Pernell Ford v. Michael W. Haley

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
11/08/99
No. 99-10895 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 95-B-3020-S
PERNELL FORD,
Petitioner-Appellant,
versus
MICHAEL W. HALEY, Commissioner,
Alabama Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 8, 1999)
Before ANDERSON, Chief Judge, DUBINA and HULL, Circuit Judges.
HULL, Circuit Judge:
Petitioner Pernell Ford (“Ford”) is an Alabama death row inmate who has filed
recurrent requests to dismiss his § 2254 habeas petition, discharge his counsel, and be
executed. Ford permitted his counsel, Ms. LaJuana Davis (“Davis”), to file and
litigate his habeas petition for two years. However, in 1997, Ford began his quest to
dismiss his petition and be executed. On March 31, 1999, the district court found
Ford was mentally competent to forego further collateral review and granted Ford’s
pro se requests to dismiss his habeas petition and Davis as his counsel. Thereafter,
Davis, as Ford’s former counsel, appealed the district court’s order. In Ford v. Haley,
179 F.3d 1342 (11th Cir. 1999), we granted a stay of Ford’s execution set for July 9,
1999, and held that Davis appeared to retain standing to the limited extent necessary
to appeal the mental competency rulings in the district court’s order.1 We expedited
briefing and oral argument in this appeal.
Accordingly, the main issue we must address now is whether the district court
erred in finding Ford competent to forgo further collateral review of his conviction
1
As we explained in our earlier opinion,“[t]he standing issue here is arguably
akin to a court’s having limited jurisdiction to determine its own jurisdiction.” Ford
v. Haley, 179 F.3d 1342, 1345 n.3 (11th Cir. 1999). As we also noted earlier, if the
“district court’s finding that Ford is mentally competent is not clearly erroneous, then
the district court correctly honored Ford’s wishes to dismiss his attorney and his §
2254 habeas petition. See Whitmore v. Arkansas, 495 U.S. 149 (1990); Gilmore v.
Utah, 429 U.S. 1012 (1976); Lonchar v. Zant, 978 F.2d 637 (11th Cir. 1992).
Accordingly, Davis, no longer Ford’s attorney, would lack standing to pursue Ford’s
case further. However, if the district court’s finding is clearly erroneous and Ford is
mentally incompetent, then the dismissals of Davis and the petition were in error, and
Davis may be entitled, as Ford’s attorney, to pursue Ford’s § 2254 habeas petition.”
Id. at 1345. “Otherwise, a district court would be able to find a defendant mentally
competent in a capital case to dismiss his counsel and dismiss with prejudice his §
2254 habeas petition in federal court and there never would be any appeal or review
of that contested mental competency ruling.” Id.
2
and death sentence. We begin our analysis by reviewing the factual history of the state
and federal court proceedings wherein Ford repeatedly has been examined by doctors
and found competent. We next outline why we conclude that the district court’s
competency findings are supported by substantial evidence and that the district court
did not clearly err in those competency findings. Lastly, because the merits of the
competency issue have now been considered on appeal, we explain why Davis lacks
standing to pursue this habeas petition further.
I. STATE TRIAL
In 1984, Pernell Ford was sentenced to death in Alabama state court for
murdering Willie C. Griffith and her daughter Linda Gail Griffith during the course
of burglarizing their home. Ford admits that he killed the two women, who died of
multiple stab wounds to the head, neck, and trunk. Additionally, the trial evidence
that Ford committed these capital crimes was overwhelming. This evidence is
detailed in the opinions of the Alabama appellate courts affirming Ford’s conviction
and sentence. See Ford v. State, 515 So. 2d 34 (Ala. Crim. App. 1986), aff’d, Ex parte
Ford, 515 So. 2d 48 (Ala. 1987).
During the guilt phase of his trial, Ford waived counsel and conducted his own
defense. Prior to permitting Ford to proceed pro se, the trial court conducted an
extensive colloquy with Ford in which the court explained the rights that Ford would
3
be relinquishing by representing himself at trial. See Ford v. State, 515 So. 2d at 37-
39.2 Three mental health professionals testified regarding Ford’s competence to waive
counsel. Dr. Robert G. Summerlin, a psychologist hired at the request of the defense
team, testified that Ford had an I.Q. of 80 and was competent to stand trial. Dr.
Summerlin stated that Ford had the capacity to understand everything the trial judge
explained to him, but was concerned that Ford may have made up his mind to proceed
pro se and may not have been listening to the judge. Dr. Summerlin gave his opinion
that Ford had a personality disorder with some indication of an “emerging psychosis.”
Although Dr. Summerlin was seriously concerned about Ford’s mental ability to
waive his right to counsel, Dr. Summerlin acknowledged that his doubts could be
affected by the possibility of Ford’s “malingering” or “faking bad.”
Dr. Wallace W. Wilkerson, a psychiatrist whom the trial court selected, testified
that in his opinion Ford was “far more intelligent” than an I.Q. of 80 would indicate,
and estimated Ford’s I.Q. to be closer to 110. Dr. Wilkerson found no evidence of
“emerging psychosis” and stated that Ford was a sociopath, one who believes the law
2
At each step of the explanation, Ford acknowledged that he understood what
he was being told; Ford stated that he had no questions. See Ford v. State, 515 So. 2d
at 39. When the trial court inquired why Ford wished to represent himself, Ford
stated: “Well, I feel like I’m competent enough to – to represent myself. You know,
I have been to Bryce’s and I was found not insane, so I feel like I’m able to do it. . .
. I’m the one facing trial; I should be able to represent myself.” Id.4
does not apply to him. He told the court that Ford “knows the system” and is
“perfectly capable of knowing what to do to beat the system or confuse the system.”
In Dr. Wilkerson’s opinion, Ford had a preplanned idea as to what he was going to
do–disrupt the proceedings of this Court, feigning mental illness. Dr. Wilkerson
concluded that Ford was competent to stand trial and competent to waive his right to
an attorney. The third expert, Dr. Harry A. McClaren, chief psychologist at the Taylor
Hardin Secure Medical Facility, also testified that Ford had an anti-social personality
disorder, was competent to stand trial, and was competent to make the choice to
dismiss his legal counsel.
