Ferguson v. Koerner , 37 F. App'x 376 ( 2002 )


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  •                                                                                 F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAR 28 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    LENA B. FERGUSON,
    Petitioner - Appellee,
    v.
    No. 01-3058
    RICHARD KOERNER, Warden; and the                     (D.C. No. 95-CV-3323-DES)
    ATTORNEY GENERAL OF THE                                  (District of Kansas)
    STATE OF KANSAS,
    Respondents - Appellants.
    ORDER AND JUDGMENT*
    Before EBEL, GIBSON**, and PORFILIO, Circuit Judges.
    In this case, the Warden of the Topeka Correctional Facility, Richard Koerner, and
    the Attorney General of the State of Kansas, Carla Stovall (State, collectively), appeal the
    granting of Lena B. Ferguson’s petition for a writ of habeas corpus under 28 U.S.C.
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. This court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    The Honorable John R. Gibson, Circuit Judge for the United States Court of
    **
    Appeals for the Eighth Circuit, sitting by designation.
    § 2254. Relief was premised on the district court’s conclusion the state trial court, in
    violation of the Sixth Amendment, improperly denied Ms. Ferguson substitute counsel
    after she and her appointed counsel informed the court of the total breakdown in
    communications in between the defendant and her attorney.
    Seeking reversal of that judgment, the State here asserts the trial court’s refusal to
    substitute counsel was fully supported by the substantial evidence that Ms. Ferguson’s
    distrust of her counsel was irrational and a product of her contempt for the entire judicial
    process. Moreover, the State contends the district court’s holding has improperly
    expanded rights protected under the Sixth Amendment by requiring a “meaningful
    relationship” between a defendant and her counsel.
    Nevertheless, we conclude the district court did not err because the peculiar facts
    of this case disclose that despite substantial evidence, the state court failed to inquire into
    the role Ms. Ferguson’s mental capacity played in her inability to communicate with her
    appointed counsel. Its analysis of the breakdown of the relationship was therefore flawed
    and unsupportable. We agree with the district court and affirm its judgment.
    I. Background
    On direct appeal, the Kansas Supreme Court affirmed Ms. Ferguson’s convictions,
    rejecting her Sixth Amendment and competency claims. State v. Ferguson, 
    864 P.2d 693
    , 694-95 (Kan. 1993). Among the facts the court recited relating to Petitioner’s
    conviction was her admission of killing a man and setting him on fire. Subsequent
    -2-
    investigation established the decedent was Petitioner’s former husband. From the outset,
    Ms. Ferguson did not deny her entanglement in the crime. Although Ms. Ferguson told
    investigators she did not intend to kill, there is no doubt in the record the crime was
    flagrant.
    The crux of this case, however, lies within Ms. Ferguson’s psychological
    problems, first diagnosed in 1983, several years before the crime of which she was
    convicted. After an initial evaluation, Dr. Herbert Modlin1 of the Meninger Clinic
    concluded Ms. Ferguson suffered from Mixed Personality Disorder with Paranoid and
    Avoidant Features.2 During this time, Ms. Ferguson’s son was stationed in Saudi Arabia,
    a fact which plunged her into a deep depression, including a loss of sleep precipitated by
    recurring nightmares of his death. Her fears were exacerbated when her ex-husband
    cancelled her long distance service, disconnecting her from any news of her son.
    1
    The Kansas Public Defender’s Office called Dr. Modlin the day after Ms.
    Ferguson’s arrest. In that and a subsequent interview, Dr. Modlin reported Ms. Ferguson
    was “depressed, tearful, and tense” about her son and exhibited signs of paranoia,
    refusing meals, served by food handlers who did not wear gloves, medications, and
    injections. She told Dr. Modlin the interview rooms were bugged.
