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United States v. Hammer

December 27, 2005

UNITED STATES OF AMERICA
v.
DAVID PAUL HAMMER



The opinion of the court was delivered by: (Judge Muir)

OPINION

I. Introduction

We address in this opinion David Paul Hammer's fourth amended § 2255 motion filed as permitted by our order of October 18, 2005.

On September 18, 1996, a Grand Jury sitting in Williamsport, Pennsylvania, returned an Indictment charging Mr. Hammer with first degree murder. Mr. Hammer was charged with killing his cellmate, Andrew Marti, while housed in Cell 103 of the Special Housing Unit at the Allenwood United States Penitentiary, White Deer, Pennsylvania. The killing occurred on April 13, 1996, sometime between the hours of 2:00 and 3:00 a.m. On April 9, 1997, the Government filed a notice of its intent to seek the death penalty.

On September 24, 1997, Mr. Hammer filed a notice of intent to rely upon an insanity defense at the time of trial. On October 7, 1997, the Government filed a motion pursuant to 18 U.S.C. §§ 4242(a) and 4247(b) to conduct a psychiatric evaluation at either the United States Medical Center for Federal Prisoners, Springfield, Missouri, or the Federal Correctional Center for Federal Prisoners, Butner, North Carolina. On October 9, 1997, we granted the Government's motion and Mr. Hammer was evaluated at the United States Medical Center for Federal Prisoners, Springfield, Missouri. He arrived at that facility on October 23, 1997, and he was discharged to the custody of the United States Marshals Service for return to this jurisdiction on December 10, 1997.

This case was placed on the May, 1998, trial list. Mr. Hammer was represented by David A. Ruhnke, Esquire, and Ronald C. Travis, Esquire, two highly experienced criminal defense attorneys. Jury selection commenced on May 5, 1998, with a pool of 250 potential jurors and lasted fourteen (14) days. During that period an additional 205 potential jurors were called.

A jury of 12 jurors and 6 alternates was impaneled on June 2, 1998, and on the next day the Government commenced its case on the guilt phase. On June 11, 1998, the Government rested and the defense commenced its case. Mr. Hammer presented an insanity defense. Robert M. Sadoff, M.D., a forensic psychiatrist, testified for the defense that Mr. Hammer suffered from dissociative identity disorder, a form of mental illness which was previously known as multiple personality disorder. Dr. Sadoff further testified that Mr. Hammer has four alter personalities: (1) Jocko, a violent personality, (2) Tammy, a female personality, (3) Wilbur, a child personality and (4) Jasper, a chimpanzee. In sum, Dr. Sadoff testified that Jocko committed the killing of Mr. Marti and that Mr. Hammer was not legally responsible for the killing.

On June 17, 1998, the defense rested and the Government commenced its rebuttal on the question of guilt by calling James K. Wolfson, M.D., a forensic psychiatrist employed at the Medical Center for Federal Prisoners, Springfield, Missouri. Dr. Wolfson's testimony was the opposite to that of Dr. Sadoff, i.e., that Mr. Hammer did not suffer from dissociative identity disorder and that he was responsible for his actions.

The Government called the following 16 witnesses during its case in chief on the issue of guilt: on June 3rd -- Timothy Devane, Stephen Jones, Thomas Abraham, Curtis Hufnagle, and Jack Luhrman; on June 4th -- Muhammed Chaudhri, Dr. Saralee Funke, Ronald L. Jury, and Guy Fleck; on June 8th -- Guy Fleck (continued), Thomas F. Callaghan, Leonard Yager, and Mark Traxler; on June 9th -- Mark Traxler (continued), Jeannette Bunch, and Stephen Classen; on June 10th -- Stephen Classen (continued) and FBI Special Agent Carlyle Thompson; on June 11th -- Carlyle Thompson (continued) and FBI Special Agent Anthony S. Malocu.

The Defense commenced its case on June 11, 1998 and concluded on June 17, 1998. The Defense called the following 13 witnesses during its case: on June 11th -- James Boone and Billy Joe Webb; on June 12th -- Mike Smith, George Yandle, Rev. Charles Story, and Gary McLaughlin; on June 15th -- Paul Reed, Mark Oberg, Mark Jordan, and Jill Miller; on June 16th -- Jill Miller (continued) and Dr. Robert Sadoff; on June 17th -- Dr. Robert Sadoff (continued), Special Agent Malocu and Mark Traxler.

The Government commenced its rebuttal case on June 17, 1998, by calling Dr. Wolfson and concluded the direct examination of Dr. Wolfson at 3:52 p.m. on June 18, 1998. The cross-examination of Dr. Wolfson commenced on Friday, June 19, 1998, and ran from 10:00 a.m. until 12:20 p.m. After lunch two witnesses, Nicole Tadross-Weaver and Chaplain Glenn Crook, were taken out of turn. At the conclusion of their testimony Dr. Wolfson resumed the witness stand and attorney Travis continued with cross-examination. At 3:04 p.m. an afternoon break was taken. Court resumed at 3:19 p.m. at which time counsel approached the bench and reported that attorney Travis was suffering from exhaustion and requested that court adjourn for the day. Because attorney Ruhnke was not prepared to continue with the cross-examination of Dr. Wolfson, the jury was excused for the day and directed to report on the following Monday morning, June 22, 1998, at the regular time.

On June 22, 1998, before the cross-examination of Dr. Wolfson was resumed, the court was notified that Mr. Hammer desired to plead guilty. Prior to entering into a guilty plea colloquy with Mr. Hammer, the court required that Mr. Hammer be evaluated to determine whether he was competent to plead guilty. That evaluation was conducted by Dr. Wolfson and John R. Mitchell, Psy.D., a psychologist at the Allenwood United States Penitentiary, White Deer, Pennsylvania.*fn1 The court than heard testimony from both Drs. Wolfson and Mitchell which established that Mr. Hammer was competent to enter a guilty plea.

At the conclusion of the testimony from Drs. Wolfson and Mitchell, Mr. Hammer entered a plea of guilty to the intentional, premeditated murder of Mr. Marti in violation of Title 18, United States Code, Section 1111. The evaluation of Mr. Hammer, testimony of Drs. Wolfson and Mitchell as to competency of Mr. Hammer and change of plea proceeding occurred on June 22, 1998.

During the change of plea proceeding, Government counsel was asked to "give us a brief summary of the evidence." Government counsel in response to that request stated in relevant part as follows:

Mr. Hammer solicited Mr. Marti as a cellmate. Once Mr. Marti was his cellmate he persuaded him to engage in a hostage scenario, whereby Mr. Marti would allow himself to be tied to the bed in an effort to have Mr. Marti transferred more quickly to another federal institution.

Mr. Hammer persuaded, or succeeded in persuading Mr. Marti to do this. Also prepared items, including cloth restraints, to facilitate the ruse, and when Mr. Marti was tied, all of his limbs were tied to various aspects of the cell, he indicated --he basically put a sock in Mr. Marti's mouth, then put him in a sleeper hold and rendered him unconscious. And after doing so he took a cloth, a piece of cloth, a strip of cloth, and used that to finally strangle Mr. Marti to death. Mr. Hammer had said to several inmates that that what -- that is what he intended to do. And they have testified to that effect in this proceeding.

He also wrote letters after the fact, after the killing of Mr. Marti, basically saying that I did what I told you I was going to do, and that was to strangle Mr. Marti, and all of these -- the pre-planning and the statements to the inmates, as well as Mr. Hammer's written statements following the murder support the prosecution -- prosecution's conclusion that this murder occurred in cold blood with premeditation.

Doc. 488, Transcript, Vol. 14, pages 112-113. After this summary, we asked Mr. Hammer whether or not he agreed with the prosecutor's summary to which he responded in pertinent part as follows:

I agree with Mr. Martin's rendition of the facts in substance, but -- not in the exact detail in which he put it. * * * * * * * The bottom line is I did in fact with these hands kill Andrew Marti . . . .

Transcript, pages 113-114. We then asked Mr. Hammer how he disagreed with Government counsel's summary to which he responded as follows:

Well, the fact that I solicited Andrew to move into my cell. It was a -- it was a mutual decision for him to move in there with me, and the ruse for the hostage scenario, that was not accurate. That's something I told the FBI I did, along with Marti, braid sheets, braid restraints, but we used them for other purposes.

The bottom line is I tied him up, I tied him to the bed and I killed him. And I'm responsible for that.

Transcript, page 114. The only portions of Government counsel's summary with which Mr. Hammer disagreed were (1) that he solicited Mr. Marti to be his cellmate and (2) the hostage scenario or ruse. Mr. Hammer did not dispute that he tied Mr. Marti to the bed, put a sock in Mr. Marti's mouth, put Mr. Marti in a sleeper hold, rendered him unconscious, and then took a piece of cloth and strangled him to death. Mr. Hammer did not deny that he told inmates prior to the incident that he was going to kill Mr. Marti. The portions of Government counsel's summary which Mr. Hammer did not deny compelled the court to find intent to kill (malice) and premeditation.

As a result of the guilty plea, the penalty phase of the trial commenced on June 30, 1998. The Government called the following 14 witnesses during its case in chief: on June 30th --

Thomas Upton, David Walter, Dr. Saralee Funke, Dr. Stephen Karten, and Brad Peiffer; on July 1st -- Donn C. Troutman, William Louis Earl Keel, Michael Marti, Robert Marti, and Dr. Stephen Karten (recalled); on July 6th -- James Elliot, Thomas Woodby, Mark Traxler, and Muhammed Chaudhri; on July 7th -- FBI Special Agent Malocu. After presenting the testimony of Special Agent Malocu, the Government rested.

The Defense commenced presenting evidence in mitigation on July 7, 1998. The Defense called the following 15 witnesses: on July 7th -- Martin Hammer and Sherry Watson; on July 8th -- Dr. Michael M. Gelbort, Larry D. Miller, Marilynn Herring, and Dr. John Mitchell; on July 9th -- Dr. John Mitchell (continued), and Karen Billing; on July 10th -- Karen Billing (continued), Vince Parsons, Jesse Trentadue, Andy D. Thomas, Guy Fleck, and Donn Troutman; on July 13th -- Donn Troutman (continued), Patrick W. Keohane, and Dr. Wolfson (continuation of cross-examination by attorney Travis); on July 14th -- Dr. Wolfson (continued) and Bill Story. On July 15th the defense submitted a stipulation and rested.

The Government then presented rebuttal evidence. The Government presented the following five rebuttal witnesses: Lee Mann, Gayle Krien, Dr. Wolfson, Ronald Jury and Special Agent Malocu.

On July 16 and 17, 1998, the court heard argument regarding points for charge and the Special Findings Form to be submitted to the jury.

On July 21st the court gave the closing instructions to the jury. Each side was entitled to 4 hours for closing arguments and those arguments concluded on July 23, 1998. The jury was presented with a document entitled "Special Findings Form Regarding the Punishment to be Imposed Upon David Paul Hammer for the Killing of Andrew Marti" and was sent to the jury room to begin deliberations.

The Special Findings Form consisted of the following six parts: Part One -- Intent Factors; Part Two -- Statutory Aggravating Factors; Part Three -- Non-Statutory Aggravating Factor Future Dangerousness; Part Four -- Non-Statutory Aggravating Factor Impact on Family; Part Five -- Mitigating Factors; and Part Six -- Sentence.

Under the Federal Death Penalty Act of 1994, in deciding to recommend a sentence of death, the jury was required to pass through several stages. Initially, during the penalty phase deliberations the jury was required to determine whether Mr. Hammer had the requisite "intent" in committing the offense to warrant imposing the death penalty. 18 U.S.C. § 3591(a)(2). The jury was required to decide whether Mr. Hammer "intentionally killed Andrew Marti" or "intentionally inflicted serious bodily injury on Andrew Marti that resulted in the death of Andrew Marti." The jury determined beyond a reasonable doubt that Mr. Hammer had intentionally killed Mr. Marti and, therefore, proceeded to the second stage. If the jury had not found the requisite intent, the deliberations would have been concluded and the death penalty could not have been recommended.

In the second stage of the deliberations, the jury was required to consider the statutory aggravating factors set forth in the Government's notice of intent to pursue the death penalty. 18 U.S.C. § 3592(c). For the death penalty to be recommended, the jury was required to find that the Government had proven beyond a reasonable doubt at least one statutory aggravating factor. The jury was required to consider the following two statutory aggravating factors: (1) whether or not Mr. Hammer had previously been convicted of two or more state or federal offenses punishable by a term of imprisonment for more than one year, involving the use or attempted or threatened use of a firearm, and (2) whether or not Mr. Hammer committed the murder of Andrew Marti after substantial planning and premeditation.

The jury determined beyond a reasonable doubt that Mr. Hammer had previously been convicted of the requisite number of felony offenses involving the use of a firearm and that he had committed the murder of Andrew Marti after substantial planning and premeditation. The jury therefore proceeded to the third and fourth stages of deliberations, that is consideration of the non-statutory aggravating factors: future dangerousness and the impact on the family of Andrew Marti. If the jury had not found at least one statutory aggravating factor, the deliberations would have been concluded and the death penalty could not have been recommended.

With respect to the non-statutory aggravating factors the jury determined beyond a reasonable doubt that Mr. Hammer "represent[ed] a continuing danger to the lives and safety of others in the future because he is likely to commit criminal acts of violence" and that he "caused harm to the family of Andrew Marti as a result of the impact of the killing upon the family."

After unanimously determining that the non-statutory aggravating factors had been proven beyond a reasonable doubt, the jury was obliged to consider any mitigating evidence. The jury was presented with the following possible 15 mitigating factors to consider:

(1) At the time of the offense, Mr. Hammer's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, regardless of whether his capacity was so impaired as to constitute a defense to the charge;

(2) At the time of the offense, Mr. Hammer was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge;

(3) Mr. Hammer committed the offense under severe mental or emotional disturbance;

(4) Mr. Hammer presently suffers from a major mental disease or defect;

(5) Mr. Hammer suffers from cognitive deficits;

(6) Mr. Hammer is the product of a violent, abusive and chaotic childhood;

(7) As a child, Mr. Hammer was a victim of sexual abuse;

(8) As a young person, Mr. Hammer attempted to seek help for mental difficulties;

(9) Mr. Hammer will be sentenced to life in prison without the possibility of release if a sentence of death is not imposed;

(10) The United States Bureau of Prisons and the Oklahoma Department of Corrections are capable of fashioning conditions of confinement such that Mr. Hammer is unlikely to commit criminal acts of violence in the future;

(11) Mr. Hammer, even though incarcerated for most of his life, has managed to do some good things;

(12) Friends and family members of Mr. Hammer will be affected if he is sentenced to death;

(13) Mr. Hammer is remorseful for having caused the death of Andrew Marti;

(14) By pleading guilty to the murder of Mr. Marti, Mr. Hammer has demonstrated acceptance of responsibility for his offense;

(15) Any other factor in Mr. Hammer's background, record, or character or any other circumstance of the offense that mitigate against the imposition of the death sentence.

