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MICHAEL v. HORN

March 10, 2004.

HUBERT L. MICHAEL Petitioner
v.
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

MEMORANDUM

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 Page 2 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. Page 3

  I. BACKGROUND

  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 prosecution.

  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 Page 4 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 Prison by Page 5 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 Page 6 Supreme Court:
[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 counsel.
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 Page 7 right at the sentencing hearing to present evidence of mitigating factors.

  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 Page 8 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 sentence.
14. Finally, my attorneys have reviewed this case and this Affidavit with me and I am satisfied with their representation.
Id.

  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 Page 9 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 Lancaster Page 10 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. Page 11 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 provided:
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 attorney.
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 Page 12 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 neuropsychological evaluations.

  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 Page 13 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 Page 14 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 person's Page 15 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 ...


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