, the stay of
this litigation was affirmed by the Third Circuit. (Dkt. Entry 55.)
The Court of Common Pleas of York County conducted evidentiary hearings
that concerned, inter alia, Mr. Michael's competence to plead
guilty and waive presentation of mitigating circumstances. In connection
with this issue, Mr. Michael submitted to psychiatric and
The neuropsychologist retained by the CHCU, Barry M. Crown, Ph.D.,
concluded that Mr. Michael was "brain damaged with deficits in multiple
cognitive and affective areas," with "the causative basis for this
[being] both neurodevelopmental and the result of substance use." (Dr.
Crown's Report of November 21, 1996.) Dr. Crown testified during the PCRA
proceeding that Mr. Michael was not competent at the time of his guilty
plea and sentencing proceedings. (12/13/96 PCRA Tr. at 91.)
Mr. Michael's counsel also presented the testimony of Harry Krop,
Ph.D., a Florida clinical psychologist. Dr. Krop opined that he had
"substantial questions regarding [Michael's] competency both in terms of
entering a plea, waiving his rights and so forth."*fn8 (12/30/96 PCRA
Tr. at 174.) In response to questioning from the state trial court as to
whether Dr. Krop's opinion concerned only Mr. Michael's competency at the
time of his guilty plea and sentencing, or that Mr. Michael is
"incompetent generally and can't cooperate with counsel ever," Dr. Krop
stated, "It's my opinion as of [December 12, 1996] that he was
competent to proceed at this proceeding." (Id. at 187.) In the
course of Dr. Krop's testimony, he also stated that "the capacity to
communicate with an attorney and relate is one of the more significant
issues with regard to the competency criteria." (Id. at 186.)
In December of 1996, Dr. Krop had participated in a clinical interview
of Mr. Michael along with the Commonwealth's expert, Larry A. Rotenberg,
M.D., Director of Psychiatry for the Reading Hospital and Medical Center.
To avoid duplicative testing, Drs. Krop and Rotenberg agreed to share
results. Testing included a Wechsler Adult Intelligence Scale
Revised, which revealed a full scale IQ of 100, the same IQ result
obtained in testing in 1972, when Michael was 16 years old. Dr. Rotenberg
interpreted the test results as consistent with a finding that Mr.
Michael was competent intellectually and exhibited no signs of organic
dysfunction. (December 12, 1996 Report of Dr. Rotenberg at 12.) Dr.
Rotenberg further reported that the Beck Depression Inventory and Beck
Anxiety Inventory, administered by Dr. Krop, "yielded scores which are
non-symptomatic, non-depressed, and non-anxious." (Id. The
Minnesota Multiaxial Personality Inventory 2 ("MMPI-2") "showed a
normal personality profile with no elevated subscales." Dr. Rotenberg
explained that the test results were "also indicative of a lack of
organicity and lack of defect in the central nervous system."
(Id.) Dr. Rotenberg's diagnostic impressions were "[h]istory of
multi-substance abuse and possibly dependence," "Antisocial
Personality Disorder," and Narcissistic Personality Disorder."*fn9
(Id. at 13.) Dr. Rotenberg's report concluded that Mr. Michael
"is currently competent to make all his decisions," and that, "[w]ithin
reasonable medical certainty it can be said that at no time was this
individual in a situation where he was not competent to make decisions or
to know the consequences of his decisions." (Id.)
Dr. Rotenberg testified during the PCRA hearings in a manner consistent
with his report. (1/13/97 PCRA Tr. at 84-97.) During the course of his
testimony, he explained that the diagnosis of antisocial and narcissistic
personality disorders did not involve major mental illness nor psychosis,
(Id. at 97-98, 100-101.) He also related that these disorders
are not considered to be exculpatory conditions. (Id. at 98,
101.) In discussing the antisocial personality disorder, Dr. Rotenberg
testified that such a "person has a complete ability to not do what they
have done." As an example of behavior reflecting an antisocial
personality, Dr. Rotenberg referred to Mr. Michael's escape from prison
in November of 1993:
The escape [from] Lancaster County Prison is both
brilliant and sociopathic. It's brilliant because
it takes an enormous amount of plotting to sit in
a cell with someone else to steal the other
identity, to walk out when the other person is
called, and to walk away from prison.
So that is brilliant, and it is very competent,
but it's also sociopathic. It's antisocial in the
sense that he had no connection with the fact that
the other person was suffering. A breathing human
being who by taking his identity away was
obviously going to endure a lot of hardship.
(Id. at 99.) Dr. Rotenberg also testified that he
disagreed with Dr. Crown's assessment of brain damage, pointing to the
fact that Mr. Michael had attained the same IQ score in 1972 and 1996,
even though the drug use on which Dr. Crown had relied occurred between
those two years. (Id. at 105.)
The state trial court denied relief on all claims.*fn10 Mr. Michael,
represented by the CHCU, took an appeal to the Pennsylvania Supreme
While the matter was pending before the Supreme Court, Michael filed an
affidavit indicating that he wanted to withdraw the appeal. Michael
II, 562 Pa. at 360. The CHCU again questioned Mr. Michael's
competence to make such a decision. The high court remanded the matter to
the trial court to determine whether Mr. Michael was competent to
discontinue the PCRA appeal.
The trial court again conducted an evidentiary hearing. Prior to the
start of the hearing on February 23, 1999, Attorney Nolas presented on
behalf of Mr. Michael an affidavit indicating that Mr. Michael did not
desire to undergo additional psychiatric evaluation, did not want a
hearing on his current mental state, and asked to have the appeal
on the merits decided expeditiously by the Pennsylvania Supreme Court.
(2/23/99 PCRA Tr. at 4-5.) The York County Court elected to proceed with
the hearing. Only Dr. Rotenberg testified. He reiterated his conclusion
that Mr. Michael was not suffering from a major mental illness, (id. at
16-17.) As to the contention that he was suffering from depression and
that his decision to abandon appeals was a reflection of this mental
illness in order "to have the state help him with a sort of state
assisted suicide," Dr. Rotenberg testified:
In my opinion . . . nothing could be further
from the truth. Mr. Michael has, in my opinion,
never been depressed. He has never suffered from a
major depression. I believe that, if I recall
correctly, . . . way back he took an overdose
somewhere in the prison. Again, as a product of
his inability to tolerate frustration and to delay
gratification, but I do not believe that he was
ever clinically depressed. . . . He never had
the clinical symptoms of depression or of
I think it is important to note . . ., people
with personality disorders will try to hurt
themselves or others for the simple reason that
they have trouble delaying disposition, delaying
gratification, and in my view, Mr. Michael never
had a depression, never suffered from depression,
that his reasoning was never impaired by
That, in fact, in the five-hour interview
[conducted in December of 1996], which included a
number of tests including the Beck Depression
Inventory and other [inventories] indicating
depression, in fact, he scored very low and very
normally. So that, in my view the essential
element of his capriciously and repeated changing
of his mind is merely a product of the continuing
nature of his personality difficulty, which is not
a mental illness, which does not incapacitate him
in any way, which does not make him unable to make
On the contrary, in reviewing the material
provided . . ., one is constantly struck by
the very logic . . . and reasonableness of Mr.
