UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-60436 ____________________

PHILLIP SHOOK, JR.,

Petitioner-Appellant,

versus

STATE OF MISSISSIPPI; ROBERT L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS,

Respondents-Appellees. ____________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (2:93-CV-118-D-B) ____________________________________________________________ November 26, 2001

Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL, District Judge1:

PER CURIAM:2

For this challenge to the denial of habeas relief, at issue

are: whether the record fairly supports the state trial court’s

finding that Phillip Shook, Jr., who was/is profoundly deaf, was

competent to stand trial; and whether the district court’s

identical competency finding, following two federal evidentiary

hearings, is clearly erroneous. Shook contends he was deprived of

1 United States District Judge of the Eastern District of Texas, sitting by designation. 2 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. due process and his ability to communicate with counsel because of

his hearing impairment and the state trial court’s refusal to

continue the trial until he learned sign language. AFFIRMED.

I.

The state trial court, based on several hearings, ruled

Shook’s hearing impairment did not render him incompetent to be

tried. A jury convicted Shook in 1987 for aggravated assault and

firing a gun into an occupied dwelling; he was sentenced to 30

years imprisonment. Shook v. State of Mississippi,

(Miss. 1989). The Mississippi Supreme Court affirmed.

During the habeas proceeding in district court, Shook had two more

competency hearings; one each before the magistrate judge and

district judge. Because, as discussed infra, the competency issue

at hand is a finding of fact, and in the light of the numerous

hearings on the issue, we must go into considerable detail in

describing the record.

A.

Shook has been profoundly deaf since birth. He did not know

sign language at time of trial. Instead, he had been trained in

lipreading, also known as speech-reading.

Shook began wearing a hearing aid when he was a year old. He

attended the Memphis Oral School for the Deaf for one year. That

school utilized the “oral” method of communication, involving

speech-reading rather than sign language. When he was in the

2 second grade, Shook’s parents enrolled him in Strider Academy, a

private school in his hometown of Charleston, Mississippi, where he

was educated with hearing children. Although he failed some

classes at Strider, he did not have to repeat any grades and

received a diploma. While at Strider, he played football.

Following graduation from high school, Shook attended

Northwest Mississippi Junior College (NMJC) for one semester (fall

1984), where he was on the football team. While at NMJC, he began

dating Cathy Thaggard; they became engaged to be married. Shook

transferred to the University of Mississippi for the 1985 spring

semester. Shook and Thaggard broke off their engagement that June.

In the early morning hours of 5 September 1985, 18 rounds from

a high-powered rifle were fired through the window of Thaggard’s

bedroom in her parents’ home, where she was sleeping. Shook,

. She was severely wounded; her left arm and leg

had to be amputated.

.

Shook was questioned about the incident and consented to the

search of his dormitory room at the University and of his vehicle.

. He was arrested a week after the incident and

charged with aggravated assault and firing into an occupied

dwelling. Following his indictment that October, he remained free

on bail pending trial.

3 B.

In December 1985, Shook filed several pretrial motions based

on his hearing impairment. He sought: appointment of an oral

interpreter; a stay of the proceedings until a system could be

developed to communicate with him; and simultaneous stenographic

transcription of all proceedings (in addition to an oral

interpreter). At the hearing on those motions on 30 January and 7

February 1986, six witnesses testified on behalf of Shook.

University of Mississippi speech/language pathologist Dr.

Kellum testified: Shook could not hear speech; testing performed

when Shook enrolled at the University of Mississippi in 1985

revealed multiple articulation errors and significant difficulties

in language comprehension and use of verbal language; Shook

frequently answered questions inappropriately, which indicated he

did not speech-read successfully; Shook had very poor communicative

skills, and his chance for improvement was minimal, even with

language and speech therapy; Shook’s estimated ability to use

language was equivalent to that of an 11 or 12-year-old;

individuals who are taught to speech-read generally can understand

about one-third of what is being said; and a registered oral

interpreter for the deaf would best be able to communicate with

Shook.

Speech pathologist Gore testified: she evaluated Shook in

1981 and worked with him through December 1982; testing in 1981,

4 when Shook was 16 years old, revealed his overall linguistic

functional equivalent age was 10½ years, and his age-equivalent

score on a vocabulary test was 6½ years; Shook’s lipreading skills

were very poor; she worked with Shook on language functioning for

about one year, teaching him to use visual cues, but he stopped

attending sessions with her due to his involvement in other

activities; at the time of his discharge, Shook was able to speech-

read two-to-three-word phrases with repetition, but was unable to

understand longer phrases; she believed Shook would respond “yes”

and “no” without understanding what was being said to him; it was

difficult for Shook to grasp abstract concepts, such as

constitutional rights, while it was much easier for him to grasp

concrete ideas; it would be difficult for Shook to follow

conversation among various individuals in a courtroom; over time,

Shook could be assisted to understand such conversation through use

of a simple writing procedure and explanation; and a teacher of the

hearing-impaired or a speech pathologist who worked with the

hearing-impaired would be appropriate to assist Shook.

Dr. Willingham, a special education counselor and clinician

who taught Shook in 1969 and 1970, testified: abstract concepts

are very difficult to teach to the hearing-impaired; Shook would

attempt to appear normal in group situations, although he might not

understand what others were saying; he could understand to some

degree what another person was saying during a one-on-one

interaction; she believed an oral interpreter could help Shook over

5 time; and she spoke with Shook shortly before the hearing and

estimated that his language level was about where it had been in

1970, approximately 16 years earlier.

