Fox v. NHSP Warden 04-CV-193-SM 05/09/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Earle K. Fox, III, Petitioner

v. Case No. 04-cv-193-SM Opinion No.

Bruce Cattell, Warden, New Hampshire State Prison, Respondent

_________________________________ O R D E R

Earle K. Fox, III, a state prisoner serving three

consecutive sentences resulting from convictions for being a

felon in possession of a firearm,1 petitions for a writ of habeas

corpus.

. After preliminary review by the

Magistrate Judge, Fox's petition consists of only one claim: that

his Fourteenth Amendment right to due process was violated when

he was denied a second psychiatric evaluation and expert

assessment of his competency to stand trial. Before the court is

respondent's motion for summary judgment to which petitioner has

objected. For the reasons set forth below, respondent's motion

for summary judgment is granted.

1 Petitioner's fourth conviction resulted in a suspended sentence. BACKGROUND

The procedural and historical background to Fox's petition

is set out in detail in the Magistrate Judge's order dated July

13, 2004 (document no. 3). In brief. Fox was tried in the New

Hampshire Superior Court (Hillsborough County, Southern District)

on four counts of being a felon in possession of a firearm.

Before petitioner was tried, the court held a hearing on his

competency to stand trial. Dr. James J. Adams, a court-appointed

psychiatrist testified. After reviewing the competency

evaluation prepared by Dr. Adams, which concluded that Fox "had a

rational understanding of the proceedings that he was facing and

the present ability to meaningfully communicate with trial

counsel," the state court ruled that Fox was competent to stand

trial. State v. Fox, Nos. 00-S-114 through 117, 01-S-33 through

38, 02-S-18 through 32 and 02-S-191, slip op. at 2 (N.H. Super.

C t . Hillsborough Cty., So. Dist., July 17, 2002). Fox was tried,

convicted, and sentenced to a term of imprisonment at the New

Hampshire State Prison.

Fox appealed his conviction to the New Hampshire Supreme

Court. In his notice of appeal Fox claimed, inter alia, that the

trial court abused its discretion when it refused to grant his

2 request for a second psychiatric evaluation and assessment of his

competency to stand trial. The Supreme Court affirmed Fox's

conviction in an opinion that did not address his argument

concerning a second competency evaluation. State v. Fox,

(2004) .

Fox then filed a petition for a writ of habeas corpus in

this court, asserting that the denial of a second psychiatric

evaluation violated his Fourteenth Amendment right to due

process.

THE LEGAL STANDARD

Passage of the Anti-Terrorism and Effective Death Penalty

Act of 1996 ("ADEPA"),

(d), has significantly

limited the power of the federal courts to grant habeas corpus

relief to state prisoners. A federal court may disturb a state

conviction only when: (1) the state court adjudication "resulted

in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding,"

(d)(2); or (2) the state court's

resolution of the issues before it "resulted in a decision that

was contrary to, or involved an unreasonable application of,

3 clearly established Federal law, as determined by the Supreme

Court of the United States,"

(d)(1); see also

Williams v. Taylor,

(2000).

"AEDPA's strict standard of review only applies to a 'claim

that was adjudicated on the merits in state court proceedings.'"

Norton v. Spencer,

(1st Cir. 2003) (quoting Fortini

v. Murphy,

(1st Cir. 2001); citing Ellsworth v.

Warden,

(1st Cir. 2003)). "If a claim was not

adjudicated on the merits in a state court proceeding, then the

issue is reviewed de novo." Norton,

(citation

omitted).

Here, respondents appear to concede that petitioner's claim,

while exhausted, was never adjudicated on the merits.

Accordingly, the court reviews petitioner's claim de novo.

It is, perhaps, open to question whether petitioner's claim

is, in fact, exhausted. Generally, "a habeas petitioner in state

custody may not advance his or her constitutional claims in a

federal forum unless and until the substance of those claims has

been fairly presented to the state's highest court." Barresi v.

4 Maloney,

(1st Cir. 2002). "To carry that burden,

the petitioner must show that 'he tendered his federal claim [to

the state's highest court] in such as way as to make it probable

that a reasonable jurist would have been alerted to the existence

of the federal question.'" I d . (quoting Casella v. Clemons,

(1st Cir. 2000)).