The jury was required to consider the above listed mitigating factors and determine whether or not Mr. Hammer had proved any of them by a preponderance of the evidence. If any of the mitigating factors were proven by a preponderance of the evidence, the jury was then to consider that factor in the final stage of the deliberations.

In the final stage the jury was required to (1) weigh the statutory and non-statutory aggravating factors which the jury had found to exist beyond a reasonable doubt by a unanimous vote against any mitigating factors and (2) decide whether the aggravating factors outweigh all the mitigating factors found to exist.*fn2 "Based upon this consideration, the jury by a unanimous vote" was required to recommend either death or life imprisonment.

18 U.S.C. § 3593(e).

In the instant case after the jury found two statutory and two non-statutory aggravating factors the jury considered whether any mitigating factors existed.

Twelve jurors concluded that Mr. Hammer failed to prove by a preponderance of the evidence that (1) at the time of the offense his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired, (2) at the time of the offense he was under unusual and substantial duress, and (3) he suffers from a major mental disease or defect.

Eleven jurors concluded that Mr. Hammer failed to prove by a preponderance of the evidence that he (1) committed the offense under severe emotional disturbance, (2) suffers from cognitive deficits, (3) is remorseful for having caused the death of Mr. Marti, and (4) has demonstrated acceptance of responsibility for the offense.

Twelve jurors found by a preponderance of the evidence that (1) Mr. Hammer is the product of a violent, abusive and chaotic childhood, (2) that as a young person he attempted to seek help for mental difficulties, (3) that he would be sentenced to life in prison without the possibility of release if a sentence of death is not imposed, and (4) friends and family members of Mr. Hammer would be adversely affected if he were sentenced to death.

Six jurors concluded that Mr. Hammer failed to prove by a preponderance of the evidence that as a child he was a victim of sexual abuse.

Nine jurors concluded that Mr. Hammer failed to prove by a preponderance of the evidence that the United States Bureau of Prisons and the Oklahoma Department of Corrections are capable of fashioning conditions of confinement such that Mr. Hammer is unlikely to commit criminal acts of violence in the future.*fn3

Finally, seven jurors concluded that Mr. Hammer failed to prove by a preponderance of the evidence that even though incarcerated for most of his life he has managed to do some good things.

The jurors then balanced the aggravating factors against the mitigating factors and concluded that because the aggravating factors sufficiently outweighed the mitigating factors a sentence of death was justified.*fn4

On July 24, 1998, the jury recommended that Mr. Hammer be sentenced to death. On July 31, 1998, Mr. Hammer filed a pro se motion to discharge counsel and to determine for himself whether to file an appeal. On August 3, 1998, a hearing was held on Mr. Hammer's motion. At that hearing the Government requested that Mr. Hammer be evaluated to determine whether he was competent to discharge counsel and determine for himself whether to file an appeal. On August 4, 1998, an order was issued directing that Mr. Hammer undergo a competency evaluation at the Medical Center for Federal Prisoners, Springfield, Missouri, to determine whether he could proceed pro se and whether he could decide for himself whether to appeal. Mr. Hammer was evaluated at that facility from August 13 to September 18, 1998, and the court received a report from Dr. Wolfson on September 22, 1998.

On October 1, 1998, we held a hearing with respect to whether or not Mr. Hammer was competent to discharge counsel and to determine for himself whether to file an appeal. On October 9, 1998, we entered an opinion and order finding Mr. Hammer competent, discharging Mr. Hammer's counsel, appointing stand-by counsel for him, and setting a date for sentencing. United States v. Hammer, 25 F.Supp.2d 518 (M.D.Pa. 1998). On November 4, 1998, this court sentenced Mr. Hammer to die by lethal injection for the first degree murder of Mr. Marti.

On November 12, 1998, Mr. Hammer filed a notice of appeal. Subsequently, Mr. Hammer vacillated regarding whether to pursue the direct appeal. Ultimately pursuant to Mr. Hammer's request, the Court of Appeals on August 31, 2000, dismissed Mr. Hammer's direct appeal. The Court of Appeals issued the mandate on September 13, 2000. On October 26, 2000, Mr. Hammer filed a motion to recall the mandate. The Court of Appeals denied that motion on October 31, 2000.

On November 14, 2000, Mr. Hammer filed a petition for rehearing en banc of the order denying his motion to recall the mandate, to reinstate his direct appeal and to relinquish pro se status in the Court of Appeals. Mr. Hammer then on November 29, 2000, filed a petition for writ of certiorari in the United States Supreme Court with respect to the order issued on October 31, 2000, by the Court of Appeals denying his motion to recall the mandate. On January 5, 2001, the Court of Appeals denied the petition for rehearing en banc with one judge dissenting. United States v. Hammer, 239 F.3d 302 (3d Cir. 2001). The Supreme Court on April 2, 2001, denied Mr. Hammer's petition for writ of certiorari which he had filed on November 29, 2000. Hammer v. United States, 532 U.S. 959 (2001). On April 4, 2001, Mr. Hammer then filed a petition for writ of certiorari in the Supreme Court with respect to the January 5, 2001, decision of the Court of Appeals. That petition was denied by the Supreme Court on October 1, 2001. Hammer v. United States, 534 U.S. 831 (2001).

By order of December 21, 2000, we appointed Monica Foster, Esquire, and Rhonda Long-Sharp, Esquire, to represent Mr. Hammer with respect to any post-conviction proceedings. Both attorneys Foster and Long-Sharp were licensed to practice law in the state of Indiana and were specially admitted in this district to represent Mr. Hammer.

On September 30, 2002, Mr. Hammer filed a document entitled "Amended Motion to Vacate and Set Aside Conviction and Sentence Pursuant to 28 U.S.C. § 2255 by a Person In Federal Custody." On July 9, 2003, Mr. Hammer filed a document entitled "Second Amended Motion to Vacate and Set Aside Conviction and Sentence Pursuant to 28 U.S.C. 2255 by a Person in Federal Custody."

On February 26, 2003, Mr. Hammer filed a document entitled "Petitioner's Pro Se Motion to Dismiss Section 2255 Petition and Request for Order Scheduling the Date for Implementation of Sentence." In that document Mr. Hammer requested the appointment of a psychiatrist to evaluate whether he was competent. He specifically requested that attorney Stephen C. Smith be appointed to represent him with regard to the motion.*fn5 Attorney Smith was appointed to represent Mr. Hammer with respect to the motion by order of March 6, 2003.

On or about April 4, 2003, attorney Smith filed a status report in which he stated that Mr. Hammer now "desires to go forward with his 2255 motion and has confirmed same with Monica Foster, Esquire, who is aiding Mr. Hammer" with regard to that motion. On April 30, 2003, we issued an order deeming withdrawn Mr. Hammer motion entitled "Petitioner's Pro Se Motion to Dismiss Section 2255 Petition and Request for Order Scheduling the Date for Implementation of Sentence."

On December 1, 2003, Mr. Hammer filed a second motion to withdraw his § 2255 motion. Stephen C. Smith, Esquire, was appointed to represent Mr. Hammer with respect to that motion. A hearing on Mr. Hammer's motion to withdraw the second amended § 2255 was held on January 16, 2004. On that same date we issued an order deeming Mr. Hammer's second amended § 2255 motion withdrawn. Attorneys Foster and Long-Sharp attended that hearing but did not participate in it other than to respond affirmatively to the court's question as to whether Mr. Hammer understood the issues raised in the second amended § 2255 motion.

On February 2, 2004, attorneys Foster and Long-Sharp filed a document entitled "Motion to Alter or Amend Judgment Pursuant to F.R.C.P. 59(e)." In that motion attorneys Foster and Long-Sharp asked us to set aside the judgment of January 16, 2004, and return Mr. Hammer to the position he occupied prior to the January 16th proceeding. Attorneys Foster and Long-Sharp admitted in the motion that they were filing it without the consent of Mr. Hammer. By order of February 3, 2004, we denied the motion.

After we denied the motion to alter or amend judgment, the Warden at the United States Penitentiary, Terre Haute, Indiana, advised Mr. Hammer by letter dated February 10, 2004, that June 8, 2004, was the date set by the Director of the Federal Bureau of Prisons for Mr. Hammer's execution by lethal injection.

On March 4, 2004, attorneys Foster and Long-Sharp filed a notice of appeal of our order of February 3, 2004. On March 5, 2004, Mr. Hammer filed a pro se document entitled "Defendant's Pro Se Motion for an order directing attorneys Foster and Long-Sharp not to file any further pleadings on his behalf." On the same day that the motion was filed we issued an order discharging attorneys Foster and Long-Sharp as counsel for Mr. Hammer and revoking their special admission in this district. Subsequently, Mr. Hammer acquiesced in the pursuit of the appeal and attorneys Travis and Ruhnke were appointed to represent Mr. Hammer by the Court of Appeals. On June 3, 2004, the Court of Appeals remanded the case to us for further proceedings with respect to the second amended § 2255 motion. After the case was remanded new counsel -- the Federal Public Defender -- was appointed to represent Mr. Hammer. The Federal Public Defender was authorized to designate an attorney in his office or on the Criminal Justice Act Panel to represent Mr. Hammer. The Federal Public Defender assigned the case to attorneys Anne L. Saunders and Michael Wiseman.*fn6

On November 30, 2004, new counsel filed a motion for leave to file a supplemental and third amended § 2255 motion and a brief in support thereof. The Government filed a brief in opposition on December 10, 2004. Mr. Hammer filed a reply brief on December 20, 2004. On January 4, 2005, after being granted leave to do so, the Government filed a sur-reply brief. On January 19, 2005, Mr. Hammer filed a brief responding to the Government's sur-reply brief.

On January 27, 2005, we issued an order which granted in part and denied in part Mr. Hammer's motion for leave to file a supplemental and third amended § 2255 motion ("hereinafter referred to as "the third amended § 2255 motion"). Mr. Hammer filed a brief in support of the third amended § 2255 motion on February 25, 2005, The Government filed a brief in opposition on April 20, 2005. Mr. Hammer filed a reply brief on May 9, 2005.

The Federal Death Penalty Act of 1994, as noted above, is a weighing statute, i.e., a jury in deciding whether to recommend the imposition of the death penalty is obliged to weigh the aggravating circumstances and mitigating circumstances and only to recommend the imposition of the death penalty if the aggravating circumstances sufficiently outweigh the mitigating circumstances. Under a weighing statute such as the Federal Death Penalty Act of 1994, the failure appropriately to consider mitigating circumstances can have an adverse affect on the weighing process and result in an inappropriate sentencing outcome. Errors regarding either aggravating factors or mitigating factors "conceivably could distort the weighing process, thus calling into question the propriety of a death sentence." Lisa R. Duffet, Habeas Corpus and Actual Innocence of the Death Sentence After Sawyer v. Whitley: Another Nail Into the Coffin of State Capital Defendants, 44 Case W. Res. L. Rev. 121, 148 (1993).

Mr. Hammer has raised several claims in his third amended § 2255 motion. The claims can be grouped into five general categories. First, there are claims relating to the validity of the change of plea proceeding which was held on June 22, 1998. Second, there is a challenge to the proceedings which permitted Mr. Hammer to discharge counsel and decide on his own whether or not to pursue a direct appeal. Third, there are numerous claims of ineffective assistance of counsel. Fourth, there is a claim that there will be a miscarriage of justice if we do not review Mr. Hammer's conviction and the propriety of the sentence. Mr. Hammer has raised a claim in Ground Three of the third amended § 2255 motion "that disposition of his direct appeal issues would result in vacation of his conviction and sentence" and that "[a] manifest injustice would result if review of all issues is not had." In Ground Three he lists the direct appeal issues. One of the issues which were raised in the withdrawn direct appeal was that the jury at the end of the penalty phase made erroneous factual findings with respect to certain mitigating factors. More specifically, Mr. Hammer contends that "[t]he jury failure to find, consider and weigh undisputed or conceded mitigating factors is a circumstance that render's Hammer's sentence arbitrary." Fifth, there is a claim that the Government failed to disclose Brady*fn7 material which was relevant to both the guilt and penalty phases of the trial.

On July 14, 2005, a hearing commenced on Mr. Hammer's third amended § 2255 motion. As a result of materials turned over to Mr. Hammer's counsel on September 22, 2005, which was the 29th day of the evidentiary hearing, counsel for Mr. Hammer filed on September 26, 2005, a motion for leave to file a fourth amended § 2255 motions asserting additional Brady violations. The materials which were provided to counsel for Mr. Hammer on September 22, 2005, were thirty-three previously undisclosed FBI 302 statements which summarized interviews with prison inmates.

The Government contended at trial that part of Mr. Hammer's substantial planing and premeditation was the braiding of sheets into ropes. As noted above Mr. Hammer during the guilty plea colloquy stated that the hostage ruse was something he concocted and that the ropes braided from sheets were used for other purposes. Some of the 302's contained statements by inmates indicating that Mr. Hammer in the past had engaged in sexual bondage, that he had previously braided sheets into ropes for sexual purposes and that Mr. Hammer had revealed that he had been sexually abused by his father. The revelation to one other inmate relating to sexual abuse by his father occurred before the killing of Andrew Marti.

With respect to the penalty phase, Mr. Hammer contends that the Brady violations impact the jury's determination that he committed the offense after substantial planning and premeditation. Mr. Hammer also contends that the failure to turn over the information relating to Mr. Hammer's sexual abuse as a child draws into question the propriety of six jurors failing to find that he was sexually abused as a child. By order of October 18, 2005, we granted Mr. Hammer's motion for leave to file a fourth amended § 2255 motion.