Shook’s mother testified: she and her husband used a

telephone amplifier to translate telephone conversation to Shook;

Shook called people on the telephone to convey information, but he

did not know whether the person called understood what he had said

and could not hear what that person said to him; he would dial a

number and begin speaking, not knowing whether the person called

had answered; Shook drove vehicles, hunted, went to movies, and

watched television; he had a tape player in his room, but she did

not know if he ever played it; she would have to go upstairs to get

Shook because he could not hear her call from downstairs; she had

to use repetition when communicating with Shook; she sometimes

communicated with Shook in writing but had to write in simple

sentences, using simple language; people who were around Shook long

enough learned how to communicate with him; she and other family

members helped Shook with written school assignments; Shook had no

interpreters while attending high school and NMJC; Shook and

Thaggard were able to communicate; and Shook did poorly with

adjectives and adverbs, best with nouns and pronouns, and knew

nothing about tenses.

Shook’s father testified: he was able to communicate with

Shook; Shook is unable to hear words but can hear close, low-

pitched sounds; when Shook was upstairs and the father wanted him

6 to come downstairs, the father switched on a light as a signal;

Shook did not speak in complete sentences and was unable to write

complete sentences without assistance; Shook’s sister helped draft

letters from Shook to Thaggard; he and Shook’s sister did Shook’s

schoolwork while Shook was in high school and at NMJC; when Shook

played football, he memorized plays and reacted to hand signals;

when the father spoke with Shook after Shook was arrested, and

asked whether he understood his rights, Shook responded that he had

a right to attend school and football games; Shook would not

understand that he had a right to an attorney and had difficulty

understanding discussions with defense counsel; he and other family

members would go over the discussions in writing with Shook after

his meetings with counsel; and, although Shook could read, Shook

did not understand what he read.

Shook took the witness stand, but failed to respond to many of

counsel’s questions and gave unintelligible answers to others; he

either did not understand or did not respond to counsel’s questions

about his arrest, his constitutional rights, and the search of his

room at the University.

Defense counsel did not testify, but stated: he had made

repeated, unsuccessful attempts to communicate to Shook the nature

of the proceedings and the basic concepts of his situation; he did

not believe Shook understood the charges against him; and he was

not sure an oral interpreter would be of much assistance.

7 The State called nine witnesses. Pierce, who worked in the

NMJC business office, testified: Shook visited her office on

numerous occasions, the first of which involved his request for her

assistance with a parking ticket he had received; Shook did not

have difficulty communicating his wishes to her, and also asked her

questions about her family and personal life; and she usually

understood what Shook was trying to say to her but sometimes asked

him to repeat himself.

Franklin, head football coach at NMJC, testified: he had some

difficulty understanding Shook but was able to communicate with

him, with the occasional assistance of Shook’s teammates; and he

never felt Shook did not understand him.

Fennell, Shook’s high school typing teacher, testified: she

faced Shook when giving directions to the class but otherwise made

no accommodations for him; and Shook followed directions, was able

to communicate with her and would let her know if he did not

understand her.

Bradshaw, headmaster and football coach at Strider, testified:

he was able to communicate with Shook with some extra effort; Shook

was able to understand and follow directions that were made clear

to him; Shook was able to understand and complete written tests

given in class; he had seen Shook dancing at school functions and

had observed Shook speak on the telephone; and, on occasion, he

thought Shook took advantage of a claimed lack of understanding.

8 Spence, who also coached and taught Shook at Strider,

testified: he was able to communicate with Shook, although he had

to repeat instructions and sometimes had difficulty understanding

Shook’s speech; Shook had to obtain notes from other students in

classes, because he was unable to take all of the notes himself;

and Shook was able to follow directions for tests administered in

class, without extra help or explanation.

Wolfe, Thaggard’s close friend and roommate at NMJC,

testified: Shook was able to communicate well with her, Thaggard,

and others; she observed Shook taking notes in a history class, and

they often got notes from each other for that class; Shook would

not begin to speak on the telephone with her or Thaggard until one

of them answered the telephone, and he could distinguish between

their voices on the telephone; Shook became upset whenever she or

Thaggard attempted to write notes to him or otherwise made obvious

attempts to accommodate his hearing impairment; and she had

observed Shook turn from the front seat of an automobile when his

name was called from the back seat.

Fillyaw, who had also dated Shook, testified: she had to face

Shook when speaking to him and repeat herself; and Shook called her

on the telephone and she was able to understand him, and he seemed

to understand her on some occasions, but not others.

Thaggard’s mother testified: Shook had been in her home 75-

100 times; Shook generally gave appropriate responses in

communicating with her and would let her know if he did not

9 understand something; when she and her husband visited Shook’s

home, she observed Shook respond when Shook’s father, who was

downstairs, called Shook, who was upstairs; she had spoken with

Shook on the telephone, was able to understand him, and he appeared

to have understood her; Shook was able to communicate with family

members; and Shook sometimes answered her without her facing him.

Consistent with his wife’s testimony, Thaggard’s father

testified about his observations of Shook’s communicative

abilities.