    The American Psychiatric Association, Diagnostic and Statistical Manual of
    2
    Mental Disorders 220-21 (3d ed. 1980) (DSM-III), the version used at the time of
    treatment, defines this condition as a “chronic disturbance of mood involving either
    depressed mood or loss of interest or pleasure in all, or almost all, usual activities and
    pastimes.” The paranoia includes “unwarranted suspiciousness and mistrust of people
    which makes the person reluctant to confide in others for fear the information will be
    used against her. The avoidant features include a hypersensitivity to potential rejection or
    humiliation.”
    -3-
    To defend the charges of first degree felony murder and aggravated arson, the trial
    court appointed Ron Wurtz, a District Public Defender, who appeared at the first
    preliminary hearing on February 15, 1991. From the outset, Ms. Ferguson complained
    that because Mr. Wurtz was hired and paid by the State of Kansas, he could not possibly
    represent her interests. On March 29, 1991, Mr. Wurtz filed a motion for continuance
    alleging Ms. Ferguson’s “emotional turmoil” and the trauma of the events rendered her
    incapable of assisting him in preparing for trial and crafting a defense. On April 16,
    1991, Mr. Wurtz filed a second motion for a continuance based on Ms. Ferguson’s
    hospitalization for treatment of her mental illness.3 Her psychiatrist, Dr. Gilbert Parks,
    subsequently testified at the hearing on the motion that Ms. Ferguson was severely
    depressed “with suicidal plan and ideations.” He opined not only was she so ill she could
    not endure the stress of trial or assist in her defense, but also, she should not have any
    contact with Mr. Wurtz4 unless counsel went through him. The court granted this
    3
    Mr. Wurtz also filed his first motion to withdraw, stating that Ms. Ferguson “has
    no confidence in her present counsel or in any counsel who is employed by the Public
    Defender's office. Said conflict and absence of confidence is [sic] so serious that the
    attorney-client relationship is so adversely affected that there is effectively no counsel for
    the accused.”
    4
    Mr. Wurtz testified at the habeas hearing he tried every means to persuade Ms.
    Ferguson to cooperate but was usually arguing with her to help herself. In a prior
    affidavit, Mr. Wurtz stated,
    I tried many methods to get Ms. Ferguson to communicate with me. I cried
    with her. I threatened her with the possibility of prison. I sent some of my
    staff to talk with her. I yelled at her. I even tried physical intimidation to
    (continued...)
    -4-
    continuance and set July 29, 1991, for trial unless Mr. Wurtz raised concerns about her
    competency.
    On July 24 1991, Mr. Wurtz filed a motion to determine competency, stating in
    part:
    The only method counsel has of trying to communicate with his client is by
    passing information to Dr. Parks. Dr. Parks is not a lawyer, and counsel
    cannot be personally satisfied that [petitioner] is receiving proper legal
    information with which she can make the decisions that are the client's to
    make, such as whether to testify or to enter plea negotiations. Counsel
    believes [petitioner's] mental condition precludes her from thus assisting in
    her defense.
    On the following day, the trial court ordered Dr. James Horne, a court psychiatrist, to
    evaluate Ms. Ferguson. After examination, Dr. Horne concluded Ms. Ferguson was
    incompetent to stand trial because she suffered from a mental illness and exhibited signs
    of paranoia. Though he judged her “oriented, cooperative, and alert,” Dr. Horne
    recommended Petitioner was incapable of working with her attorney. On that basis, the
    court found Ms. Ferguson incompetent to stand trial, committed her to the Larned State
    Security Hospital, and ordered the staff to report on her progress within sixty days.
    (...continued)
    4
    get her to understand the consequences of not communicating with me by
    blocking her exit from the interview room and backing her into a corner.
    None of these methods worked, and I became increasingly frustrated.
    Ms. Ferguson testified she asked him to get her counseling when she was in jail, but he
    failed to provide anyone. She stated she saw Dr. Parks on her own initiative when she
    was out on bond.