During the hearing Mr. Hammer called the following 22 witnesses some of whom were called on more than one occasion: on July 14th -- Ronald C. Travis, Esquire; on July 15th -- Randy Vanderschaaff and attorney Travis (continued); on July 18th -- Dr. Michael M. Gelbort; on July 19th -- Rodney W. Archambault, Terry D. Sittig and Mark C. Oberg; on July 20th - Dr. Donald N. Bersoff; on July 21st -- Dr. Bersoff (continued), and Martin L. Hammer; on July 25th -- Dr. Werner U. Spitz and Dr. John R. Mitchell; on July 26th -- Dr. Stuart Grassian; on July 27th -- Dr. Mitchell (continued); on July 28th -- Dr. Robert L. Sadoff; on August 9th -- Dr. Ruben C. Gur; on August 10th -- Monica Foster, Esquire, Rhonda Long-Sharp, Esquire, and Louis Bullock, Esquire; on August 15th -- Dr. Neil Blumberg; on August 16th -- Dr. Richard P. Kluft; on August 17th -- Dr. Christopher Nolan, Timothy Noone, and attorney Travis (recalled); on August 30th -- David A. Ruhnke, Esquire; on September 1st -- Bernard E. Halloran; on September 7th -- Dr. Kluft (continued); and on September 28th -- attorneys Travis and Ruhnke (recalled). The Government called the following 25 witnesses some of whom were called on more than one occasion: on August 29th -- Dr. Daniel A. Martell (called out of order); on September 1st -- Randy L. White (called out of order); on September 6th -- Dr. James K. Wolfson (called out of order); on September 8th -- Dr. Wolfson (continued), Daniel Ellis, Ronald Jury and Randy Gonzales; on September 9th -- Dr. Christopher Nolan, Kimberly S. Ask-Carlson, Richard Lynn Snyder and Donn Troutman; on September 12th -- Dr. William N. Elliot, Nicole Weaver, and Timothy D. Devane; on September 13th -- Dr. Saralee Funke; on September 14th -- Dr. Philip R. Magaletta, Caryle R. Thompson and Rev. Glenn Crook; on September 15th -- Dr. Kenneth H. Kessler and Guy A. Fleck; on September 20th -- Jack P. Luhrman and Anthony Malocu; on September 21st -- Anthony Malocu (continued) and Dr. Daryl Matthews; on September 22nd -- Dr. Matthews (continued); on September 26th -- Harry Montville, Anthony Malocu (recalled); Dr. John R. Mitchell and Charles P. Austin. The evidentiary phase of the hearing concluded on the 31st trial day, September 29, 2005.

Mr. Hammer submitted 1673 proposed findings of fact and the Government submitted 1802 for a total of 3475 proposed findings of fact. On October 13th and 17th counsel filed briefs totaling 156 pages. On November 10, 2005, counsel for Mr. Hammer and the Government appeared before the court for closing arguments.

Section 2255 provides federal prisoners with the statutory vehicle for collaterally challenging the lawfulness of their convictions. That section states in relevant part as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. * * * * * * * If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

28 U.S.C. § 2255.

As a general rule, relief under § 2255 is limited to errors which were jurisdictional, rose to the level of a constitutional violation, resulted in a "complete miscarriage of justice," or led to proceedings which were "inconsistent with the rudimentary demands of fair procedure." United States v. Timreck, 441 U.S. 780, 783-84 (1979), citing Hill v. United States, 368 U.S. 424 (1962).

The issues raised in this section 2255 proceeding will require us to consider numerous matters, including the mental state of Mr. Hammer at the time of the offense and trial, the history developed during the hearing of Mr. Hammer falsely confessing to other crimes, the evidence relating to Mr. Hammer's mental condition and sexual abuse as a child presented at trial and whether the jury properly considered that evidence, the failure of the Government to deliver to defense counsel many 302's and whether those documents could have impacted the sentencing outcome, and whether a combination of the claims asserted by Mr. Hammer requires us to grant a new trial or vacate Mr. Hammer's sentence.

As the finder of fact in this case the undersigned is the sole and exclusive judge of the credibility of the witnesses called to testify and has the discretion to believe all of a witness's testimony, only a portion of it, or none of it. The following are the court's findings of fact, discussion and conclusions of law.

II. FINDINGS OF FACT*fn8

A. The Change of Plea and Waiver of Counsel Proceedings

1. Mr. Travis first learned of Mr. Hammer's intent to waive his right to stand trial and enter a plea of guilty on Sunday evening, June 21, 1998, after Mr. Hammer had reported his intentions to Mr. Travis' paralegal, Mr. David Sprout. (Undisputed, hereinafter referred to as "U")

2. After learning of Mr. Hammer's desire to plead guilty, Mr. Travis spoke with Mr. Hammer on the phone "in excess of two hours" but was unable to convince Mr. Hammer to change his mind and continue with the trial. (U)

3. Mr. Travis contacted Mr. Ruhnke, who was in route from New Jersey back to Williamsport, and informed him of Mr. Hammer's intent to waive trial and enter a plea of guilty. (U)

4. During the proceedings on June 22, 1998, and prior to Mr. Hammer being evaluated by Drs. Wolfson and Mitchell, attorney Ruhnke in response to questions from the court stated:

I believe [Mr. Hammer] is capable of consulting with counsel and of understanding the proceedings, so I do not believe he is incompetent. * * * * * * * As a lawyer, and not a psychiatrist, I believe he's competent.

5. With respect to the issue of competency, Mr. Travis prior to the evaluation stated:

From a -- legal definition of competency, I believe that he would satisfy the legal definition of competency as I understand it, which is basically he needs to be able to understand the proceedings, and he needs to be able to assist defense counsel. Based on that, I believe he is competent. Speaking as a lawyer.

6. Attorney Travis subsequently elaborated on Mr. Hammer's desire to enter a plea of guilty as follows:

[T]here were two prior efforts by Mr. Hammer to proceed pro se and enter pleas that were withdrawn before they actually came to the hearing stage, in essence. This -- this is serious. This is, I'm going to do it, I intend to do it, you know, I understand what you're saying, but it's my decision, I'm going to. This is not one of those instances where there's any fluctuation.

And I can tell the Court, I spent a considerable amount of time on the phone with him last night, listening to what he had to say, offering my observations on what he had to say, and I'm not going to get into that. * * * * * * * And I am convinced in my heart and in my mind that this is a sincere effort on his part, and that assuming there is a finding of competency, that he will go forward with the entry of the guilty plea. * * * * * * *

As far as the evaluation, one suggestion that was made by Mr. Hammer, and I don't know how Mr. Martin feels about this, there is a psychologist at USP Allenwood, Dr. John Mitchell, that Mr. Hammer has been regularly counseling with for lack of a better term, and if there is going to be an evaluation by Dr. Wolfson, it makes some degree of sense to me that Dr. Mitchell also be part of that.

7. Prior to the evaluation Mr. Hammer was asked under oath whether he objected to having Drs. Wolfson and Mitchell evaluate him and Mr. Hammer stated he had no objection.

8. On June 22, 1998, Drs. Wolfson and Mitchell interviewed Mr. Hammer for approximately one hour and twenty minutes.

9. At the start of the interview Drs. Wolfson and Mitchell ascertained whether Mr. Hammer understood (1) the lack of confidentiality with respect to the interview and (2) the purpose of the interview.

10. Mr. Hammer acknowledged the lack of confidentiality and explained that an issue had been raised about whether or not he was competent to enter a plea of guilty.

11. Mr. Hammer made the comment to the effect that it seemed somewhat ironic because his competence to proceed with the trial had not been questioned.

12. Mr. Hammer further acknowledged that "one needed to proceed with abundance of care" in light of the circumstances.

13. During the interview Mr. Hammer was calm, friendly and "his affect . . . his emotional state as conveyed by facial expressions and bodily demeanor tracked with the content of the conversation, responded to social niceties and to levity."

14. During the interview Mr. Hammer denied being depressed and stated that his decision to plead guilty was made after careful thought.

15. Drs. Wolfson and Mitchell determined that Mr. Hammer understood the concepts of being found guilty, not guilty and not guilty by reason of insanity.

16. Mr. Hammer's remarks to Drs. Wolfson and Mitchell revealed that Mr. Hammer understood the "different actors in the courtroom and issues."

17. Mr. Hammer told Drs. Wolfson and Mitchell that "his medications were not changed in terms of adding or subtracting any psychiatric meds."

18. Mr. Hammer stated to Drs. Wolfson and Mitchell that his mood has fluctuated but "did not describe any lasting perturbations of his mood."

19. Mr. Hammer described to Drs. Wolfson and Mitchell the testimony presented during the trial as a "sobering experience."

20. Mr. Hammer stated to Drs. Wolfson and Mitchell that "he didn't like the word remorse in particular, but he was experiencing regret, and particularly regret over the way Mr. Marti appeared to be characterized as a -- as an instrumentality I guess would be the way to put it in the proceedings."

21. Mr. Hammer was questioned about periods of unconsciousness or blackouts by Drs. Wolfson and Mitchell and answered that he had no such periods since his last clinical contact with Dr. Mitchell which was on June 15, 1998, one week prior to the change of plea proceeding.

22. Mr. Hammer was fully oriented during his examination by Drs. Wolfson and Mitchell and he denied having any problems with memory or concentration.

23. Mr. Hammer to Drs. Wolfson and Mitchell characterized his sleep as erratic and that he continued to have headaches but not any more than usual and that his appetite has been good.

24. Mr. Hammer stated to Drs. Wolfson and Mitchell that "he did not believe there was any force compelling him to make this decision to enter a plea of guilty" and "denied hallucination" to them.

25. Mr. Hammer was asked by Drs. Wolfson and Mitchell "specifically if either any external force or any individual part of him was compelling him to make a decision like this, and he told [Drs. Wolfson and Mitchell] very explicitly that the decision he had reached was one that he had come to after a great deal of forethought and consideration, and it was his decision rather than any one part of him compelling him to decide what he wanted to do."

26. Mr. Hammer made it clear to Drs. Wolfson and Mitchell that he was not pleading guilty merely to avoid the possibility of an insanity verdict and being sent to a mental facility.

27. Mr. Hammer was asked by Drs. Wolfson and Mitchell "if his decision and any internal discussion of it resembled more a debate between different identities or if it more resembled the ambivalence a person might have when they can think of several potential courses, each with their (sic) own pitfalls and potential advantages and ambiguity in an ability to be certain precisely what would happen. And [Mr. Hammer] characterized the decision to [Drs. Wolfson and Mitchell] as one that he had made, all of him had made, with an understanding of what might happen, with a feeling that you know, of some expectation of what the jury might ultimately decide but with an understanding and awareness that he could not predict that with certainty, and that there might be an adverse finding. And he described that as a decision that he endorsed as his own, rather than being compelled by any individual portion of him or compelled by any circumstance to choose that course of action."

28. This explanation by Mr. Hammer made Dr. Wolfson conclude that he had sufficiently covered the possibility that Mr. Hammer was being influenced by an alter personality or by a dissociative identity disorder.

29. Dr. Wolfson "did not see signs of a new or resurgent mental illness that would serve as a basis for finding of a lack of competence[.]"

30. Dr. Wolfson concluded to reasonable degree of medical certainty that there was no disturbance that was preventing Mr. Hammer from understanding the nature and consequences of the proceedings against him and that Mr. Hammer displayed no impairments in the capacities to assist counsel.

31. Dr. Wolfson saw Mr. Hammer display the ability to comprehend and manipulate information rationally, the ability to communicate in an articulate, reflective, intelligent fashion, the ability to recall relevant information and the ability to make rational decisions.

32. Mr. Hammer stated to Drs. Wolfson and Mitchell that he was aware that his decision to plead guilty could "backfire, that the jury could return a death penalty sentence. But that he was determined to deal with that if and when that occurred, and that he would remain hopeful and continue fighting."

33. Mr. Hammer during the interview stated that his decision to enter a plea of guilty "was a thought-out decision and one of the most important decisions he's ever made in his life."

34. Mr. Hammer during the interview stated that "his main motivation [for pleading guilty] was to take responsibility for what occurred. He made a comment that pleading guilty won't bring back Andrew Marti, or even him dying won't bring back Andrew Marti, but that he felt it was his responsibility to enter this plea and to take responsibility for what happened. He also made the comment that if he did so, he could more fully invest emotionally into the second part of the trial, which would be the sentence arguments, and that he would feel more comfortable fighting for that in a sense, having -- being able to invest more of himself into proceedings that he fully believes in."

35. Mr. Hammer affirmed to Drs. Wolfson and Mitchell that his decision to plead guilty was not the result of irrational forces such as having a "death wish."

36. Dr. Wolfson testified that "[o]ne concern one might possibly -- is this an attempt -- all simply a death wish, and he told us, once again very clearly, that it was not."

37. Dr. Wolfson concluded to a reasonable degree of psychiatric certainty that Mr. Hammer was competent to enter a guilty plea.

38. Dr. Mitchell concluded to a reasonable degree of psychological certainty that Mr. Hammer was competent to enter a guilty plea.

39. During the court's questioning of Mr. Hammer, he stated that he had had ample time to consult with his attorneys, that he was satisfied with their services and that he had "extensively" discussed with them the charge of first degree murder to which he intended to plead guilty.

40. The court advised Mr. Hammer of the elements of the offense and the concepts of presumption of innocence and reasonable doubt.

41. Mr. Hammer stated that he understood the elements of the offense: that he killed Andrew Marti, that the killing occurred within the special maritime and territorial jurisdiction of the United States, that he acted with malice aforethought, and that he acted with premeditation.

42. Mr. Hammer stated that he understood the concepts of presumption of innocence and reasonable doubt.

43. Mr. Hammer stated that he understood that the maximum penalty was a sentence of death and that the minimum sentence was life imprisonment.

44. Mr. Hammer's trial rights were explained to him, including the right against compelled self-incrimination and the right to compulsory process.

45. Mr. Hammer was advised that the jury which heard the evidence during the guilt phase of the trial would also hear the evidence relating to the penalty to be imposed and recommend either a sentence of death or life imprisonment.

46. Mr. Hammer stated that he was willing to waive and give up his right to a trial as to the guilt phase.

47. During the change of plea proceeding held on June 22, 1998, Mr. Hammer was articulate and coherent.

48. During the change of plea proceeding Mr. Hammer did not evidence any signs of mental incompetence and expressed a strong desire to plead guilty.

49. Emotional lability is a term used to describe a person whose emotions go in and out of control.

50. During the change of plea proceeding Mr. Hammer did not exhibit emotional lability.

51. Mr. Hammer's counsel did not believe that Mr. Hammer was incompetent to enter his plea of guilty on June 22, 1998.

52. Mr. Hammer's competence up until June 22, 1998, had never been in serious dispute either by the prosecution, Dr. Sadoff or even in the reports of other defense experts Drs. Gelbort and Grassian.

53. Mr. Hammer was interviewed by Dr. Sadoff on two separate occasions.

54. The first occurred on December 23, 1996, at which time Dr. Sadoff spent about three hours with Mr. Hammer at the United States Penitentiary at Allenwood.

55. At the conclusion of Dr. Sadoff's initial assessment of Mr. Hammer, Dr. Sadoff informed Mr. Travis that he believed Mr. Hammer suffered from Dissociative Identity Disorder (DID). (U)

56. Mr. Travis testified during the section 2255 hearing that throughout the course of his representation of Mr. Hammer, Mr. Hammer adamantly eschewed any suggestion that he was mentally ill and denied that he suffered from DID or any other form of mental illness.