Shook called seven witnesses in rebuttal. Hearing-aid

dispenser Fortner, who had known Shook since 1970, when Shook was

five years old, testified: Shook tries to conceal his hearing-

impairment; the main benefit Shook received from a hearing aid was

knowledge of the presence of a sound or voice; Shook scored 40

percent on a word test when combining hearing aids with speech-

reading and watching facial expressions; and he had been unable to

make Shook recognize his voice on the telephone.

Audiologist Bagwell testified: objective audiological tests

conducted the day before the hearing indicated Shook had profound

hearing loss; without a hearing aid, Shook would not be able to

hear normal conversation; and she doubted Shook could hear normal

conversation with a hearing aid.

University of Mississippi audiologist Brooks testified: Shook

might be able to distinguish voices and hear vowel sounds, which

are carried by lower frequencies; although consonant information is

10 carried by higher frequencies, where Shook suffered the most

damage, consonant information is more visible on the lips than

vowel information; Shook was not a successful example of an oral

deaf person because of the unintelligibility of his speech and his

very low language level; Shook could not function using speech and

hearing in a way that would meet his needs; she did not believe a

speech-reading course would improve Shook’s abilities; Shook lacked

the language to understand abstract concepts such as constitutional

rights, alibis, plea bargaining, and pleading guilty or not guilty,

and would have difficulty communicating with his attorney; she

doubted that appointment of an oral interpreter would be of much

assistance to Shook, because such interpreters are most effective

for hearing-impaired persons who have good language, reading, and

writing skills, and the interpreter would not be able to make up

for Shook’s years of inability to understand the world around him

because of his hearing impairment, but appointment of an oral

interpreter would be better than doing nothing, because the

interpreter might be able to break down questions about specific

events in a way that Shook might understand; and she believed Shook

knew he was in trouble, understood he might go to jail, and

understood that some of the people in the courtroom wanted to put

him in jail, while others wanted to keep him out of jail.

Three members of the Charleston community, testified about the

difficulties they had experienced communicating with Shook.

11 Shook’s sister testified: she wrote papers for him while he

was in high school, and she and her father assisted Shook with his

other schoolwork; Shook could use a telephone only with assistance

and could hear pitches, tones, and sounds; she had attempted to

explain some of the proceedings to Shook but had been unable to

communicate to him the concepts of courts and the American justice

system.

At the conclusion of the hearing, Shook’s counsel requested

that Shook be examined by a clinical psychologist at the

Mississippi School for the Deaf, because independent psychiatric

counseling had been unsuccessful.

Later, in February 1986, the state trial court granted Shook’s

motion for appointment of an oral interpreter. That March, the

trial court conducted a conference with Shook, his counsel, counsel

for the State, and Griffin, a certified oral interpreter who

specialized in legal interpretation, in order to make a preliminary

determination, pursuant to Mississippi law, whether Griffin was

able to interpret accurately Shook’s statements and the proceedings

in which Shook would be involved. After Shook and his counsel met

privately with Griffin, Shook’s counsel stated he was satisfied

Griffin was qualified and should be appointed. In its order

appointing Griffin, the state trial court made a preliminary

determination, concurred in by Shook and his counsel, that Griffin

12 was able to interpret accurately the statements of Shook and the

proceedings in which he might be involved.

The day after the conference with Griffin, however, Shook

filed a motion asserting he was incompetent to stand trial and

requesting a psychological and educational evaluation by a

psychologist with expertise in evaluating deaf persons. That May,

he moved for a continuance until he could learn sign language.

That September, the trial court conducted a hearing on those two

motions. Shook called two witnesses; the State, none.

Dr. Vernon, a psychologist who specialized in deafness,

testified: he met with Shook for three to five hours, met with

members of Shook’s family, and reviewed reports of tests performed

on Shook; Shook cannot hear speech well enough to understand it,

with or without hearing aids; he was unable to evaluate Shook

psychologically because of Shook’s inability to communicate; Shook

needed a thorough psychological evaluation, but it could not be

performed until Shook learned sign language; even with an excellent

interpreter, such as Griffin, Shook would probably understand, at

best, five percent of what was going on; a deaf person who does not

understand sign language would only understand two to three percent

of what was going on at trial; deaf persons habitually smile and

indicate they understand what is being said to them, rather than

admitting otherwise; Shook could not assist counsel in the

preparation of his defense; the method of educating Shook had been

wrong and had caused irreversible damage; the only way Shook could

13 acquire a reasonable understanding of the proceedings would be for

him to learn sign language; if Shook were totally immersed in a

deaf community, such as Gallaudet College in Washington, D.C., he

was 95 percent certain Shook would learn sign language proficiently

to stand trial in one year, but he did not know whether Shook would

be admitted to Gallaudet; Shook understood he was charged with a

crime and had a “very vague” concept of the nature and consequences

of the charges, but he did not understand the concept of punishment

if convicted; the indictment was written at a language level well

beyond Shook’s capability; Shook’s IQ was 106 or 108, slightly

higher than average; he saw no evidence of mental illness in the

tests he performed on Shook; he did not believe Shook could testify

at trial, even with the oral interpreter’s assistance; and he

believed Shook could differentiate right from wrong but believed

Shook could not understand abstract legal concepts. In response to

questioning by the trial court, Dr. Vernon conceded that, even if

Shook were taught sign language, he could not promise Shook would

be able to assist counsel and understand the proceedings.

