Grant v . NH State Prison Warden CV-95-371-M 03/07/97

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Eric Grant

v. Civil N o . 95-371-M Michael J. Cunningham, Warden New Hampshire State Prison

O R D E R

Eric Grant petitions pro se for a writ of habeas corpus

pursuant to

, on the grounds that his guilty

plea in state court, to a charge of second degree murder, was

neither voluntary nor knowing nor intelligent due to the

influence of medication and ineffective assistance of counsel.

The state moves for summary judgment, and Grant objects,

asserting a cross motion for summary judgment in his favor. For

the following reasons, summary judgment is granted in favor of

the state, and Grant’s petition for habeas corpus relief is

denied.

BACKGROUND

Grant is incarcerated in the New Hampshire State Prison,

serving a sentence of twenty-seven years to life for second

degree murder (related to the beating death of his late wife). From his arrest on October 8 , 1990, until he pled guilty and was sentenced in the spring of 1991, Grant was held without bail at the Strafford County Jail. While there, Grant was treated with Doxepin for depression and anxiety. In February 1992, Grant was notified that he was being sued in an equity action filed in New Hampshire state court to determine entitlement to the proceeds of his deceased wife’s life insurance policies and retirement plans. The petitioners in the insurance action argued that although Grant was the named beneficiary, he was not entitled to recover the benefits because he had pled guilty to the second degree murder of his wife. Grant, appearing pro s e , filed a motion to withdraw his guilty plea on December 1 1 , 1992, arguing that his plea was not knowingly or voluntarily entered due to his mental state, the effects of medication, and ineffective assistance of counsel. Grant then objected to the petitioners’ motion for summary judgment in the insurance action on the grounds that his guilty plea should not bar him from recovering benefits while his motion to withdraw was pending. On April 7 , 1993, the court granted summary judgment in favor of the insurance petitioners and against Grant.

The same state court judge who presided in the insurance action, Mohl, J., was assigned to Grant’s motion to withdraw his

2 guilty plea. In June 1993, Grant, through counsel, moved to recuse Judge Mohl from presiding at the hearing on Grant’s motion to withdraw his guilty plea. Grant challenged Judge Mohl’s impartiality on the grounds that the Judge’s summary judgment order in the insurance action, in which he had determined that Grant was disqualified from receiving his wife’s insurance benefits based on his guilty plea, created a conflict precluding him from deciding the validity of his guilty plea. Judge Mohl declined to disqualify himself, finding no grounds to support disqualification.

An evidentiary hearing on Grant’s motion to withdraw his guilty plea was held on September 24 and October 6, 1993. Three witnesses who had had close relationships with Grant testified about their observations of him after the murder and while he was in jail. Grant’s attorney from the criminal proceedings testified about their relationship and his representation of Grant. Two psychiatric expert witnesses, one for each side, testified about Grant’s mental condition and the effects of Doxepin, the medication he was taking prior to and during the plea. In a written order issued on October 1 9 , 1993, the court denied Grant’s motion to withdraw his guilty plea. The court concluded that the record of Grant’s guilty plea showed a voluntary and intelligent plea and that Grant had failed to

3 demonstrate by clear and convincing evidence that his plea was

entered involuntarily or without his understanding.

Through counsel, Grant appealed the denial of his motion to

the New Hampshire Supreme Court. Following briefing and oral

argument, the trial court’s decision was affirmed without a

written opinion. Grant, pro s e , then filed his petition for a

writ of habeas corpus in this court.

DISCUSSION

In his petition for habeas relief, Grant asserts that he

pled guilty while under the incapacitating influence of Doxepin

and without effective assistance of counsel, which prevented him

from making a voluntary or knowing guilty plea. The state

asserts that the record from Grant’s state court proceedings

demonstrates that his guilty plea was constitutionally

sufficient.

Summary judgment is appropriate if “there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);

see Fed. R. Civ. P. 81(a)(2)(Federal Rules of Civil Procedure

apply in habeas proceedings to the extent not inconsistent with

practice established by statute); Rules Governing § 2254 Cases,

Rule 11 (same). In a § 2254 action, “a determination after a

4 hearing on the merits of a factual issue, made by a State court

of competent jurisdiction in a proceeding to which the applicant

for the writ and the State or an officer or agent thereof were

parties, evidenced by a written finding, written opinion, or

other reliable and adequate written indicia, shall be presumed to

be correct, unless the applicant shall establish or it shall

otherwise appear, or the respondent shall admit” listed

deficiencies in the state proceeding.

(d). 1

The petitioner carries the burden to prove by “convincing

evidence” that the state court’s factual findings are erroneous.

