On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 02-cv-00313J) District Judge: Honorable Kim R. Gibson.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER, STAPLETON and TASHIMA*fn1, Circuit Judges
We are once again faced with the need to determine whether the state court determination that counsel representing a petitioner in a state court criminal action provided competent counsel as required by the Sixth Amendment survives our review under 28 U.S.C. § 2254.
Edward Hummel, who is missing a portion of his brain after a self-inflicted gunshot wound, sought a writ of habeas corpus, contending that his trial counsel failed to perform up to the constitutional standard when he (1) stipulated that Hummel was competent to stand trial and (2) did not seek to have Hummel evaluated by a psychiatrist before trial. The District Court denied Hummel's request for a writ of habeas corpus. We will reverse.
Hummel was married to Debra Hummel, and the couple had two teenage daughters. Unknown to Hummel, Debra was having an affair with Walter Maines. Maines' wife telephoned Hummel about the affair on November 22, 1991, and Hummel responded that he had learned of the affair that morning. When Debra came home that night she confirmed the affair. Some aspect of Debra's sexual activity and Hummel's reaction was provided by Hummel's mother, who testified at the PCRA hearing that Hummel asked her if she knew "that Debbie told me that she had performed oral sex on men, and then came home and kissed me 15 minutes later?" R. at 370a.*fn2 Shortly after Debra admitted her actions to Hummel, he hit her in the face several times and then shot her in the head, killing her. Hummel then went to his parents' house and told them what he had done. Thereafter, he left a suicide note for his daughters, and returned to his house where he shot himself in the head with the same gun. Hummel survived, but was rendered a paraplegic and suffered brain damage from the shot.
Immediately after the shooting, Hummel was hospitalized from November 22, 1991, to December 30, 1991, was then transferred to a rehabilitation center until February 25, 1992, then again hospitalized in a psychiatric unit for suicidal ideation until March 4, 1992, was again briefly hospitalized until March 9, 1992, and thereafter received outpatient care while he was out on bail living with his parents. When it became clear that he would not die from the self-inflicted wound, he was charged by the Commonwealth of Pennsylvania with his wife's murder (among other related crimes). F. Cortez Bell, a public defender for Clearfield County, was appointed as Hummel's counsel, and represented him at the bail hearing in March 1992. Hummel's parents, but not Hummel, were present. The court granted bail and Hummel returned to his parents' home.
Bell obtained several continuances of the preliminary hearing so that Hummel could be examined to determine whether he was competent to stand trial. During these continuances, Hummel was examined by two psychologists: Allan M. Tepper, J.D., Psy.D, and Vincent F. Berger, Ph.D. In his report, Dr. Tepper, who was retained by the District Attorney, stated that he "is unable to state, within a reasonable degree of psychological certainty, whether or not Mr. Hummel currently is capable of proceeding to trial." R. at 17. Dr. Berger, retained on behalf of the Public Defender, found that Hummel was "marginally competent" to stand trial provided modifications were made to ensure that Hummel was able to understand what was going on and to accommodate his short attention span. R. at 20. Their reports were filed with the court. Bell did not seek an additional evaluation either then or thereafter.
Bell did file a motion on August 7, 1992, requesting a competency hearing but a few days later, on August 10, 1992, Bell and the attorney for the Commonwealth reached an agreement that Hummel was competent to stand trial. Bell did not consult with Hummel's parents, who were Hummel's court appointed guardians, about this stipulation.
It is significant that at the time Bell made this agreement he still had not yet met with Hummel because, he states, Hummel's parents -- who insisted their son was "incompetent and unable to communicate" -- did not allow Bell contact with Hummel. In fact, Bell, who was appointed in March 1992, met with Hummel for the first time on the day of Hummel's preliminary hearing, August 12, 1992, shortly before the hearing began. This was despite the fact that Hummel had been living at his parents' house since his release following the bail hearing on March 6, 1992. Bell, in fact, did not speak to Hummel again until jury selection began in January 1993, saying later that he had taken Hummel's parents at their word that their son remained incompetent. Of particular relevance is the fact that Bell did not bring Hummel's parents' doubts as to Hummel's competency to the attention of Judge John Reilly, the trial judge.
Although Hummel's provocation defense would likely have been strengthened by his testimony as to his wife's admission of sexual conduct with other men,*fn3 Bell convinced Hummel and his father that Hummel should not testify during the trial. Bell told them that anything Hummel said while on the stand would undermine "any claims of incompetency tha[t] anyone wished to raise at any point whether during the course of trial or on appeal or whatever." App. at 32a. Thus, the trial proceeded without Bell having discussed with Hummel his recollection of the shooting, his reasons for the shooting, and his state of mind. Although Bell would later, at the PCRA hearing, express his concerns about Hummel's ability to focus on the trial proceeding, Bell did nothing to note this for the record at the time of the trial. When Bell noticed that during the trial Hummel "was down on the table, could not be roused, could not be awoken," App. at 45a, he approached the bench and, without explanation to the court, requested a recess, which the court granted. During the prosecution's closing, Hummel suddenly woke up and shouted "[t]ell them about the blow jobs." App. at 37a. Hummel's statement is not recorded in the trial transcript, but Bell's testimony regarding the outburst is not challenged. At this point, Bell covered Hummel's mouth and Hummel's father removed Hummel from the courtroom. The prosecutor's closing statement continued with Hummel absent from the room.