The court-appointed oral interpreter, Griffin, testified:

sign language communication with a deaf individual is much quicker

than oral communication; she did not know if Shook would comprehend

more of the proceedings and communicate better if he signed; she

did not believe Shook understood everything that she was

interpreting for him, even when he indicated he did; Shook

frequently responded to her inappropriately, indicating a lack of

14 understanding; and Shook occasionally wanted to comment to her and

his attorney about testimony, but his attorney had made it clear he

did not want to be interrupted during the proceedings.

Shook’s counsel submitted an affidavit in support of the

motions, stating: it was impossible for him to determine the

nature and extent of what Shook was capable of understanding or

whether Shook was mentally capable of assisting in his defense;

therefore, a psychological evaluation was essential to evaluate

Shook’s competence to stand trial.

At the conclusion of that hearing, the trial court granted the

motion to the extent of ordering Shook to submit to a psychological

evaluation at the Mississippi State Hospital to determine both his

competency to stand trial and his criminal responsibility (sanity

at time of offense). The court stated Griffin, the interpreter,

was to be present during Shook’s evaluation.

The subsequent written order, however, did not include the

directive about Griffin; she did not accompany Shook. Shook was

admitted to the Mississippi State Hospital on 8 October 1986, and

discharged approximately a month later.

By letter dated 10 November 1986, Mississippi State Hospital

psychologist Dr. Robertson and neurologist Dr. Lancaster reported

to the trial court the unanimous opinion of the hospital staff:

Shook understood his legal situation; could cooperate with his

attorney; and was competent to stand trial. The letter explained:

Shook initially answered questions regarding why he was in jail and

15 what kind of trouble he was in, and he had no impairment in

recognizing the victim’s name and answering other questions; in

later interviews, Shook acted as if he did not understand anything,

responding, “I don’t know”, or “I don’t understand”, regardless of

the question asked, except for his age, and refused to write any

answers to questions, stating he could not read, write, or speech-

read; during his hospitalization, Shook socialized well with other

patients, played cards and basketball, served as a basketball

referee, read newspapers and magazines, and watched television; and

the hospital staff indicated Shook could understand and communicate

as long as staff members spoke slowly. Drs. Robertson and

Lancaster diagnosed Shook as malingering regarding his presented

problems of an inability to read, write, or understand anything

said. They concluded that, because Shook’s main communicative

problem was that he needed a speaker to speak slowly enough for him

to speech-read, the only requirement for trial would be that it

proceed sufficiently slowly to allow Shook to speech-read.

On 18 November, approximately a week after the date of the

report, the trial court denied Shook’s continuance and incompetency

motions.

On 5 January 1987, Shook moved to exclude the Mississippi

State Hospital report and for the court to reconsider delaying

trial until he could learn sign language. At a hearing that day,

the court denied that motion, as well as Shook’s motion that he not

be tried until an adequate communication system could be developed.

16 Shook’s counsel withdrew his motion for simultaneous transcription

and instead requested daily transcription.

Jury selection commenced two weeks later, on 19 January.

During voir dire, Shook renewed his motion for a stay until he

could learn sign language. The following morning, at a conference

in the judge’s chambers, Shook’s counsel again moved for a

continuance on that basis. At that conference, Griffin, the oral

interpreter, testified regarding problems communicating with Shook.

At the conclusion of that conference, the court denied the

motion. The court quoted extensively from the Mississippi State

Hospital report, and stated:

I had the opportunity yesterday to observe [Shook] in open court at counsel table along with his attorney and with the oral interpreter, Ms. Griffin.... I even permitted [Shook]’s father ... and ... sister ... to be at counsel table. But I observed at least on a couple of occasions [Shook] simply looking away from Ms. Griffin. There’s got to be cooperation on the part of everyone including [Shook].

....

So I recognize the problems indicated by [Shook’s counsel] in communicating. Through my months now of observation, I think some of the problems are [Shook]’s unwillingness to cooperate.

I’ve done everything I feel like within my power and authority to assure [Shook] ... a constitutionally fair trial. Taking into consideration his hearing impairment, I appointed an oral interpreter at [Shook]’s request. She’s here assisting. And I think and truly believe that she can be of valuable

17 assistance to this Court and especially to [Shook] if [Shook] will let her.

Certainly, from the standpoint of understanding legal terminology, it’s been the experience of this Court that well-educated people who have no hearing impairment or any problems at all come into court without an understanding of the proceedings or how court is conducted and have problems. So I don’t think it’s anything unusual about having problems with legal terminology.

... I was satisfied and I am still satisfied it would be of no benefit to delay the trial for a year or longer to attempt to teach [Shook] to sign, and even not knowing then what the situation would be.

Again, I feel strongly that [Shook] is being afforded a constitutionally fair trial.

Throughout trial, Shook’s father and sister were allowed to

remain at counsel table with Shook, his interpreter, and his

attorney. Several of the witnesses called by the State testified

consistently with their pretrial testimony regarding Shook’s

communicative abilities. In addition, the victim testified that

communication with Shook was difficult when he wanted it to be. At

one point, during the testimony of a witness, defense counsel asked

for a pause so that the interpreter could explain the testimony to

Shook; the trial court allowed it upon being advised by the

interpreter that she needed some time. The transcript reflects no

other requests by Shook’s counsel or the interpreter for breaks in

the testimony to facilitate communication with Shook.