The state trial court found that Ford was competent to stand trial and waive his
counsel, but required Ford’s three appointed attorneys to stand by in the courtroom
throughout the trial and to be available to consult with Ford or take over should Ford
change his mind about proceeding pro se. Standby counsel did not sit at Ford’s table
but remained in the courtroom. The trial court did not on its own require counsel to
sit at Ford’s table. However, the trial court repeatedly reminded Ford that standby
counsel was available to him. During the trial, Ford actually consulted with standby
counsel a number of times. During the guilt phase of the trial, Ford, proceeding pro
se, made no opening, pressed no objections or motions, nor did he present a defense.
5
He tendered no requests to charge and did not object to the trial court’s charge. Ford
did make a closing argument during the guilt phase.
During the penalty phase of the trial, however, Ford allowed his standby
attorneys to represent him. His counsel introduced various medical and psychological
records of Ford and made a closing argument during the penalty phase. The jury
recommended the death sentence. At the final sentencing before the trial judge, Ford
proceeded pro se with standby counsel in the courtroom. Thereafter, the trial court
sentenced Ford to death.
II. STATE DIRECT APPEAL
On direct appeal, counsel represented Ford and argued, inter alia, ineffective
assistance of counsel at trial because: (1) there should be no right to waive counsel
in a criminal case; (2) Ford was incompetent to waive his right to an attorney; and (3)
his standby counsel did not sit at the defense table with him.3 The Alabama appellate
3
The Alabama Court of Criminal Appeals rejected Ford’s first ground of appeal
as having no legal support. Ford v. State, 515 So. 2d at 40. The Appeals Court also
rejected the second ground, holding that the trial record demonstrated that Ford “was
thoroughly apprised of the dangers, disadvantages, and consequences of proceeding
without counsel.” Id. at 40-41. The Appeals Court held that Ford’s failure to make
objections or motions or to otherwise present a defense at trial was irrelevant to the
question of Ford’s mental capacity to waive trial counsel. Id. at 41. Moreover, the
Appeals Court held that Ford had the mental capacity to comprehend the implications
of waiving his counsel. Id. at 42. Applying a more stringent standard than
competency to stand trial, the Appeals Court looked to whether Ford was “free of
mental disorder which would so impair his free will that his decision to waive counsel
6
courts upheld the trial court’s finding that Ford was competent to waive his trial
counsel and conduct his own defense. Ex parte Ford, 515 So. 2d 48 (Ala. 1987), aff’g,
Ford v. State, 515 So. 2d 34 (Ala. Crim. App. 1986). The Alabama Supreme Court
and the Alabama Court of Criminal Appeals affirmed the convictions and death
sentence. Ex parte Ford, 515 So. 2d 48 (Ala. 1987), aff’g, Ford v. State, 515 So. 2d
34 (Ala. Crim. App. 1986). The United States Supreme Court denied Ford’s petition
for a writ of certiorari. Ford v. Alabama, 484 U.S. 1079 (1988).
The Alabama Court of Criminal Appeals (“Appeals Court”) concluded that
“[t]he record in this case leaves no doubt that the defendant was free of a mental
disorder which would so impair his will as to render his waiver decision involuntary.”
515 So. 2d at 42. Specifically, the Appeals Court noted that all three experts
unequivocally stated that Ford was competent to stand trial. Two experts were equally
positive in their diagnoses that Ford was free of mental disease and competent to
waive counsel. Even Dr. Summerlin, the one expert expressing some doubt about
would not be voluntary,” id. (quoting Peter R. Silten & Richard Tullis, Mental
Competency in Criminal Proceedings, 28 Hastings L.J. 1053, 1067 (1977)). The
Appeals Court also cited the “intentional relinquishment or abandonment of a known
right or privilege” standard from Johnson v. Zerbst, 304 U.S. 458, 464 (1938), and a
California court’s interpretation that the standard “is satisfied if the trial court finds
that the defendant is free of mental disorder and is aware of the consequences of his
insistence upon representing himself.” Ford v. State, 515 So. 2d at 42 (citing Curry
v. Superior Court, 141 Cal. Rptr. 884, 888-89 (1977)).
7
Ford’s waiving counsel, was unwilling to characterize Ford’s condition as anything
more than indicative of “emerging psychosis” and acknowledged that his findings
could have been colored by Ford’s “faking bad.”
Given the tentativeness of Dr. Summerlin’s conclusions, as well as Dr.
Wilkerson’s testimony that Ford knew how to “beat” or “confuse” the system, the
Appeals Court held that the trial court was warranted in concluding that Ford did not
suffer from any mental disease which impaired his waiver of counsel. The Appeals
Court also upheld the trial court’s finding that Ford was intelligent enough to
understand the consequences of his decision, especially in light of other testimony that
Ford’s I.Q. might be as high as 110. Id. In sum, the Appeals Court concluded that the
psychological evidence, combined with the trial court’s thorough colloquy with Ford
as well as his responses, fully supported the trial court’s finding that Ford was
competent to waive counsel. Id. at 43. The Appeals Court also held that Ford had no
constitutional right to have standby counsel sit at the defense table with him, and
affirmed Ford’s conviction and death sentence. Id.4
4
Judge Tyson dissented from the Appeals Court’s holdings regarding Ford’s
competency and standby counsel. Judge Tyson believed that Ford was “presented
with a ‘Hobson’s Choice’ to either represent himself alone or choose to be represented
by counsel seated in the front of the courtroom,” and that the passive role played by
the three attorneys deprived Ford of a fair trial. Ford v. State, 515 So. 2d at 48(Tyson, J., dissenting). According to Judge Tyson, Ford’s right to self-representation
could have been honored in accord with society’s interest in the right to counsel
8
The Alabama Supreme Court affirmed the Appeals Court’s decision. Like the
Appeals Court, the Alabama Supreme Court relied on the United States Supreme
Court’s ruling in Faretta v. California, 422 U.S. 806 (1975), which recognized that a
criminal defendant could waive counsel so long as the accused did so “knowingly and
intelligently.” 422 U.S. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65
(1938)). Further, the Alabama Supreme Court noted that Faretta requires that,
although the defendant need not have the skill and experience of a lawyer in order to
choose self-representation, “he should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that ‘he knows
what he is doing and his choice is made with eyes open.’” 515 So. 2d at 50 (quoting
Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S.