§ 2254(d); Sumner v . Mata,

(1981). While the

state court's findings of historical fact are presumed to be

correct, legal conclusions and determinations based on mixed

questions of law and fact are subject to de novo review. See

1 Section 2254 was amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. N o . 104-132,

(April 2 4 , 1996). The parties do not address the amendment, apparently assuming that the pre-amendment version of the statute applies in this case, which was filed before April 2 4 , 1996. Retroactive application of the amendment is an unsettled question of law. See, e.g., Berryman v . Morton,

(3d Cir. 1996)(discussing difference in circuits’ opinions on the issue); Lindh v . Murphy,

(7th Cir. 1996)(en banc)(holding amendment applied retroactively in non-capital cases), cert. granted,117 S . C t . 726 (1997). It is unnecessary to resolve that issue in this case, however, because the amendment makes habeas relief more difficult, see Pettiway v . Vose,

9 8 , 200 n.1 (1st Cir. 1996), and even under the more lenient pre-AEDPA rules petitioner is not entitled to relief.

5 Thompson v . Keohane, 116 S . C t . 4 5 7 , 464-67 (1995); Scarpa v .

Dubois,

, 9 (1st Cir. 1994), cert. denied, 115 S . Ct.940

(1995).

A. State Court’s Factual Findings

The state court’s factual findings, as set out in its written order, “Order on Defendant’s Motion to Withdraw Guilty Plea” issued on October 1 9 , 1993, are summarized as follows. Grant was arrested on October 8 , 1990, for the murder of his wife, and he was thereafter held at the Strafford County Jail pending trial. While at the jail, Grant was treated first with Valium and then with the medication Doxepin for depression and anxiety. During this time, Grant’s Doxepin dosage was increased to a therapeutic level of 150 milligrams each day. He continued to be treated with Doxepin until late June 1991 and then resumed treatment in August until March 1992.

A social worker met with Grant twice a week from November 1990 until the end of March 1991. The social worker issued a report in May 1991 in which he described Grant’s mental state during treatment. The report states that Grant had moderate success with Doxepin treatment to relieve symptoms of major depression, anxiety, and sleep disorder. The social worker also reported that Grant’s speech was initially disorganized but

6 became articulate during treatment. He noted that Grant’s insight was good, his judgment was fair, he took responsibility for his actions, and he was courteous and thoughtful during therapy. From the time of his arrest through his guilty plea and sentencing, Grant was represented by Donald Eckberg, an attorney with twenty-five years of experience. Eckberg met with Grant several times to discuss his defense and the option of pleading guilty. He noted that Grant was upset and agitated but not dazed or confused. Eckberg described Grant’s mental state as appropriate for a person in jail and charged with murdering his wife.

In April 1991, the state offered a plea agreement under which Grant would plead guilty to second degree murder and the state would recommend a sentence of twenty-eight years to life. When Eckberg notified Grant of the offer, Grant responded that twenty-eight years was too much, and said that he would agree to twenty-five years. Eckberg consulted the law firm of Twomey and Sisti, a firm experienced in criminal representation, for their evaluation of the state’s offer. Eckberg explained the penalties for first and second degree murder as well as manslaughter to Grant. Grant eventually agreed to a state offer to recommend a

7 sentence of twenty-seven years to life in exchange for Grant’s

guilty plea to second degree murder.

The plea hearing was held on April 1 9 , 1991. Eckberg

reviewed the pros and cons of the guilty plea and the

acknowledgment of rights form with Grant on that day. Eckberg

did not know, and did not ask, whether Grant had taken medication

on the day of the plea hearing. He remembered that Grant did not

appear sedated, confused, or agitated, but instead seemed calm,

rational, coherent, and relieved to plead guilty. During the

hearing, the judge inquired about Grant’s understanding and

intent to plead guilty. The court reviewed the hearing

transcript and determined that the requirements of Boykin v .

Alabama,

(1969), were met.

Based on the evidence presented at the hearing on Grant’s

motion to withdraw his guilty plea, the court determined that

even while being treated with Doxepin, Grant was capable of

communicating, observing and comprehending his situation, and was

not operating in a “Doxepin haze.” The court credited the

state’s psychiatric witness’s testimony that Doxepin was an

appropriate treatment of Grant’s depression and that it did not

have a sedative side effect, that Grant’s recollections

demonstrated that he was oriented and involved in his defense at

the time of his plea, and that his described behavior at that

8 time showed that he had an alert, logical, and rational thought

process. The court further found that the change in Grant’s

behavior reported by three witnesses, who were Grant’s relatives

and friends, was more likely caused by the change in Grant’s

circumstances than by the influence of Doxepin.

The presumed reliability of a state court’s factual findings

is lost if the state court proceeding did not provide a full,

fair, and adequate hearing, or if the petitioner was “otherwise

denied due process of law in the State court proceeding.”