18 At the close of the State’s case in chief, Shook renewed his

previous motions based on his hearing impairment. The trial court

denied them, stating:

Lay witnesses in pretrial hearings and ... during ... trial have stated clearly and unequivocally that they could communicate with [Shook]; that they could communicate to [Shook] what they were trying to communicate and that he in turn could communicate to them what he was trying to communicate. The witnesses have testified ... that in essence he could understand when he wanted to and he could make it difficult when he did not want to understand....

I’m satisfied, again, that this court is making every effort and is, indeed affording to [Shook] every constitutional right available to him; that he is receiving a constitutionally fair trial.

The court has permitted ... members of [Shook]’s family to be with counsel and ... [Shook] at counsel table to assist in communication....

This court is doing everything that it can conceivably think of to make sure that [Shook] is receiving a fair trial and is understanding the proceedings.... I’m satisfied all of this is being done. I’m satisfied he can certainly understand and appreciate the nature of the proceedings.

... I’m satisfied that if he will cooperate with his family[,] ... oral interpreter[,] and ... his attorney that the communication channels are open and that [Shook] is being afforded all his constitutional rights.

Shook presented the testimony of several witnesses who

testified consistently with their testimony in pretrial hearings

regarding his hearing impairment and communicative problems. Dr.

19 Vernon’s testimony included his opinion, tendered at the pretrial

hearing, that Shook was incompetent to stand trial and would remain

so until he was taught sign language, and he added: the

Mississippi State Hospital malingering diagnosis was not accurate;

and anyone who would assume responsibility for psychologically

evaluating a person with whom they could not communicate and who

had a problem with which they had no experience would be guilty of

the “grossest malpractice”. Shook also called Dr. Haws, a licensed

psychologist, who testified: it would be impossible for her to

examine Shook because she could not communicate with him; and she

would question the ethical standards of any psychologist or

psychiatrist who attempted to examine him, given the degree of his

hearing impairment and lack of verbal skills.

In rebuttal, the State called witnesses who testified

consistently with their pretrial testimony regarding Shook’s

communicative abilities, as well as another of Shook’s high school

teachers, who testified she was able to communicate with Shook and

that he was able to read, write, and take written tests in class.

In addition, the State called as witnesses Drs. Lancaster and

Robertson, who had conducted the court-ordered competency

evaluation of Shook at the Mississippi State Hospital. They

testified consistently with their report to the court regarding

Shook’s competency and sanity at the time of the offense, including

details about Shook’s evaluation; and each also testified Shook was

competent to stand trial and knew the difference between right and

20 wrong at the time of the offense. In explaining the malingering

diagnosis, Dr. Lancaster testified Shook was exaggerating his

communication problem, not his speaking or hearing problems.

Post-verdict, Shook moved for a new trial, asserting, inter

alia: he was denied due process because of his hearing impairment;

and the trial court erred by allowing the experts from the

Mississippi State Hospital to testify, because they had no

expertise in evaluating hearing-impaired persons and did not have

an interpreter present when they evaluated him. The motion was

denied.

C.

On direct appeal, the Mississippi Supreme Court rejected

Shook’s claim that the trial court should have delayed the trial

until he could be taught sign language, stating:

The [trial] court had no way of ascertaining whether [Shook] would learn [sign] language nor the degree to which it could improve his real ability to understand and communicate. [Shook] could read, and the record shows that the interpreter kept him well informed as the trial progressed. We can appreciate that it was not easy for counsel to discuss the defense with him, but, clearly it could be done. A trial should not be postponed indefinitely if any reasonable alternative exists. Additional time before the trial and breaks during the trial should be allowed, if good cause is shown, to permit counsel and the defendant to effectively communicate. No complaint on that score was made here. This record shows, beyond doubt, that the trial judge reasonably concluded that [Shook] could communicate with those around him sufficiently to permit him to function in a reasonably

21 normal fashion. He was not illiterate nor blind. He is a high school graduate and was a college student. During the trial he was kept advised of what was being argued and what the testimony was.

Shook,

(emphasis added).

The court also rejected, as “totally refuted by the facts”,

Shook’s related claim he was physically, and perhaps mentally,

incompetent to stand trial.

. After quoting at length

from the trial court’s findings, the State Supreme Court stated:

The trial judge, on the scene and observing the defendant and the witnesses, must be allowed considerable discretion, and where it is apparent that the judge has demonstrated an awareness of the issues involved and concern for the protection of the rights of the defendant, as here, his judgment must be accorded great weight and respect....

D.

Shook, pro se, applied for federal habeas relief in 1993,

asserting, inter alia, that the trial court: violated his

constitutional rights by failing to delay trial until he could be

taught sign language; and denied him due process by forcing him to

trial when he was physically, and perhaps mentally, incompetent.

1.

The magistrate judge appointed counsel for Shook and set an

evidentiary hearing. The State moved to rescind the hearing order,

contending the evidence regarding Shook’s competence to stand trial

22 had been developed fully in state court. The motion was denied.

(In his post-hearing report and recommendation, the magistrate

judge took the position that the presumption of correctness

ordinarily accorded state fact-findings should not apply because,

in his opinion, Shook was denied due process in the state court

proceedings.)