    -5-
    In that report submitted on October 21, 1991 (the Report), the evaluating staff
    diagnosed Petitioner with Schizoaffective Disorder, Depressive Type, described in the
    DSM-III as a disorder in which the individual suffers from delusions or hallucinations.
    Nonetheless, the staff concluded she was competent to stand trial:
    [Ferguson’s] expressed unwillingness to cooperate with the attorney
    appears to be related to her strong feelings of being let down by him
    because he never contacted her and was not working in her best interest
    while she was in jail. There are no strong indications to suggest that her
    mental illness is the basis for her lack of trust in her attorney.
    Ferguson, 864 P.2d at 701.
    Five days before trial began and shortly after Ms. Ferguson was discharged from
    Larned, Mr. Wurtz again moved to withdraw as counsel. In support, he stated:
    Your Honor, my request to withdraw as counsel is somewhat tied up with the
    [competence] report, as the Court knows the contents of that report. I respectfully
    request permission to withdraw from this case as counsel for Ms. Ferguson for the
    reason that although the doctors think she's able to--she's able to cooperate with
    counsel, I have my own lay suspicions and sincere beliefs that she cannot
    cooperate with me.
    Since her release from the Larned State Security Hospital, I have
    communicated with her physician, Doctor Gilbert Parks, and that, as far as I
    know, is the only communication directly that I had with Ms. Ferguson until
    actually yesterday when I spoke with her briefly on the phone. Ah, I had
    passed several requests through Doctor Parks that she come in and talk to
    me. She has not done so. I do not know the reasons why except that she
    has a deep and abiding distrust of everything I do. She feels, Your Honor,
    that everything she tells me, that I pass on to the District Attorney. And the
    way she presents herself, I think she sincerely believes that. The district
    attorney can tell you whether it's true or not, which, of course, it's not. But
    she believes it. If she firmly believes that, it follows that she would be in
    fact protecting herself by not telling me what I need to know in order to put
    on a defense.
    -6-
    Your Honor, back when I first represented her, within the first month, we
    had communication. During that communication, she provided me with
    some details which I needed in order to begin working up a defense. That,
    however, was before I had completely investigated it myself. And as the
    Court may understand, without me releasing any confidences in this request,
    questions have come up which I believe that only Lena Ferguson can help
    me deal with. She cannot do that. She says she cannot do that because she
    does not trust me.
    One of the grounds for allowing withdrawal of counsel is that the attorney-
    client relationship has deteriorated to the point that it is effectively no
    relationship at all. When I spoke with Ms. Ferguson yesterday over the
    mix-up, and as I advised the Court, my failure to make sure she was notified
    of the hearing set yesterday, she very clearly told me both today and
    yesterday, that she believed that I had done that in order to make her look
    bad. In her demeanor and in her statements, she appears to be sincere in
    that.
    Your Honor, a defense lawyer's relationship with his client is the key to a
    good defense, not just a competent defense. It's certainly a key to a
    competent defense. But really, in this case, it's a key to a defense at all.
    ....
    In the present state of our relationship, as I see it, there being no
    relationship, I don't believe I can effectively present a defense on her
    behalf. And I sincerely believe that.
    As I have been preparing for this intensively for the last week after the
    Court has advised us of the trial--I was prepared once before, but it takes
    some time to get back up to speed again--there are questions that I fear
    without her having some trust in me, that I will ask one wrong question or
    say one wrong thing that I would know to avoid if she could communicate
    with me.
    ....
    I am totally frustrated and I hope that doesn't get into it. But when I get
    frustrated, that's a side event that causes me not to concentrate too. And I
    worry about how effective I can be under these circumstances. And I
    -7-
    implore this Court to consider appointing counsel knowing that it would
    necessarily result in another postponement of the trial, but I think fairness
    requires that.