269, 279 (1942))).
The Alabama Supreme Court observed that the trial court discussed Ford’s
rights and discussed each phase of the trial in detail. The trial court explained the
advantages of having an attorney and how having an attorney could make a difference
in the outcome of trial. The trial court explicitly recommended to Ford that he not
during a capital case through the requirement that appointed “standby counsel”
actually sit with the defendant at counsel table throughout the case. This arrangement,
in Judge Tyson’s judgment, would best preserve the defendant’s freedom of choice
while at the same time making “a fair trial . . . a more realistic and likely possibility.”
Id.9
proceed by representing himself and that Ford’s representing himself would be
foolhardy in the trial court’s opinion. The Alabama Supreme Court concluded “that
the trial court carefully and completely explained the possible ramifications of
representing oneself in a criminal proceeding in order that Ford be able to make a
knowing, intelligent decision.” Ex parte Ford, 515 So. 2d at 50.
Next, the Alabama Supreme Court examined whether Ford was competent to
make the decision to waive counsel. The Court summarized how two of the three
mental health experts testified that Ford was competent to decide to discharge his
attorneys, while the third expert had questions about that competency but would not
commit one way or the other. Id. at 50-51. Based on the expert testimony, the
Alabama Supreme Court affirmed the trial court and the Appeals Court’s decisions,
and held that they “did not err in ruling that Ford was competent to make the decision
to waive his right to counsel.” Id. at 51. The Alabama Supreme Court concluded that
it was not error for appointed counsel to stand by within the courtroom but not sit at
Ford’s table.
III. STATE HABEAS PETITION
On September 23, 1988, Ford’s counsel filed his state “Petition for Relief from
Conviction or Sentence.” Ford’s state habeas petition asserted fourteen errors,
10
including issues related to Ford’s mental competency to waive trial counsel.5 In ruling
on Ford’s petition, the state habeas court noted that Ford, “on-again, off-again,” filed
in that court requests or motions to forego further appeals. However, the court
declined to grant Ford’s requests and proceeded to address the merits of Ford’s habeas
petition.
On March 1, 1991, the state habeas court found that Ford was competent to
stand trial and to waive counsel at trial. The habeas court observed that the trial court
specifically found that there was no indication that Ford was incompetent at any point
5
Ford’s state habeas petition alleged, inter alia, these errors relating to Ford’s
mental competency: (1) “[d]enial of effective assistance” (both while represented by
counsel and while pro se); (2) “[t]he Defendant’s conduct demonstrates that he did not
have the requisite mental capacity to waive his right to counsel;” (3) “[t]he Court
inappropriately questioned the Defendant [sic] court appointed attorney about his
capacity, creating an unfair conflict of interest between the Defendant and his
attorney;” (4) “[t]he Defendant demonstrated an inability to competently handle any
aspect of his own defense;” (5) “[t]he Court failed to request additional psychiatric
evaluation on this Defendant conduct [sic] became more bizarre;” (6) “The trial was
potentially unfair and lacked due process because the defendants [sic] mental capacity
was never placed before the jury as a defense of insanity or diminished capacity;” (7)
“[t]hat it is unconstitutional to sentence to death someone who was 18 years old at the
time of the above reasons [sic] who represented himself and none of the grounds for
a new trial have been waived because the Defendant had neither the mental capacity,
training or knowledge to properly protect the record;” (8) “[b]ecause [of] Defendant’s
mental incompetence the jury was not permitted to consider the possible insanity or
diminished capacity of the Defendant as a defense and the defense could not be
properly placed before the jury;” (9) “[b]ecause of the Defendant’s own representation
the jury could not consider the Defendant’s mental condition in regard to the claim of
aggravating circumstances or in relationship to mitigating circumstances.”
11
in the proceedings. State v. Ford, Case CC 84-08 (Ala. Cir. Ct. Mar. 1, 1991), aff’d,
630 So. 2d 111 (Ala. Crim. App. 1991), aff’d, 630 So. 2d 113 (Ala. 1993), cert.
denied, 511 U.S. 1078 (1994). Prior to the state habeas hearing, Ford sought the
appointment of a specifically named expert psychologist to assist him. The state
habeas court declined to appoint the individual named in Ford’s request but appointed
Dr. Robert Summerlin, the psychologist who assisted Ford at trial and was already
familiar with his mental condition. The state habeas court held that in post-conviction
proceedings Ford was not entitled to the appointment of an expert of his own
choosing.
The state habeas court reviewed the Appeals Court’s findings which were made
on direct review. Specifically, the state habeas court examined the Appeals Court’s
treatment of the extensive colloquy the trial judge held with Ford, see Ford v. State,
515 So. 2d at 37-39, along with its treatment of the testimony of the three experts, see
id. at 39-40. The state habeas court found that the Appeals Court’s discussion was an
accurate rendition of the trial record, and that nothing was presented at Ford’s habeas
hearing to call any of the findings into question. The state habeas court denied Ford’s
petition, finding him competent, as follows:
Two mental health professionals, Wallace Wilkerson, M.D., a
psychiatrist who examined Mr. Ford both in 1984 and 1989, and
Wilbern Rivenbark, Ph.D., testified that, in their opinions, Mr.
Ford was competent to waive counsel at trial. At most, Mr. Ford
12
was found to suffer from an anti-social personality disorder. In
their opinion, and the Court finds, Mr. Ford knew what he was
doing in waiving counsel and was not, and presently is not, insane,
incompetent, or suffering from any thought or mood disorder.