At the evidentiary hearing before the magistrate judge,

Shook’s father and sister testified consistently with their

pretrial testimony regarding Shook’s communicative problems. His

father testified further that: Shook passed him a note at trial

stating he did not understand Griffin, the oral interpreter; at a

conference in the trial judge’s chambers, Griffin had told Shook’s

counsel that Shook was understanding only about five percent of the

proceedings; and he did not believe the court proceedings could

have been slowed sufficiently for Shook to be able to lipread

testimony. Shook’s sister testified: Griffin tried to communicate

orally with Shook at trial, but Shook could not understand; Shook

could not communicate with his counsel; and Shook did not

understand the nature of the trial proceedings.

Shook’s trial counsel testified: Shook was functionally

illiterate; he did not think Shook would have understood the

testimony even if the trial had proceeded more slowly or more

breaks had been taken; he did not believe Shook understood enough

of the proceedings to receive due process; he could not communicate

with Shook, except in the most primitive fashion, and it was

23 impossible to explain to Shook legal concepts, evidentiary issues,

plea bargaining, and court proceedings, including whether Shook

should testify; he did not think Shook had a factual or rational

understanding of the proceedings; and, in the light of Shook’s

hearing impairment, counsel had substantial doubt about whether

Shook was physically competent to stand trial.

Shook presented the affidavits of Drs. Kellum, Bagwell, and

Vernon, each of whom had testified pretrial and at trial. In

addition to repeating much of the substance of her previous

testimony, Kellum’s affidavit stated: Shook’s language skills in

1986 were so poor that he could not effectively understand

communication even with the aid of a qualified interpreter; Shook

lacked the communication skills necessary to consult with his

attorney at trial; Shook had no factual or rational understanding

of the proceedings; and a malingering diagnosis for Shook would not

be valid unless the person evaluating him had extensive experience

and training with the deaf and had an interpreter present during

the evaluation.

Bagwell’s affidavit repeated the substance of her previous

testimony and added: a psychologist without adequate training in

communicating with the hearing-impaired would not be able to

determine whether a person was malingering concerning a hearing

impairment; when she evaluated Shook in 1986, he did not have

sufficient ability to consult with his attorney with a reasonable

24 degree of rational understanding and did not have a rational or

factual understanding of the proceedings.

Dr. Vernon’s affidavit repeated much of the substance of his

previous testimony, including his opinion that, until Shook learned

sign language, he was incompetent to stand trial, and his criticism

of the competency evaluation performed at the Mississippi State

Hospital. He added that the trial’s pace could not have been

slowed sufficiently for Shook to have understood the testimony.

The State presented two expert witnesses. Dr. Stringer, the

Executive Director of the Mississippi Association of the Deaf,

testified: when a deaf person has been educated orally, as had

Shook, that is their language and signing is not done; a hearing-

impaired adult who had been trained orally would need about two or

three years to be trained in sign language; and he had no

complaints about the assistance given Shook at trial.

Neely, the Director of Deaf Services for the Mississippi

Department of Vocational Rehabilitation, testified: appointment of

an oral interpreter was appropriate; he was “not certain” he would

agree trial should have been delayed until Shook could learn sign

language; and it would take two to three years for a person such as

Shook, who had been orally educated, to learn sign language.

In a videotaped deposition submitted by Shook post-hearing,

Griffin testified: Shook was a poor to fair lipreader and could

follow the gist of communication if he knew the context of it and

was familiar with the speaker; at trial, she communicated with

25 Shook by writing the substance of the testimony, but her sentences

often had to be restructured or rephrased to accommodate his

limited vocabulary, and she was often still writing about a

previous witness after the next witness had begun testifying; Shook

had about a third-grade reading/comprehension level; if Shook had

known sign language, interpretation would have been much simpler;

considering Shook’s limited command of the English language and

limited speech-reading abilities, she could think of nothing more

that could have been done to make the proceedings clearer to him,

short of extending the trial for several weeks; and she believed

that, if Shook were totally immersed in a signing environment, he

could learn sign language proficiently within a year. When asked

whether Shook had the ability to communicate with defense counsel

with a reasonable degree of rational understanding, Griffin

responded that Shook could not have done so during the trial

itself, because of the logistics. When asked whether Shook

understood the nature of the proceedings, she testified he

understood the charges against him and knew there were potential

negative consequences he wished to avoid.

The magistrate judge recommended granting habeas relief based

on incompetence to stand trial, stating: while it was obvious the

trial court took extraordinary care in handling the matter, it

erred in its competency ruling by relying on the testimony of lay

persons and Mississippi State Hospital physicians who had no

expertise in working with deaf persons. According to the

26 magistrate judge, the only experts worthy of the name, Drs. Vernon

and Griffin, testified to Shook’s “complete inability to comprehend

the proceedings against him and to communicate with his attorney”.

The magistrate judge concluded: Shook’s request to delay trial for

a year in order to learn sign language was not unreasonable and

should have been granted; and the failure to do so violated Shook’s

due process rights, by requiring him to stand trial while

incompetent.

2.