    At that time, Mr. Wurtz also stated Petitioner’s distrust “is deeper than simply who
    is paying the bill.” He expanded, “[S]he has much--many more complaints about things
    that have happened in the past.” Later in the hearing, Ms. Ferguson asked to be excused
    from the proceedings. Given that request, Mr. Wurtz renewed his motion to withdraw,
    stating that it was “extremely dangerous for a defense lawyer to consent to his client
    leaving when there may be a question that needs to be answered” and that her request was
    a “further demonstration . . . of the fact that [their] relationship is such that she cannot
    help [him].” Nonetheless, the trial court denied the motion to withdraw and allowed Ms.
    Ferguson to leave the hearing.5
    On November 18, 1991, the morning of the first day of trial, Mr. Wurtz again
    moved to withdraw, stating in his supporting brief,
    [S]ince [petitioner's] release from jail she has consistently refused to discuss
    the matters which have resulted in the charges now pending against her.
    She has expressed the belief that present counsel is in league with the
    authorities who seek to punish her for the events which are the foundation
    5
    The court stated,
    If she elects not to discuss her case with Mr. Wurtz, or to fully cooperate, I
    can only conclude that it is her conscious decision not to do so, and it is her
    responsibility for taking that position. Mr. Wurtz has done nothing in this
    case to justify releasing him. He is a highly competent, highly experienced
    attorney. He has done everything in the Court’s view to represent his client
    effectively and diligently. And I find no ground, whatsoever, to grant this
    request.
    -8-
    for this action. She currently refuses to even come to counsel's office to
    permit counsel to explain the trial process, seek her input on jury selection,
    discuss the theory of the case which must be presented in light of her refusal
    to testify, and generally to assist counsel in even the most rudimentary
    matters.
    Further, he stated to preserve client confidences he could not fully disclose the “incidents
    supporting his belief;” thus, he could not provide Ms. Ferguson “constitutionally valid
    assistance under the conditions” that then existed. Mr. Wurtz asserted he had nothing to
    add factually to his previous motions, but that in his final preparation for trial, he did not
    have Ms. Ferguson’s assistance in clarifying some questions in preparing for cross
    examination.
    The trial court again denied the motion, emphasizing that Mr. Wurtz was a highly
    qualified attorney, a fact which it believed removed any reasonable basis for substituting
    him. In support, it remarked that Mr. Wurtz succeeded in reducing Petitioner’s bond to
    secure her release. The trial court then based its conclusion solely on testimony that was
    offered at a hearing held a week before Dr. Parks saw Petitioner and before either of her
    hospitalizations occurred.6 Trial proceeded, culminating in a guilty verdict.
    6
    The court stated,
    She has shown no lack of diligence, no dereliction of duty. I can only
    gather and conclude that her failure to communicate satisfactorily with Mr.
    Wurtz is not only unreasonable, but the result of a conscious decision by
    her. Now if that’s her conscious decision, then I don’t think the
    consequences of that decision should be visited on the Court or deprive the
    Court of its ability to try the case.
    -9-
    In rejecting the Sixth Amendment claim, the Kansas Supreme Court set forth some
    of this history but characterized it, much like the trial court had, to reflect Petitioner’s
    dissatisfaction with Mr. Wurtz’s competence as a lawyer. Quoting the Report, the
    Supreme Court observed:
    The district court judge who received this recommendation, unlike the staff
    members who made it, was aware that Ferguson's complaints of her
    counsel's lack of diligence were not supported by the facts. He knew that
    Ferguson's bond had been reduced and she had been released from jail.
    With regard to her complaint that her competency evaluation should have
    occurred at an earlier time, the district court knew that her personal
    psychiatrist, Dr. Parks, testified on May 1 that she understood the nature
    and purpose of the legal proceeding against her and that, with (his)
    treatment for a month or two, she would be able to assist in her defense.
    The district judge knew that Dr. Parks had testified in May that Ferguson
    had a “suspicious distrust almost at a paranoid level which makes it difficult
    for her to cooperate with anyone at this point.”