57. Mr. Travis fully accepted Dr. Sadoff's diagnosis based upon his knowledge of Mr. Hammer's history of childhood sexual, physical and emotional abuse, his knowledge of Mr. Hammer's prior psychiatric history, interviews with individuals who had been previously incarcerated with Mr. Hammer in Oklahoma fifteen years earlier, and his understanding of the factors Dr. Sadoff believed supported a diagnosis of DID. (U)

58. The second interview of Mr. Hammer by Dr. Sadoff occurred on September 17, 1997, also at USP-Allenwood, lasted about three hours, and was conducted with the help of Dr. Louis Dubin, who purportedly put Mr. Hammer under hypnosis.

59. The second interview, including the hypnosis session, was videotaped.

60. Dr. Sadoff believed that during the hypnosis session one of Mr. Hammer's alter personalities, Jocko, appeared. (U)

61. It appeared to Mr. Travis that Jocko is an aggressive personality who was responsible for Mr. Hammer's aggressive and impulsive behaviors. (U)

62. Dr. Sadoff concluded that as a result of Mr. Hammer's diagnosis of DID, he was not criminally responsible for the death of Mr. Marti because it was Mr. Hammer's alter personality, Jocko, who killed Mr. Marti. According to Dr. Sadoff, Mr. Hammer was not in control when Jocko killed Mr. Marti. (U)

63. Mr. Travis testified during the section 2255 hearing that throughout the course of his representation of Mr. Hammer he had extensive contact with him, including numerous face-to-face interviews, telephone conversations and written correspondence.

64. Mr. Travis at times had a concern that Mr. Hammer's mental illness drove his decision-making.

65. Throughout the course of Mr. Travis' representation of Mr. Hammer, Mr. Hammer vacillated between wanting to litigate and wanting to give up and die.

66. Mr. Travis described many of Mr. Hammer's decisions as impulsive and reported that Mr. Hammer exhibited mood changes throughout the course of Mr. Travis' representation of Mr. Hammer. (U)

67. Mr. Travis reported that there were occasions when speaking with Mr. Hammer when he believed Mr. Hammer's personality had "switched" and he was speaking with one of Mr. Hammer's alter personalities. (U)

68. There were times when Mr. Travis "[h]ad a sense, an impression that [he] was not speaking to the same personality, that it was a different personality, primarily because of the manner of speaking and the tone of the voice." (U)

69. Mr. Travis experienced Mr. Hammer's personality "switches" on at least six occasions prior to trial and on a number of other occasions after Mr. Hammer entered his plea of guilty. (U)

70. Mr. Travis stated Mr. Hammer "switched" probably during the jury selection process, sometime during that month when they were engaged in jury selection. (U)

71. On April 28 and 29, 2005, Mr. Hammer was interviewed by the Government's mental health experts at United States Penitentiary, Terre Haute, Indiana.

72. Those interviews were videotaped.

73. During the September 17, 1997, interview, Mr. Hammer exhibited emotional distress.

74. During the April 28 and 29, 2005, interviews, Mr. Hammer exhibited emotional distress.

75. During the testimony of Dr. Richard P. Kluft, one of Mr. Hammer's experts, on August 16, 2005, when the videotape of the hypnosis session was played, Mr. Hammer exhibited emotional distress.

76. During the change of plea proceeding Mr. Hammer's affect (facial expressions and bodily demeanor) did not resemble the affect depicted in the videotape of the hypnosis session, that depicted in the videotape of the interviews conducted by the Government's experts or that exhibited during the testimony of Dr. Kluft on August 16, 2005, when Mr. Hammer requested to leave the courtroom during the playing of the videotape of the hypnosis session.

77. During the discussion with Mr. Hammer on the morning of June 22, 1998, attorney Travis did not observe any behavior of Mr. Hammer similar to that depicted on the videotape of the hypnosis session.

78. During the discussion with Mr. Hammer on June 22, 1998, Mr. Travis did not observe any "switching" of personalities.

79. Mr. Travis did not consider Mr. Hammer's decision to plead guilty as an impulsive one.

80. During the court's colloquy with Mr. Hammer on October 1, 1998, Mr. Hammer did not evidence any signs of mental incompetence and expressed a strong desire to discharge counsel and proceed pro se.

81. During that colloquy, Mr. Hammer was highly articulate and coherent.

82. During that colloquy, Mr. Hammer expressed his position and arguments as least as well, if not better, than some attorneys who appear before this court.

83. Although the attorney for Mr. Hammer, Stephen Smith, Esquire, did not testify at the § 2255 hearing, the transcript from the October 1, 1998, hearing reveals that attorney Smith then believed that Mr. Hammer was competent to waive counsel.

84. When the court asked attorney Smith whether he had any doubt as to Mr. Hammer's competency to elect to proceed pro se, attorney Smith answered that he had no doubt.

85. Dr. Wolfson spent numerous hours with Mr. Hammer at the United States Medical Center for Federal Prisoners and never observed what he considered credible signs of Dissociative Identity Disorder in him.

86. Dr. Mitchell spent numerous hours with Mr. Hammer while he was incarcerated at the United States Penitentiary at Allenwood and never observed what he considered credible signs of Dissociative Identity Disorder in him.

87. Dr. Sadoff in his report noted the various medicines which Mr. Hammer ingested but found no problems regarding Mr. Hammer's competency and opined that he was competent.

88. The medication in question in Mr. Hammer's case, Snythroid, in 1998, was not prescribed for mental health purposes.

89. Synthroid is utilized to treat a thyroid condition. (U)

90. Dr. Wolfson testified at the October 1, 1998, competency hearing on Mr. Hammer's history of Synthroid use as well as the potential effect resulting from refusing to take that medication might have on his mental capacity.

91. Dr. Wolfson testified that Synthroid, even in combination with other medications, "would not . . . have any deleterious effect on Mr. Hammer's ability to reason or think."

92. During the § 2255 hearing on July 27, 2005, Dr. Mitchell testified that he did not have any doubt or doubts about the correctness of the opinion that he gave on June 22, 1998, relating to the competency of Mr. Hammer to enter a guilty plea on that date.

93. During the § 2255 hearing Dr. Mitchell testified that he did not have any doubt or doubts about his previous conclusion regarding Mr. Hammer's ability to make a knowing, voluntary, and rational or intelligent decision to enter a guilty plea on June 22, 1998.

94. Dr. Mitchell was aware of and took into consideration the DID diagnosis by Dr. Sadoff of Mr. Hammer, but nonetheless concluded that Hammer was competent to enter his plea of guilty on June 22, 1998.

95. During the § 2255 hearing Dr. Wolfson testified that nothing in the reports or testimony of Mr. Hammer's experts causes him to doubt the opinions he rendered in 1998 regarding Mr. Hammer's competence.

96. The testimony of Drs. Wolfson and Mitchell on June 22 and October 1, 1998, with respect to whether Mr. Hammer was competent and acting knowingly, voluntarily and intelligently was credible.

B. Mr. Ellis's Involvement with and Observations of Mr. Hammer

97. Daniel J. Ellis, a former Deputy United States Marshal, is currently a Senior Special Agent with the Inspector General's Office of Investigation for the United States Department of Housing and Urban Development. (U)

98. Mr. Ellis was employed as Deputy United States Marshal in Williamsport, Pennsylvania from January of 1997 until September of 1999. (U)

99. Mr. Ellis was assigned to transport Mr. Hammer to and from court beginning in 1997 through the end of Mr. Hammer's capital trial in 1998. (U)

100. Mr. Ellis transported Mr. Hammer to and from court during the competency hearing and at various other times during the trial proceedings. (U)

101. When Mr. Ellis was moving Mr. Hammer back to the holding cell on June 22, 1998, he asked him why he had pled guilty and -- after so long of saying he was not guilty by reason of insanity, and then asked Mr. Hammer "What about the monkey, I thought the monkey did it?"

102. Mr. Hammer responded by stating that he had made the monkey up and that he did not want to live.

103. Mr. Ellis acknowledged that at the time he initiated questioning of Mr. Hammer, he -- Mr. Ellis -- was a law enforcement officer and Mr. Hammer was represented by counsel and facing a capital sentencing hearing. (U)

104. Mr. Ellis testified that despite his training, he did not believe he needed to provide Mr. Hammer with Miranda warnings prior to initiating questioning designed to elicit a response and did not need to consult with Mr. Hammer's attorneys prior to any such questioning. (U)

105. Mr. Ellis acknowledged that he believed the information Mr. Hammer told him in response to Mr. Ellis' questioning was important enough from a law enforcement perspective to immediately report it to the prosecutor. (U)

106. There are no written documents corroborating Mr. Ellis' report. (U)

107. Mr. Ellis testified that Mr. Hammer did not appear to be incompetent on June 22, 1998.

108. Although Mr. Ellis was asked by the Government whether he believed Mr. Hammer appeared incompetent at the time of his waiver and plea of guilty, Mr. Ellis acknowledged both that he had no formal training in assessing competency and has no formal training in psychiatry. (U)

C. Mr. Montville's Involvement with and Observations of Mr. Hammer

109. Harry Montville, also known as "Chip," served as a Deputy U.S. Marshal in this District in 1998. (U)

110. Mr. Montville, together with Deputy United States Marshals Hardy and Ellis, were primarily responsible for transporting Mr. Hammer back and forth from the courthouse to the Allenwood Penitentiary. (U)

111. Mr. Montville had recollections of transporting either by driving or serving as escort officer in the same car as Mr. Hammer on his trips to and from court in 1998. (U)

112. Mr. Montville recalled an incident in which correctional personnel at the Allenwood Penitentiary tightened Mr. Hammer's handcuffs so tight that he, in Montville's view, had a legitimate complaint which complaint was addressed within minutes after leaving the Allenwood Penitentiary by the deputy's loosening the handcuffs which a correctional official at Allenwood initially had set. (Undisputed, but objected to, hereinafter "UO")

113. During the times Mr. Hammer was in Mr. Montville's presence, Mr. Montville never saw Mr. Hammer acting in any fashion which would suggest that Mr. Hammer was suffering from a mental condition that precluded him from understanding what was going on.

114. Mr. Montville did not recall an instance during the trial where Mr. Hammer was unresponsive or did not understand directions given to him by the Marshals.

D. The Razor Blade Incident

115. On or about May 14, 1998, prior to being transported to Court for the ongoing selection of the jury, Mr. Hammer swallowed a razor blade.

116. While swallowing a razor blade might signify "reasonable cause" to believe a defendant is incompetent, Mr. Hammer had engaged in "antics" in the past including attempts to plead guilty to the murder of Mr. Marti with self-dictated conditions on two occasions.

117. Mr. Hammer swallowed only one razor blade, not multiple ones, as suggested by the defense, and it had exceedingly small dimensions. Doc. 690, Jury Selection, Transcript, Vol. 8, pages 20-25.

118. The transcript of Mr. Hammer's appearance on May 14, 1998, which proceeding was delayed by the razor incident, reflects this Court's monitoring of his behavior and evidences no facts which suggested to any participants at the trial that his action was a symptom of, or prelude to, any significant mental problems. Id., page 264.*fn9

E. The Evaluation of Mr. Hammer by Government Experts, Drs. Matthews and Martell

119. Dr. Daryl Matthews in conjunction with Dr. Daniel A. Martell, evaluated Mr. Hammer on April 28 and 29, 2005, at the request of the Government.

120. Dr. Matthews graduated from John Hopkins University in 1969 with a Bachelor of Arts degree in psychology and human biology.

121. He graduated from John Hopkins University Medical School in 1973 with an M.D. He also received a Ph.D. in sociology from John Hopkins University in 1977.

122. Dr. Matthews did a residency in psychiatry at John Hopkins from 1973 through 1976 and a fellowship in psychiatry at the University of Virginia in 1981 and 1982.

123. Dr. Matthews is licensed to practice medicine in Arkansas, Hawaii and Tennessee.

124. Dr. Matthews is Board Certified in forensic psychiatry.

125. Dr. Matthews is a professor of psychiatry at the University of Hawaii School of Medicine and the Director of the Forensic Psychiatry program at the University of Hawaii.

126. Dr. Matthews has been practicing forensic psychiatry for 20 years.

127. Dr. Matthews testified as an expert at the section 2255 hearing without objection from Mr. Hammer.

128. Dr. Matthews spent only the first day in Mr. Hammer's presence while Dr. Martell engaged in tests with Mr. Hammer on the second day. (U)

129. Dr. Matthews testified that vacillation by Mr. Hammer is not necessarily a sign of a mental problem.

130. Dr. Matthews prepared a written report relating to his evaluation of Mr. Hammer.

131. Dr. Matthews reviewed in detail in his report the testimony of Drs. Wolfson and Mitchell on June 22, 1998.

132. Dr. Matthews also reviewed in his report the guilty plea colloquy of Mr. Hammer held on June 22, 1998, and found nothing in Mr. Hammer's responses to this Court's questions which suggested he was incompetent to enter a plea of guilty on that date.

133. Dr. Matthews concluded that Drs. Wolfson and Mitchell had conducted an adequate review of Mr. Hammer's mental competency on June 22, 1998.

134. Dr. Matthews also concluded that Drs. Wolfson and Mitchell had conducted an adequate review of Mr. Hammer's mental competency to waive his right to counsel on October 1, 1998.

135. Dr. Matthews after reviewing Mr. Hammer's responses to this Court's questions on October 1, 1998, concluded that Mr. Hammer was fully competent to waive his right to counsel on that date.

136. Dr. Matthews also reviewed the transcript of the argument held on July 18, 2000, before the Court of Appeals for this circuit.

137. Dr. Matthews found nothing in Mr. Hammer's presentation to the three judge panel in July 2000 which suggested that he was incompetent or that any mental disease or defect was impacting his actions before the Court of Appeals.

138. Dr. Matthews concluded that Mr. Hammer was fully competent to waive his right to appeal when he argued his case before the Court of Appeals for this circuit.

139. Dr. Matthews asked Mr. Hammer regarding his views on whether he had been competent during his previous legal proceedings.

140. Mr. Hammer acknowledged to Dr. Matthews that he was competent to plead guilty and waive a jury trial because he knew how the system worked, knew the procedure, and knew that the jury would have to return with a verdict.

141. Dr. Matthews concluded that based upon the record, Mr. Hammer's own testimony, and the observations and findings of forensic examiners, that Mr. Hammer was not functionally impaired at the time he pled guilty and could knowingly, voluntarily, and intelligently enter the plea which he did on June 22, 1998.

142. Dr. Matthews concluded similarly that Mr. Hammer was not impaired on October 1, 1998, when he waived his right to counsel and he was not impaired in July of 2000 when he withdrew his direct appeal.

