In Re: Keith Zettlemoyer , 53 F.3d 24 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-1-1995
In Re: Keith Zettlemoyer
Precedential or Non-Precedential:
Docket 95-9000
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"In Re: Keith Zettlemoyer" (1995). 1995 Decisions. Paper 116.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/116
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 95-9000
IN RE: KEITH ZETTLEMOYER
ALDONA DeVETSCO; THOMAS SCHMIDT;
and KEITH ZETTLEMOYER,
Petitioners/Appellants
v.
MARTIN HORN, Commissioner, Pennsylvania
Department of Corrections; and JOSEPH P.
MAZURKIEWICZ, Superintendent of the State
Correctional Institution at Rockview
On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. No. 95-cv-00660)
Argued May 1, 1995
Before: SLOVITER, Chief Judge,
GREENBERG and NYGAARD, Circuit Judges
(Opinion Filed: May 1, 1995)
Billy Nolas (Argued)
Attorney for Appellants
Robert P. Graci (Argued)
Chief Deputy Attorney General
Harrisburgh, PA
Attorney for Appellees
OPINION OF THE COURT
PER CURIAM.
Petitioners Aldonda DeVetsco and Thomas Schmidt appeal
from the district court's orders dismissing their petition for a
writ of habeas corpus brought on behalf of Keith Zettlemoyer and
denying their request for a stay of Zettlemoyer's execution on
the ground that they have no standing. For the reasons set forth
below, we will affirm the dismissal order of the district court
and deny the petitioners' motion for a stay of execution filed in
this court.
I.
On October 13, 1980, Keith Zettlemoyer was arrested and
charged with murder for the shooting death of Charles DeVetsco.
On April 24, 1981, after a jury trial in the Court of Common
Pleas of Dauphin County, Zettlemoyer was convicted of first
degree murder. On that same date, after a brief sentencing
hearing, the jury determined that the death penalty should be
imposed.
After Zettlemoyer's post-verdict motions were denied,
Zettlemoyer filed a direct appeal to the Supreme Court of
Pennsylvania, which affirmed the conviction and sentence. See
Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982), cert.
denied, 461 U.S. 970 (1983). Zettlemoyer then filed a petition
under Pennsylvania's Post-Conviction Hearing Act ("PCHA"), 42 Pa.
Cons. Stat. Ann. §§ 9541 et seq.1 The PCHA action was denied
without a hearing, see Commonwealth v. Zettlemoyer, 106 Dauphin
County Reports 215 (1985), and that denial was affirmed on
appeal. Commonwealth v. Zettlemoyer, 515 A.2d 620 (Pa. Super.
Ct. 1986), allocatur denied, 518 A.2d 807 (Pa. 1986), cert.
denied, 481 U.S. 1007 (1987).
On July 17, 1987, Zettlemoyer filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United
States District Court for the Middle District of Pennsylvania.
On May 31, 1988, the district court dismissed the petition. The
dismissal was affirmed by this court in a split opinion. See
Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.), cert. denied,
502 U.S. 902 (1991).2
On February 28, 1995, the governor of Pennsylvania
signed a death warrant scheduling Zettlemoyer's execution for the
week of April 30, 1995. The execution is currently set for May
2, 1995.
On April 27, 1995, petitioners Aldonda DeVetsco, the
mother of the individual murdered by Zettlemoyer, and Thomas
Schmidt, who was Zettlemoyer's attorney in the PCHA proceedings
1
. The PCHA was subsequently repealed and replaced with the Post
Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541
et seq.
2
. By happenstance, the same three judges are on this panel.
They are not divided on the only issue before us, petitioners'
standing to file these proceedings.
and in Zettlemoyer's prior federal habeas action, filed a second
petition for habeas corpus on Zettlemoyer's behalf in the United
States District Court for the Middle District of Pennsylvania.3
The petition raises a variety of claims, including (1) that
Zettlemoyer is mentally ill and incompetent and his execution
would therefore violate the Eighth Amendment, (2) that
Zettlemoyer's trial counsel was inadequate, (3) that newly
discovered evidence suggests that the imposition of the death
penalty in this case was unconstitutional under Simmons v. South
Carolina, 114 S. Ct. 2187 (1994), and (4) that the method of
execution (lethal injection) employed by the state of
Pennsylvania constitutes cruel and unusual punishment under the
Eighth Amendment. In conjunction with the filing of the
petition, petitioners filed an application to stay the execution.
On April 29, 1995, after a two-day evidentiary hearing,
the district court concluded that DeVetsco and Schmidt lacked
standing to pursue the petition. It therefore dismissed the
petition and denied the petitioners' application for the stay.
The district court, however, granted the petitioners' application
for a certificate of probable cause and this appeal followed. In
connection with the appeal, petitioners have filed with this
3
. The petition also names Zettlemoyer as a petitioner.