§ 2254(d)(6),(7). Grant also challenges the fairness of the

state court proceeding on his motion to withdraw his guilty plea,

asserting that Judge Mohl was biased against his motion because

the judge’s summary judgment decision in the insurance benefits

action would be undermined if Judge Mohl decided that Grant’s

guilty plea was invalid.

To show unconstitutional bias, Grant must "overcome a

presumption of honesty and integrity in those serving as

adjudicators" by identifying an influence strong enough that it

"poses such a risk of actual bias or prejudgment that the

practice must be forbidden if the guarantee of due process is to

be adequately implemented." Withrow v . Larkin,

5 , 47

(1975); see also Del Vecchio v . Illinois Dept. of Corrections,

(7th Cir. 1994), cert. denied, 115 S . C t . 1404

9 (1995). A speculative, contingent, or remote interest does not

violate the due process requirement. Aetna Life Ins. C o . v .

Lavoie,

(1986). Grant’s assumption, not based

on any evidence of actual bias, that Judge Mohl would be inclined

to rule against his motion to withdraw his plea merely to

preserve the viability of his earlier civil order in the

insurance case is far from convincing, and does not begin to meet

the standard required to establish a due process violation.

Absent other procedural error, and no others are raised

here, the presumption of correctness afforded a state court’s

factual findings is discarded only if the findings are not fairly

supported by the record. § 2254(d)(8); Purkett v . Elem, 115 S .

C t . 1769, 1771 (1995); Pettiway v . Vose,

9 8 , 202 (1st

Cir. 1996). A careful review of the transcripts of the hearing

on Grant’s motion to withdraw his plea, which are included in the

record, shows ample support for the state court’s findings of

fact. Although evidence was presented at the hearing in support

of Grant’s position that his treatment with Doxepin, or his

depressed mental state, incapacitated him to some degree,

significant evidence in the record also supports the contrary

view as found by the state court.

At the plea hearing, the judge asked Grant a series of

questions about his understanding of the charges against him, the

10 terms of the plea agreement, his consultation with counsel, and

the rights he would waive by pleading guilty. After Grant

indicated that he understood by answering “Yes, sir” to each

question, the judge made the following observations: Now, this morning you give absolutely no appearance to me of having taken anything that would interfere with your ability to effectively waive your right to trial, to give up you[r] trial rights. By that I mean, you give no appearance of having imbibed in any form of liquor or other drug, be it medicine or whatever. Are you under treatment for anything?

Grant answered “No, sir,” although he was at that time under

treatment with Doxepin for depression. The judge then asked

Grant’s counsel to confirm his observations of Grant’s ability to

waive his rights, and counsel responded: “Yes, sir. To the best

of my knowledge and observation, M r . Grant is fully aware of

what’s going o n , and he is under the influence of nothing

foreign.”

At the hearing on Grant’s motion to withdraw his plea, the

expert’s testimony conflicted, but the state’s expert testified

that Doxepin did not adversely effect Grant’s abilities to

participate in his defense or plead guilty. Also, although three

witnesses with close ties to Grant described him during the

period before his guilty plea as distraught, confused, not

recognizing or understanding his surroundings, “spacy,” and

unable to communicate as he had in the past, Eckberg testified

11 that Grant was fully able to participate in the plea negotiations

and did not appear confused, disoriented, or sedated then or when

he entered his plea. Accordingly, as the record fairly supports

the state court’s factual findings, they are presumed to be

correct.

B. Constitutionality of Guilty Plea

In a § 2254 habeas proceeding, the validity of a guilty plea

is a question of federal law. See Marshall v . Lonberger,

2 2 , 431 (1983). A guilty plea waives "three constitutional

rights: the right to a jury trial, the right to confront one's

accusers, and the privilege against self-incrimination." Parke

v . Raley,

0 , 29 (1992). To be valid, therefore, the

plea must be the defendant's voluntary, knowing, and intelligent

decision, Brady v . United States,

4 2 , 748 (1970); Boykin v . Alabama,

3 8 , 242-43 (1969), that is a

"voluntary and intelligent choice among alternative courses of

action open to defendant," North Carolina v . Alford,

5 , 31 (1970).

A defendant must be competent to make the choice to waive

his constitutional rights by pleading guilty. Brady,

; see also Johnson v . Zerbst,

5 8 , 468 (1938). To be

competent, a defendant must have “‘sufficient present ability to

12 consult with his lawyer with a reasonable degree of rational understanding’ and [have] ‘a rational as well as factual understanding of the proceedings against him.’” Godinez v . Moran,

(1993) (quoting Dusty v . United States,

(1960) and adopting the Dusty competency standard for guilty pleas).