The district court ruled that the record was incomplete and

that another evidentiary hearing was necessary to address Shook’s

ability at trial to comprehend the English language in written

form, inasmuch as that was the method of communication primarily

used by the interpreter and others assisting Shook at trial. See

Louis v. Blackburn,

, 1109 & n.3, 1110 (5th Cir. 1980)

(in resolving “credibility questions involved in the determination

of critical fact issues affecting a [criminal defendant’s]

constitutional rights”, a district judge may either accept the

magistrate’s determination or “reject[] the magistrate’s decision

and com[e] to an independent decision after hearing the testimony

and viewing the witnesses” (emphasis added)).

At that second federal evidentiary hearing, Drs. Kellum and

Gore testified regarding Shook’s inability to communicate in

written language and his lack of comprehension of the trial

27 proceedings. His trial counsel testified, repeating the substance

of his testimony in the first federal evidentiary hearing, and

adding: Griffin’s method of communicating with Shook at trial, by

taking notes during the proceedings, was not an effective method;

Griffin testified at an in-chambers hearing during trial, and

likewise told him repeatedly throughout trial, that Shook was not

grasping what she was attempting to tell him; and he did not ask

for trial recesses because it would not have made a significant

difference in communicating with Shook.

Two of Shook’s high school teachers testified for the State

that, based on his performance in classes they taught, Shook could

understand the written language. In addition to submitting written

statements by two other teachers, each of whom stated Shook was

able to read and comprehend written material in their classes, the

State submitted Shook’s academic records from Strider and NMJC, and

his college entrance certificate.

Wolfe testified, consistently with her pretrial and trial

testimony, regarding Shook’s ability to communicate in writing.

The Mississippi Highway Patrol officer who administered a written

commercial driver’s license examination to Shook testified about

Shook’s scores on that examination. The victim testified she

understood the letters Shook wrote to her during their courtship.

At the conclusion of the hearing, the district court granted

Shook’s request to take the telephonic depositions of Griffin and

Dr. Vernon, after they had reviewed the notes Griffin took during

28 trial. The depositions, taken the following month, focused on

Shook’s ability to understand written language.

Dr. Vernon repeated his opinion that Shook was incompetent to

stand trial until he learned sign language and testified further:

Shook read at a third-to-fifth grade level; Griffin’s notes were

written at a level in excess of Shook’s abilities, and he would not

have understood enough of it to adequately participate in his

defense; and Shook was incompetent to stand trial based on his

ability to comprehend the English language in written form. Dr.

Vernon acknowledged, however, that sign language vocabulary is very

limited and that there are no signs for almost all legal terms; and

that, even if Shook were trained in sign language, questions would

have remained regarding his ability to understand abstract legal

terms.

In her telephonic deposition, Griffin testified: she

communicated with Shook using a combination of writing and allowing

him to speech-read, along with visual cues, gestures, and diagrams;

she attempted to reword and restructure language to make it more

comprehensible to him; Shook’s reading comprehension level was very

elementary, so she tried to write for him on a third-grade level;

Shook was a very poor speech-reader and relied on written

communication much more than speech-reading; she was able to

communicate to Shook the gist of all of the testimony and even some

of the procedural matters but not all of the detail; considering

Shook’s abilities and the available technology, she did not know

29 what else could have been done for him short of delaying trial so

he could learn sign language; and Shook understood the charges

against him and knew the proceedings could result in serious

consequences. When asked whether she had the impression Shook

understood the testimony while it was presented, she responded:

I think that he did. And if he didn’t, he usually let me know. And he seemed to be able to tell which people were testifying — saying things that were favorable to his case, because he would nod and smile and seemed glad about some testimony. There was other testimony given where he would shake his head and even want to refute the testimony maybe in writing to me.

The district court disagreed with the magistrate judge’s

finding that Griffin and Vernon both testified to Shook’s “complete

inability to comprehend the proceedings against him”. Shook v.

State of Mississippi, No. 2:93-CV-118-D-B,

, at *4

(N.D. Miss. 8 June 2000) (internal quotation marks and citation

omitted). Although the district court did not question Dr.

Vernon’s expertise or credibility, it found more persuasive the

totality of the testimony of all others who testified, especially

Griffin’s.

The district court noted that Dr. Vernon had spent

less than half a day with Shook 14 years earlier and had reviewed

the test evaluations made by others. Id. at *6. It found his

testimony was “more of a generalization from studies conducted,

rather than any specific observation”. Id.

30 The district court found: Shook could communicate

sufficiently with those around him to permit him to function in a

reasonably normal fashion; Griffin kept Shook well informed as the

trial progressed; and the trial court recognized Shook’s deafness

and took the appropriate steps to protect his rights by appointing

an oral interpreter to aid him in the only language he had ever

known. Id. at *5. It found Griffin’s testimony “convincing as

evidence of [Shook’s] comprehension and his present ability to

consult with his lawyer with a sufficient degree of rational

understanding”. Id. The district court concluded: the state

trial court “took all reasonable measures which adequately

safeguarded [Shook]’s constitutional rights”; and the trial court’s

finding that, with Griffin’s assistance, Shook was competent,

“reflects the fair-minded consideration given the facts of this

case and shall be accorded absolute deference.” Id. at *6.

II.

Trial of an incompetent criminal defendant violates due

process. Pate v. Robinson,

(1966). The standard

for competency to stand trial is whether the defendant “has

sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding — and whether he has a

rational as well as factual understanding of the proceedings

against him.” Dusky v. United States,

(1960).

