Scott Rever v. Gerardo Acevedo ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1156
S COTT J. R EVER,
Petitioner-Appellant,
v.
G ERARDO A CEVEDO , Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 CV1265—Michael M. Mihm, Judge.
A RGUED A UGUST 4, 2009—D ECIDED JANUARY 4, 2010
Before F LAUM, K ANNE, and W OOD , Circuit Judges.
P ER C URIAM. Scott Rever, an Illinois inmate, appeals
from the denial of his petition for a writ of habeas cor-
pus. After he was charged with 15 counts related to
the kidnap and rape of his ex-girlfriend, Rever was
twice found unfit for trial—the second finding came
after a suicide attempt—and remanded to a state-run
facility for treatment. When officials at the facility issued
a report finding him competent to stand trial, his lawyer
2 No. 09-1156
stipulated to his competence despite the lawyer’s
professed failure to understand the report. The court
accepted the stipulation and Rever went to trial without a
fitness hearing. He was convicted on 11 of the 15 counts
and sentenced to 33 years. In an unsuccessful appeal,
Rever’s counsel did not mention the lack of a fitness
hearing. In post-conviction proceedings, the trial court
acknowledged that it should have held a full hearing
on Rever’s fitness despite counsel’s stipulation, but found
that counsel’s failure to pursue the issue was not prejudi-
cial. After the appellate court affirmed and the state
supreme court denied his petition for leave to appeal,
Rever filed his federal petition, which the district court
denied. We affirm because Rever failed to rebut the
state trial court’s factual finding that he presented insuf-
ficient evidence to show that appellate counsel’s conduct
prejudiced him.
I. BACKGROUND
On April 29, 1999, Rever’s ex-girlfriend and her current
boyfriend heard a window break in her apartment. They
went outside and saw Rever. After a struggle, Rever
grabbed his ex-girlfriend and dragged her, at knifepoint,
to his car. He drove to a rural area where he beat his ex-
girlfriend, tore off her clothing, and raped her. Rever was
charged with fifteen counts, including two counts of
aggravated kidnapping, seven counts of aggravated
criminal sexual assault, and three counts of aggravated
battery.
Before Rever could be tried, Dr. Robert Chapman, a
forensic psychiatrist, examined him and concluded that
No. 09-1156 3
he suffered severe and possibly suicidal depression that
made him incompetent to stand trial. Dr. Chapman also
concluded that with psychiatric treatment and antidepres-
sant medication, Rever could become competent within
one year. Based on Dr. Chapman’s report, the court
found Rever unfit to stand trial and remanded him to the
McLean County Department of Mental Health for “treat-
ment and restoration to fitness.” Three months later, the
court held a follow-up hearing on Rever’s fitness. The
Department of Mental Health had filed a report stating
that Rever was fit. After counsel stipulated to the
report and waived a further hearing, the court found
Rever fit to stand trial.
The court’s finding that Rever was fit to stand trial was
called into question about one month later when Rever
attempted suicide. Dr. Chapman examined Rever again
and reached a conclusion similar to his earlier one. Ac-
cording to Dr. Chapman, Rever continued to suffer pro-
found and prolonged depression with “substantial hope-
lessness and suicidal risk,” which made him unable to
assist with his defense. Dr. Chapman added, again, that a
successful course of antidepressants could make Rever
fit to stand trial. Based on Dr. Chapman’s report, the trial
court again found Rever unfit to stand trial and again
remanded him to the McLean County Department of
Mental Health for treatment.
Three months after the court found Rever unfit for
the second time, a doctor and an administrator at the
Department of Mental Health prepared a progress report
stating that Rever had been restored to fitness. The trial
4 No. 09-1156
court held another hearing at which Rever’s counsel
stipulated to the progress report even though it con-
tained what he believed was an inconsistency: it con-
cluded that Rever was both fit for trial and still in need of
inpatient care. Counsel told the court, “I’m going to
stipulate to it because it seems to be contradictory in
terms but not being a psychiatrist, I don’t presume to
interpret.” When the judge followed up on the seeming
inconsistency, asking counsel what the report meant
when it said Rever was in need of inpatient care, counsel
answered, “I have no clue.” Counsel repeated his state-
ment that he had “no clue” about what he took to be an
inconsistency in the report, but he did not waver in
his desire to stipulate to the report. Based on counsel’s
stipulation to the report, the judge found Rever fit to
stand trial.