Michael's opinions with regard to his own decision
at any one point.
(Id. at 18-19.)
Following Dr. Rotenberg's testimony, the court engaged in a colloquy
with Mr. Michael, who confirmed that it was his desire that the
Pennsylvania Supreme Court decide the appeal quickly based on the merits
of the case. (Id. at 36.) He also confirmed that he did not
want to participate in any additional psychiatric evaluations,
(Id. at 35.) After listening to the colloquy, Dr. Rotenberg, on
redirect examination, testified that his view of the competence of Mr.
Michael had been "strengthened." (Id. at 38.) Dr. Rotenberg
explained that Mr. Michael "showed himself to be lucid, coherent and
somewhat manipulative, and so it showed him to be logical, coherent,
non-depressed, non-psychotic, non-demented, and not suffering from any
mental illness." (Id.)
At the conclusion of the hearing, the trial court found that there was
"no mental health component" to Mr. Michael's decision to withdraw his
appeal. The trial court explained:
During the entire period of time [that] the Court
has had frequent colloquies with the Defendant,
such as the one we held today, we have always
found that the Defendant is lucid in his
responses. He is able to communicate, to
understand the question and give an appropriate
response, and, in fact, he even verbalized things
beyond the basic question that the Court asked.
We believe [that this is the] hallmark of someone
who is not suffering from mental illness, but can
understand the nature of the proceedings and
participate in them fully and help counsel with
(Id. at 41.)
The case then returned to the Pennsylvania Supreme Court. Noting that
Mr. Michael was now asking the court to decide the merits of his appeal
quickly, "essentially repudiating his request to withdraw the appeal,"
Michael II, 562 Pa. at 361, the court elected to address all
the issues raised in the proceeding. In an opinion issued on July 20,
2000, the court concluded that all claims were without merit. In
particular, the court found that trial counsel had not been ineffective
in failing to investigate and present indicia of Mr. Michael's alleged
The issue of Michael's competency has been
litigated numerous times in numerous contexts
during the prosecution of this case. He has failed
to establish incompetency at any stage of this
litigation, and has thus failed to meet his burden
of proof. . . .
Id. at 366. With respect to claims pertaining to the
failure to present mitigating evidence and effectively stipulating to a
death penalty, the court wrote that "[c]ounsel was ethically obligated to
abide by Michael's decision with regard to . . . his refusal to
present evidence of mitigation." Id. at 367.*fn11
On August 1, 2000, an application for re-argument was filed with the
Pennsylvania Supreme Court on Mr. Michael's behalf. On October 18, 2000,
counsel for the Commonwealth received a letter from Mr. Michael, stating:
I understand that my death sentence was upheld by
the Pennsylvania Supreme Court. This letter is to
reiterate my position regarding the matter.
The organization known as [CHCU] does not
represent me in any capacity. Anything they file
on my behalf is of their own doing. I do not
authorize them to act as my legal counsel.
Furthermore, my state of mind is not an issue, as
I am mentally competent. I mention this because I
know [CHCU] is trying to use this issue as the
basis of their defense.
I am sending this letter to the Attorney General's
office so that it may be forwarded to the proper
This letter was brought to the attention of the Pennsylvania
Supreme Court. By Order dated January 10, 2001, re-argument was denied.
While the PCRA proceedings were pending, Mr Michael wrote to this Court
on three separate occasions, asking that this Court refrain from granting
any stay of execution. (Letters of April 15, 1997 (Dkt. Entry 53), July
9, 1997 (Dkt. Entry 54), and December 26, 2000 (Dkt. Entry 56).) In his
letter of December 26, 2000, Mr. Michael wrote:
I am satisfied with the sentence I have received
in this matter. Furthermore, I am of sound mind as
I type this letter to the courts. I was mentally
competent at the time of the homicide, I was
mentally competent when I pleaded guilty in court,
and I am mentally competent at the present time.
Any attorneys who claim to represent my best
interests in court are not authorized by me to do
so. These same attorneys may try to claim that I
am not mentally competent. This is false
information and severely tests the court's
intelligence. As I pleaded guilty in court, the
attorneys know that the "insanity issue" is the
only avenue for them to pursue. However, in doing
so they are deceiving the courts.
On January 25, 2001, the CHCU filed a motion to restore this case to
active status, along with a request for 120 days within which to file a
habeas corpus petition. (Dkt. Entry 57.) Respondents answered this motion
with their own motion to remove present counsel and appoint new counsel
due to a conflict of interest. (Dkt. Entry 59.) The basis for the
Respondents' motion was Mr. Michael's letter of December 26, 2000,
stating that the CHCU was not authorized to represent him. The CHCU
responded to this motion by requesting that Mr. Michael be transferred to
a federal mental health care facility for a 60-day evaluation for
purposes of determining his competency. (Dkt. Entry 66.) The Respondents
objected to transferring Mr. Michael to a federal mental health facility,
requesting that any competency evaluation be conducted in the state
institution where Mr. Michael was incarcerated. Respondents also argued
that the PCRA court's competency decision was entitled to a presumption
of correctness that stood unrebutted.
By Memorandum and Order filed on September 20, 2001, this Court ruled
that the presumption of correctness ordinarily attaching to state court
competency determinations, see Demosthenes v. Baal,
495 U.S. 731 (1990), should not be applied here because the PCRA court's
determination was not reviewed by the Pennsylvania Supreme Court.
(September 20, 2001 Memorandum at 12.) This Court explained that "to hold
otherwise would mean that those persons who may seek to establish `next
friend' status based upon Michael's incompetency would be foreclosed from
doing so by an incomplete adjudication in state court." (Id.)
This Court also rejected the CHCU's contention that commitment to a
federal facility for purposes of a 60-day evaluation was required.
Instead, Robert M. Wettstein, M.D., a board-certified psychiatrist and
clinical professor in the Department of Psychiatry at the University of
Pittsburgh School of Medicine, was appointed pursuant to Fed.R.Evid.
706. Specifically, Dr. Wettstein was appointed for the purpose of
assisting this Court "in determining (1) whether Mr. Michael suffers from
a mental disease, disorder or defect; (2) whether a mental disease,
disorder or defect prevents Mr. Michael from understanding his legal
position and the options available to him; and (3) whether a mental
disease, disorder or defect prevents Mr. Michael from making a rational
choice among his options." (September 20, 2001 Memorandum at 18.) Dr.