The state court found that Grant was not operating in a “Doxepin haze” during the plea negotiations and when he pled guilty. Instead, the court found, Grant understood and

comprehended his situation. For instance, Grant interacted with his counsel in the negotiation process directing him to get a more favorable recommended sentence from the state before accepting the offered plea agreement. Grant’s own testimony at his hearing to withdraw his plea indicates that he remembers the circumstances and events leading up to and during his plea. Thus, as the record of Grant’s mental state during the plea negotiations and when he pled guilty shows that he was able to rationally interact with his counsel and to understand the proceedings, he was competent to plead guilty. The record also shows that Grant made a voluntary, knowing, and intelligent decision to plead guilty, albeit one that he later regretted and wished to change. A change of heart does not render a constitutionally sufficient plea invalid.

13 C. Ineffective Assistance of Counsel

Grant contends that his counsel, Donald Eckberg, was

ineffective both in failing to properly inform him of the length

of the sentence the state offered to recommend and in failing to

discover and notify the court that Grant was being treated with

Doxepin during the plea hearing. To show that Eckberg's

representation was constitutionally deficient, Grant must satisfy

the two-part test established in Strickland v . Washington,

(1984). Grant must show that “(1) counsel’s performance

fell below an objective standard of reasonableness, and (2) there

is reasonable probability that, but for counsel’s error, the

result of the proceedings would have been different.” Smullen v .

United States,

0 , 23 (1st Cir. 1996). Whether a

defendant was denied effective assistance of counsel presents a

mixed question of law and fact that must be considered de novo

rather than relying on the findings of the state court. See

Scarpa,

.

Even if Grant could satisfy the first prong by showing that

Eckberg’s performance fell below an objective standard of

reasonableness, he certainly has not demonstrated the prejudice

element of the second prong. To clear the high hurdle of the

prejudice element, Grant “must affirmatively prove ‘a reasonable

probability that, but for counsel's unprofessional errors, the

14 result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.’" Argencourt v . United States,

4 , 16

(1st Cir. 1996) (quoting Strickland,

9 4 ) . When a

defendant has pled guilty, “the prejudice prong of the test

requires him to show that, but for his counsel’s unprofessional

errors, he probably would have insisted on his right to trial.”

United States v . LaBonte,

(1st Cir. 1995).

Grant contends that if Eckberg had properly inquired and

informed the court of Grant’s medication, the court would not

have accepted his guilty plea. However, it has already been

determined that Grant’s judgment was not sufficiently impaired,

if it was impaired at all, by either his mental state or his

Doxepin treatment to question the validity of his guilty plea.

Accordingly, Grant cannot succeed on his argument that he

suffered from the effects of a “Doxepin haze” and that the court

would have rejected his guilty plea for lack of capacity to

plead.

Grant also argues that he would not have pled guilty to

second degree murder if he had been thinking clearly and if he

had been properly advised about the length of the sentence. He

contends that because he did not intend to kill his wife and

believed that her death was an accident, he lacked the requisite

15 intent for second degree murder and, therefore, should not have

pled guilty with the possibility of a life sentence. Grant’s

assertions that Eckberg failed to properly advise him of the

length of the recommended sentence do not constitute prejudice.

The facts found by the state court do not support Grant’s memory

that Eckberg misled him about the sentence by not sufficiently

explaining that the maximum sentence was life. Even if Eckberg

had given Grant inaccurate information about his sentence, “[a]n

attorney’s inaccurate prediction of his client’s probable

sentence, standing alone, will not satisfy the prejudice prong of

the ineffective assistance test.” LaBonte,

. In

addition, Grant admits that he realized just before he pled

guilty, when he reviewed the paper work with Eckberg, that the

recommended sentence would be twenty-seven years to life.

Further, during the plea colloquy, the judge asked Grant if he

understood the terms of the plea agreement and that he “could be

sentenced to a term of up to life in prison.” Grant answered,

“Yes, sir.” Accurate information about the sentence counteracts

any inaccuracy that might have previously occurred and negates

any possible prejudice that might have been caused by Eckberg’s

representations. See id.. As Grant has failed to sustain his

burden of proof on the prejudice element, he cannot succeed on

his claim of ineffective assistance of counsel.

.

16 Accordingly, because the undisputed facts establish that

Grant’s guilty plea was knowingly and voluntarily and

intelligently entered and was not prejudiced by the ineffective

assistance of counsel, the state is entitled to judgment as a

matter of law.

CONCLUSION

For the foregoing reasons, the state’s motion for summary

judgment (document n o . 8 ) is granted. The clerk of court is

directed to close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 6, 1997

cc: Eric Grant John P. Kacavas, Assistant Attorney General

17