143. Prior to the section 2255 hearing, Mr. Hammer was evaluated by Drs. Michael M. Gelbort and Ruben C. Gur.

144. Both Drs. Gelbort and Gur prepared reports relating to whether Mr. Hammer suffered from a brain injury.

145. Dr. Matthews, although aware of the reports of Drs. Gelbort and Gur relating to Mr. Hammer's brain injury concluded, and the court so finds, that the injury did not impact Mr. Hammer's competence to (1) enter a guilty plea on June 22, 1998, (2) waive his right to counsel on October 1, 1998, and (3) withdraw his appeal in July, 2000.

146. The testimony of Dr. Matthews is credible with respect to his conclusion that Mr. Hammer was competent on June 22, 1998, when he entered a plea of guilty, on October 1, 1998, when he waived his right to counsel, and in July 2000 when he withdrew his direct appeal.

147. The testimony of Dr. Matthews is also credible with respect to Mr. Hammer acting knowingly, intelligently and voluntarily on June 22, 1998, when he entered a plea of guilty, on October 1, 1998, when he waived his right to counsel, and in July 2000 when he withdrew his direct appeal.

148. Dr. Matthews concluded to a reasonable degree of forensic psychiatric certainty that Drs. Mitchell and Wolfson conducted an adequate mental competency evaluation of Mr. Hammer on June 22, 1998.

149. Dr. Matthews has taught for many years mental health professionals the techniques of performing competency evaluations.

150. Dr. Matthews concluded, and the court so finds, that Mr. Hammer was competent to enter a guilty plea on June 22, 1998, regardless of suggested diagnoses of Dissociative Identity Disorder and Posttraumatic Stress Disorder or Depression.

151. Dr. Matthews opined, and the court so finds, that Mr. Hammer's reasons for entering the guilty plea and waiving an appeal were rational and did not suggest any mental incompetence.

152. Dr. Matthews concluded, and the court so finds, that there were no physical conditions, including a thyroid condition or diabetes, which would have affected Mr. Hammer and rendered him incompetent to enter a guilty plea on June 22, 1998, or to discharge counsel on October 1, 1998, or to waive appellate rights in July of 2000.

153. Dr. Matthews concluded, and the court so finds, that Mr. Hammer suffered from Borderline Personality Disorder, but that that condition did not affect his ability to enter a guilty plea on June 22, 1998, discharge counsel in October 1998, or withdraw his appeal in July 2000.

154. Dr. Matthews testified, and the court so finds, that an individual with Dissociative Identity Disorder, Posttraumatic Stress Disorder, or Borderline Personality Disorder still can knowingly, voluntarily and intelligently enter a plea of guilty.

155. Dr. Matthews indicated that there are a small group of individuals who suffer from a disorder which he does not clearly understand and which may have many characteristics of DID. (U)

156. Dr. Martell received his Ph.D. in clinical psychology from the University of Virginia in 1989. He did a fellowship at the New York University School of Medicine and Bellevue Hospital in New York City from 1986 to 1987 and a fellowship in forensic psychology at the same school and hospital in 1987 and 1988.

157. Dr. Martell is licensed as a psychologist in the states of New York and California.

158. Dr. Martell is a fellow in the American Academy of Forensic Psychology and the American Academy of Forensic Sciences where he currently is the Chairman of the Psychiatry and Behavioral Sciences Section.

159. Dr. Martell testified as an expert at the section 2255 hearing on August 29, 2005, without objection from Mr. Hammer.

160. Dr. Martell concluded to a reasonable degree of psychological certainty that Mr. Hammer suffers from Cognitive Disorder Not Otherwise Specified, primarily affecting sensory-perceptual functions.

161. Dr. Martell also concluded that Mr. Hammer's brain disorder was primarily "in the right hemisphere, the right side of his brain, and . . . the central and further back areas on the right, not so much frontal, but temporal, parietal and occipital."

162. Cognitive Disorder Not Otherwise Specified is an Axis I diagnosis under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (2000).

163. The major mental disorders of an acute as well as a chronic nature are included under Axis I.

164. Dr. Martell further concluded that Mr. Hammer suffers from Borderline Personality Disorder, with dissociative periods.

165. Borderline Personality Disorder is an Axis II diagnosis under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision.

166. Personality disorders and mental retardation are reported under Axis II.

167. Borderline Personality Disorder is a mental disorder characterized by a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and presents in a variety of contexts.

168. The Comprehensive Textbook of Psychiatry, Sixth Edition, published in 1995 (editors Harold I. Kaplan, M.D., and Benjamin J. Sadock, M.D.), describes the clinical features of Borderline Personality disorder as follows:

Patients with borderline personality disorder are severely dysfunctional. Their clinical presentation is intimately connected to the interpersonal context in which they are observed; most of the disorder's observable features are highly sensitive to interpersonal stress. For example, within the context of a supportive relationship (or within a structured holding environment), appealing, waiflike, dysthymic features are evident. Yet the perception of the impending loss of such a relationship or structure can produce sudden rage, devaluation or paranoid accusations, and self-destructive acts designed to provoke protective responses. In the absence of a relationship, dissociative episodes, substance abuse, and desperate impulsive behavior can occur.

The relationships of persons with borderline personality disorder tend to be unstable, intense, and stormy. Contributing to that instability and storminess are sudden and dramatic shifts in their views of others; the views may alternate between extremes of idealization and devaluation or of seeing others as beneficent supports and then as cruelly punitive. . . . The patient's profound abandonment fears often occur in response to what is likely to be a transient separation -- for example, a therapist's vacation -- and reflect an intolerance of being alone. Such persons need to have people around them, even if they do not like them or interact with them. Efforts to avoid aloneness and abandonment can be frantic and extreme, taking the form of impulsive activities, inappropriate anger, self-destructive behavior, and suicide threats. Or the efforts may be benign, involving the use of a transitional object (for example, an inanimate object or a pet) which may diminish feelings of aloneness and insecurity.

See Defendant's Exhibit 3.1.

169. The Comprehensive Textbook of Psychiatry also reveals that Axis II disorders commonly associated with borderline personality disorder . . . are antisocial, avoidant, histrionic, and narcissistic personality disorders.

Common comorbid Axis I disorders include dysthymic disorder, major depressive disorder, substance abuse and dependence, eating disorders (primarily bulimia nervosa) and posttraumatic stress disorder. 170. In 1997 Dr. Wolfson issued a forensic report in which he concluded that Mr. Hammer malingered or faked Dissociative Identity Disorder.

171. In view of Dr. Wolfson's conclusion that Mr. Hammer malingered during his 1997 forensic evaluation, Dr. Martell was particularly concerned as to whether Mr. Hammer malingered during his 2005 neuropsychological evaluation. (U)

172. Dr. Martell administered a number of tests to Mr. Hammer designed to detect malingering. (U)

173. The tests designed to detect malingering that were administered by Dr. Martell were the Test of Memory Malingering, the Validity Indicator Profile and the Personality Assessment Inventory. (U)

174. Based upon Mr. Hammer's performance on the tests of malingering, Dr. Martell concluded that Mr. Hammer did not malinger in any respect during the 2005 evaluation. (U)

175. On one of the tests for malingering (the Personality Assessment Inventory), Mr. Hammer was identified as attempting to mask any mental health pathology.

176. Despite Mr. Hammer's attempts to mask mental health pathology, the Personality Assessment Inventory was able to identify potential areas of pathology, including the impact of traumatic events, thoughts of death and suicide, moodiness, compulsiveness and rigidity, poor control over anger, history of anti-social behavior, poor sense of identity, failures in close relationships and impulsivity.

177. Dr. Martell saw evidence in his evaluation consistent with the problem areas identified by the Personality Assessment Inventory.

178. Dr. Martell testified that Mr. Hammer's attempts to mask his pathology were similar to the attempts identified by the psychological testing administered in 1997 at the request of Dr. Wolfson.

179. Dr. Martell believed that the emotional distress showed by Mr. Hammer on the portion of the videotape that depicted Mr. Hammer discussing his history of childhood sexual, physical and emotional abuse, was a genuine display of emotional distress. (U)

180. The emotional distress displayed by Mr. Hammer and depicted on the videotape was genuine.

181. The display of emotional distress evidenced on the videotape was consistent with the Personality Assessment Inventory test's indicator that Mr. Hammer displayed pathology related to "traumatic events."

182. Mr. Hammers suffers from emotional lability. 183. The evidence of emotional lability identified by Dr. Martell included Mr. Hammer weeping in court during testimony and during evaluations when the subject of his childhood abuse arose.

184. Dr. Martell testified that the frontal lobes of the brain are responsible for taking in and analyzing information.

185. Dr. Martell testified that the frontal lobes are responsible for organizing, controlling and directing behavior.

186. Dr. Martell testified that the frontal lobes are integral to the higher cognitive processes, which include problem solving, emotional control and learning from one's experiences.

187. Dr. Martell testified that once information is analyzed by the brain's frontal lobes, the frontal lobes then dictate the course of action to be taken by the person based upon the information.

188. Dr. Martell testified that emotional lability can occur as a result of frontal lobe damage.

189. Dr. Martell testified that this lability arises in people with damaged frontal lobes because when damaged that area of the brain is not able properly to perform the function of controlling emotions in response to particular situations that arise.

190. The three areas related to competency are 1) intelligence, 2) memory and 3) reasoning and complex problem solving. (U)

191. Dr. Martell administered three tests relevant to Mr. Hammer's frontal lobe functioning: 1) the Stroop, 2) Trails B and 3) the Categories Test. (U) 192. Although Dr. Martell testified that the "letter- number" sequencing sub-test of the Wechsler Memory Scale Battery is also relevant to frontal lobe functioning, he did not include this test in the section of his report (Government's Exhibit 205, page 1) wherein he listed the three above described tests as related to frontal lobe functioning. (U)

193. Trails B and the Categories Test are part of the Halstead-Reitan Neuropsychological Battery. (U)

194. The Halstead-Reitan Neuropsychological Battery is a test for brain damage. It is widely used and is a reliable identifier of brain damage.

195. Dr. Martell did not administer the full Halstead-Reitan Neuropsychological Battery due to time constraints. (U)

196. The authors of the Halstead-Reitan Neuropsychological Battery are Dr. Halstead, who is deceased, and Dr Reitan, who is alive. (U)

197. Dr. Martell testified that Dr. Reitan is "absolutely" an authority in the field of neuropsychology. (U)

198. Dr. Martell testified that there is a controversy in the field of neuropsychology over the use of "norms" when scoring the Halstead-Reitan Neuropsychological Battery to determine the presence or absence of brain impairment. (U)

199. The controversy relates to whether to apply the so-called "Heaton" norms or the norms created by the Battery's originator, Dr. Reitan. (U)

200. The "Heaton" norms adjust the raw data obtained from the Halstead-Reitan Neuropsychological Battery to take account of the subject's gender, age, education and race. (U)

201. Dr. Martell partially applied the Heaton norms (i.e. he adjusted the scores for age, gender and education, but not for race). (U)

202. Dr. Martell did not adjust for race because he has not yet purchased the newest version of the Heaton norms which make race-based adjustments. (U)

203. Dr. Gelbort applied the norms generated by Dr. Reitan. (U)

204. Defendant's exhibit 196 is an article written by Dr. Reitan which summarizes and addresses the controversy over the use of the Heaton norms. (U)

205. In interpreting the article, Dr. Martell stated "if you take a test that's the most sensitive to brain damage globally, age and education shouldn't matter, and that may be true." (U)

206. Dr. Martell acknowledged that the Categories Test is such a test, i.e. it is a measure of global brain function. (U)

207. Defendant's Exhibit 195 contains excerpts from the Halstead-Reitan Neuropsychological Battery, Second Edition, written by Dr. Reitan and Dr. Deborah Wolfson. (U)

208. Defendant's Exhibit 195 is the manual for the administration and scoring of the Halstead-Reitan Neuropsychological Battery. (U)

209. The Halstead-Reitan Neuropsychological Battery manual contains two methods for determining the presence and extent of brain damage. (U)

210. The first method is called the "Impairment Index." (U)

211. The Halstead-Reitan Neuropsychological Battery manual states that:

In a large number of studies the Impairment Index has consistently been shown to be the single most sensitive variable in differentiating groups with and without cerebral damage. Thus, over the years it has proved to be a very useful measure for summarical purposes. (U)

212. The second method contained in the Halstead-Reitan Neuropsychological Battery manual is called the General Neuropsychological Deficit Scale. (U)

213. Dr. Reitan and Dr. Deborah Wolfson view the General Neuropsychological Deficit Scale as an improvement over the older Impairment Index. (U)

214. Under the Impairment Index, the cutoff for impairment on the Categories Test is 51 errors, that is 51 and above is considered evidence of impairment.

215. On Dr. Martell's administration of the Categories Test, Mr. Hammer scored 57 errors.

216. 57 errors on the Categories Test is considered "impaired" when the Impairment Index is applied.

217. The General Neuropsychological Deficit Scale places test scores in a range from 0-3. Scores in the range of a "two" indicate that the subject suffers from mild to moderate impairment. (U)

218. Mr. Hammer's score of 57 errors on the Categories Test places him in range "two," which is in the mild to moderately impaired range. (U)

219. Mr. Hammer's score on Trails B also placed him in range "two," which is in the mild to moderately impaired range.

220. Dr. Martell agreed that if Dr. Reitan were scoring Mr. Hammer's performance on the Categories Test and Trails B (two of the three tests that Dr. Martell used to determine that Mr. Hammer does not have frontal lobe damage), using either the Impairment Index or the General Neuropsychological Deficit Scale, he would have been considered to be mild to moderately impaired. (U)

221. Muriel Lezak is an authority in the field of neuropsychology and she wrote the text, Neuropsychological Assessment. (U)

222. Neuropsychological Assessment is an authoritative text in the field of neuropsychology.

223. In his administration of the Stroop test, Dr. Martell used a version that is not approved of by Dr. Lezak in her text.

224. Dr. Martell's administration of the Stroop contains a so-called "interference trial." (U)

225. Although there exist a number of Stroop tests that are used in the field, Dr. Martell administered the only version containing an "interference trial." (U)

226. With the interference trial, Mr. Hammer was not impaired on this test. (U)

227. Had the test been administered and scored in accordance with the method advocated by Dr. Lezak (i.e. without an interference trial), Mr. Hammer would have been severely impaired on this measure (i.e. between two and three standard deviations below the norm in some measures).