The trial court asked Bell whether he would like Hummel back in the room for the jury instructions, but Hummel was not brought back into the room because Bell was unable to wake him. Bell did not tell the judge that Hummel was asleep, nor did he seek an opportunity to question Hummel about the outburst, which referred to his wife's admission of recent oral sex with others. Bell never questioned Hummel about the murder, even after Hummel's outburst.
The trial continued and Hummel was found guilty by the jury of first degree murder and assault. Bell then filed what he characterized as a motion for a new trial. This motion was based on events occurring during the trial that Bell said he believed raised questions about Hummel's competency. The court asked whether Bell had any additional medical evidence regarding competency, and he responded that he did not. The following exchange then occurred:
The Court: Did he cooperate with you during the course of trial and at recesses, and was he able to discuss it with you?
Bell: I would characterize that as haltingly, Your Honor. At times he did discuss it with me. We discussed aspects of the case quite intelligently. At other times I could not get appropriate responses. He'd forget what he was saying in mid-sentence. You know, we couldn't have a conversation, I guess would be the way to say it.
The court found Hummel could not be considered incompetent on that evidence alone and denied the motion for a new trial. Hummel was sentenced to life imprisonment for the murder and a term of 5-10 years for the assault prior to the murder.
D. Post Trial Proceedings
Bell pursued a direct appeal, challenging the decision of the trial judge that Hummel was competent to stand trial. The Pennsylvania Superior Court affirmed Hummel's conviction and sentence.
One year later Hummel's parents hired a new attorney, H. David Rothman, who represents Hummel here. Rothman filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), and also hired a psychiatrist, Dr. Robert Wettstein, who was Board certified in psychiatry and forensic psychiatry. Dr. Wettstein reviewed the trial transcript, some of the rehabilitation records following Hummel's brain surgery (resulting from his self-inflicted wound), and interviewed Hummel in jail.
Hummel was not present at the PCRA hearing. Dr. William Ryan, a psychiatrist who had been following Hummel's condition while he was at SCI Somerset, advised the court by letter dated May 23, 1996, as follows:
[Hummel] does continue to reflect elements of cognitive brain impairment . . . . This impairment is primarily centered around trouble with memory/recall. Mr. Hummel can not follow a conversation if more than one person is speaking simultaneously. He continues to be essentially bed fast and helpless in ambulation functions. He feeds himself quite easily. He displays a cordial manner and expresses himself adequately. He does not always comprehend what he hears. There are elements of both expressive and receptive aphasia. It has been noted also that Mr. Hummel frequently avoids taking medication, as nursing staff tends to find pills secreted about his bed area from time to time.
From a mental status standpoint and with reasonable medical certainty, I believe Mr. Hummel would be essentially not competent to understand a court procedure nor to participate with defense counsel in his own behalf. This opinion is arrived at from observing him on a daily basis in respect to his memory incapacity, limited attention span, misperception of conversation and difficulty in self expression. I do not have an opinion about the mental competence of this individual at the time of his trial in your court.
Hummel's attorney waived Hummel's appearance; his parents, who were the guardians appointed by the court, were present. Bell, Hummel's trial counsel, whose performance was and is at issue, appeared by subpoena as the court's witness.
Bell, who testified about his performance before, during, and after the trial, stated that in light of the injuries Hummel had suffered he and the Commonwealth both believed they needed to have Hummel independently examined to determine his competency. He was familiar with Pennsylvania's Mental Health Procedures Act, but filed a petition for a determination of Hummel's status, not a petition to find him incompetent. He knew that a psychiatrist, unlike a psychologist, was a medical doctor but he did not seek appointment of a psychiatrist for Hummel.
Bell testified that he had extensive correspondence from Hummel's parents who told him they believed Hummel was not only physically incompetent to do certain things but also mentally incompetent. The Hummels had given Bell a list of various psychiatrists, particularly forensic psychiatrists, that could be used. Nonetheless, after he and the District Attorney reviewed the reports of the psychologists, which he stated indicated that Hummel was competent subject to reservations in terms of monitoring the trial, they sat down with the trial judge and agreed to a stipulation, leading to the court order that Hummel was competent to stand trial. It is important to emphasize that Bell's stipulation was made before he ever met Hummel. Despite Bell's failure to ascertain the underlying facts from Hummel, he testified that his approach was to defend by trying to convince the jury that Hummel was either not guilty or guilty of no more than voluntary manslaughter because he had sufficient legal provocation.
Bell's pretrial contact with Hummel was limited to the preliminary hearing. He stated, "On the day of the preliminary hearing before going into the courtroom was the first time he and I ever spoke." R. at 208a. Bell stated that during the preliminary hearing, Hummel continually whispered things in his ear while the witnesses were speaking. Bell did not speak with Hummel between August 12, 1992, the day of the preliminary hearing, and January 1993, when jury selection began. Hummel's parents, with whom Hummel was living, "led [Bell] to believe that [Hummel] was incompetent; that he was sliding backwards; that he was not recovering or had any hope of recovery." R. at 210a. Bell took them at their word and therefore did not go to see Hummel. Bell conceded that he ...