At the hearing, counsel also told the judge that since the
report had been prepared, Rever’s psychiatrist at the
Department of Mental Health had raised Rever’s daily
dosage of Effexor, a common antidepressant, from 75 mg
to 225 mg. Counsel asked for an order that would require
the jail to comply with the change. Counsel also told the
court he was going to have Dr. Chapman examine
Rever again to determine the effect of the increased
dosage, but that examination never took place.
After the jury found Rever guilty on 11 of the 15 counts,
Rever saw Dr. Chapman again in preparation for sen-
tencing. In his report, Dr. Chapman did not opine on
Rever’s fitness to stand trial or to be sentenced, but he did
diagnose Rever as suffering from bipolar disorder.
No. 09-1156 5
Dr. Chapman testified as a mitigation witness at sen-
tencing, but did not opine on Rever’s fitness. The
court sentenced Rever to 33 years in prison.
In his direct appeal, Rever did not discuss his fitness to
stand trial. The appellate court affirmed and also
did not mention the issue. After the Illinois Supreme
Court denied his petition for leave to appeal, Rever
sought post-conviction relief in the trial court. In his
petition, Rever argued that his trial counsel was inef-
fective for allowing him to be tried without a full fitness
hearing and that appellate counsel was ineffective for
failing to raise the issue on appeal. The trial court
found that Rever’s petition stated the gist of a constitu-
tional claim, so the court appointed counsel and held a
hearing. At the hearing, Dr. Chapman testified that the
seemingly contradictory findings in the progress report
were not necessarily inconsistent: a defendant could be
both fit to stand trial and in need of inpatient treatment.
Dr. Chapman also explained that he had not formed an
opinion on Rever’s fitness to stand trial at the time of the
agency report and that he was not prepared to do so
retrospectively. On the other hand, though, Dr. Chapman
explained that he or another medical professional
could formulate such an opinion retrospectively.
After hearing argument on the petition, the judge, who
had also overseen the criminal trial, acknowledged that
he had “made an error by not having a restoration of
fitness hearing.” Nevertheless, he denied Rever’s petition,
stating that “there is no evidence” that Rever was unfit
at the time of trial. Moreover, the judge noted that Rever’s
6 No. 09-1156
conduct during trial demonstrated his fitness. Accordingly,
the trial court found that neither trial counsel’s failure
to demand a hearing nor appellate counsel’s failure to
raise the issue constituted ineffective assistance.
Rever appealed, arguing only that his appellate
counsel was ineffective for failing to raise competence.
The Illinois Appellate Court affirmed the trial court’s
ruling but on slightly different grounds. First, the court
held that the trial court did not err by accepting
counsel’s stipulation to Rever’s fitness, so appellate coun-
sel’s failure to raise the issue was not objectively unrea-
sonable. Under Illinois law, a fitness finding cannot be
based on a stipulation to the existence of a psychiatric
conclusion, the court explained, but the stipulation in
this case was to a report that the trial court had read and
discussed with counsel. In addition, the court had ob-
served the defendant before accepting the stipulation. On
the second prong of the test for ineffective assistance,
the appellate court held that Rever could not show preju-
dice because the trial court had properly found both
before trial and during the post-conviction proceedings
that he was fit for trial. The Illinois Supreme Court denied
Rever’s petition for leave to appeal.