Claim 2 of petitioner's Notice of Appeal, states, in its

entirety:

Whether the trial court abused its discretion in refusing the defendant's request for a second evaluation and expert analysis of Mr. Fox's competency to stand trial based on his inability to work effectively with Mr. Fox in preparing a defense. The defense sought a second evaluation, given his long history of mental illness and treatment. The State's expert. Dr. James Adams, failed to obtain any records concerning Mr. Fox's prior treatment.

(emphasis added). In his Notice of Appeal, petitioner cites one

United States Supreme Court case, Ake v. Oklahoma,

(1985), which stands for the proposition that "when a defendant

has made a preliminary showing that his sanity at the time of the

offense is likely to be a significant factor at trial, the

Constitution requires that a State provide access to a

5 psychiatrist's assistance on this issue if the defendant cannot

otherwise afford one." I d . at 74 (emphasis added).

While Claim 2 does not mention the United States

Constitution, Claims 1 and 3 invoke the Fourth Amendment, and

Claim 4 the Sixth Amendment. (The remaining claim in the Notice

of Appeal raises a sufficiency of the evidence argument.) Given

petitioner's explicit references to constitutional provisions in

Claims 1, 3, and 4, and the lack of a reference to the due

process clause in Claim 2, a reasonable jurist might not have

recognized Claim 2 as raising a federal constitutional guestion.

But, given respondent's apparent concession and the closeness of

the issue, the court will resolve the doubt in petitioner's favor

and treat the claim as exhausted.

DISCUSSION

Fox says the trial court's denial of a second psychiatric

evaluation and expert analysis of his competency to stand trial

violated his Fourteenth Amendment right to due process.

As the Supreme Court has explained, "[t]he rule that a

criminal defendant who is incompetent should not be reguired to

6 stand trial has deep roots in our common-law heritage," and that

"[i]f a defendant is incompetent, due process considerations

require suspension of the criminal trial until such time, if any,

that the defendant regains the capacity to participate in his

defense and understand the proceedings against him." Medina v.

California,

(1992) (holding that due process

guarantee is not violated by placing burden on defendant to prove

incompetency to stand trial).

Supreme Court precedent in this area is generally limited to

cases determining whether particular procedural safeguards

provided by state law are sufficient to protect a defendant's

federal constitutional rights. See, e.g., Drope v. Missouri,

(citing United States v. Knohl,

(1967); United States ex rel. Evans v. LaVallee,

(1971)). In Drope, the Court explained that

[t]he Court [in Pate v. Robinson,

(1966)] did not hold that the procedure prescribed by [the state statute] was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if followed, was constitutionally adequate. . . . Nor did the Court prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure.

7 Drope,

.

At issue in Drope was the constitutionality of a Missouri

statute that requires "a judge or magistrate [to] , 'upon his own

motion or upon motion filed by the state or by or on behalf of

the accused , ' order a psychiatric examination whenever he 'has

reasonable cause to believe that the accused has a mental disease

or defect excluding fitness to proceed.'"

(quoting Mo. R e v . S tat . § 552.020(3) (1969)). In addition, under

the Missouri statute, the trial court must hold a competency

hearing "if the opinion relative to the fitness to proceed [with

trial] ... is contested." Drope,

. However,

the statute "does not authorize a second examination at state

expense. Instead [the statute] provides that a second

examination is to be made by a physician, chosen and paid by the

party making the request." Williams v. Wyrick,

(8th Cir. 1981) (citing Mo. R e v . S t a t . § 552.020; State v.

Williams,

(Mo. 1980)).

The Supreme Court held that the Missouri procedure "is, on

its face, constitutionally adequate to protect a defendant's

right not to be tried while legally incompetent."

. The Eighth Circuit later explained that although Missouri's

procedures merely permitted, but did not guarantee, an indigent

defendant the right to a second evaluation, "the [F]ourteenth

[A]mendment does not reguire absolute eguality or precisely egual

advantages, as long as the differences do not amount to a denial

of due process or invidious discrimination." Williams,

. The court of appeals held that the Missouri statute does

"not deny an indigent [person] an adeguate or meaningful

opportunity to present his [or her] incompetency, but instead

safeguard the indigent's right that he [or she] will not be tried

while incompetent," ib.., because the psychiatrists "appointed to

examine [a defendant are] not witnesses for the prosecution, but

impartial third parties appointed by the court."

Thus,

absent any evidence "to show that the [psychiatrists] were

incompetent, biased, or prejudiced, or that their procedures were

invalid or improper," the Missouri statute sufficiently protects

the due process rights of an indigent defendant.