228. Dr. Martell was a prosecution expert in a case that he wrote about in an article marked as Defendant's Exhibit 186. (U)

229. The defendant in that case was referred to in the article by the pseudonym, "Mr. Cystkopf." (U)

230. Mr. Cystkopf offered a defense of not guilty by reason of mental disease or defect in a homicide prosecution in New York State. (U)

231. Among other things, the article addressed Mr. Cystkopf's defense that due to his frontal lobe damage he was unable to control his emotions and therefore he was not able to "mark" his emotions and properly control them. (U)

232. Dr. Martell rejected this defense because it related to an inability to conform conduct to the requirements of law, which was not the insanity standard in New York State. (U)

233. Since Mr. Cystkopf understood the nature of his actions, and was able to distinguish between right and wrong, Dr. Martell did not consider his inability to control his emotions to be relevant under the New York insanity statute. (U)

234. However, Dr. Martell wrote that in a "volitional" insanity jurisdiction -- in which the relevant question is whether one has capacity to conform his behavior to the requirements of the law -- Mr. Cystkopf's defense would have been "viable." (U)

235. The Benton Facial Recognition Test is a test of memory recall.

236. Mr. Hammer was in the range of mild impairment on the Benton Facial Recognition Test, as recorded by Dr. Martell on Government's Exhibit 205. (U)

237. The Benton Visual Retention Test is a test of several areas, including memory. (U)

238. Dr. Martell testified that memory impairment is important to a competency determination. (U)

239. Mr. Hammer scored two standard deviations below the norm on one portion of the Benton Visual Retention Test administered by Dr. Martell.

240. Mr. Hammer scored between 1 and 2 standard deviations below the norm, on another portion of the Benton Visual Retention Test also administered by Dr. Martell. (U)

241. Dr. Martell agreed that there is a clinically significant correlation between childhood sexual, physical and emotional abuse and the development of Borderline Personality Disorder. (U)

242. Dr. Martell agreed that childhood sexual, physical and emotional abuse can constitute the trauma predicate that causes Posttraumatic Stress Disorder. (U)

243. Dr. Martell testified that Posttraumatic Stress Disorder is a common co-morbid Axis I diagnosis for those with Borderline Personality Disorder. (U)

244. The criteria for Dissociative Identity Disorder set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, are as follows:

(1) The presence of two or more distinct identities or personality states (each with its own relatively enduring pattern of perceiving, relating to, and thinking about the environment and self);

(2) At least two of these identities or personality states recurrently take control of the person's behavior;

(3) Inability to recall important personal information that is too extensive to be explained by ordinary forgetfulness;

(4) Not due to direct physiological effects of a substance (e.g., blackouts or chaotic behavior during alcohol intoxication) or a general medical condition (e.g., complex seizures). Note: In children, the symptoms are not attributable to imaginary playmates or other fantasy play. 245. Dr. Martell testified that Dissociative Identity Disorder is caused by trauma, including childhood sexual, physical and emotional abuse. (U)

246. Dissociative Identity Disorder is seen in patients with Borderline Personality Disorder. (U)

247. According to Kaplan & Sadock's Comprehensive Textbook of Psychiatry, Sixth Edition:

The behavior and pattern of relationships of patients with dissociative identity disorder often have a marked similarity to what is observed in persons with borderline personality disorder, but the latter lacks the telltale presence of distinct alternating personalities separated by an amnestic barrier that is the hallmark of the former. (U) 248. Kaplan & Sadock also states: The diagnosis of borderline personality disorder is often made when [Posttraumatic Stress Disorder] is a more appropriate diagnosis or at least a necessary concomitant diagnosis. A clinician who makes the diagnosis of borderline personality disorder must inquire further into possible early trauma and ensuing symptoms. (U) 249. Dr. Martell diagnosed Mr. Hammer with having Borderline Personality Disorder. (U)

250. Dr. Martell did not review the report/affidavit of Neil Blumberg, M.D., who is one of Defendant's expert witnesses. (U)

251. Under circumstances of stress, people with Borderline Personality Disorder can decompensate into a psychotic state. (U)

252. People with Borderline Personality Disorder are severely dysfunctional.

253. The observable features of Borderline Personality Disorder are highly sensitive to interpersonal stress.

254. When a person with Borderline Personality Disorder is under stress, the symptoms of the disorder appear in more significant ways. (U)

255. Stress can cause a person with Borderline Personality Disorder to lapse into a dissociative state. (U)

256. A person with Borderline Personality Disorder who is in a dissociative state may be incompetent for trial. (U)

257. Dr. Martell acknowledged that while intelligence is relevant to a competency determination, it is not determinative of the question. (U)

258. Dr. Martell acknowledged that a person can be a "genius" and still be incompetent if due to a mental disorder, the person is unable to understand the court proceedings or is unable to cooperate with counsel. (U)

259. Mr. Hammer described himself as homosexual during the interview by Drs. Matthews and Martell. (U)

260. Mr. Hammer to Drs. Matthews and Martell said that he and Andrew Marti were participating in consensual sexual activity around the time of the murder. (U)

261. Mr. Hammer received a mildly impaired score for grip strength in the left hand. (U)

262. Mr. Hammer's self reports as well as the observations of others suggest that he has experienced dissociative periods. (U)

263. Such dissociative episodes would be consistent with the dissociative symptoms of Borderline Personality Disorder.

F. Dr. Mitchell's Involvement with and Assessment of Mr. Hammer

264. John Mitchell is a psychologist employed by the United States Bureau of Prisons. (U)

265. From May, 1995 until January, 1999, Dr. Mitchell conducted psychotherapy with David Paul Hammer while Mr. Hammer was incarcerated at the United States Penitentiary at Allenwood. (U)

266. During his Intake Screening, Dr. Mitchell orally advised Mr. Hammer of his right in regard to confidentiality of information provided to Dr. Mitchell. (U)

267. Dr. Mitchell testified that inmates are warned that there is essentially no inmate confidentiality in the Bureau of Prisons.

268. Dr. Mitchell testified that inmates are advised about the lack of confidentiality at the first time they are seen upon intake.

269. Dr. Mitchell advised Mr. Hammer on their first interview that there was no confidentiality as to communications by Mr. Hammer to him.

270. In a note regarding their first contact, Dr. Mitchell indicated that Mr. Hammer had depression, tension and nervousness. (U)

271. In their first counseling session (conducted on July 12, 1995), Mr. Hammer told Dr. Mitchell that he was angry and anxious, and that he was subjected to childhood sexual abuse. (U)

272. In a session of August 24, 1995, Mr. Hammer related to Dr. Mitchell that he had a plan to commit suicide. This resulted in Dr. Mitchell's completion of a Suicide Risk Assessment on that same date. In that document, he related that Mr. Hammer suffered from depressed mood. (U)

273. Mr. Hammer again discussed his abusive upbringing in counseling sessions with Dr. Mitchell on August 31 and September 7, 1995. (U)

274. Mr. Hammer related to Dr. Mitchell episodes of childhood abuse, including beatings, enemas, sexual abuse (in the form of his father forcing him into sexual relations with his sister). (U)

275. Dr. Mitchell believed that Mr. Hammer's accounts of this abuse were genuine. (U)

276. Dr. Mitchell believed that Mr. Hammer suffered genuine psychological pain when he discussed accounts of childhood abuse with Dr. Mitchell. (U)

277. Dr. Mitchell believed that Mr. Hammer suffered anxiety, tension, stress and nervousness partly as a result of the childhood abuse, all of which is not unusual for a person subjected to the type of childhood abuse suffered by Mr. Hammer.

278. Dr. Mitchell learned about Mr. Hammer's history of childhood sexual, physical and emotional abuse in sessions with Mr. Hammer prior to the death of Mr. Marti. (U)

279. In view of the fact that Mr. Hammer related his sexual and physical childhood abuse to Dr. Mitchell prior to the death of Mr. Marti, the Court finds that Mr. Hammer's reports of childhood abuse are credible. (Undisputed, but objected to, hereinafter "UO")

280. Dr. Mitchell believed that there was a relationship between the childhood abuse suffered by Mr. Hammer and his problems with impulse control, impaired judgment, and establishing trusting relationships with others. (U)

281. Mr. Hammer was not generally inclined to discuss his personal feelings with Dr. Mitchell within earshot of other prisoners.

282. Dr. Mitchell had approximately 150 contacts with Mr. Hammer which included therapy sessions, SHU reviews, and risk assessments. (U)

283. Dr. Mitchell saw Mr. Hammer for therapy sessions biweekly, or on an as needed basis for about three and one half years. (U)

284. After the killing of Mr. Marti, Dr. Mitchell did advise Mr. Hammer that if he wanted to continue therapeutic contacts with him, then Mr. Hammer should be aware that anything -- any type of contact could be used not only as part of his defense but also as part of the prosecution.

285. Mr. Hammer is well-versed in Bureau of Prisons' rules, regulations and policies.

286. Mr. Hammer was well-aware of the limits of confidentiality and had no confusion regarding the lack of confidentiality with respect to his communications to Dr. Mitchell.

287. Dr. Mitchell diagnosed Mr. Hammer with an Axis I diagnosis of Major Depressive Disorder, recurrent. (U)

288. Dr. Mitchell never diagnosed or concluded that Mr. Hammer malingered in regard to mental health issues.

289. Dr. Mitchell believed that Mr. Hammer's diagnosis of Major Depression, recurrent, was attributable, in part, to the childhood abuse he experienced. (U)

290. Dr. Mitchell observed an extraordinary number of vacillations in Mr. Hammer's desire to litigate his case.

291. Dr. Mitchell observed pressured speech when Mr. Hammer would discuss his capital case both pre and post trial. (UO)

292. Dr. Mitchell had a clinical contact with Mr. Hammer on June 10, 1998. At that time, Mr. Hammer expressed considerable distress over the trial and was going back and forth over the question of whether to plead guilty in order to end his trial. Dr. Mitchell's note from that date indicated that Mr. Hammer's distress was getting worse. (U)

293. Dr. Mitchell saw Mr. Hammer again on June 12, 1998 and noted that Mr. Hammer indicated that he was in a bad frame of mind.

In this session, Mr. Hammer was more emotional than normal. Dr. Mitchell also noted that he was concerned about the "intensity of the emotional distress" he appeared to be experiencing. He characterized Mr. Hammer's risk of suicide as "moderate" and ordered 15 minute suicide checks over the ensuing weekend. (U)

294. Mr. Hammer's mental state on June 12, 1998 was related to betrayal he felt from some adverse testimony from prisoners whom he perceived to be friends. According to Dr. Mitchell a person who was subjected to the type of childhood abuse suffered by Mr. Hammer would possibly have a stronger feeling of betrayal than someone who was not subjected to that type of abuse.

295. Dr. Mitchell believed that his note of June 12, showed that Mr. Hammer's stress and depression was worsening even from the note of June 10, and that he was generally expressing a "more severe intensity of emotions" than usual for him. (U)

296. Dr. Mitchell saw Mr. Hammer again on June 15, 1998 -- one week before he pled guilty. He continued to be sad and depressed as a result of the trial. (U)

297. Dr. Mitchell acknowledged that Mr. Hammer has a history of acting out when his stress and depression are causing him unbearable psychological pain. (U)

298. As of the time of Mr. Marti's death, Dr. Mitchell considered that he had established a clinical and therapeutic relationship with Mr. Hammer. (U)

299. Dr. Mitchell had a therapy session with Mr. Hammer on April 16, 1996. (U)

300. Following the session of April 16, 1996, Dr. Mitchell wrote a note memorializing this session. (U)

301. In addition to the therapy note, Dr. Mitchell wrote a Psychological Report dated April 16, 1996 (Defendant's Exhibit 31.7 at page 24). (U)

302. The April 16, 1996 Psychological Report was written by Dr. Mitchell because of the "crime that took place." (U)

303. Dr. Mitchell was motivated to write the Report because "at that time it wouldn't be too great of a leap to assume that there might be some questions as to whether Mr. Hammer ever evidenced psychosis during our clinical contacts." (U)

304. Dr. Mitchell was aware when he wrote this Report that Mr. Hammer's ability to distinguish right from wrong would likely be an issue in an expected prosecution, should Mr. Hammer raise a mental health defense. (U)

305. In writing the April 16, 1996, Report, Dr. Mitchell concluded that Mr. Hammer had not shown "delusional thinking, hallucinations, or an inability to distinguish between right and wrong." (U)

306. This conclusion was based on the entirety of Dr. Mitchell's therapy sessions he had been conducting with Mr. Hammer. (U)

307. Dr. Mitchell did not disclose to Mr. Hammer that he wrote the Psychological Report because he did not see a "clinical need" to do so. (U)

308. Dr. Mitchell viewed in open court an 18 minute segment of a videotape of the forensic evaluation conducted by Government experts Drs. Martell and Matthews. (Defendant's Exhibit 54) (U)

309. The portion of the video viewed by Dr. Mitchell depicted Mr. Hammer discussing his childhood sexual, physical and emotional abuse. (U)

310. Dr. Mitchell concluded that on the portion of the video that he viewed, Mr. Hammer became "very emotionally upset" and required a break in the evaluation. Dr. Mitchell concluded that the level of emotional upset, was "significant emotional distress." (U)

311. The accounts of the childhood abuse discussed on the videotape were consistent with the accounts of childhood abuse that Mr. Hammer related to Dr. Mitchell during their therapy sessions.

312. The degree of emotional distress shown by Mr. Hammer on the videotape was comparable to the level of emotional distress shown by Mr. Hammer during his discussions of this topic during his therapy sessions with Dr. Mitchell. (U)

313. Following Mr. Marti's death, Mr. Hammer was housed in a single cell in the Allenwood Penitentiary. He received his meals in his cell, had no access to ice, showered in his cell, wore only prison issue clothing, took recreation by himself, was on limited correspondence status for periods of time and had no access to a television. (U)

314. Dr. Mitchell attempted to intervene on Mr. Hammer's behalf with prison officials regarding some of the conditions of confinement inasmuch as he was concerned about the psychological impact they were causing on Mr. Hammer. In March, 1997 Dr. Mitchell was concerned that Mr. Hammer might "act out" as a result of these stressors, including "ending his life." (U)

315. Dr. Mitchell indicated that during his time treating Mr. Hammer, that he evidenced emotional lability, which at times was severe. This lability was a sign of "distress" and evidence that Mr. Hammer had "less emotional control." (U)

316. Dr. Mitchell opined that there is a correlation between emotional lability and dissociation. (U)

317. As Dr. Mitchell's relationship with Mr. Hammer progressed, Mr. Hammer became more concerned that Dr. Mitchell would testify against him, and/or that what he said in their sessions would be used against him. (U)

318. At some point, Mr. Hammer decided to terminate his therapeutic relationship with Dr. Mitchell. (U)

319. Mr. Hammer resumed his relationship following the various cessations because the sessions were helpful to him. (U)

320. Dr. Mitchell's interviews with Mr. Hammer when the inmate was in general population ran 30 minutes to an hour. (U)

321. Dr. Mitchell's therapeutic relationship with Mr. Hammer was described as good by Dr. Mitchell. (U)

322. Dr. Mitchell stated that Mr. Hammer had more than one episode of depression. (U)

323. Dr. Mitchell took those accounts as being genuine. (U)

324. Dr. Mitchell stated Mr. Hammer talked about how important mail was to him, as it was his only link to people and relating to others. (U)

325. Dr. Mitchell reviewed raw data generated by Dr. Gelbort at the time of trial or before trial at the prosecution's request. (U)

326. Dr. Mitchell recalled that Mr. Hammer in 1997 had a valid concern, which appeared that staff were kind of giving him the runaround, so to speak, and not answering his requests as to why he was on restriction with any specificity. (U)

327. Dr. Mitchell sent a note to Mr. Troutman, the unit manager, to try to get a little more clarity for Hammer on a particular issue. (U)

328. Dr. Mitchell stated Mr. Hammer welcomed a potential transfer to Florence or Terre Haute from Allenwood. (U)

329. Dr. Mitchell was aware in 1997 or 1998 that certain psychology records or copies of psychology records were being sought by either the prosecution or the defense. (U)

330. Dr. Mitchell recalled that the prosecution sought certain psychology records or copies of psychology records and also that Mr. Hammer's attorneys at that time also sought them. (U)

331. Dr. Mitchell stated that prior to Mr. Hammer's guilty plea, he had discussions with the prosecution that he would with certainty testify as well as discussions with the defense that he would also testify for them. (U)

332. Dr. Mitchell was aware of and took into consideration Dr. Gelbort's opinion and raw data relating to Mr. Hammer's cognitive disorder, and still concluded that Hammer was competent to enter a guilty plea on June 22, 1998.