Wettstein was also requested to assist the Court "in determining whether
Mr. Michael has `sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding,' and a `rational as
well as factual understanding of the proceedings against him.'"
Wettstein was directed to conduct such examinations and testing of
Mr. Michael at his place of incarceration as Dr. Wettstein deemed
appropriate. Finally, Dr. Wettstein was asked to opine as to whether a
competency evaluation could be made given conditions at Mr. Michael's
place of incarceration and the level of his cooperation, (Id.)
On June 20, 2001, while the question of the proper procedural avenue
for determining Mr. Michael's competence was pending before this Court,
the CHCU filed a 146-page habeas corpus petition. (Dkt. Entry 78.) Mr.
Michael did not sign the petition or otherwise endorse its filing.
On May 29, 2002, Dr. Wettstein submitted a comprehensive report. The
report was based upon his review of the PCRA record concerning the
competency question, including the testimony of mental health experts;
York County Prison records for 1994; state prison records for the period
1995 through 2001; letters written by Mr. Michael to this Court;*fn12
Mr. Michael's school records; an affidavit of Mr. Michael's sister dated
August 28, 1996; an August 26, 1993 transcribed interview of Mr.
Michael's brother; a psychiatric evaluation report prepared by Dr.
Rotenberg; psychological test results; Dr. Crown's report; and the
results of tests administered
by Dr. Wettstein to Mr. Michael over the course of two days in
December of 2001. The report also took into account the more than eight
(8) hours of interviews of Mr. Michael conducted over two consecutive
days. Dr. Wettstein concluded, with reasonable psychiatric certainty,
that Mr. Michael is not suffering from any mental disease, disorder or
defect, including any "cognitive dysfunction," which substantially
adversely affects his ability to make a decision with regard to pursuing
his legal appeals, and that Mr. Michael has the ability to consult with
his attorneys with a reasonable degree of rational understanding, and a
rational as well as factual understanding of the proceedings against him.
Dr. Wettstein also concluded that "no substantial benefit would accrue to
referring [Mr. Michael] for a 60 day psychiatric evaluation in a forensic
psychiatric hospital. . . ." (Dr. Wettstein Report at 18.)
By Order entered on July 8, 2002, Attorney Joseph Cosgrove was
appointed to represent the interests of Mr. Michael in this matter, and
an evidentiary hearing concerning Dr. Wettstein's report was scheduled
for September 26, 2002. (Dkt. Entry 102.) On the day of the hearing, the
CHCU submitted a memorandum of law, asserting that "there is at least one
claim in the Petition for Writ of Habeas Corpus that must be addressed by
this Court without regard to Mr. Michael's stated wishes or the outcome
of [the competency determination]." (Dkt. Entry 109.) The Respondents
were directed to answer this memorandum, and the matter was taken under
advisement. The question of Mr. Michael's competency proceeded to an
evidentiary hearing on September 26, 2002.
The hearing began with this Court's colloquy of Mr. Michael. His
responses to the Court's questions revealed a rational understanding of
each inquiry. He acknowledged his right to proceed with this case, and
that a possible outcome would be a new trial that could result in an
acquittal or a sentence other than death. (9/26/02 Habeas Tr. at 9-10.)
He also acknowledged that termination of this litigation would provide no
assurance of the prompt execution of the death penalty, and that it may
be years before he would be executed in any event. He also understood
that a moratorium on the death penalty could be imposed, placing his
sentence in limbo for a long time. (Id. at 10.) He also
understood that, in light of the one-year statute of limitations on
habeas corpus cases, a change of mind occurring in the future with
respect to pursuit of a collateral attack on his conviction may be
time-barred. (Id. at 12.) He confirmed his desire to not be
represented by the CHCU. He reiterated that he wanted this proceeding
terminated.(Id.) In response to the question as to why he
wanted to dismiss counsel and abandon any challenge to his conviction, he
explained that he was not opposed to the death penalty. (Id. at
13.) In response to the court's inquiry concerning his written statement
to the Pennsylvania Supreme Court that he wanted a decision on the appeal
from the denial of his PCRA petition, Mr. Michael said that it was simply
his intention to expedite the process. (Id. at 14-15.)
Dr. Wettstein's report was accepted as his direct testimony, and after
brief inquiry by the Court, he was examined by CHCU counsel, respondents'
attorney, and Attorney Cosgrove,
appearing as counsel for Mr. Michael. The CHCU presented Dr. Krop
as its sole witness.
At the request of the CHCU, a post-hearing briefing schedule was
established. In its post-hearing brief, the CHCU essentially took the
position that there was insufficient data on which to premise a
competency determination, and urged once again that Mr. Michael be
committed to a federal mental health facility for at least 60 days for
observation and evaluation regarding his competency to discharge counsel
and waive habeas corpus review. (Dkt. Entry 125.) Respondents'
post-hearing brief strenuously objected to any further evaluation
proceedings, and asked that Mr. Michael be found competent. Attorney
Cosgrove, at the direction of Mr. Michael, filed a response on January
22, 2003, indicating that Mr. Michael "opposes the sixty (60) day mental
health evaluation proposed by the [CHCU], and again asserts that he is
mentally sound." The CHCU filed a reply brief on February 3, 2003,
reiterating its position that "the Court should commit Mr. Michael to a
federal mental health facility for long-term observation and evaluation."
(Dkt. Entry 131 at 6.)
A. Competency to Forego a Collateral Challenge
to a Conviction and Sentence
This case implicates case law precedent concerning a death-sentenced
defendant's right to abandon a pending challenge to the conviction and/or
sentence, e.g., Rees v. Peyton, 384 U.S. 312 (1966),
and requiring a putative next friend of the death row inmate to establish
the inability of the death row inmate to appear on his own behalf to
pursue the litigation. See
Whitmore v. Arkansas, 495 U.S. 149 (1990). In
Rees, the death-sentenced state court defendant directed his
counsel to withdraw a petition for certiorari. The defendant's counsel
informed the Court that he would not comply with this directive without a
determination of his client's mental competency. The Court remanded the
matter, instructing the trial court to determine whether the defendant
had the "capacity to appreciate his position and make a rational choice
with respect to continuing or abandoning further litigation or on the
other hand whether he is suffering from a mental disease, disorder, or
defect which may substantially affect his capacity in the premises." 384
U.S. at 314. In Whitmore, the Court held that next friend
standing is not available when it is shown that "the defendant has given
a knowing, intelligent, and voluntary waiver of his right to proceed, and
his access to court is otherwise unimpeded." 495 U.S. at 165. The Third
Circuit has recognized that "the Whitmore standard is further
illuminated by the Court's opinion in Dusky v. United States,
362 U.S. 402 . . . (1960) (per curiam), in which the Court considered
the standard for determining competency to stand trial." White v.