The reasoning of Williams applies with egual force in this

case. Here, N.H. R e v . S t a t . A n n . § 135:17 (2005) provides that:

[w]hen a person is charged or indicted for any offense . . . if a plea of insanity is made in court, or said court is notified by either party that there is a question as to the competency or sanity of the person, [the court] may make such order for a pre-trial psychiatric examination of such person by a psychiatrist on the staff of any public institution or by a private psychiatrist as the circumstances of the case may require . . .

Much like the constitutionally adequate Missouri statute, the New

Hampshire statute provides for a neutral, third party psychiatric

evaluation of the defendant's competency to stand trial upon

notice that the defendant's competency is at issue. New

Hampshire's statute actually affords qreater protection to

criminal defendants than does the Missouri statute, by placinq

the burden of provinq incompetency to stand trial on the state,

see State v. Haycock,

(2001); State v. Bertrand,

(1983), while the Missouri statute places the

burden "on the party raisinq the issue." Mo. R e v . S t a t .

§ 552.020(8) .

Because the New Hampshire statute is substantially similar

to the constitutionally adequate Missouri statute in all material

respects, and because Fox offers no evidence "to show that the

[psychiatrist who examined him was] incompetent, biased, or

prejudiced, or that [the psychiatrist's] procedures were invalid

or improper," the New Hampshire statute adequately protects the

10 Fourteenth Amendment rights of criminal defendants both on its

face, and as applied to petitioner.

In his objection to summary judgment, petitioner relies on

Ake v. Oklahoma,

(1985), to suggest that he was

legally entitled to a second psychiatric evaluation to determine

his competence to stand trial. In Ake, an indigent criminal

defendant had been denied access to a psychiatrist even though

the defendant's mental state at the time of the offense was a key

component of his defense.

. The court held that

"when a defendant has made a preliminary showing that his sanity

at the time of the offense is likely to be a significant factor

at trial, the Constitution reguires that a State provide access

to a psychiatrist's assistance on the issue if the defendant

cannot otherwise afford one." I d . at 74. Thus, Ake involved a

defendant establishing incompetence at the time the alleged crime

was committed rather than, as here, at the time of trial. I d . at

70. Establishing incompetence at the time of the offense,

however, is different than establishing incompetence to stand

trial. See Medina,

("In a competency hearing,

the 'emphasis is on [the defendant's] capacity to consult with

counsel and to comprehend the proceedings, and . . . this is by

11 no means the same test as those which determine criminal

responsibility at the time of the crime.'") (quoting Pate,

(Harlan, J., dissenting)).

Moreover, while Ake has been extended somewhat beyond its

own facts, see, e.g., Terry v. Rees,

(6th Cir.

1993) (denial of access to "independent pathologist in order to

challenge the government's position as to the victim's cause of

death" deemed a violation of due process), no court has ruled

that Ake mandates what petitioner here now claims as his

constitutional right: an expert assessment of his competency to

stand trial in addition to that provided by the court-appointed

expert who testified at the pre-trial competency hearing.

Rather, while Ake requires that an indigent criminal defendant be

provided with the assistance of a psychiatric expert to mount an

affirmative defense of insanity, Medina suggests that when a

criminal defendant's capacity to stand trial is at issue, due

process is satisfied by giving the defendant "access to

procedures for making a competency evaluation."

(emphasis added). Here, petitioner was not given the assistance

of his own psychiatric expert but, unquestionably, he was

12 provided with "access to procedures for making a competency

evaluation."

Finally, if due process does not require a second

psychiatrist at government expense when the defendant has the

burden of proving his incompetence to stand trial, as in

Missouri, see Williams,

, due process surely does

not require the provision of such services where, as here, the

burden of proof is on the state to establish that a defendant is

competent.

Because petitioner has identified no constitutional or other

federally established right to a second psychiatric evaluation,

he is not entitled to habeas corpus relief.

CONCLUSION

For the foregoing reasons, respondent's motion for summary

judgment (document no. 9) is granted, and Fox's petition for a

writ of habeas corpus is dismissed. The clerk of the court shall

enter judgment in accordance with this order and close the case.

13 SO ORDERED.

Steven J. McAuliffe Chief Judge

May 9, 2005

cc: Michael J. Sheehan, Esq. Nicholas P. Cort, Esq.

14