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 ...