Although ruling on the merits of Ford’s competency claim, the state habeas court
further noted that Ford’s competency to discharge counsel and proceed pro se was
decided unfavorably on direct appeal and that Rule 20.2(a)(4), A.R.Cr.P. (currently
Rule 32.2(a)(4)), precludes relief on a decided issue raised on appeal. Similarly,
regarding the trial court’s asking trial counsel about Ford’s capacity to waive counsel,
the state habeas court found that this claim could have been raised on direct appeal
and was now procedurally barred but that the claim was without merit even if
considered. Ford’s attorney first advised the trial court of Ford’s desire to proceed pro
se and only then did the trial court ask Ford’s counsel to state an opinion as to his
client’s competency to waive counsel. In the state habeas court’s opinion, this did not
create any conflict and in any event was known, available for review on direct appeal,
and now barred.
Finally, the state habeas court held that there was no law supporting the
proposition that self-representation in a capital case is per se improper or unjust. The
court noted it would be error to deny a defendant’s request to proceed pro se where
he was found competent to make such a decision. In any event, the court found that
this claim could have been raised on appeal, was not, and is barred. Ford’s counsel
13
appealed the state habeas court’s decision, and the Alabama Appeals Court affirmed.
Ford v. State, 630 So. 2d 111 (Ala. Crim. App. 1991). In particular, the Appeals
Court declined to expand Ake v. Oklahoma, 470 U.S. 68 (1985), to entitle a criminal
defendant to the assistance of a psychologist of his own choosing during a post-
conviction proceeding. Ford v. State, 630 So. 2d at 111.
On October 29, 1993, the Alabama Supreme Court affirmed the state habeas
court’s denial of Ford’s petition and held that certain grounds in his petition were
“precluded by Rule 32.2(a)(4), A.R.Cr.P. (grounds that ‘[were] raised or addressed on
appeal’) and Rule 32.2(a)(5) (grounds that ‘could have been but [were] not raised on
appeal’).” Ex parte Ford, 630 So. 2d 113, 114 (Ala. 1993) (as modified on denial of
rehearing), cert. denied, 511 U.S. 1078 (1994). The Alabama Supreme Court also
held that Ford’s argument that “he is entitled to a new trial because, he says, his right
to waive counsel became void when . . . his lack of competence to waive counsel
became apparent by his bizarre behavior at trial” was precluded by Rule 32.2(a)(5).
Id. at 115. Finally, the Alabama Supreme Court held that the Appeals Court properly
affirmed the state habeas court’s denial of Ford’s request for the assistance of a mental
health expert of his own choosing. Id.
IV. FEDERAL HABEAS PETITION
14
On November 21, 1995, Ford’s counsel filed his § 2254 habeas petition in the
United States District Court for the Northern District of Alabama. This was Ford’s
first federal habeas petition. In May 1997, Ford pro se filed a form requesting that the
district court dismiss his appeal, and that an execution date be set. Ford’s attorney
responded that he was not mentally competent to dismiss his § 2254 petition or his
counsel. Before acting on Ford’s pro se request, the magistrate judge held two
evidentiary hearings.
A. Evidentiary Hearings
At the first hearing on September 5, 1997, the magistrate judge had Ford appear
in order to inquire if he truly wanted to dismiss his attorney and to observe his mental
condition. At the hearing, Ford made it clear that he knew that termination of his legal
proceedings would mean his death by electrocution, and stated that was his desire.
The magistrate judge found that “there was nothing about petitioner’s demeanor or
behavior which indicated mental incompetence, and . . . the state court had twice
found him competent.”
Nevertheless, the magistrate judge ordered that Ford’s prison medical records
be submitted because Ford’s counsel contended they contained evidence that Ford
suffered from mental illness requiring anti-psychotic medication. Those prison
records indicated that Ford had suffered from psychosis, paranoia, and depression
15
during his incarceration and that medication improved Ford’s mental condition, but
that he sometimes refused to take it. In light of this information, the magistrate judge
appointed a psychiatric expert to examine Ford’s current competency. The parties
submitted the names of three experts. Over respondent’s objections, the magistrate
judge selected Dr. Robert Rollins, an expert submitted by Ford’s counsel. Dr. Rollins
is the Chief Forensic Psychiatrist at Dorothea Dix Hospital in Raleigh, North Carolina,
and has performed 200 mental competency evaluations a year in criminal cases since
1972.6
6
In appointing Dr. Rollins, the magistrate judge directed him to make findings
that would assist the court in determining whether Ford:
“has 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.” Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505,
16 L. Ed. 2d 583 (1966). Specifically, Dr. Rollins’s findings
should assist the court in determining (1) whether the petitioner
suffers from a mental disease, disorder or defect, (2) whether a
mental disease, disorder or defect prevents the petitioner from
understanding his legal position and the options available to him;
and (3) whether a mental disease, disorder or defect prevents the
petitioner from making a rational choice among his options.
Lonchar v. Zant, 978 F.2d 637, 641-42 (11th Cir. 1992) (citation
omitted). . . . Dr. Rollins’s findings should assist the court in
determining whether the petitioner has both a “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.” Dusky v. United
16
After evaluating Ford on March 14, 1998, Dr. Rollins submitted a written report
dated April 24, 1998, finding that Ford is competent to dismiss his counsel and his §
2254 petition, as follows:
My diagnoses are depressive disorder NOS (not
otherwise specified); personality disorder with dependent
traits; polysubstance abuse by history, antisocial behavior
by history, attention deficit hyperactivity disorder by
history, learning disorder by history, and relational problem
(conflicts with family).
At the time of my interview Mr. Ford did not
manifest symptoms of schizophrenia or major depression.
I do not think anti-psychotic medication is indicated.
...
Mr. Ford does have a mental disorder (depression and
personality disorder), but this disorder does not prevent Mr. Ford
from understanding his legal position and the options available to
him or making a rational choice among his options. He has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding and has a rational as
well as factual understandings of the proceedings against him.
After Dr. Rollins’s report was filed, Ford’s counsel, Davis, filed a motion requesting
that Ford be examined by Dr. Jonathan Pincus, another psychiatrist. According to the
magistrate judge, “[t]he stated purpose of that examination was to obtain information
States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824, 825 (per
curiam). See Godinez v. Moran, 509 U.S. 389, 400-402, 113 S.