    Ferguson, 864 P.2d at 701 (emphasis added). Citing Thomas v. State, 
    421 So. 2d 160
    (Fla. 1982), and State v. Long, 
    669 P.2d 1068
     (Mont. 1983), the court concluded although
    the breakdown in communication between Ms. Ferguson and Mr. Wurtz was “absolute,
    her refusal to cooperate is not of itself basis for reversal on grounds of ineffective
    assistance of counsel.” 864 P.2d at 701. Observing that “arguably” the trial court should
    have appointed substitute counsel, it opined “[t]here is no reason to believe such a
    substitute counsel would fare any better than trial counsel did.” Id.
    II. Relief under § 2254
    Petitioner then proceeded with her federal habeas action. After her petition was
    dismissed for failure to exhaust state remedies, this court reversed and remanded the case,
    - 10 -
    holding all of Ms. Ferguson’s “new evidence” simply supplemented rather than
    fundamentally altered her claim. Ferguson v. McKune, No. 99-3214, 
    2000 WL 1133134
    (Aug. 10, 2000) (unpublished). In that appeal, as here, the State argued Petitioner
    transformed her Sixth Amendment claim from one based on distrust of an attorney paid
    by the State, to one mired in the details of her poor relationship with Mr. Wurtz. We
    responded:
    Our review of the record does not bear this out. Mr. Wurtz clearly,
    repeatedly, and emphatically informed the trial court that there were other
    reasons petitioner did not trust him and would not cooperate with him.
    Indeed, he stated that petitioner's distrust of state-paid attorneys was not the
    overriding reason for their bad relationship. Rather, it was the Kansas
    courts that focused the attention on petitioner's distrust of an attorney in the
    state's employ. The fact that the Kansas courts chose to concentrate on
    petitioner's professed distrust of such an attorney, however, is not
    dispositive of our exhaustion analysis. We conclude that petitioner
    exhausted her Sixth Amendment claim in the state forum.
    
    2000 WL 1133134
    , at * 8.
    After remand, an evidentiary hearing was held by a Magistrate Judge who
    forwarded a recommendation the writ be granted. In adopting that recommendation,
    Ferguson v. Koerner, 
    131 F. Supp. 2d 1208
    , 1214 (D. Kan. 2001), the district court
    employed the four-step inquiry we set forth in Romero v. Furlong to decide whether the
    complete breakdown in communications rendered the attorney’s representation
    constitutionally ineffective. 
    215 F.3d 1107
    , 1113 (10th Cir. 2000). Those four factors
    are: (1) whether petitioner made a timely motion requesting new counsel; (2) whether the
    trial court adequately inquired into the matter; (3) whether the conflict between the
    - 11 -
    petitioner and her attorney was so great it resulted in a total lack of communication; and
    (4) whether petitioner substantially and unjustifiably contributed to the breakdown in
    communication. 
    Id.
    The district court agreed with the State that only the second factor was at issue in
    this case, that is, whether the trial court adequately inquired into the matter. It found the
    trial court correctly inquired into Ms. Ferguson’s distrust based on her attorney’s state
    funding. Nonetheless, it concluded the trial court unequivocally failed to inquire into Mr.
    Wurtz’s representations that other factors contributed to the breakdown in
    communications. In support, the district court cited Mr. Wurtz’s November 13 statement:
    “the fact of payment of counsel, only [Petitioner] can answer whether that makes a
    difference to her, and the Court may obviously inquire. But that is not what I have found
    to be an overriding concern in her expressions of discontent with me.” The district court
    pointedly observed this statement provoked no further inquiry by the trial court, which
    instead relied upon its memory of a hearing seven months previously. The district court
    also observed on the morning of trial the court “declined, again relying on its prior
    understanding, to inquire into the matter.”