Horn (In re Heidnik), 112 F.3d 105, 111 (3d Cir. 1997) (per curiam).
In Dusky, the Court agreed with the suggestion of the Solicitor
General that the proper "`test must be whether [the defendant] had
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."
Dusky, 362 U.S. at 402. Thus, "Whitmore's reference
to knowing, intelligent, and voluntary waiver [is not] divorced from the
fundamental concept that
underlies any notion of competency that of rationality."
In re Heidnik, 112 F.3d at 111 n.6. The principles of
Rees, Whitmore and Dusky, as explained in
Heidnik, will be applied here.*fn13
Courts in circumstances similar to those presented here have engaged in
a three-part analysis:
1. Is the condemned inmate suffering from a
mental disease, disorder or defect?
2. If the person is suffering from a mental
disease, defect or disorder, does such condition
prevent him from understanding his legal position
and the options available to him?
3. If the person is suffering from such a
condition which does not prevent him from
understanding his legal position and the options
available to him, does that condition nevertheless
prevent him from making a rational choice among
See Mauser v. Moore, 223 F.3d 1316
, 1322 (11th Cir.
2000); Ford v. Haley, 195 F.3d 603
, 615 (11th Cir. 1999);
Comer v. Stewart, 230 F. Supp.2d 1016, 1036-37 (D. Ariz.
2002). If the death row inmate is found competent to waive a legal
challenge to his conviction and sentence, the court must then ascertain
that the waiver was not only rational, but also knowing and voluntary.
See Fahy v. Horn, Civ. A. No. 99-5086, 2003 U.S. Dist. LEXIS
14742, at *60-61 (E.D. Pa. Aug.
26, 2003) ("[C]ompetency to waive a right, and the question of
whether the waiver was knowing and voluntary, are distinct inquiries.").
The Court-appointed expert, Dr. Wettstein, engaged in a comprehensive
evaluative process to address the questions pertinent to a competency
determination. He reviewed all relevant records, including previous
psychiatric testimony and evaluations, as well as testimony presented in
the PCRA case. He interviewed Mr. Michael for more than eight hours over
a two-day period, and administered appropriate tests. The CHCU expert,
Dr. Krop, acknowledged that Dr. Wettstein's interview and evaluation was
"probably above and beyond what most mental health professionals need and
do in terms of their evaluations." (10/21/02 Habeas Tr. at 53.) Dr.
Wettstein's 18-page report details the information he learned upon review
of the records, his mental status examination of Mr. Michael, the results
of psychological testing, and his diagnosis. Employing the approach
endorsed by the DSM-IV, published by the American Psychiatric
Association, Dr. Wettstein diagnosed Mr. Michael as follows:
Axis I 1. Major depressive disorder singular or
recurrent type in remission.
2. Polysubstance abuse disorder in full
Axis II Antisocial, obsessive compulsive, and
narcissistic personality traits.
Axis III Current medical problems include
Axis IV Current stressors include this
litigation; prolonged incarceration on
Axis V Current global assessment of
functioning scale score of approximately
70, reflecting the absence of
significant depressive or other symptoms
(Dr. Wettstein Report at 14.)
Dr. Wettstein's report, accepted as his direct testimony in this matter
(9/26/02 Habeas Tr. at 5), explained that the diagnosis of major
depressive disorder was based upon a 1994 notation in the York County
Prison records contemporaneous with the Benadryl overdose. Dr. Wettstein
observed that the "depressive episode is not well characterized in the
records, and the inmate did not receive psychiatric treatment following
the suicide attempt." (Dr. Wettstein Report at 14.) He further explained
that he found the major depressive disorder to be "in full remission
given the current absence of significant symptoms or signs," adding that
Mr. Michael "has never had a history of psychotic signs or symptoms, and
no psychosis is evident at this time. . . ." (Id. at 15.)
Substance abuse disorder was based upon a documented history of past
substance use, even though denied by Mr. Michael, but was viewed in full
remission because there was no evidence of any recent substance abuse.
While noting that Mr. Michael exhibited a variety of personality traits
of anti-social, narcissistic and obsessive compulsive types, Dr.
Wettstein concluded that Michael did not meet the criteria of the
specified personality disorders in DSM IV.*fn14 (Id.) As to
his intellectual functioning, Dr. Wettstein found Mr. Michael "well
the average range, with better verbal than performance
In his "CONCLUSIONS," Dr. Wettstein wrote:
This 45 year-old single, white male was referred
for psychiatric evaluation regarding his ability
to waive further review of his conviction and
death sentence for a homicide which occurred in
1993. He has not received any psychiatric or
mental health treatment since being sent to state
prison in 1995 except for an occasional sedative
dose of Vistaril for bedtime sleep. He has
not been a behavior problem while
incarcerated at SCI Graterford and stated that he
has had two minor misconducts without violence to
other inmates or correctional officers.
Although the inmate's siblings and girlfriend have
reportedly described him as periodically depressed
prior to the homicide, there has been no
evidence of persistent depressed mood or clinical
depression subsequent to his July 1994 apparent
suicide attempt by overdose at York County
Prison. Some depressed mood was noted in April
2001 in Graterford during or after the course of
his treatment with Interferon injections for
Hepatitis C, but such depressive reactions are
common during the course of that form of
treatment, which ended in 2001. There was no
subsequent evidence of clinical depression during
the time of the present interviews. Instead,
the inmate presented in the lengthy
psychiatric interviews without sadness,
tearfulness, slowing of his speech or thinking,
rejection, suicide ideation, indecisiveness, loss
of interest in activities, neglect of his physical
health, or unusual social isolation. He not
only denied the presence of depressive symptoms
but showed no evidence of depressive signs in
the interviews on an objective basis.
. . . .
During the course of the psychiatric interviews,
the inmate expressed clearly his desire to
discontinue his legal appeals on their merits and
stated his wish that the courts impose the death
sentence as ordered in 1995 by the trial court. He
repeatedly stated to me that he has no wish for a
new trial or sentencing process, and even if they
were imposed he would repeat his earlier guilty
plea and waiver of litigation. He does not believe
that there was any ineffective assistance of
counsel at his guilty plea and sentencing but was
aware that an appellate court could disagree with
his opinion. He is clearly aware that imposing a
sentence of death will result in his death, and
there is no delusional or unclear thinking of the
consequences of a death sentence. . . . He
was able to discuss these issues in a rational and
coherent fashion without emotionality,
impulsivitv, confusion or indecisiveness.
Based upon the available information, it is my
psychiatric opinion that the inmate, at the
present time, has the mental capacity to
understand the choice between life and death and
can make a knowing and intelligent decision not to
pursue further legal remedies. He fully
comprehends the ramifications of his decision and
has the ability to reason logically regarding
these matters. He has the ability to
manipulate information concerning the pursuit of
his appeals, and has the capacity to
appreciate his position and make a rational choice
with respect to continuing or abandoning further
litigation. The inmate understands his legal
position and the options available to him.