Ct. 2680, 125 L. Ed. 2d 321 (1993) (citations omitted).
17
which would likely shorten Ms. Davis’ examination of Dr. Rollins at the evidentiary
hearing.” The magistrate judge granted the motion.
At the next evidentiary hearing on June 10, 1998, Dr. Rollins testified regarding
why he found Ford competent. While observing that Ford “is alienated, fed up, tired
out, generally is pessimistic,” Dr. Rollins also found that “in interpersonal interaction
he can be engaging, chatting, funny, cordial. He is not always depressed.” Dr. Rollins
described problems during Ford’s developmental period and how Ford has attempted
suicide several times. He attributed Ford’s behavior to his living on death row, but
stated that Ford was “making a reasonable adjustment to that situation.”
Although Ford has depression and a personality disorder, Dr. Rollins found no
evidence of neurological impairment and testified that Ford is not mentally retarded.
Rather he opined that Ford “is of normal intellectual ability but because of the lack of
educational, cultural experiences on the formal testing, he tests in the borderline
intellectual function range.” Dr. Rollins further found: that Ford’s orientation is
“intact,” that he is “able to proceed logically from one topic to another and his
thinking is organized,” that he “is able to perceive and understand,” and that his
memory is “good.” According to Dr. Rollins, Ford’s judgment “is impaired in the
sense that he has lifelong difficulty in adapting to the world around him and he has
made some bad decisions. But he is able to focus on this present task at hand and
18
come to an opinion. And in [Dr. Rollins’s] view, that opinion is not influenced by
mental disorder. He is able to make that judgment.”
Dr. Rollins also testified that Ford’s religious beliefs are not delusional. After
execution, Ford thinks that he is going to sit at God’s left hand and be an important
person. Dr. Rollins took this to mean that Ford “believes in the afterlife that he is
going to have a cherished position in heaven, that he is going to be respected, and that
he is going to be comfortable and happy there.” Dr. Rollins found that “what Mr.
Ford thinks will happen following his death is his own interpretation of the Bible and
his own religious beliefs.” Ford’s counsel explored with Dr. Rollins the possibility
that Ford’s religious beliefs are actually grandiose delusions. In Dr. Rollins’s clinical
determination, Ford’s religious beliefs are not a symptom of a mental disorder.
Instead, Dr. Rollins explained that Ford “doesn’t have the educational or philosophical
background perhaps to take more than a fairly direct interpretation of the Bible. I
mean, he is not a Biblical scholar by any means, but he is a person under stress who
is turning to religion for support and particularly because he doesn’t have other kinds
of support available to him.”
Dr. Rollins concluded that Ford’s depression and personality disorder do not
affect Ford’s competence to dismiss his federal habeas petition. He offered several
19
rational reasons to support Ford’s decision, including Ford’s feeling that if he would
be represented by counsel at a new trial, the result would turn out the same.7
The magistrate judge then questioned Ford. Ford understood the consequences
of dismissing the habeas petition, as well as his options. Thereafter, Ford’s counsel
elicited testimony from Ford about his ability to “translate” to places outside prison.
Ford stated that he had many wives, concubines, and children whom he had visited in
various parts of the world, that he had been to church with one of his prison guards,
and that he had once “visited Heaven.” Ford also testified that he has millions of
dollars in a Swiss bank account and that after death he will sit at the left hand of God
and be a member of the Holy Trinity.
After hearing Ford’s testimony about “translation,” Dr. Rollins declined
comment, but requested to reexamine Ford. Dr. Rollins also talked to a psychiatrist
and a psychologist who had treated Ford during his incarceration and reviewed mental
7
Ford is Dr. Rollins’s seventh competency evaluation in a death case. In five
previous cases Dr. Rollins opined that the persons were competent to be executed. In
another he opined that the person was not competent to be executed. In the remaining
case he concluded that the person was competent to be executed but not competent to
waive his rights; Dr. Rollins recommended treatment and reevaluation. Additionally,
in twenty-five percent of Dr. Rollins’s evaluations in general criminal cases, he has
found the defendant incompetent.
20
health records from Ford’s incarceration.8 After reexamining Ford on June 16, 1998,
Dr. Rollins filed an “Addendum Psychiatric Evaluation” dated June 29, 1998
(“Addendum report”). In that Addendum report, Dr. Rollins found that Ford’s
“translation” beliefs represent “fantasy or wish fulfillment” and do not impair Ford’s
ability to make decisions, stating:
Translating may represent malingering, fantasy, or impaired
reality testing. Mr. Ford explains that he did not mention
translating in the first interview, as he was concerned that I would
consider him mentally ill. I exclude malingering because I cannot
identify a goal to be accomplished in this situation by simulation
of mental disorder and Mr. Ford concealed information about
translation rather than putting it forward, as is the case in
malingering.
If translation represents impaired reality testing (i.e. –
psychoses), it is an isolated delusional disorder and does not
impair Mr. Ford’s daily functioning. Mr. Ford was unable or
unwilling to provide specific detail about translation activities.
It is my assessment that the translation represents fantasy or
wish fulfillment.
In any event, Mr. Ford’s ability to make decisions is not
impaired by translation. Mr. Ford is able to communicate and
8
Dr. Rollins spoke with Dr. Williams, a psychiatrist who knew Ford for several
years. Dr. Williams reported to Dr. Rollins that since June 17, 1998, Ford had been
“friendly, coherent, lucid, faintly hypomanic, no distress.” Dr. Rollins also talked
with Mr. Crum, a psychologist who knew Ford for several years, who considered Ford
to be making “a good adjustment.” Ford never discussed “translating” with either Dr.
Williams or Mr. Crum. Dr. Rollins also spoke with the prison guard whom Ford
mentioned.
21
interact with others. He makes decisions about his daily activities
and interactions. He decides who to ask for money and how to
spend his money. He would be considered competent to consent
to surgery, make a will, or enter in financial transactions.
In this Addendum report, Dr. Rollins concluded again that Ford is competent to
withdraw his habeas petition, to abandon further proceedings regarding his capital
murder conviction and sentence, and to waive his right to the assistance of counsel.
