Hooper v. Workman ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
November 1, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MICHAEL EDWARD HOOPER,
Petitioner-Appellant,
v. No. 11-6143
(D.C. No. 5:07-cv-00515-M)
RANDALL G. WORKMAN, Warden, (W.D. Okla.)
Oklahoma State Penitentiary,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, O’BRIEN, and HOLMES, Circuit Judges.
Michael Edward Hooper seeks a certificate of appealability (COA) to
challenge the district court’s decision denying his 28 U.S.C. § 2254 habeas
petition. Because Hooper has not shown that the district court’s decision is
debatable, or that there are issues present that deserve further treatment, we deny
the request for a COA.
B ACKGROUND
In 1993, Hooper shot his ex-girlfriend and her son and daughter each twice
in the head. He then buried them atop one another, doused them with gasoline,
and covered their grave with debris. Hooper was tried and convicted on three
counts of first-degree murder.
At sentencing, Hooper was sentenced to death on the basis of multiple
aggravating circumstances. In federal habeas proceedings, the district court
granted him relief from his death sentences, finding that defense counsel provided
ineffective assistance in presenting mitigating evidence. This court affirmed. See
Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002).
On remand, Hooper sought to waive his rights to be sentenced by a jury and
to present mitigating evidence. He was examined by a court-appointed expert,
Dr. R. Shawn Roberson, and found to be competent. Defense counsel informed
the court that Hooper had also been examined by a defense expert, Dr. Jeannie
Russell, who had found no evidence that Hooper was incompetent. Indeed,
Dr. Russell opined that he “appeared capable of appreciating the serious nature of
the offenses and possible outcomes at sentencing,” and “had the capacity to
rationally assist his attorney in his defense if he chose to do so.” Report of
Dr. Russell at 3. She did note, though, that Hooper had “described a long history
of depression.” Id. at 4. The sentencing court found Hooper competent.
Throughout subsequent hearings, defense counsel reiterated that although
Hooper was depressed, he was competent and had forbidden his defense team
from proceeding with a mitigation case. Each time, the sentencing judge
questioned Hooper and found him competent. Finally, the judge entered death
sentences on all three counts, finding that (1) all counts shared the aggravating
circumstances of risk-of-death-to-more-than-one-person and a-continuing-threat-
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to-society; and (2) that the counts involving both murdered children shared the
additional aggravator of murder-to-avoid-arrest-or-prosecution.
Hooper was formally sentenced to death in October 2004. After the death
warrants were read, Hooper provided the court with a declaration, stating that he
had directed defense counsel to forgo any appeals or post-conviction challenges.
The court examined Hooper and found him competent to waive his rights.
In 2005, Hooper began taking anti-depressant medication, and changed his
mind about being executed. Dr. Russell examined him again, and concluded for
the first time that Hooper’s depression in 2004 “prevent[ed] him from making a
rational choice among his options.” Id. at 5 (italics omitted). She stated that her
new opinion arose from the fact that “[i]n 2004, Hooper based his decision [to
accept execution] on his mood and thinking without medication.” Id. at 6.
Hooper appealed his sentences to the Oklahoma Court of Criminal Appeals
(OCCA), arguing that Oklahoma’s prescribed questions for determining
competency were insufficient, and that the competency inquiry employed at
sentencing failed to account for his depression. The OCCA affirmed, and the
federal district court, during habeas proceedings, concluded that the OCCA’s
determinations were reasonable.
This court initially denied a COA at a case management conference
conducted by one judge. Hooper now seeks a panel’s consideration of his COA
request.
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D ISCUSSION
Standards of Review
An appeal may not be taken from the denial of federal habeas relief unless
the petitioner first obtains a COA. 28 U.S.C. § 2253(c)(1)(A). We may issue a
COA only upon “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). This standard is met if “reasonable jurists could debate
whether (or, for that matter, agree that) the [habeas] petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted).
Where the state appellate court addressed the merits of a petitioner’s
claims, as the OCCA did here, the Anti-Terrorism and Effective Death Penalty
Act’s (AEDPA’s) “deferential treatment of state court decisions must be
incorporated into our consideration of [the] request for [a] COA.” Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, we may grant a
habeas petition on a claim that was adjudicated on the merits in state court only if
the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2).
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Competency
In Rees v. Peyton, 384 U.S. 312, 314 (1966) (per curiam), the Supreme
Court held that a prisoner’s competency to waive his execution challenges must
be judged by “whether he has [the] capacity to appreciate his position and make a
rational choice with respect to continuing or abandoning further litigation or on
the other hand whether he is suffering from a mental disease, disorder, or defect
which may substantially affect his capacity in the premises.” Hooper argues that
the OCCA violated Rees by not properly assessing the impact his depression had
on his ability to rationally decide whether to accept the death penalty.
The OCCA noted that in 2004
neither [defense] counsel nor the defense expert [Dr. Russell]
believed that [Hooper’s] condition affected [his] ability to make a
valid waiver. [Dr. Roberson] specifically found that Hooper, while
depressed, did not present with symptoms of a mental illness, and
offered a rational basis for his decisions. Further, although
[Dr. Roberson’s] evaluation answers the standard competency
questions, the evaluation itself explores Hooper’s competency
specifically as it relates to the death penalty and capital punishment
issues.
Hooper v. State, 142 P.3d 463, 470 (Okla. Crim. App. 2006). Further, the OCCA
discounted Dr. Russell’s new opinion in 2005 that Hooper’s decision was
irrational because he was not medicated. It explained that Dr. Russell’s new
opinion “tells the Court what Hooper might do now, faced with the same options
he had at the time of his sentencing hearing,” but “it does not show that Hooper
was unable to make a valid waiver at that time.” Id.-5-
The federal district court found the OCCA’s competency determinations
reasonable. We conclude that the district court’s decision is not debatable.
A defendant’s mental disorder does not necessarily render him incompetent.
See U.S. v. Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000); Lonchar v. Zant,
978 F.2d 637, 642 (11th Cir. 1992); Smith ex rel. Mo. Pub. Defender v.
Armontrout, 812 F.2d 1050, 1057 (8th Cir. 1987). In 2004, both Dr. Roberson
and Dr. Russell were aware of Hooper’s depression, but nevertheless found him
competent. Even Hooper’s counsel believed that Hooper was competent despite
his depression. “Trial counsel’s opinion should receive significant weight since
counsel, perhaps more than any other party or the court, is in a position to
evaluate a defendant’s ability to understand the proceedings.” United States v.
Turner, 644 F.3d 713, 723 (8th Cir. 2011) (quotations and brackets omitted);
see, e.g., Smallwood v. Gibson, 191 F.3d 1257, 1279 (10th Cir. 1999) (giving
weight to defense counsel’s view of his client’s competency). Moreover, the
sentencing court repeatedly addressed the issue of competency with counsel and
Hooper, and found him competent each time.
Finally, Dr. Russell changed her competency opinion solely because
Hooper changed his mind while taking anti-depressant medication. But the fact
that Hooper made a different decision when medicated does not by itself cast
doubt on the initial competency determination—especially given that both experts
were aware of his unmedicated depression. Nevertheless, Hooper proposes that it
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is per se “irrational” to accept the death penalty, and therefore, he was
incompetent in an unmedicated state. Mot. for Panel Consideration of COA at
14-15. We reject that proposition.
C ONCLUSION
We conclude that the federal district court’s resolution of Hooper’s habeas
petition is not debatable, and that there are no issues that merit further treatment.
Accordingly, we DENY the application for a COA, and we DISMISS this appeal.
Entered for the Court,
ELISABETH A. SHUMAKER
Clerk of Court
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