. . . .
It is my psychiatric opinion, with reasonable
psychiatric certainty, that he is not
suffering from a mental disease, mental disorder,
or mental defect including any "cognitive
dysfunction" which substantially adversely affects
his ability to make a decision with regard to
pursuing his legal appeal. Finally, it is my
psychiatric opinion, with reasonable psychiatric
certainty, that the defendant retains
sufficient present ability to consult with his
attorney with a reasonable degree of rational
understanding, and a rational as well as factual
understanding of the proceedings against him.
(Id. 15-16, 17, 18; emphasis added.)
Finally, Dr. Wettstein opined that psychiatric hospitalization as an
aid in resolving this matter was not indicated. While acknowledging that
"[e]ven a psychiatric evaluation over ten hours on two consecutive days
will not identify every conceivable emotional and cognitive
problem. . . ." Dr. Wettstein wrote that "the present evaluation is a
good sample of the inmate's current functioning and that no substantial
benefit would accrue to referring him for a sixty day psychiatric
evaluation in a psychiatric hospital based upon his current clinical
condition." (Id. at 18.) Dr. Wettstein further explained that
he saw "no evidence of any emotional instability or lability during the
interviews, and thus [saw] no indication for referral for psychiatric
hospitalization as an aide in resolving this matter." (Id.
After observing this Court's colloquy of Mr. Michael, Dr. Wettstein
reiterated the conclusions expressed in his report and accepted as his
direct testimony. (9/26/02 Habeas Tr. at 16-24.) In summary, Dr.
Wettstein opined in response to the Court's questions that Mr. Michael is
competent to waive counsel and dismiss his challenge to his conviction
and sentence. (Id. at 23.)
Dr. Wettstein was cross-examined extensively by the CHCU concerning Mr.
Michael's apparent dissimulation, or "faking good," on test taking. He
was also vigorously interrogated with respect to Mr. Michael's repeated
denials of negative aspects of his life history. The CHCU argued with Dr.
Wettstein that Mr. Michael was covering up his depression by denying
occurrences that could produce depression, such as parental abuse
and drug abuse.
The neutral and detached court-appointed expert, however, remained
steadfast in his conclusion that Mr. Michael is not clinically depressed
or undergoing a depressive episode:
I do not see evidence for that. It may be, yes,
that he has concealed from me some depressive
symptoms, that's likely to be true, but his
behavior, objectively and as I can infer it
otherwise, is not consistent with someone who has,
at least, a severe clinical depression. He was
able to communicate well with me, that's not
something you conceal from an examiner.
His report of his functioning, in terms of his
grooming and his exercise and his activity and his
concern about health, that is not consistent with
someone who has clinical depression at this time.
(9/26/02 Habeas Tr. at 70-71.) Dr. Wettstein was equally firm in
his conclusion that Mr. Michael is not suicidal:
[J]ust as in the case of many individuals who have
severe terminal medical illnesses, they don't
really wish to die but they believe they wish to
be relieved of their suffering. So the same
applies, I think, to Mr. Michael. He does not
really wish to die, he is not clinically
depressed, he is not suicidal, he does not really
wish to die, but he wishes to be relieved of
having to live on death row.
. . . .
If Mr. Michael were released to the streets today,
he would not wish to die. However, he is not
released to the streets and there's no immediate
likelihood the he will be released to the streets,
to my knowledge. His wish is not to remain on
death row, because of quality of life issues,
because he believes that the death penalty was
appropriate in his case. So he wants to expedite
the execution in his case. He does not wish to
die, otherwise, he does not wish to remain for the
rest of his life on death row or for the pendency
any appeals either.
(10/21/02 Habeas Tr. at 12-14.)
Dr. Wettstein explained that Mr. Michael's desire to discontinue legal
challenges to his conviction and sentence was neither tantamount to a
death wish nor the product of depression:
I don't see [Mr. Michael's wish to discontinue his
appeal] as mood-dependent, I don't see him as
depressed, at this point in time. I see his
functioning is good, in terms of self care,
medical interest, activity, energy. I don't see,
objectively, the presence of depression at this
(9/26/02 Habeas Tr. at 70.)
Dr. Wettstein further explained that Mr. Michael's desire to
discontinue legal challenges was the product of a rational thought
[Mr. Michael] indicated that he does favor the
death penalty, and in his case, believes that the
death penalty was an appropriate punishment, given
the nature of the crime, and he indicated that if
the tables were turned and he had been the victim
rather than the perpetrator, then, that would be
an appropriate sentence for that particular
(10/21/02 Habeas Tr. at 7.) Dr. Wettstein also explained that his
desire to be relieved of having to live on death row and feelings of
guilt for the crime also provide rational bases for his desire to
discontinue legal challenges. (Id. at 12.)
Dr. Wettstein's report and testimony afford an ample foundation for a
conclusion that Mr. Michael "has the capacity to appreciate his position
and make a rational choice with respect to continuing or abandoning
further litigation. . . ." Rees, 384 U.S. at 314. Dr.
and testimony also compel the conclusion that Mr. Michael possesses
"sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding and . . . has a rational as
well as factual understanding of the proceedings against him."
Dusky, 362 U.S. at 402.
The testimony of Dr. Krop, presented by the CHCU, does not undermine
confidence in these conclusions. First, Dr. Krop last evaluated Mr.
Michael in late 1996, at which time he found him competent. (10/21/02
Habeas Tr. at 83.) Second, Dr. Krop conceded that a decision to
discontinue legal challenges to a death sentence can be the product of a
rational thought process. (Id. at 80.) And third, while he
questioned Dr. Wettstein's conclusion that depression is in remission, he
conceded that he had no independent data to suggest that Mr. Michael is
Q. You have no independent data or anything to
suggest that Mr. Michael currently is
depressed, do you?
A. That he is currently depressed, as of today?
A. No, I do not have data, as of today, or as of
the time (Dr. Wettstein) made his decision.
(Id. at 81.)
Indeed, Dr. Krop did not opine that Mr. Michael lacks the capacity to
appreciate his current position and make a rational choice to discontinue
this litigation. Instead, Dr. Krop
stated that he "can't rule out the possibility that he does not
have the ability to make those rational decisions." (Id. at
52.) Dr. Krop testified that "in the abundance of caution," Mr. Michael
should be transferred to a federal facility "which has mental health
evaluators and has multi-disciplinary teams available and the training
and the expertise to conduct a competency evaluation or other types of
psycholegal evaluation, . . ." (Id. at 52.) Dr. Krop
I'm not questioning Dr. Wettstein's ability or
capacity to make that determination [of
competency], the only thing that I am, I believe,
saying is that I believe that there is sufficient
historical data, in combination with the data that
Dr. Wettstein gathered from his own evaluation
that certainly calls into question the need for
more extensive evaluation.