G. Dr. Sadoff's Involvement with and Assessment of Mr. Hammer

333. Dr. Sadoff testified at trial as a defense expert and previously diagnosed Mr. Hammer as suffering from Dissociative Identity Disorder. (U)

334. Dr. Sadoff was accepted by this Court as an expert in forensic psychiatry. (U)

335. Dr. Sadoff testified that he evaluated Mr. Hammer in December of 1996 and that he also reviewed numerous records pertaining to Mr. Hammer that had been provided to him by Mr. Ruhnke and Mr. Travis. (U)

336. Dr. Sadoff testified, as reflected in his report concerning Mr. Hammer dated September, 1997, that at that time Mr. Hammer was competent to stand trial. (U)

337. Dr. Sadoff testified, and the Court finds, that competency is a fluid concept and that the fact Mr. Hammer was deemed competent to stand trial by Dr. Sadoff in September of 1997 does not mean Mr. Hammer was competent to waive trial and enter a plea of guilty in June of 1998. (U)

338. Dr. Sadoff also testified, and the Court finds, that his competency evaluation of Mr. Hammer in September of 1997 did not include a determination whether Mr. Hammer could make a knowing, voluntary and intelligent waiver of rights since it was not an issue at that time. (U)

339. Dr. Sadoff testified that neither Mr. Ruhnke nor Mr. Travis asked him to conduct a forensic competency examination of Mr. Hammer in June of 1998 or in October of 1998. (U)

340. Dr. Sadoff testified that if counsel had asked him to conduct such an evaluation he would have been willing to do so. (U)

341. Dr. Sadoff did not learn of Mr. Hammer's waivers and plea of guilty until after they had happened. (U)

342. Dr. Sadoff testified that Mr. Hammer has a significant family history of physical and sexual abuse that formed the factual predicate for his diagnosis of Dissociative Identity Disorder. (U)

343. Dr. Sadoff testified that given the diagnoses and stressors that Mr. Hammer was under at the time of trial, there exist substantial concerns about Mr. Hammer's mental state at the time he entered his guilty plea.

344. Dr. Sadoff explained that the bases for his concerns involve both the DID diagnosis as well as consideration of Mr. Hammer's Post-Traumatic Stress Disorder (PTSD), depression, other diagnoses of characterological or personality disorder that he has had most of his life. (U)

345. Dr. Sadoff during the section 2255 hearing testified that he was concerned about which of Mr. Hammer's personalities was driving his decision to waive trial, plead guilty and waive direct appeal. (U)

346. Dr. Sadoff also testified, and the Court finds, that it is not unusual that victims of sexual abuse will often have recollections of the abuse they endured triggered by external factors, such as letters or conversations discussing the abuse or related factors. (U)

347. Dr. Sadoff during the section 2255 hearing did not provide an opinion to a reasonable degree of psychiatric certainty regarding whether or not Mr. Hammer was competent on June 22, 1998.

H. Dr. Wolfson's Involvement with and Assessment of Mr. Hammer

348. Dr. James K. Wolfson evaluated Mr. Hammer in 1997 at the request of the Government.

349. Dr. Wolfson graduated with a Bachelor of Arts degree from the University of Chicago in 1982.

350. In 1985 Dr. Wolfson graduated with a Masters of Science degree in Human Biology from the University of Chicago and in 1987 graduated from Washington University Medical School in St. Louis, Missouri.

351. After receiving his medical degree, he completed a residency in psychiatry at Barnes Hospital and Washington University.

352. Dr. Wolfson is a Board Certified Forensic Psychiatrist and has been employed in the field of forensic psychiatry by the Federal Bureau of Prisons since 1992.

353. At the time of his evaluation of Mr. Hammer in 1997, he had personally written approximately 200 forensic reports.

354. Dr. Wolfson's diagnosis in relevant part was as follows:

Axis I: Malingering

Claimed Dissociated Identity Disorder

(Multiple Personality Disorder), doubtful validity.

Query Major Depression, in remission.

History of Polysubstance Abuse

Axis II: Antisocial Personality Disorder with histrionic features (primary diagnosis). See Forensic Report dated December 19, 1997, page 127 (Defendant's Exhibit 139.1).

355. Dr. Wolfson believes that Mr. Hammer does have mental health pathology. (U)

356. Dr. Wolfson agrees with Dr. Mitchell's diagnosis of Mr. Hammer on Axis I as having a Major Depressive Disorder, Recurrent. (U)

357. Dr. Wolfson has no disagreement with Dr. Martell's diagnosis of Mr. Hammer as having an Axis I diagnosis of Cognitive Disorder, Not Otherwise Specified. (U)

358. Mr. Hammer was subjected to psychological testing while at the United States Medical Center for Federal Prisoners at Springfield in 1997. (U)

359. Dr. Richard Frederick performed psychological testing and interpreted it for Dr. Wolfson. (U)

360. Dr. Wolfson thought that Dr. Matthew's and Dr. Martell's diagnosis of Mr. Hammer as having a Borderline Personality Disorder was "reasonable" and that he would not "quibble" with it. (U)

361. Dr. Wolfson believes that those subject to childhood abuse "show an elevated prevalence of all mental illnesses, except schizophrenia." (U)

362. Dr. Wolfson is unsure of the relationship between childhood trauma and the development of Borderline Personality Disorder. (U)

363. Dr. Wolfson believes that "what most people think" is that the absence of stable relationships in childhood retards the normal maturation process.

364. Dr. Wolfson believes that a "prevalent model" in the mental health field holds that childhood abuse causes Borderline Personality Disorder. (U)

365. Dr. Wolfson believes that the mainstream of the mental health professions believes that childhood abuse also can cause Posttraumatic Stress Disorder. (U)

366. Dr. Wolfson believes that those with Dissociative Identity Disorder may manifest Posttraumatic symptoms or Posttraumatic Stress Disorder. (U)

367. Dr. Wolfson believes that taking Mr. Hammer's history of childhood physical and sexual abuse as true, it qualifies as the type of trauma that could cause either Borderline Personality Disorder, Posttraumatic Stress Disorder or Dissociative Identity Disorder. (U)

368. Dr. Wolfson believes that Mr. Hammer suffered from childhood abuse as described in the records and interviews he reviewed. (U)

369. Dr. Wolfson testified that Mr. Hammer: "reported to me sexual molestation at the hands of multiple people . . . physical abuse at the hands of multiple people [] [and] a particularly distorted, disturbed relationship with his mother." (U)

370. According to Dr. Wolfson, Mr. Hammer did not malinger on either the Minnesota Multiphasic Personality Inventory, Validity Indicator Profile or "dot counting" tests administered by Dr. Frederick at United States Medical Center for Federal Prisoners at Springfield in 1997. (U)

371. According to Dr. Wolfson, Mr. Hammer "appeared overly invested in looking good" on the psychological testing administered by Dr. Frederick. (U)

372. Dr. Wolfson stated in his second forensic report (written in 1998) that Mr. Hammer's stated reasons for wishing to waive his post-trial rights and direct appeal was a concern for Mr. Marti, his family and general remorse. (U)

I. Dr. Blumberg's Involvement with and Assessment of Mr. Hammer

373. During the § 2255 hearing, Mr. Hammer presented the testimony of Neil Blumberg, M.D., a Board Certified forensic psychiatrist with extensive experience in forensic evaluations in capital cases and in cases involving competency and criminal responsibility. (U)

374. Dr. Blumberg graduated with highest honors from Emory University, Atlanta, Georgia, in 1973, with a Bachelor of Arts degree in Psychology.

375. Dr. Blumberg received his medical degree in 1977 from George Washington University School of Medicine, Washington, D.C.

376. Dr. Blumberg is licensed to practice medicine in Maryland, Pennsylvania, Virginia, Georgia and Florida.

377. Dr. Blumberg is a Fellow in the American Psychiatric Association, a member of the American Academy of Psychiatry and the Law and has been a clinical assistant professor of psychiatry since 1981 at the University of Maryland School of Medicine, Department of Psychiatry. (U)

378. Dr. Blumberg has participated in over four thousand (4000) forensic psychiatric evaluations in the criminal context and has been qualified as an expert in forensic psychiatry in state and federal court on over five hundred (500) occasions. In capital prosecutions, he has testified for both the Government and the defense.

379. Dr. Blumberg has participated in the forensic psychiatric evaluation of over one hundred and forty (140) capital defendants and has testified as an expert in approximately thirty to thirty five capital cases. (U)

380. Dr. Blumberg presently has a private practice in both general and forensic psychiatry. However, the bulk of his practice is forensic consultation, both in the criminal and civil areas.

381. With respect to the criminal areas, Dr. Blumberg receives referrals from defense attorneys, prosecutors' offices, as well as serving as an independent expert called by the courts.

382. Dr. Blumberg receives regular referrals from the United States District Courts in Baltimore and Greenbelt, Maryland, and Alexandria, Virginia.

383. Dr. Blumberg testified in the fall of 2004 in a case where he was an expert for the United States Attorney's office in the Greenbelt office in Maryland.

384. Dr. Blumberg is currently involved in two capital cases for the United States Attorney's Office in Greenbelt, Maryland.

385. Dr. Blumberg testified for the prosecution in a case in Maryland state court where the defendant was executed.

386. Dr. Blumberg conducted a forensic psychiatric evaluation of Mr. Hammer on October 21, 2004, at the United States Penitentiary in Lewisburg, Pennsylvania. His evaluation of Mr. Hammer lasted approximately three hours and thirty-five minutes. (U)

387. Dr. Blumberg also reviewed the following documents and records pertaining to Mr. Hammer: trial transcripts, motions transcripts, transcripts of Mr. Hammer's argument in Court of Appeals for the Third Circuit; Mr. Hammer's Bureau of Prison (BOP) records; BOP psychiatric mental health evaluations; videotape of the interviews conducted by Drs. Matthews and Martell; videotape of the hypnosis session with Drs. Sadoff and Dubin; testimony and report of Jill Miller; records from the Oklahoma Department of Corrections; mental health records predating Mr. Hammer's incarceration; and the reports of Drs. Wolfson, Grassian, Gur, Kluft, Gelbort, Martell and Matthews.

388. As a result of his review of the above records and his evaluation of Mr. Hammer, Dr. Blumberg reached the following diagnoses to a reasonable degree of medical and psychiatric certainty: Posttraumatic Stress Disorder, Chronic; Borderline Personality Disorder; Antisocial Personality Disorder and Cognitive Disorder, Not Otherwise Specified. (U)

389. This Court finds Dr. Blumberg's diagnoses of Mr. Hammer as set forth in the proceeding finding to be credible.

390. Dr. Blumberg testified, and this Court so finds, that the predicate facts supporting his diagnoses of Borderline Personality Disorder and Posttraumatic Stress Disorder, Chronic, are Mr. Hammer's history of severe childhood trauma, including "physical, verbal, emotional and sexual abuse throughout his childhood."

391. According to Dr. Blumberg, Mr. Hammer's mother, who was his primary abuser, inflicted upon Mr. Hammer "bizarre, torturous types of punishments" that included "giving him an enema with scalding hot waters, at times enemas with Tabasco sauce and other irritants" in order "to burn the evil out of him." (U)

392. The Court finds this aspect of Dr. Blumberg's testimony credible.

393. Dr. Blumberg reported, and this Court so finds, that Mr. Hammer's history of sexual abuse dates back to age five years and includes sexual victimization at the hands of a maternal uncle, a maternal cousin, a friend of his uncle's, molestation by his mother and sexual relations with his sister orchestrated and witnessed by his father.

394. The Court also finds that the sexual abuse of Mr. Hammer continued throughout Mr. Hammer's childhood and into his teenage years.

395. Dr. Blumberg was of the opinion, and the Court so finds, that because Mr. Hammer's abusers were his parents and family members, the psychiatric trauma he endured as a result of the abuse was even more severe than if the abuse had been inflicted by a stranger or a non-family member.

396. Dr. Blumberg testified that Mr. Hammer's family history includes a history of alcoholism, depression, prescription drug abuse, seizures and Attention Deficit Disorder. Instability was also a family trademark throughout Mr. Hammer's childhood evidenced in part by the fact that he attended many different schools before dropping out at the tenth grade.

397. Records reviewed by Dr. Blumberg indicate that Mr. Hammer first sought mental health treatment in Oklahoma when he was fourteen years old. These records describe Mr. Hammer as tense, nervous, failing in school, unable to concentrate and as having been recently sexually abused by an older man. Mr. Hammer also reported that he had attempted suicide by turning on the gas and cutting himself with a razor. Mr. Hammer's parents failed to heed the advice of the treating psychiatrist who recommended ongoing therapy. This Court finds this aspect of Dr. Blumberg's testimony credible.

398. Records reviewed by Dr. Blumberg also reflect Mr. Hammer received out-patient mental health treatment at age seventeen years and was diagnosed with depressive neurosis and a possible explosive or epileptical personality disorder. He was later hospitalized at Baptist Hospital in Oklahoma as a result of depression, suicidal and homicidal thoughts and impulsive anger. This aspect of Dr. Blumberg's testimony is also credited by this Court. (U)

399. Dr. Blumberg also noted, and this Court so finds, that in 1976, Mr. Hammer was diagnosed as suffering from Borderline Schizophrenia, a diagnosis that was later reclassified as Borderline Personality Disorder, the diagnosis reached of Mr. Hammer by both defense and prosecution mental health experts in this case. (U)

400. By age fourteen, Mr. Hammer was abusing a wide variety of drugs, including Phencyclidine (PCP), which often causes psychotic symptoms. (U)

401. Dr. Blumberg noted that Mr. Hammer's drug use continued after his incarceration in the Oklahoma Department of Corrections where Mr. Hammer began abusing Heroin. According to Dr. Blumberg, Mr. Hammer's use of both PCP and heroin was a form of self-medication that Mr. Hammer used to cope with the overwhelming pain, anxiety and depression resulting from his childhood abuse.