Rever then filed a petition for a writ of habeas corpus in
federal court. He argued again that trial counsel was
ineffective for failing to seek a fitness hearing before trial
and that appellate counsel was ineffective for failing to
raise the issue. The district court ordered the state to
respond, held a hearing by telephone, and denied the
petition because Rever had failed to present substantial
No. 09-1156 7
facts that would show he was unfit to stand trial. The
court acknowledged that trial counsel may have erred,
but ruled that Rever had not shown that any error was
prejudicial because he had failed to present evidence
showing that he was unfit to stand trial. The court went
on to deny Rever’s alternative request for an evidentiary
hearing on his fitness because Rever did not satisfy
the requirements of 28 U.S.C. § 2254(I). But the district
court did grant Rever a certificate of appealability on
two issues:
(1) Whether petitioner sufficiently demonstrated
a real and substantial doubt as to his fitness to
stand trial, which would then shift the burden to
the State to demonstrate that he was in fact fit at
the time of trial; and
(2) Whether, if petitioner did not sufficiently
demonstrate such doubt, this Court erred in de-
nying him an evidentiary hearing at which he
might establish this doubt, in light of the Section
2254 standard, whereby the effectiveness or incom-
petence of counsel during Federal or State collat-
eral post conviction proceedings are not grounds
for relief.
(Id. at 19.)
II. ANALYSIS
On appeal, both parties direct their efforts to the
issues on which the district court granted the certificate
of appealability. That is unfortunate because the district
8 No. 09-1156
court identified the wrong issues. Rever argued in his
petition that his trial counsel was ineffective for going
to trial without a fitness hearing and that appellate
counsel was also ineffective for failing to raise the is-
sue. (The first argument was not presented to the Illinois
Appellate Court and is, therefore, procedurally defaulted.
See Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009).)
Rather than examining the state courts’ analysis of
Rever’s claims of ineffective assistance, the district court
applied pre-AEDPA law to assess Rever’s underlying
fitness claim. Specifically, the district court applied Lewis
v. Lane, 822 F.2d 703 (7th Cir. 1987), which adopted a
burden shifting approach to fitness claims presented in
federal habeas: once the petitioner presents substantial
facts supporting his allegation of incompetency, the
burden shifts to the state to show that the petitioner was
in fact competent to stand trial. Id. at 706-07. But under
AEDPA, federal courts do not independently analyze
the petitioner’s claims; federal courts are limited to re-
viewing the relevant state court ruling on the claims. See
Dunlap v. Hepp, 436 F.3d 739, 744 (7th Cir. 2006) (citing
Williams v. Taylor, 529 U.S. 362 (2000)). The independent
review applied in Lewis did not survive AEDPA. See
Sturgeon v. Chandler, 552 F.3d 604, 612 (7th Cir. 2009)
(reviewing state court determination of competency);
Woods v. McBride, 430 F.3d 813, 820 (7th Cir. 2005) (same).
Thus, the district court should have limited its review to
the rulings of the Illinois courts that considered Rever’s
arguments.
Although Rever casts his arguments in the wrong
direction, they are easily recast as challenging the state
No. 09-1156 9
court proceedings. At bottom, Rever’s argument is that
the state courts violated his constitutional right to a
reasonable opportunity to demonstrate that he was unfit
to be tried. See Medina v. California, 505 U.S. 437, 451 (1992);
Drope v. Missouri, 420 U.S. 162, 180 (1975); Woods, 430 F.3d
at 819. Illinois implements that right by statute: once a
defendant presents a “bona fide doubt” about his
fitness, the burden shifts to the state to prove fitness by a
preponderance of evidence. 725 ILCS 5/104-11; see also
Sturgeon, 552 F.3d at 610 (“[S]ection 104-11 protects a
constitutional right.”). That standard also applies to post-
conviction claims, see People v. Shum, 797 N.E.2d 609, 616
(Ill. 2003), and the trial court applied it when the court
denied Rever’s request for post-conviction relief based
on its finding that “[t]here is no evidence that [Rever] was
unfit when trial commenced.” In other words, the trial
court found that, in the retrospective hearing, Rever
failed to submit evidence showing a bona fide doubt as
to his fitness, so a full retrospective hearing on his
fitness before trial was not necessary.
The Illinois Appellate Court seems to have con-
sidered the trial court’s finding to be an explicit fitness
determination, and Rever attacks the appellate court’s
ruling on that basis. Despite our doubts about that
portion of the appellate court’s ruling, we need not
delve into it because, while our review adjudication in
state court is limited to the last decision to address the
arguments on the merits, see Smiley v. Thurmer, 542
F.3d 574, 580 (7th Cir. 2008), our deference to factual
findings in state court, see 28 U.S.C. § 2254(e)(1), is not so
limited. Section 2254(e)(1)’s text makes that clear: “a
10 No. 09-1156
determination of a factual issue made by a State court shall
be presumed to be correct.” Id. (emphasis added); see
Hannon v. Sec’y, Dep’t of Corr., 562 F.3d 1146, 1150 (11th Cir.