. . . .
[W]hat my ultimate opinion is that there
is sufficient data from Dr. Wettstein's evaluation
and my own review of materials, including my own
prior evaluation . . ., to call into question
Mr. Michael's competency to make the decisions in
a rational manner, and what I am proposing or
recommending to the Court is that a more extensive
evaluation be conducted, which would allow larger
samples of behavior than either Dr. Wettstein or I
had available to us, that is to be done in a
facility which will . . . give a
multi-disciplinary team an opportunity to do more
extensive testing, more observations in a more
realistic kind of setting to truly make a
determination as to the Defendant's mental state
and how that mental state may affect . . . his
(Id. at 75, 77; emphasis added.)
Relying upon Dr. Krop's testimony, the CHCU argues:
The evidence shows that Mr. Michael is or may be
suffering from several mental diseases, disorders
or defects which may substantially affect his
capacity under Rees: (A) there are
questions about whether his depression is
truly in remission; (B) he may suffer from
Post-Traumatic Stress Disorder; (C) he may suffer
from Cognitive Disorder; and (D) he does suffer
from Personality Disorder.*fn15
(CHCU Post-Hearing Brief at 31.) The CHCU asserts that questions
pertaining to Mr. Michael's mental health warrant his placement in
federal custody for an extended period of observation and evaluation.
The CHCU's argument appears to proceed from the unsound premise that
the possibility of a mental "disease, disorder or defect," or the
possibility that such a defect substantially affects Mr. Michael's
capacity, is sufficient under Rees, regardless of findings made
as to Mr. Michael's competency. Other courts, however, have "rejected a
construction of the Rees standard that first require[s] an
inquiry into the capacity of the inmate to make the waiver decision, and
then, if the inmate [is] found to have the capacity, to require an
inquiry whether the inmate was suffering from a mental disease, disorder
or defect which may substantially affect that capacity.'"
Comer, 230 F. Supp.2d at 1036. As explained in Franklin ex
rel. Berry v.
Francis, 144 F.3d 429, 433 (6th Cir. 1998):
The [Rees] test is not conjunctive but
rather is alternative. Either the condemned has
the ability to make a rational choice with respect
to proceeding or he does not have the
capacity to waive his rights as a result of his
See also Smith v. Armontrout, 812 F.2d 1050
, 1057 (8th
Cir. 1987) ("Though Rees recites these two portions of the
standard as disjunctive alternatives, there is necessarily an area of
overlap between the category of cases in which at the threshold we see a
possibility that a decision is substantially affected by a mental
disorder, disease, or defect, and that of cases in which, after
proceeding further, we conclude that the decision is in fact the product
of a rational thought process.").
In this case, Dr. Wettstein was unequivocal in his conclusion that Mr.
Michael's desire to discontinue this case, expressed consistently for a
number of years, is the product of a rational thought process. (9/26/02
Habeas Tr. at 22-24.) Dr. Wettstein was cross-examined extensively on the
impact of Mr. Michael's dissimulation and avoidance, as well as the
possibility of PTSD or a cognitive disorder, and remained unyielding in
his opinions. Furthermore, he had the opportunity to listen to Dr. Krop's
testimony. In response to the Court's questioning following Dr. Krop's
testimony, Dr. Wettstein testified as follows:
Q. [F]irst, as to Dr. Krop's testimony, concerning
your diagnosis, and in particular, the Axis I
diagnosis of depression in remission. As I
understand that testimony, he questioned that
diagnosis. Having heard Dr. Krop's testimony is
it still your opinion that the diagnosis is
A. Yes, it is. I see no indication, at all, that
Mr. Michael is depressed or has been depressed
for a period of time, in terms of years.
(10/21/02 Habeas Tr. at 104-05.) Dr. Wettstein was also questioned
why he remained confident in his diagnosis that depression was in
remission in light of the results from the MMPI-2 test, which showed that
Mr. Michael was dissimulating. Dr. Wettstein acknowledged that while the
MMPI-2 results had to be considered with caution, they could not be
regarded as invalid. (9/26/02 Habeas Tr. at 30-31.) At the conclusion of
the proceedings, he elaborated:
I look beyond the self-report of Mr. Michael,
also, and his behavior. So I was particularly
concerned about his grooming, about his attention
to his health and about through the
medical records, there are many references, for
instance, when the Hepatitis C issue arose, he was
the one who requested the Hepatitis C testing.
He was the one who requested treatment for
Hepatitis. He is the one who requested treatment
for diabetes, even though he doesn't have it. He
is the one who has asked for regular testing and a
diet. He is the one who has made all of these
requests from the state for medical care. That is
not, at all, consistent with someone who is
seriously depressed by any means. People,
typically, who are depressed, neglect their
health, neglect their self care. They do not
exercise, in the way that Mr. Michael exercises.
He told me, for instance, and I didn't write this
in the report, that he utilizes all of his
exercise at yard time. He does a thousand sit ups
in the course of an hour. Now, I've never heard of
a depressed person, seriously depressed person
interested in doing that kind of exercise on a
(10/21/02 Habeas Tr. at 105-06.) Dr. Wettstein elaborated that it
was not only the fact of these behaviors of Mr. Michael, but also their
duration, that buttressed his conclusion that Mr. Michael's capacity to
understand his situation and make a rational decision is not impaired by
The CHCU points out that attention to personal hygiene, exercise, and
health does not necessarily foreclose a diagnosis of depression. It
cannot be seriously disputed, however, that a psychiatrist may rely on
such factors in making the overall assessment that a particular person is
Even the existence of an active depressive episode would not preclude a
finding of competency: "My testimony is that even if he were depressed,
that doesn't automatically mean he is unable to or incompetent to waive
his appeals." (10/21/02 Habeas Tr. at 28.) Dr. Krop acknowledged "that
even if possible personality traits or disorders and possible cognitive
dysfunction, . . . were present, and even after some period of time
that he was seen and those were diagnosed, [Mr. Michael] could still be
competent to waive counsel and waive further appeals." (Id. at
Case law confirms that, in determining competency, the existence of a
mental disease or disorder is not dispositive. See Ford v.
Haley, 195 F.3d 603, 617 (11th Cir. 1999) (fact that death row
inmate suffered from depression and a personality disorder did not render
clearly erroneous district court's finding that the death row inmate was
competent to dismiss his habeas petition and counsel); Fahy,
2003 U.S. Dist. LEXIS 14742, at *61-62 (fact that defendant may have been
"acutely psychiatrically ill" did not preclude the district court from
finding him competent); White v. Horn, 54 F. Supp.2d 457, 468
(E.D. Pa. 1999) (diagnosis of
schizophrenia not incompatible with a conclusion of competency).