402. Mr. Hammer reported to all mental health evaluators that his mother subjected him to physical and emotional abuse during his childhood.

403. Mr. Hammer reported beatings, painful enemas, as well as emotional abuse. (U)

404. Mr. Hammer reported that his father sexually abused his sister and coerced him into sexual activity with her at an early age. (U)

405. Mr. Hammer's mother was also sexually inappropriate with him, inspecting his genitalia routinely.

406. During the interview session with Drs. Dubin and Sadoff on September 17, 1997, prior to Dr. Dubin's attempt to hypnotize Mr. Hammer, Mr. Hammer outlined some of the abuse as follows:

DPH: A lot of the things that's most difficult to deal with is having to do with my mom. I hated her and then I loved her. She's dead now, and she did a lot of things to me. Things that kid's shouldn't have done to them. And I try to just block it out, but you can't, and a lot of it's -- I've had to talk about a lot of it and deal with it because of what's going on and the more -- I mean I see pictures and it just brings back things.

Dubin: Anything you want to talk about, . . . .

DPH: She beat me, . . . . I mean for no reason.

But as bad as the physical things, was the verbal and emotional -- telling me that you're worthless, you're no good, you're dirty, you know, I mean never showing you love or -- it wasn't all, I mean, it wasn't always like that, she -- * * * * * * *

Dubin: What else did she do, David?

DPH: She used to give me enemas all the time. She used to make me -- she'd make me -- I'd be naked and she'd give me enemas. She had this bottle, this red thing and she'd -- the water would be hot, I'd be telling her mom, please stop, it's too hot.

Sometimes, she'd put hot sauce in it be burning. (sic) And then when I'd be going all over the place, I couldn't hold it any more, and she'd, she'd go, shame, shame, shame, shame. * * * * * * *

Dubin: Did she have a good relationship with your dad?

DPH: She, who my momma? She was the dominant one in the family. She was -- she called the shots. When I was 8 years old, 9 years old, we had these puppies. My cousin's dog, _____ had puppies, and we lived out in the country and had to ride a school bus to school, my sister and I, my little brother was too young, He wouldn't going to school yet. And we had to walk about a quarter of a mile down this little trail to catch the school bus. And the dogs would, you know the puppies, they were just like Heinz 57 puppies. And so they would follow us to the school bus. So one morning I go to school and when I come home that afternoon, the bus left me off, and my momma's got this shovel. We get off the school bus, my sister and I, and the bus goes on, and my momma calls me to the side and says to my little brother to go to our house with my sister. And then pulls me over to the side and there's a dog, a little puppy that got ran over, it's my little brother's puppy.

We each one had one, my sister and I and my little brother. So she made me take the shovel and bury the puppy. She tell's me it's my fault that the puppy got ran over. Said he got ran over that morning when we went to school. I didn't see it get run over. So then we go up past the house, and she grabs up my little sister's puppy and she makes me get my puppy and we walk about a quarter of a mile the other direction from the house and there's a pond. And she still got the shovel in one hand and then she's got a toe sack, a gunnysack, and -- we get down there by the pond, and she takes the puppies and she puts the puppies in the sack, the toe sack, and ties it up, and then she -- I'm asking her what she's doing. She says I'm teaching you a lesson. And then she takes the shovel and goes to beat on the doggies, a bunch of times, and blood soaks through the sack, and then she picks up one end of the sack and makes me pick up the other end of the sack, and she throws it off into the pond. You know the sack. She said that if my little brother couldn't have a puppy, then me and my sister couldn't either.

Government Exhibit 36, pages 9-11.

407. Dr. Blumberg agreed with the fact that, as a young person, Mr. Hammer's parents encouraged him to engage in fraudulent behavior. (U)

408. Mr. Hammer specifically shared with Dr. Blumberg information about his mother asking him to engage in fondling and other sexual activities. (U)

409. This information regarding his mother asking him to engage in fondling was not presented at the time of trial in 1998.

410. Dr. Blumberg testified, and this Court so finds, that childhood victims of physical, sexual, verbal and emotional abuse such as that endured by Mr. Hammer can lead to the development of Posttraumatic Stress Disorder, depression and impairment in character structure or personality, each of which are present in Mr. Hammer. (U)

411. Dr. Blumberg testified, and this Court so finds, that Mr. Hammer suffers from the following characteristics of Posttraumatic Stress Disorder, Chronic: he was exposed to numerous traumatic events; his response to these traumatic events included fear, helplessness and horror; he suffers from recurrent and intrusive, distressing recollections of the trauma; he suffers from nightmares; persistent symptoms of increased arousal; sleep disturbance; irritability; difficulty concentrating; hypervigilence and displays both the psychological distress and physical symptoms of anxiety when he thinks about the trauma he endured or is reminded of the abuse.

412. Dr. Blumberg testified, and this Court so finds, that Posttraumatic Stress Disorder and Borderline Personality Disorder may be caused by severe trauma, abuse and neglect.

413. Dr. Blumberg testified, and this Court so finds, that Mr. Hammer also suffers from dissociative symptoms that are associated with Posttraumatic Stress Disorder.

414. Dr. Blumberg concluded that Mr. Hammer suffers from a severe identity disturbance which he included under the diagnosis of Borderline Personality Disorder.

415. Dr. Blumberg did not, however, diagnose Mr. Hammer with Dissociative Identity Disorder because he did not observe distinct personalities and there was a question about Mr. Hammer's reliability in this regard.

416. Dr. Blumberg was of the opinion that Mr. Hammer's character structure was irrevocably damaged by the severe trauma that he sustained during his childhood and adolescence.

417. Dr. Blumberg defined the essential characteristics of Borderline Personality Disorder as follows: "a pervasive pattern of instability of interpersonal relationships, self image and affects and marked impulsivity beginning by early adulthood and present in a variety of contexts." The Court accepts this definition.

418. Dr. Blumberg testified, and the Court so finds, that a Borderline Personality Disorder is a debilitating form of mental illness.

419. Dr. Blumberg testified, and this Court so finds, that Mr. Hammer is severely debilitated by his Borderline Personality Disorder and his other deficits.

420. This Court credits Dr. Blumberg's testimony that the symptoms of Borderline Personality Disorder present in Mr. Hammer include: frantic efforts to avoid real or imagined abandonment; failure to establish a close nurturing relationship with parental figures; a pattern of unstable and intense interpersonal relationships; identity disturbance; markedly and persistently unstable sense of self; impulsivity in areas that are potentially self-damaging; recurrent suicidal behavior or gestures; affective instability (meaning a dramatic fluctuation in emotions); chronic feelings of emptiness; inappropriate, intense anger; difficulty controlling anger; paranoid thinking and severe dissociative symptoms.

421. Dr. Blumberg stated almost everybody agreed on the antisocial personality disorder diagnosis in Mr. Hammer's case. (U)

422. Dr. Blumberg testified, and this Court so finds, that Mr. Hammer currently manifests active symptoms of both Post-Traumatic Stress Disorder, Chronic, and Borderline Personality Disorder, and he did so during the trial and post trial proceedings before this Court.

423. Dr. Blumberg testified, and this Court so finds, that Mr. Hammer suffers from a severe identity disturbance and that individuals who suffer from a Borderline Personality Disorder often suffer "severe dissociative symptoms and even transient psychotic symptoms under great stress."

424. Dr. Blumberg testified, and the court so finds, that the active symptoms of Posttraumatic Stress Disorder wax and wane.

425. Dr. Blumberg testified that retrospective competency evaluations are difficult.

426. Dr. Blumberg testified that not all people with Borderline Personality Disorder are incompetent to proceed legally.

427. Dr. Blumberg testified that Mr. Hammer's conditions of confinement did not cause his Posttraumatic Stress Disorder.

428. Dr. Blumberg concluded that Mr. Hammer was not competent on June 22, 1998.

429. Dr. Blumberg admitted there was nothing specific in the transcript of the June 22, 1998, proceeding which supports his conclusion.

430. During the § 2255 hearing, Dr. Wolfson did not dispute Dr. Blumberg's Axis I diagnosis of Mr. Hammer as having Posttraumatic Stress Disorder.

431. Although we find Dr. Blumberg credible with respect to his psychiatric evaluation of Mr. Hammer, we do not find credible Dr. Blumberg's conclusion that Mr. Hammer was not competent and not acting voluntarily, intelligently and rationally at the time of (1) the change of plea proceeding, (2) the proceeding where he discharged counsel and was authorized to decide on his own whether to pursue an appeal and (3) the proceeding before the Court of Appeals when he withdrew his appeal.

J. Dr. Gelbort's Involvement with and Assessment of Mr. Hammer

432. Dr. Michael M. Gelbort testified during the trial in this case. (U)

433. In 1977 Dr. Gelbort graduated from Grinnell College, Grinnel, Iowa, with a Bachelor of Arts degree in psychology and general sciences.

434. In 1984 he received a Ph.D. in clinical psychology with a minor in applied human neuropsychology from Texas Tech University, Lubock, Texas.

435. After receiving his Ph.D. from Texas Tech University he served a post-doctoral fellowship in neuropsychology for one year at the Rehabilitation Institute of Chicago

436. Dr. Gelbort is a licensed clinical psychologist in the states of Illinois and Indiana, and has an inactive license in the state of Texas.

437. Dr. Gelbort has conducted a clinical and neuropsychological private practice in Illinois since 1989.

438. At trial and during the Section 2255 proceedings, the Government did not object to Dr. Gelbort's qualification as an expert in neuropsychology. (U)

439. The Court finds Dr. Gelbort qualified as an expert in neuropsychology for purposes of these Section 2255 proceedings. (U)

440. Prior to trial, Dr. Gelbort conducted a neuropsychological examination of Mr. Hammer. (U)

441. Prior to his trial testimony, Dr. Gelbort reviewed materials regarding Mr. Hammer's background and history and conducted a forensic neuropsychological examination. (U)

442. During his pretrial evaluation, Dr. Gelbort administered a number of psychological and neuropsychological tests that were listed in his report and covered in his trial testimony. (U)

443. Dr. Gelbort conducted a further evaluation of Mr. Hammer in 2004. (U)

444. Dr. Gelbort concluded to a reasonable degree of psychological and neuropsychological certainty that at the time of trial in 1998 Mr. Hammer suffered from brain dysfunction and cognitive and emotional impairments.

445. He also concluded that Mr. Hammer presently suffers from brain dysfunction and cognitive and emotional impairments.

446. Dr. Gelbort found that by and large Mr. Hammer's deficits localize and lateralize on the right side of the brain.

447. Dr. Gelbort concluded that the damage to Mr. Hammer's brain is primarily focused in the frontal lobe and to a lesser degree the temporal lobe.

448. Dr. Gelbort testified that "when [Mr. Hammer] has to size up a situation . . . and to problem solve, there are times when he may present with normal abilities, and there are times where he will present with impaired or abnormal abilities."

449. The frontal lobes are the part of the brain that synthesize thoughts. (U)

450. The frontal lobes are the part of the brain that initiate and inhibit behavior.

451. The frontal lobes are the part of the brain that control reasoning and judgment.

452. The frontal lobe area of the brain serves as a source of initiation and inhibition of behavior. (U)

453. As a result of his frontal lobe impairments, Mr. Hammer has some difficulties with inhibition, impulsivity and judgment.

454. As a result of the frontal lobe impairments, Mr. Hammer demonstrates (1) some difficulties in terms of problem solving and reasoning and (2) impulsivity.

455. As a result of his frontal lobe dysfunction, Mr. Hammer sometimes acts before thinking, thus causing him to respond to stimuli before he fully processes information.

456. Mr. Hammer's brain dysfunction at times also impairs his ability to synthesize information.

457. Dr. Gelbort was of the opinion that Mr. Hammer's emotions are poorly modulated.

458. Dr. Gelbort opined that Mr. Hammer's brain dysfunction causes him to respond to his emotions in an abnormal manner. (U)

459. The testing and evaluation conducted by Dr. Gelbort demonstrates that, while Mr. Hammer is a logical person, his emotions sometimes control his behavior.

460. The testing and evaluation conducted by Dr. Gelbort demonstrated Mr. Hammer's visual perception to be within normal limits. (U)

461. Dr. Gelbort testified that Mr. Hammer's "verbal processing abilities again and again were better than his visual-spatial. He thinks better when he's using words as the medium rather than when he's using images or concepts as the medium."

462. Dr. Gelbort testified that "[t]here certainly are times when his emotions are well modulated, but there are other times when his emotions appear to be poorly modulated. . . we normally look at people making decisions based on cognition or thinking skills as well as their emotional response to a situation. It appears from the unbridled emotionality that was shown in some of the testing as well as review of records and interactions with Mr. Hammer that there will be episodes when he reacts very emotionally and may not take cognition or thinking as much into account as most people do."

463. Dr. Gelbort testified that the fact that Mr. Hammer's left-brain functioning, including intelligence, is average does not diminish the impact of his right-brain and frontal lobe impairments on his decision-making.

464. The behavioral impact of all of Mr. Hammer's brain impairments can be exacerbated during periods of stress.

465. The behavioral manifestations of Mr. Hammer's emotional and brain deficits are exacerbated by the emotional trauma he suffered as a result of his horrific and abusive upbringing.

466. Mr. Hammer can reach appropriate decisions when provided verbally-based, concrete, non-emotionally laden problems. (U)

467. Dr. Gelbort concluded to a reasonable degree of neuropsychological certainty that testing revealed frontal lobe and temporally located neurocognitive dysfunction which correlates with deficits in reasoning and judgment as well as impulsivity and disinhibition.

468. Dr. Gelbort concluded that Mr. Hammer was not competent on June 22, 1998, when he enter a plea of guilty, on October 1, 1998, when decided to proceed pro se, and in July of 2000 when he requested that the Court of Appeals dismiss his appeal.

469. Dr. Gelbort stated he had learned that Mr. Hammer had entered a guilty plea in 1998 when he was at the penalty phase in July 1998 to testify. (U)

470. Dr. Gelbort had spoken with attorneys Travis and Ruhnke at the time of his testimony about Mr. Hammer having trouble with his thinking. (U)

471. Dr. Gelbort indicated that Mr. Hammer had some sensory problems with his left hand. (U)

472. Dr. Gelbort stated Mr. Hammer could not identify consistently which finger was being touched ...


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