Shook maintains he falls below this standard, on the basis that his

31 deafness rendered him unable to understand the proceedings against

him and prevented him from consulting with, or assisting, his

attorney in preparing his defense.

A criminal defendant’s competency vel non to stand trial is a

question of fact. Maggio v. Fulford,

(1983).

The petitioner must present facts sufficient “to positively,

unequivocally and clearly generate a real, substantial and

legitimate doubt as to [his] mental capacity ... to meaningfully

participate and cooperate with counsel”. United States v.

Williams,

(5th Cir. 1987), cert. denied,

(1988).

Because Shook filed his federal habeas petition prior to the

enactment of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), AEDPA does not apply for review of the district

court’s denial of habeas relief. E.g., Slack v. McDaniel,

(2000); Magouirk v. Warden, Winn Corr. Ctr.,

(5th Cir. 2001); Lockett v. Anderson,

(5th

Cir. 2000). The AEDPA provision conditioning the ability to appeal

the denial,

, does apply however. Slack,

. In this regard, the district court granted Shook a

certificate of appealability on the basis that “there is a close

factual issue as to [Shook’s] ability to comprehend and cooperate

with his attorney”.

32 Under pre-AEDPA law, state findings of fact are entitled to a

presumption of correctness, unless they are either not “fairly

support[ed]” by the record, former

(d)(8), or one

of the other statutory exceptions applies. See Magouirk,

; Self v. Collins,

(5th Cir. 1992), cert.

denied,

(1993).

As discussed, because the state trial court’s competency

determination is a question of fact, the presumption of correctness

applies unless Shook satisfies an exception. See Maggio,

. Although the district court accorded the presumption to

the state trial court’s competency determination, Shook,

, at *6, it also conducted its own evidentiary hearing, in

addition to the one conducted by the magistrate judge, and, based

on the additional evidence adduced at those hearings, made its own

factual finding that Shook was competent to stand trial. Id. at

*5. Accordingly, the district court’s independent determination

that Shook was competent to stand trial must be upheld unless it is

clearly erroneous. See Self,

. A finding of fact

“is clearly erroneous when although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed”.

Anderson v. City of Bessemer City,

(1985)

(internal quotation marks and citation omitted).

33 The Supreme Court has commented on the similarity between the

clearly erroneous standard of review for a district court’s

findings of fact and the habeas presumption of correctness accorded

state court findings of fact. See Marshall v. Lonberger,

(1983) (“We greatly doubt that Congress, when [, in

former § 2254(d)(8),] it used the language ‘fairly supported by the

record’ considered ‘as a whole’ intended to authorize broader

federal review of state court credibility determinations than are

authorized in appeals within the federal system itself.”). “Both

[standards] reflect a proper deference on the part of the reviewer

to a prior fact-based determination.” United States v. Hogan,

(11th Cir. 1993).

As noted, the magistrate judge recommended that the

presumption of correctness was inapplicable because, in his opinion

and pursuant to former § 2254(d)(7), Shook “was otherwise denied

due process of law in the state court proceeding”. That exception

to the presumption of correctness applies, however, only if “the

state court denied the petitioner a fair opportunity to press his

claim”. Depree v. Thomas,

, 788 n.6 (11th Cir. 1991).

Shook was not denied due process in the state court proceedings;

far from it. As amply demonstrated, supra, by the summary of those

proceedings, the state trial court conducted fair and complete

hearings on the issue of Shook’s communicative abilities and his

concomitant competence to stand trial. Therefore, the state

34 finding that Shook was competent is entitled to a presumption of

correctness unless, pursuant to former

(d), the

finding is either “not fairly supported by the record” or Shook

establishes “by convincing evidence” it is erroneous.

The state court record supports the trial court’s finding that

Shook was competent to stand trial. Although Shook’s experts, who

had experience with deaf individuals, testified he was not

competent, the staff at the Mississippi State Hospital, where Shook

was evaluated, unanimously concluded he was. The trial judge was

not required to accept the opinion of Shook’s experts and to reject

the opinion expressed by the Mississippi State Hospital staff,

merely because the latter lacked experience in conducting

competency evaluations of hearing-impaired individuals. In making

a competency determination, a trial court is, of course, entitled

to rely on its observations of the defendant and to judge the

credibility of witnesses; and it is not required to credit the

statements and ultimate conclusions of the defendant’s expert, even

if the expert is unimpeached and the State presents no evidence to

rebut the expert’s opinion. See Maggio,

; cf.

United States v. Mota,

(5th Cir. 1979) (“Expert

testimony, even when uncontradicted, is not conclusive on the issue

of sanity ... and the jury may find such testimony adequately

rebutted by the observations of mere laymen.”), cert. denied, 444

(1980); United States v. Hall,

(5th Cir. 1978) (same).

For similar reasons, the district court’s independent finding

that Shook was competent to stand trial, based on all of the

evidence, including that introduced at the two federal evidentiary

hearings, is not clearly erroneous. The district court considered

Dr. Vernon’s expert opinion that Shook was incompetent to stand

trial but found “the totality of testimony of all others who

testified, especially Ms. Griffin, more persuasive”. Shook,

, at *4. “Where there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be clearly

erroneous.” Anderson,

.

III.

For the foregoing reasons, the denial of habeas relief is

AFFIRMED.

36