That a person may suffer from a mental disorder, "without more, is wholly
insufficient to meet the legal standard that the Supreme Court has laid
down for this kind of case." Smith v. Armontrout,
865 F.2d 1502, 1506 (8th Cir. 1988). Nor does the mere disagreement of mental
health experts prevent a court from finding the death-sentenced inmate
competent. See Smith, 812 F.2d at 1057-59.
This Court, in its Memorandum Opinion of September 20, 2001, observed
that, to the extent that authority exists to order a sovereign state to
surrender a death-sentenced inmate to a federal facility for purposes of
a competency evaluation, "such authority should be exercised sparingly,
informed by the considered opinion of qualified professionals."
(September 20, 2001 Memorandum (Dkt. Entry 80) at 16.) This Court's
charge to Dr. Wettstein included advising the Court whether an
appropriate competency evaluation necessitated removing Mr. Michael from
state custody and sending him to a federal mental health facility. In his
report, as well as in his testimony, Dr. Wettstein opined that such
action was not required. The conclusion was reiterated after Dr. Krop's
testimony. (10/21/02 Habeas Tr. at 107.)
Dr. Wettstein was appointed by this Court to inform its decision on
this important matter. He thus stands as neutral expert witness. In light
of Dr. Krop's retention by the CHCU (who appear to take the position that
any decision to abandon litigation must not be the product of a rational
thought process, a position inconsistent with prevailing precedent), his
appropriately viewed with a measure of skepticism.*fn16 There was
no evidence of possible bias on the part of Dr. Wettstein. In fact, prior
to this proceeding, Dr. Wettstein had testified only on behalf of the
defense in death penalty cases. (9/26/02 Habeas Tr. at 16-17.) There can
also be no dispute about Dr. Wettstein's qualifications. He is
exceptionally well-qualified to opine on the matters before the Court.
Moreover, his opinions were premised on extensive testing and interviews
over a two-day period, as well as careful consideration of a large amount
of materials. By no means can his review be considered perfunctory. Under
these circumstances, I find his opinions credible and reliable.
A sovereign state should be required to surrender custody of a
death-sentenced inmate only where there is a compelling showing of the
need to do so. In the face of the credible, reliable, unequivocal, and
essentially unrebutted opinion of the court-appointed expert, no such
showing has been made here.*fn17 Neither referral to a federal
mental health facility nor additional testing is required to render an
adjudication on Mr. Michael's competency.
Based upon Dr. Wettstein's report and testimony, the exhibits
introduced during the two-day evidentiary hearing conducted in this
matter, and this Court's colloquy of Mr. Michael, the following findings
of fact are made:
Mr. Michael does not presently suffer from a mental disease,
disorder or defect.
Mr. Michael has the emotional, intellectual and psychiatric
capacity to understand his legal position and the options available to
No mental disease, defect or disorder prevents Mr. Michael from
understanding his legal position and available options.
No mental disease, defect or disorder precludes Mr. Michael from
making a rational choice among his options.
Mr. Michael has sufficient present ability to consult with his
lawyers with a rational as well as a factual understanding of these
Mr. Michael is competent to dismiss the CHCU as counsel and
dismiss this collateral challenge to his conviction and sentence.
This Court also finds that Mr. Michael's decisions are knowing,
rational and voluntary. "A waiver is voluntary if, under the totality of
the circumstances, [it] was the product of a free
and deliberate choice rather than coercion or improper inducement."
Fahy, 2003 U.S. Dist. LEXIS 14742, at *62. Stated otherwise, "a
decision is involuntary if it stems from coercion, whether mental or
There is no evidence in this case that the conditions of Mr. Michael's
death-row confinement are so harsh that his decision can be viewed as the
product of coercion. Moreover, the decision has been consistently
repeated to this Court over a number of years. It is thus not the product
of uncontrollable impulsivity. Dr. Krop, himself, acknowledged that the
consistency of Mr. Michael's position in this Court "is an indication of
an absence of impulsive behavior. . . ." (10/21/02 Habeas Tr. at 79.)
Mr. Michael's decision "is not the result of an overborne will or the
product of an impaired self-determination brought on by the exertion of
any improper influences." Comer, 230 F. Supp.2d at 1071.
Mr. Michael has provided a rational explanation for his desire to
discontinue this litigation: his approval of the death penalty as an
appropriate punishment for murder, his admission that the murder of Ms.
Eng qualifies for the death penalty, his feelings of remorse, and his
dissatisfaction with the prospect of life in prison. Similar explanations
for electing to forego challenges to convictions and death sentences have
been accepted as rational in similar contexts. See, e.g., Devetsco
v. Horn (In re Zettlemoyer), 53 F.3d 24, 27-28 (3d Cir. 1995);
Comer, 230 F. Supp.2d at 1063; United States v.
Hammer, 25 F. Supp.2d 518, 525-28 (M.D. Pa. 1998). Accordingly, Mr.
Michael's waiver of his right to pursue this case is knowing, rational
B. The "Non-Waivable" Claim.
The CHCU maintains that, despite Mr. Michael's competent choice to
discharge it as his counsel, this Court must nonetheless adjudicate a
claim styled by the CHCU as "collusion" of the trial court, defense
counsel and prosecutor to arrange for the death sentence because Mr.
Michael wanted it. Contrary to the CHCU's assertion, this Court lacks the
authority to adjudicate this claim.
In Gilmore v. Utah, 429 U.S. 1012 (1976), the Court held that
where, as here, a death-sentenced inmate has competently, knowingly, and
intelligently elected to forego legal challenges to his conviction and
sentence, a federal court is without jurisdiction to consider any claim
advanced on behalf of the death-sentenced inmate by another. In
dismissing the matter for want of jurisdiction, the majority specifically
rejected the type of argument advanced by the CHCU here that the
inmate was "unable" as a matter of law to waive the right to review.
Gilmore was followed by Whitmore v. Arkansas,
495 U.S. 149(1990). At issue in Whitmore was "whether a third party
has standing to challenge the validity of a death sentence imposed on a
capital defendant who has elected to forego his right of appeal to the
State Supreme Court." Id. at 151. The essence of the
third-party's contention was that a state must provide appellate review
of a conviction and sentence before it can proceed to execute a person.
Id. at 154. Chief Justice Rehnquist explained that "before a
federal court can consider
the merits of a legal claim, the person seeking to invoke the
jurisdiction of the court must establish the requisite standing to sue."
Id. Chief Justice Rehnquist elaborated that the "threshold
inquiry into standing `in no way depends on the merits of the
[petitioner's] contention that particular conduct is illegal,'. . . .