2009); see also Sumner v. Mata, 449 U.S. 539, 547 (1981) (pre-
AEDPA). And that deference to state courts’ factual
findings applies even when we refuse to defer to the state
courts’ legal adjudication. See Brown v. Smith, 551 F.3d 424,
431 (6th Cir. 2008); Hodges v. Attorney Gen., State of Fla., 506
F.3d 1337, 1348 (11th Cir. 2007); Jacobs v. Horn, 395 F.3d 92,
100 (3d Cir. 2005). Thus, even if Rever can overcome our
AEDPA deference to the appellate court’s adjudication of
his claim, we still presume to be correct the trial court’s
finding that he did not present sufficient evidence at the
retrospective hearing to raise a bona fide doubt as to his
competence and, therefore, failed to show that he was
prejudiced by appellate counsel’s conduct. See People v.
Harris, 794 N.E.2d 181, 189-90 (Ill. 2002); People v.
Pitsonbarger, 793 N.E.2d 609, 628-30 (Ill. 2002).
Rever attacks that finding on two fronts, but both
attacks fail. First, he points to the report by the Depart-
ment of Mental Health—the only evidence that he was fit
to stand trial. According to Rever, the report contains
“innumerable problems,” but he enumerates only two.
The first is the seeming inconsistency between the
report’s conclusion that Rever was fit for trial but also
in need of inpatient care. But Rever’s own expert
explained in the post-conviction proceedings that these
two findings were not necessarily inconsistent. The
second purported problem is the report’s explanation
that Rever did not “fully understand that facing his
charges and resolving his legal problems is the best way to
No. 09-1156 11
diminish his depressive feelings,” but Rever does not
explain how that statement might be inconsistent with a
finding of competency. In fact, the statement is not
about fitness to stand trial; it is about treating Rever’s
depression, and not every mental illness demonstrates
incompetence to stand trial. See Eddmonds v. Peters, 93
F.3d 1307, 1314 (7th Cir. 1996).
Rever’s second argument against the state court’s
finding that he failed to present enough evidence to call
his competency into question relies on the sharp increase
in his medication shortly before trial. In Burt v. Uchtman,
422 F.3d 557 (7th Cir. 2005), this court held that the
trial court should have conducted a competency hearing
based in part on the petitioner’s “heavy and ever-changing
doses of psychotropic medication.” Id. at 565-66. But in
Burt, there was other evidence suggesting incompe-
tence—most importantly, on the fourth day of trial, the
petitioner suddenly decided to plead guilty against coun-
sel’s advice. By contrast, Rever’s conduct during trial did
nothing to call his competence into question. The increase
in the dosage of Rever’s medication, on its own, is not
sufficient evidence to rebut the state court’s finding.
Rever had the opportunity during the state post-convic-
tion proceedings to present medical evidence challenging
the report that found him fit. And had he presented
sufficient evidence, he would have shifted the burden to
the state to prove his fitness. Rever could have presented
evidence on the dosage increase or anything else, but he
did not do so, and his attempt to submit that evidence
in federal habeas review comes too late. Rever’s argu-
12 No. 09-1156
ment that the district court erred in denying him a
hearing to present more evidence under 28 U.S.C.
§ 2254(e)(2) is meritless because he concedes that he
cannot satisfy any of that provision’s exceptions. Rever
has failed to show the clear and convincing evidence
necessary to rebut the state trial court’s finding on the
evidence he presented in the retrospective hearing. 28
U.S.C. § 2254(e)(1). Accordingly, we must defer to that
finding and hold that Rever did not present sufficient
evidence to show prejudice from appellate counsel’s
failure to raise the issue of competence.
III. CONCLUSION
Accordingly, we A FFIRM the district court’s denial of
Rever’s petition.
1-4-10