Zettlemoyer, however, did not participate in the preparation of
the petition and he has not sanctioned the filing of the
petition.
court a "Motion for Stay of Execution and Request for a
Meaningful Opportunity for Briefing and for Oral Argument."
II.
In considering the petitioners' request for a stay, and
before proceeding to the merits of the petition, we must first
address the threshold question of petitioners' standing to pursue
this habeas petition and request for a stay. Article III of the
United States Constitution grants the federal courts jurisdiction
over only "cases and controversies," and the standing doctrine
"serves to identify those disputes which are appropriately
resolved through the judicial process." Whitmore v. Arkansas,
495 U.S. 149, 155 (1990) (citing Valley Forge Christian College
v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 471-76 (1982)). Where standing is lacking, the federal
courts lack the power to grant habeas relief. See Demosthenes v.
Baal, 495 U.S. 731, 737 (1990).
In the petition, both DeVetsco and Schmidt argue that
they are entitled to "next friend" standing to pursue the
petition on behalf of Zettlemoyer. In Whitmore, the Supreme
Court clarified that a party seeking to establish "next friend"
standing must, among other things, "provide an adequate
explanation--such as inaccessibility, mental incompetence, or
other disability--why the real party in interest cannot appear on
his own behalf to prosecute the action." Whitmore, 495 U.S. at
163.4 The burden is on the "next friend" to establish this
prerequisite. Id. at 164. Notably, the Whitmore Court also held
that "next friend" standing is not available if "an evidentiary
hearing shows that the defendant has given a knowing, intelligent
and voluntary waiver of his right to proceed, and his access to
court is otherwise unimpeded." Id. at 165; see also Demosthenes
v. Baal, 495 U.S. 731, 734 (1990).
In this case, after a two-day evidentiary hearing, the
district court concluded that DeVetsco and Schmidt failed to
sustain their burden of establishing "inaccessibility, mental
incompetence, other disability" on the part of Zettlemoyer.
Transcript of April 29, 1995 at p. 280. The district court
further found that Zettlemoyer "has knowingly, intelligently and
voluntarily opted to proceed with his execution with full
understanding of the other options of unimpaired access to the
courts." Id.The district court's conclusion on these issues are
findings of fact that may not be disturbed unless they are
clearly erroneous. See Gov't of the Virgin Islands v. Williams,
892 F.2d 305, 312 (3d Cir. 1989), cert. denied, 495 U.S. 949(1990); Fed. R. Civ. P. 52(a); see also Mason by and through
4
. The Whitmore Court also required that a party seeking "next
friend" status "be truly dedicated to the best interests of the
person on whose behalf he seeks to litigate" and suggested that
the party "must have some significant relationship with the real
party in interest." Whitmore, 495 U.S. at 163-64.
Marson v. Vasquez, 5 F.3d 1220, 1224-25 (9th Cir. 1993). A
finding may not be deemed clearly erroneous "[i]f the district
court's account of the evidence is plausible in light of the
record viewed in its entirety." Anderson v. Bessemer City, 470
U.S. 564, 573-74 (1985).
After a review of the record in this case, we conclude
that the district court's conclusions are not clearly erroneous.
We note that much of the evidence on which the petitioners rely
concerns Zettlemoyer's mental state in 1984. While there is
more recent evidence presented by petitioners, the district court
weighed that evidence with that presented by the respondents and
gave the latter more weight in its findings and in reaching its
conclusions. Furthermore the district court had the opportunity
to hear the testimony from Zettlemoyer himself, to observe
Zettlemoyer, and to question him closely regarding his decision
not to join in this habeas action.
We have carefully reviewed the transcript of
Zettlemoyer which supports the district court's conclusion that
he is competent. For example, he explained why he wanted the
execution to go forward.
THE WITNESS: No, sir, I'm afraid that my execution is
going to be stopped. If it's stopped, sir, my 14 and-
a-half years of suffering will continue on in an
unbroken chain for maybe another 14, 20, or 25 years.
It's--the thought of all that is just deeply
disturbing.
I'm afraid, sir, that Mr. Wiseman may somehow
convince you to issue a stay of execution and stop my
execution. I have a very deep fear of that, sir, and
I'm hoping that as a direct result of you sitting
there, talking to me, that you are an intelligent man,
and can tell that I am not mentally incompetent.
I am not crazy, I'm not loony. I understand
perfectly what's going on with the execution and
everything, and it was my desire, which I expressed to
my attorney, to come up here and try to untwist some of
the terrible things that Mr. Wiseman has gotten up here
and twisted. He has taken things out of context. He
has twisted the truth. He has used half-truths.
Transcript of April 29, 1995 at 149.
A. Those are one of the reasons, sir. My other two
reasons are that my imprisonment has been very, very harsh. You
must understand, sir, that I've only been in general population
for 14 months out of 15 years imprisonment. I have done the
hardest time of any convict in prison.
I see my execution as an end of suffering to my
imprisonment, a blessed, merciful release from all of these
health symptoms that I'm constantly suffering with.
