Vincent Powell v. David Shinn ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT ALPHONSO POWELL, No. 19-15375
Petitioner-Appellant, D.C. No. 4:18-cv-00034-JAS
v.
MEMORANDUM*
DAVID SHINN, Director; MARK
BRNOVICH, Attorney General,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted December 10, 2020
San Francisco, California
Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges.
Petitioner-Appellant Vincent Powell (Powell) appeals the district court’s
denial of his petition for a writ of habeas corpus. We have jurisdiction under 28
U.S.C. § 1291. Because the parties are familiar with the facts, we do not recount
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
them here, except as necessary to provide context to our ruling. We AFFIRM the
decision of the district court.
Procedural Competency Claim
“It is well established that the Due Process Clause of the Fourteenth
Amendment prohibits the criminal prosecution of a defendant who is not competent
to stand trial.” Medina v. California, 505 U.S. 437, 439 (1992). “A defendant may
not be put to trial unless he has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding . . . [and] a rational as well as
factual understanding of the proceedings against him.” Cooper v. Oklahoma, 517
U.S. 348, 354 (1996) (internal quotation marks and citation omitted).
“Where the evidence before the trial court raises a ‘bona fide doubt’ as to a
defendant’s competence to stand trial, the judge on his own motion must conduct a
competency hearing.” Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010) (citing
Pate v. Robinson, 383 U.S. 375, 385 (1966)). “[A] trial court must always be alert
to circumstances suggesting a change that would render the accused unable to meet
the standards of competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 181
(1975).
On direct review, the Arizona Court of Appeals affirmed the trial court’s
finding of competency and decision not to hold a new competency hearing. See
State v. Powell, 2010 WL 4323570 (Ariz. Ct. App. Oct. 29, 2010); State v. Powell,
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2011 WL 982441 (Ariz. Ct. App. Mar. 21, 2011). Powell claims that this decision
is “contrary to or an unreasonable application of federal law . . . or based on an
unreasonable determination of fact . . . or both” under the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d).
First, the decision of the state appellate court was not “contrary to . . . . clearly
established Federal law, as determined by the Supreme Court of the United States.”
Id. § 2254(d)(1). The Arizona Court of Appeals cited the relevant constitutional
standards for a defendant’s procedural due process right to a competency hearing.
Compare Powell, 2010 WL 4323570, at *2, with Maxwell, 606 F.3d at 568 (9th Cir.
2010) (citing Pate, 383 U.S. at 385).
Second, the decision of the Arizona Court of Appeals was neither “an
unreasonable application of[] clearly established Federal law” nor “based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)–(2); see Maxwell, 606 F.3d at 568, 576(treating as similar the legal-application and factual-determination paths under
AEDPA for a procedural competency claim). That Powell’s counsel raised concerns
about his competency and that Powell was on new and varying medications at the
time of trial are factors that the trial court had to consider in deciding whether Powell
was entitled to a new competency hearing. See Medina, 505 U.S. at 450; Maxwell,
606 F.3d at 570. However, it was not unreasonable for the trial court, and
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subsequently the Arizona Court of Appeals, to rely on prior psychiatric evaluations
that found Powell to be malingering. A forensic psychologist determined that
Powell was “capable of understanding the nature and object of the proceedings and
assisting in his own defense” and that the evidence “support[ed] a diagnosis of
Malingering,” at least in part because of “false or grossly exaggerated symptoms.”
A “fairminded jurist[],” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004), could
conclude that Powell’s disruptive behavior before and at the start of trial was
consistent with the previous diagnosis of malingering and thus did not raise a bona
fide doubt as to his competency. “Given these [past] psychiatric evaluations . . . ,
we conclude that the trial judge’s decision not to hold a competency hearing,” and
the appellate court’s affirmance of that decision, were “not unreasonable.” Williams
v. Woodford, 384 F.3d 567, 605 (9th Cir. 2004). Under AEDPA’s “highly
deferential standard for evaluating state-court rulings,” Cullen v. Pinholster, 563
U.S. 170, 181 (2011) (internal quotation marks and citation omitted), we affirm the
decision of the district court on this claim.
Substantive Competency Claim
In addition to his procedural due process claim, Powell argues that he was
actually incompetent at the time of trial. A substantive due process claim has a
higher bar than its procedural due process counterpart. See McGregor v. Gibson,
248 F.3d 946, 952 (10th Cir. 2001) (en banc). We may consider evidence not
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available to the trial judge contemporaneously. See Williams, 384 F.3d at 608.
However, “we disfavor retrospective determinations of incompetence, and give
considerable weight to the lack of contemporaneous evidence of a petitioner’s
incompetence to stand trial.” Id.We conclude that Powell has not proven that the trial court’s continued finding
of competency, and the decision of the Arizona Court of Appeals to affirm that
finding, was unreasonable. Because it was not unreasonable at the time of trial to
hold that there was not even a bona fide doubt as to Powell’s competency, any
decision to grant Powell’s petition on his substantive competency claim must
necessarily rely on evidence not available to the trial court.
Powell’s evidence does not tip the scales in his favor. For example, Powell
concedes that one ex post mental health evaluation “reached only tepid conclusions”
and that the report did not rely heavily on Powell’s contemporaneous medical
records. Additionally, even if changing medications showed evidence of mental
illness, Powell has not met his burden in proving that there was a “causal connection
between the [illness] and his inability to understand the proceedings.” United States
v. Neal, 776 F.3d 645, 655–56 (9th Cir. 2015). We again affirm the decision of the
district court.
Involuntary Absence Claim
“One of the most basic of the rights guaranteed by the Confrontation Clause
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is the accused’s right to be present in the courtroom at every stage of his trial.”
Illinois v. Allen, 397 U.S. 337, 338 (1970). Powell renews his claim that he “did not
validly waive his right to be present at his trials.” The trial court’s decision to
remove Powell from the courtroom was based on what that court saw as his
purposeful decision to disrupt the proceedings, a sign of his malingering. Thus,
whether Powell was voluntarily or involuntarily absent at his trials is directly tied to
his competency claim. See Powell, 2010 WL 4323570, at *5 (“Having already
rejected Powell’s incompetency premise, we necessarily reject” his absence claim).
Powell concedes the same. Because the decisions of the Arizona Court of Appeals
on Powell’s competency claims were not unreasonable, we also affirm the decision
of the district court with regard to Powell’s trial absence claim.1
For the foregoing reasons, we AFFIRM the decision of the district court.
1
Because we affirm the district court’s decision on the absence issue because of its
relationship to the competency issues, we need not decide whether Powell
procedurally defaulted his absence claim as it relates to his second trial.
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