" id. at 155 (emphasis added). In finding standing to be
lacking, the Court rejected the contention that the public interest in
enforcing the Eighth Amendment was sufficient to allow the suit to
proceed in federal court. Chief Justice Rehnquist wrote that "[t]his
allegation raises only the `generalized interest of all citizens in
constitutional governance,' and is an inadequate basis on which to grant
. . . standing to proceed." Id. at 160 (citation omitted).
Moreover, "[t]he uniqueness of the death penalty and society's interest
in its proper imposition" did not "justify a relaxed application of
standing principles." Id. at 161.
Later in the same term in which Whitmore was decided, the
Court held that a federal habeas corpus court was without jurisdiction to
enter a stay of execution where a state court, following a hearing, found
the defendant competent to waive his right to seek post-conviction
review. In light of the state court competency determination, the Court
found that there was absent "an adequate basis . . . for the exercise
of federal power." Demosthenes v. Baal, 495 U.S. 731, 737
More recently, the Third Circuit has rejected the notion of a
non-waivable claim that may be pursued by someone other than a death
sentenced inmate who is competent and has knowingly and voluntarily
waived legal challenges to his conviction and sentence. United
States v. Hammer, 226 F.3d 229 (3d Cir. 2000). At issue
in Hammer was whether a death-sentenced defendant could forego
a direct appeal from a death sentence imposed under the Federal Death
Penalty Statute, 18 U.S.C. § 3591-98. In the course of holding that
the competent death-sentenced inmate could dismiss the appeal, the
unanimous panel observed that "it does not appear that any other person
has a legally-cognizable interest in these proceedings."
Hammer, 226 F.3d at 237.
In the face of this authority, the CHCU has mustered only a
twice-reversed decision of a district judge, United States v.
Davis, 150 F. Supp.2d 918 (E.D. La. 2001), and 180 F. Supp.2d 797
(E.D. La. 2001), rev'd, 285 F.3d 378 (5th Cir. 2002).
cert. denied, White v. United States, 537 U.S. 1066
(2002), and a Pennsylvania Supreme Court decision, Commonwealth v.
McKenna, 476 Pa. 428, 383 A.2d 174 (1978). Regardless of the merits
of those decisions, they have no bearing on the threshold question of
standing being presented here. McKenna, in which the court
undertook to address the constitutionality of the Pennsylvania death
penalty law even though the defendant declined to raise the challenge,
was decided under state law. Davis dealt with the right to
waive counsel at the death penalty phase of a case, a right that was
twice-enforced by a majority of the Fifth Circuit by way of writs of
mandamus.*fn18 Davis does not address the question of a
"non-waivable" claim in the context of a federal court collateral review
of a state court conviction.
In this regard, it bears noting that the so-called non-waivable claim
was presented to and considered by the Pennsylvania Supreme Court in
connection with the appeal taken from the PCRA proceedings. The
Pennsylvania Supreme Court, quoting from the CHCU brief, stated that one
of the issues before it is "whether the stipulated-to death penalty is
constitutionally unreliable." Michael II, 562 Pa. at 361 n.1.
The court also noted that the CHCU contended that a "stipulation that
there was no mitigating factors was a knowingly false
representation. . . ." Id. at 366. Having acknowledged these
contentions, the court ruled that counsel for Mr. Michael was bound to
accept his direction not to present mitigating evidence, and that there
existed no precedent that required a defendant to present mitigating
evidence. Id. at 367-68. Thus, the CHCU has had an opportunity
to litigate the "non-waivable" claim.
In any event, as noted above, standing "in no way depends on the merits
of the . . . contention that particular conduct is illegal."
Whitmore, 495 U.S. at 155. Where, as here, a death-sentenced
inmate is found to be competent and has knowingly and voluntarily waived
federal habeas corpus review, a federal court is without power to act in
the matter. See In re Zettlemoyer, 53 F.3d at 28;
Smith, 812 F.2d at 1059.
To determine whether Mr. Michael is competent to decide to dismiss
counsel and this habeas corpus proceeding, this Court sought to provide
"a constitutionally adequate fact-finding
inquiry to make a reliable determination. . . ." Mata v.
Johnson, 210 F.3d 324, 327 (5th Cir. 2000). That process included
(1) a current examination by a highly qualified expert, (2) an
opportunity for the parties to present pertinent evidence, and (3) an
examination of Mr. Michael in open court concerning his decision to waive
further proceedings. For purposes of this proceeding, Mr. Michael was
also appointed independent counsel.
Throughout these proceedings, Mr. Michael has maintained the consistent
position that he does not seek federal court intervention with respect to
his conviction and sentence. Having found, without hesitation, that Mr.
Michael is competent, and has made a knowing, rational and voluntary
decision, this Court has no choice but to honor that decision. As did the
death-sentenced inmate in Comer, Mr. Michael "has made a
competent and free choice, which `is merely an example of doing what you
want to do, embodied in the word liberty.'" 230 F. Supp.2d at 1072. Also
worth reiterating here is the Eleventh Circuit's admonition in
Sanchez-Velasco. v. Sec'y of the Dep't of Corr., 287 F.3d 1015,
1033 (11th Cir. 2002), affirming a district court's finding that a
defendant competently, knowingly and voluntarily waived federal court
[W]e should not forget the values that motivated
the Supreme Court's Whitmore decision
and what is really at stake in these kind of
cases. These cases are about the right of
self-determination and freedom to make fundamental
choices affecting one's life. . . . [A] death
row inmate . . . does not have many choices
left. One choice the law does give him is whether
to fight the death sentence he is under or accede
to it. Sanchez-Velasco, who is mentally competent
to make that choice, has decided not to contest
death sentence any further. He has the right
to make that choice. . . . He has never asked
[Capital Collateral Regional Counsel] to represent
him or consented to have them do so. He has
directed them to leave his case alone, and the law
will enforce that directive.
Likewise, this Court has no choice but to enforce Mr. Michael's
knowing, rational and voluntary directive that legal challenges to his
conviction and sentence cease.
NOW, THIS 10th DAY OF MARCH, 2004, for the reasons set forth
in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. The Defender Association of Philadelphia, Capital Habeas Corpus
Unit, its successors or assigns, David Wycoff, Esq., Michael Wiseman,
Esq., and any other attorneys of the Capital Habeas Corpus Unit are
dismissed as counsel for Hubert L. Michael.
2. Joseph M. Cosgrove, Esq. is directed to send a copy of this
Memorandum and Order to Mr. Michael, and is dismissed as counsel for
Hubert L. Michael.
3. Hubert L. Michael's motion to dismiss the habeas corpus petition
filed in this matter is GRANTED.
4. The stay of execution previously imposed by this Court's Order of
August 22, 1996 is VACATED.
5. The Clerk of Court is directed to mark this matter CLOSED.