Dr. Rollins did note that “Ford stated that he would continue his appeals if he had an
income of $50 per month or if there was a possibility that a judge would grant a new
trial which would lead to a sentence with a specific release date (as opposed to life
without parole).” Dr. Rollins interpreted these statements as showing only that Ford
was ambivalent about his decision to withdraw his habeas petition.
Following the submission of the Addendum report, Ford’s counsel filed papers
entitled “Offers of Proof,” criticizing Dr. Rollins’s opinions. To her “Offers of
Proof,” Ford’s counsel attached the results of a mental evaluation of Ford on July 13,
1998, by Dr. Jonathan H. Pincus, a neurologist and professor at Georgetown
University Medical School. Dr. Pincus concludes that Ford is not mentally competent
to dismiss his counsel and his habeas petition. Dr. Pincus found that the results of his
neurological examination of Ford and his psychiatric history indicated brain damage
in the right hemisphere of his brain, possibly caused by his premature birth. The
magistrate judge considered the “Offers of Proof” as a motion for leave to present
22
additional evidence. Respondent filed written objections to any consideration of Dr.
Pincus’s report.
Thereafter, the magistrate judge spoke again with Ford via telephone, because
Dr. Rollins interpreted Ford’s statements about having fifty dollars a month in prison
to show ambivalence about dismissing his habeas petition. Speaking with the
magistrate judge with his counsel also on the telephone line, Ford stated
unequivocally that he wanted to dismiss his attorney and his habeas petition.
B. Magistrate Judge’s Report and Recommendation
On August 26, 1998, the magistrate judge filed a report recommending that
Ford be found mentally competent to dismiss his § 2254 habeas petition and his
counsel. The report noted that between May 4, 1997 and August 18, 1998, Ford had
sent fourteen letters repeatedly expressing his desire to have his habeas petition
dismissed.
The magistrate judge’s report summarized Ford’s mental and emotional history
from childhood to the present, reviewing in detail the expert testimony regarding
Ford’s being found competent in the state trial and habeas courts. In his report, the
magistrate judge sustained the respondent’s objections to the consideration of Dr.
Pincus’s report, finding “Dr. Rollins was one of the psychiatrists nominated by Ford’s
counsel and that the proffer of Dr. Pincus’s report was untimely.” Although the June
23
16, 1998 hearing was to conclude the evidence, it was not until after Dr. Rollins
submitted his Addendum report that Ford’s counsel mentioned that she intended to
submit a report from Dr. Pincus. The magistrate judge found that Ford’s counsel
knew well before the June 16 hearing of Ford’s “translating” and that the respondent
had not been given the opportunity to confront the report, cross-examine Dr. Pincus,
or to submit its own expert.
Alternatively, the magistrate judge found that even if Dr. Pincus’s report was
considered, Dr. Rollins’s testimony is more persuasive than Dr. Pincus’s. The
magistrate judge agreed with Dr. Rollins that Ford’s belief in “translating” did not
affect his ability to decide that he wants to end the lengthy legal proceedings in his
capital murder conviction and death sentence. The magistrate judge further found
that Ford’s reasons for dismissing his habeas petition are not irrational or the product
of mental disease. For example, Ford does not believe a retrial would result in any
difference. Ford states that he is tired of his life on death row and tired of fighting for,
at best, life imprisonment without possibility of parole. Ford thinks something better
awaits him and that he is “supposed to be punished for [his] crime.” The magistrate
judge concluded that “Ford’s capacity to appreciate his legal position, the options
available to him, and the consequences of his actions is not affected by any mental
24
disease.” Accordingly, the magistrate judge’s report recommended that Ford be found
mentally competent to dismiss his habeas petition and his counsel.
C. District Court’s Order
On March 31, 1999, the district court independently found that Ford was
competent to dismiss his § 2254 habeas petition and his counsel. The district court
also overruled the objections to the magistrate judge’s report and recommendation
filed by Ford’s counsel.9
9
In the objections, Ford’s counsel complained that the magistrate judge did not
conduct an adversarial proceeding, refused to grant certain discovery requests, and
precluded response to Dr. Rollins’s report, such as testimony by Dr. Pincus. The
district court correctly observed that Dr. Rollins was a psychiatrist nominated by
Ford’s counsel as a neutral expert and that the magistrate judge never forbid the
parties from submitting their own experts. When Ford’s counsel untimely submitted
Dr. Pincus’s report, the magistrate judge nevertheless considered that report. The
district court properly found that the magistrate judge’s conducting three hearings on
the matter, during each of which Ford’s counsel had the opportunity to state her
position and present extensive evidence, was sufficient. The district court accurately
pointed out that “[i]t appears that [the magistrate judge] took great pains to ensure that
Ms. Davis [Ford’s counsel] had ample opportunity to state her position and support
it, and to ensure that relevant evidence would be presented and considered. If
anything, the process employed by [the magistrate judge] afforded Ms. Davis an
advantage over the respondents, as her nominee was chosen as the court’s expert and
as the court considered the findings of Ms. Davis’s own expert as well, whereas the
respondent did not offer any expert testimony.”
The district court also properly found that the reason for many of the discovery
requests was to provide background information to Dr. Rollins about Ford, but Dr.
Rollins examined the motion and stated that he did not need any of the requested
information to evaluate Ford’s competence. Furthermore, Dr. Pincus did not report
that he lacked information critical to forming an opinion about Ford’s competence.
Thus, the district court concluded that the denial of Davis’s discovery requests was not
25
In evaluating Ford’s competency, the district court applied the three-prong test
in Lonchar v. Zant, 978 F.2d 637, 641-42 (11th Cir. 1992), which requires a court to
determine: “(1) whether the petitioner suffers from a mental disease, disorder or
defect, (2) whether a mental disease, disorder or defect prevents the petitioner from
understanding his legal position and the options available to him; and (3) whether a
mental disease, disorder or defect prevents the petitioner from making a rational
choice among his options.” The district court held that under Lonchar Ford need not
understand the particulars of each legal issue framed in the petition or the likelihood
of prevailing on any or all of them, as his counsel argues. Instead, the district court
noted that in Lonchar, the Eleventh Circuit found Lonchar competent under the second
and third prongs (1) because Lonchar knew what he had been charged with, the
penalty that had been handed down, and the ultimate outcome if the penalty is
imposed on him, and (2) because Lonchar exhibited a basic understanding of the
habeas proceedings, persisted in his opposition to further review of his convictions,
and stated that he understood that without further proceedings he would be executed.