And ten and-a-half years ago I became a Christian.
And as a Christian, I have many questions and desires
that I wish to know, and only God can answer those
questions. So I'm very anxious to get to Heaven, so to
speak, so that I can finally learn the answers to all
of these deep religious and philosophical questions
that have come across my mind for all of these years,
sir.
Transcript of April 29, 1995 at 182.
There is adequate evidence to support the district
court's findings and conclusions that petitioners failed to prove
that Zettlemoyer was incompetent and that Zettlemoyer has
knowingly, intelligently and voluntarily waived his right to
proceed.5 Schmidt and DeVetsco therefore are not entitled to
"next friend" standing. See Whitmore, 495 U.S. at 149. In the
absence of "next friend" standing for Schmidt or DeVetsco or the
appointment of a guardian, we conclude that the district court
correctly dismissed the petition, as no "adequate basis exists
for the exercise of federal power" in this case. See
Demosthenes, 495 U.S. at 737.6
5
. Petitioners argue on appeal that they did not receive a "full
and fair hearing" in the district court. They complain that the
district court gave them no notice that an evidentiary hearing
would be held on Friday, April 28, 1995, that the district court
made numerous comments evidencing its disdain for petitioners'
counsel, that they had an inadequate opportunity to examine the
background of the court-appointed psychiatrist, and that the
district court improperly barred petitioners' counsel from
conducting a full examination of Zettlemoyer. After a careful
review of the record, we find all of these contentions meritless.
The petition in this case was filed a mere five days before the
execution was scheduled, and the district court made every effort
to ensure that the petitioners received a full and fair
opportunity to present evidence in support of their case.
Indeed, in light of the emergency nature of the petition, we
commend the district court for its extensive and thorough
approach to the issues raised by the petition.
6
. Because we affirm the district court's conclusion that it is
powerless to address the issues raised in the petition due to
petitioners' clear lack of standing, we need not address
petitioners' suggestion that the district court erred by failing
to await the outcome of petitioners' state court proceedings. Nor
need we address petitioners' argument that the district court's
grant of the certificate of probable cause to appeal requires
this court to reach the merits of the petition under Barefoot v.
Estelle, 463 U.S. 880 (1985). We note, however, that Barefoot
requires only that we reach the merits of the appeal, not the
merits of the issues raised in the underlying habeas petition.
Id. at 888-89. By affirming the district court's order
dismissing the petition, we have reached the merits of this
In reaching our result we have considered petitioners'
contention at oral argument, predicated on Perry v. Louisiana,
498 U.S. 38 (1990), and State v. Perry, 610 So.2d 746 (La. 1992),
that the district court's finding that Zettlemoyer was competent
to waive further appeals should be reversed because Zettlemoyer
was taking an anti-depressant/anti-psychotic drug when he
testified before the district court and when he wrote a letter on
March 28, 1995, indicating that he wanted no further appeals.
In Perry v. Louisiana, the Supreme Court vacated a
decision of the Louisiana Supreme Court denying review of a trial
court's decision "order[ing] the state to administer
antypsychotic drugs to [a] prisoner" in order to make him able
"to understand the link between his crime and punishment." State
v. Perry, 610 So.2d at 747. The Supreme Court remanded the case
for consideration in light of Washington v. Harper, 494 U.S. 210(1990).
Those cases are inapposite. Harper only held that an
inmate has a "significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment." Harper, 494 U.S. at
221 (emphasis added). Of course, as the Supreme Court of
Louisiana held upon Perry's remand, the involuntary
(..continued)
appeal, and have therefore satisfied our obligation under
Barefoot.
administration of antypsychotic medications for no legitimate
penological purpose other than making the defendant competent for
execution is a clear violation of the defendant's constitutional
rights. State v. Perry, 610 So.2d at 754 (trial court's order
"cannot be justified under Harper because forcible administration
of drugs to implement execution is not medically appropriate.")
In this case, however, the record is clear that
Zettlemoyer voluntarily took the medication as part of a course
of treatment for his medical problems. He testified before the
district court that "I have a number of health problems, and the
psychiatrist and the psychologist at the SCI Pittsburgh
Institution have recommended a variety of medications for me to
take. And it benefits me tremendously so I always take it."
Transcript of April 29, 1995 at 140. Thus, Zettlemoyer's
situation is markedly different from Harper's and Perry's, and
the policies underlying those cases do not cast doubt on the
district court's finding. To order the trial court to force
Zettlemoyer to stop taking medications that were prescribed for
him in the course of legitimate medical treatment, and that he
desires to take -- simply to see what he would say if he went
untreated -- would be a bizarre way to vindicate the Due Process
Clause. We decline to extend Harper and Perry in that manner.
III.
Conclusion
For the foregoing reasons, we will affirm the order of
the district court dismissing the petition for habeas corpus for
lack of standing and deny petitioners' motion for a stay of
execution.