    Guided by the factual contrasts presented by Romero, in which relief was denied,
    the district court noted, in Ms. Ferguson’s case, the motion to substitute counsel was
    renewed “on several occasions, and most importantly, indicated additional factors were
    contributing to the communication breakdown between Mr. Wurtz and herself.” 131 F.
    - 12 -
    Supp. 2d at 1214. Upon these facts, the district court stated, it was “not reluctant to
    conclude that the trial court should have expanded the scope of its inquiry and considered
    matters beyond the already settled state funding issue.” 
    Id. at 1215
    .
    Like Romero, this case is pre-AEDPA; thus, the standard of review Romero
    enunciated applies here:
    As a federal court conducting a review in habeas of state court
    determinations, our role is secondary and limited. Although we review
    legal conclusions de novo, a state court's factual findings are entitled to a
    presumption of correctness. Mixed questions of law and fact are reviewed
    de novo, but the presumption of correctness will continue to apply to any
    findings of fact underlying mixed questions.
    
    215 F.3d at
    1110 (citing Castro v. Ward, 
    138 F.3d 810
    , 815-16 (10th Cir. 1998)). Thus,
    here, too, “[t]he substance of our review is confined” to whether Ms. Ferguson is “in
    custody in violation of the Constitution or laws or treaties of the United States.” Id.; 
    28 U.S.C. § 2254
    (a) (1994).
    Although the State concedes Romero is “good law,” it urges, “its analytical
    framework must be applied in a habeas case with a more demanding standard of review.”
    That contention is fatuous. As noted, Romero is a habeas case. By setting the stage in
    that fashion, however, the State seems bent upon convincing us that somehow an abuse of
    discretion standard sneaked in and infected the district court’s analysis and review.
    Unequivocally, the district court set forth the correct standard, however.
    Against this background, the State argues the district court simply “substituted its
    decision for that of the state trial court,” rejecting factual findings and engaging in
    - 13 -
    “unwarranted fact-finding on its own.” It maintains the trial court did not abuse its
    discretion in refusing to appoint substitute counsel in light of the uncontroverted fact the
    absolute breakdown in communications was tied entirely to Ms. Ferguson’s “own
    irrational and uncooperative behavior.” However, this and other of the State’s arguments
    ignore the critical point that it is clear from the record, as it would have been clear to the
    trial court had it made further inquiry. Petitioner’s irrational and uncooperative behavior
    was the product of her mental illness and not of a rational mind.
    It cannot be gainsaid that open and free communication between client and counsel
    is the touchstone of the lawyer’s effectiveness. In this case we are certain that touchstone
    was missing because of Ms. Ferguson’s illness. That illness provoked delusional beliefs
    that prevented her from communicating with counsel so that he could effectively defend
    her. We do not share the state court’s comfort that Mr. Wurtz was able to fully represent
    his client’s interests simply because he was able to achieve some minor successes along
    the way without Petitioner’s help. The overriding fact is Mr. Wurtz went to trial without
    a prepared defense because his client’s sickness impeded her ability to communicate and
    furnish counsel the necessary assistance. Likewise, we also disagree with the state court
    there was no reason to believe different counsel would have been better able to represent
    Ms. Ferguson effectively. Indeed, we believe the record demonstrates the factors
    underlying her delusional rejection of Mr. Wurtz were attributable to him alone and were
    not a foreseeable deterrent to other counsel. We conclude a more judicious inquiry into
    - 14 -
    all the reasons provoking Mr. Wurtz’s attempts to withdraw from the case would have
    illuminated these facts.
    We conclude the district court correctly followed and applied the rule of Romero.
    Its judgment is AFFIRMED.
    ENTERED FOR THE COURT
    John C. Porfilio
    Senior Circuit Judge
    - 15 -
    

Document Info

Docket Number: 01-3058

Citation Numbers: 37 F. App'x 376

Judges: Ebel, Gibson, Porfilio

Filed Date: 3/28/2002

Precedential Status: Non-Precedential

Modified Date: 10/19/2024