The district court found that Ford, similar to defendant Lonchar, understood the
as significant as Davis argued. The district court accurately noted that Ford’s counsel
never presented Dr. Pincus for questioning at any hearing, and never requested a
continuance to do so. In any event, the magistrate judge actually considered Dr.
Pincus’s report.
26
“bottom line” of his legal situation–that he must continue to engage in the review
process or be executed–and that he was able to make a rational choice among these
options. The district court concluded that Ford need not understand the particular of
each legal claim listed in his habeas petition, or the likelihood of his prevailing on any
or all of these claims.
The district court also acknowledged that Ford has “significant behavioral and
emotional problems” and that he has led a very troubled life. However, even if Ford
meets the first prong of Lonchar, the district court found that Ford fails Lonchar’s
second prong because he plainly understands that, in his legal situation, he must
choose either to continue his legal challenges or be executed. The court found that
Ford also fails Lonchar’s third prong because he has rational reasons for choosing this
latter option: he is weary of languishing in prison, he is justly pessimistic that he will
ever get out of prison, and he believes that he will be happier in the afterlife.
Although Ford’s counsel argues that insane delusions are driving him effectively to
commit suicide, the district court agreed with the magistrate judge that Ford’s overall
testimony proves otherwise and that Dr. Rollins’s testimony supports the finding that
Ford is competent to dismiss his habeas petition.
The district court also found that Ford is competent to waive his counsel and
proceed pro se. The district court determined that Ford is competent to dismiss his
27
counsel if 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.” (District Court Order, Mar. 31, 1999,
at 17, quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam), and
citing Godinez v. Moran, 509 U.S. 389, 400-02 (1993)). The district court then found
that Ford clearly understands his legal situation, the significance of the proceedings
against him, and the choices available to him. Ford knows what he was convicted of
and how he came to be in his current legal situation.
Further, the district court determined that Ford understands the ramifications
of dismissing his habeas petition and is able to consult with his lawyer rationally. The
court observed that Ford rationally explained why he allowed his counsel to file a
habeas petition on his behalf and why he changed his mind and decided to dismiss it.
Ford also was able to recount the rationale his counsel offered to him for proceeding
with the habeas petition, rather than dismissing it. Finally, the district court concluded
that “[Ford’s] testimony as whole [sic] shows that he can communicate with other
persons rationally and that he is capable of rationally consulting with an attorney,” and
28
that Dr. Rollins’s reports further support the finding that Ford is competent to dismiss
his attorney.10
After reviewing the entire record, the district court reached an independent
conclusion that Ford is competent to dismiss his § 2254 petition and his counsel. The
district court announced that it “deplores the petitioner’s decision to dismiss his
habeas petition,” but recognized that Ford had the right to make the decision, as the
evidence indicates he is competent to do so. On March 31, 1999, the district court
granted Ford’s request to proceed pro se and granted Ford’s motion to dismiss his §
2254 habeas petition. The district court dismissed Ford’s petition with prejudice.
D. Appeal and Stay of Execution
On April 14, 1999, Davis, signing as Ford’s attorney, filed in Ford’s name a
Motion to Alter and Amend the Judgment, a Notice of Appeal of the district court’s
March 31, 1999 order, and a Motion for Stay of Execution. On July 1, 1999, the
10
On appeal, Ford’s counsel primarily challenges the district court’s application
of Lonchar’s requirements and the findings that Ford is competent to dismiss his §
2254 habeas petition and forgo further collateral review of his conviction and death
sentence. Thus, our opinion focuses on those competency issues. However, to the
extent Ford’s counsel argues that the district court also erred in finding that Ford is
competent to dismiss his attorney and proceed pro se, we find that argument also lacks
merit. Substantial evidence supports the district court’s findings that Ford is
competent to dismiss his attorney and proceed pro se, including Ford’s own testimony
and Dr. Rollins’s reports and testimony.
29
district court denied the Motion to Alter and Amend and the Motion for Stay of
Execution.
On July 6, 1999, Davis, again signing as Ford’s attorney, filed a Notice of
Appeal of the district court’s July 1, 1999 order. On July 6, 1999, Davis also filed a
Motion for Certificate of Probable Cause to Authorize Appeal, which the district court
granted. On July 7, 1999, this Court held that Davis, as Ford’s prior counsel, appears
to have standing on behalf of Ford to appeal the limited issue of Ford’s competence
to discharge his counsel and dismiss his habeas petition filed by that counsel. Ford
v. Haley, 179 F.3d 1342, 1345-46 (11th Cir. 1999).
Further, in accordance with Eleventh Circuit Rule 22-3, we granted a stay of
execution to prevent the issue of Ford’s competency from being mooted by his
execution prior to our review. Id. at 1346. We advanced the briefing schedule and,
on August 18, 1999, held oral argument.
V. STANDARD OF REVIEW
Whether Ford is competent to dismiss his § 2254 habeas petition in order to be
executed in a capital case is a factual question. Lonchar v. Zant, 978 F.2d 637, 640
(11th Cir. 1992) (“Whether Larry Lonchar is competent to forgo collateral review of
his conviction is a factual question.”) (citing Rumbaugh v. Procunier, 753 F.2d 395,
398-99 (5th Cir.), cert. denied, 473 U.S. 919 (1985)); see United States v. Hogan, 986
30
F.2d 1364, 1371 (11th Cir. 1993) (holding that the district court’s determination of
defendant’s competency to stand trial is reviewed under clearly erroneous standard).
This Court, therefore, must “accept the district court’s findings unless we find them
to be clearly erroneous.” Lonchar, 978 F.2d at 640; see also Fed. R. Civ. P. 52(a).
“Finding[s] of fact [are] clearly erroneous only when we are left with a definite and
firm conviction that a mistake has been committed.” United States v. Roy, 869 F.2d
1427, 1429 (11th Cir. 1989). To the extent Ford’s counsel contends that the district
court misinterpreted Lonchar’s three legal requirements, we review those legal
questions de novo.
VI. DISCUSSION
A. Competency Test
In Rees v. Peyton, 384 U.S. 312 (1966), the United States Supreme Court
established the test for determining competency to waive post conviction review in a
capital case. The test is whether a defendant 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.” Rees, 384 U.S.
at 314. This Circuit explained in Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir. 1993),
that applying the Rees test “involves a determination of (1) whether that person
31
suffers from a mental disease, disorder, or defect; (2) whether a mental disease,
disorder, or defect prevents that person from understanding his legal position and the
options available to him; and (3) whether a mental disease, disorder, or defect prevents
that person from making a rational choice among his options.” Lonchar, 978 F.2d at641-42 (citing Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir.), cert. denied, 473
U.S. 919 (1985)).
The district court applied the Rees test in the precise manner instructed in
Lonchar. At the outset, the district court found that Ford suffered from depression and
a personality disorder, both of which are mental disorders. Thus, the district court
correctly assumed that the first prong of Lonchar was met. However, the district court
then found that neither of Lonchar’s other two prongs was met and that Ford was
competent to dismiss his habeas petition and his counsel. We hold that the district
court’s findings are not clearly erroneous for the reasons outlined below.
B. Lonchar’s Second Prong
Under Lonchar’s second prong, this Court requires that the defendant’s mental
disorders must impair his ability to understand his legal position and the options
available to him before a finding of incompetency can be made. Lonchar, 978 F.2d
at 641-42. Here, the district court expressly found that Ford clearly understood that
the state of Alabama would move the Alabama Supreme Court to set an execution date
32
as soon as the habeas petition was dismissed and understood that he would not be able
to file any further pleadings in federal district court. The district court determined that
Ford’s mental disorders did not prevent him from understanding his legal position and
the options available to him. This finding is supported by substantial evidence in this
record.
For example, Dr. Rollins’s two reports support the district court’s
determination. In his initial report, Dr. Rollins expressly found that “Mr. Ford does
have a mental disorder (depression and personality disorder), but this disorder does
not prevent Mr. Ford from understanding his legal position and the options available
to him.” Dr. Rollins further testified at the June 10 evidentiary hearing that Ford
understood that he was on death row and that dismissal of his habeas petition would
result in his execution.11
After reexamining Ford on June 16, 1998, Dr. Rollins also filed an Addendum
report in which Dr. Rollins again concluded that Ford understood his legal position
and options available. Dr. Rollins reported, “Mr. Ford . . . is able to make daily
decisions. He understands that if he withdraws his appeal, ‘[he] will be killed’ . . .
Mr. Ford thinks that, at best, a new trial would lead to life without parole.” Dr.
11
In response to the question, “Does Mr. Ford understand, in your opinion, that
if his habeas petition is dismissed that the state will move for execution, quickly?”, Dr.
Rollins testified, “Yes, he desires that.”
33
Rollins’s reports demonstrate that Ford is capable of understanding his legal
position–he is on death row–and the options available to him–he can choose to be
executed or fight the sentence and spend his life in prison.
Perhaps the most persuasive evidence that Ford understands his legal position
comes from Ford’s own testimony at the two evidentiary hearings and his fourteen
letters to the magistrate judge. At both hearings, Ford testified that he understood the
state would move for an execution date as soon as his habeas petition was dismissed
and that he would not be allowed to file any further proceedings. Ford’s fourteen
letters in the record before the district court all express a consistent desire to have
proceedings ended and for his execution to proceed. Additionally, Ford was able to
explain why he allowed his legal counsel to file a habeas petition on his behalf and
why he changed his mind and decided to dismiss it.
Ford’s counsel argues that the district court erred in its analysis of Lonchar’s
second requirement by limiting its inquiry to the general issue of whether Ford
recognized he was on death row and understood that dismissal of his habeas petition
would result in his execution. Ford’s counsel contends that Lonchar’s second prong
requires an examination of whether the defendant understood the particulars of each
legal issue framed in his habeas petition. Ford’s counsel points to Dr. Rollins’s
examination of Ford as evidence that he is unaware of the legal particularities which
34
he would waive by dismissing his habeas petition. Regarding the specific legal issues
contained within the habeas petition, Dr. Rollins responded, “Well he doesn’t know
and I don’t know either.”
This argument by Ford’s counsel is premised on a misunderstanding of the
required showing under Lonchar’s second prong. Under Lonchar, a petitioner need
not understand each of the legal issues framed in his habeas petition. In Lonchar, this
Court found that the petitioner satisfied the second prong because “[the] individual
knows what he has been charged with. He recognizes the penalty that has been
handed down and what the ultimate outcome of that penalty will be if it, in fact, is
imposed upon him.” 978 F.2d at 642. This Court held that the defendant satisfied this
requirement where “[he] exhibited a basic understanding of the habeas proceedings,
persisted in his opposition to further review of his convictions, and stated he
understood that without further proceedings, he would be executed.” Id.In this case, Ford recognizes that the crime he was convicted of is murder; the
penalty that has been handed down is execution; and the ultimate outcome of the
penalty will be death. As outlined in Dr. Rollins’s report, Ford understands that if he
withdraws his appeal, he will be executed. The report also discusses Ford’s
understanding of the habeas procedure and his assessment that, “at best, a new trial
would lead to life without parole.” Ford admits that he killed the two victims and the
35
trial evidence that Ford committed these capital crimes was overwhelming. See Ex
parte Ford, 515 So. 2d 48 (Ala. 1987), aff’g, Ford v. State, 515 So. 2d 34 (Ala. Crim.
App. 1986). Thus, Ford fully understands that, at best, his habeas petition will lead
to a new trial and a new trial, at best, will lead to life without parole. Dr. Rollins’s
reports and testimony, Ford’s testimony, and Ford’s extensive correspondence all
demonstrate that Ford exhibits a basic and clear understanding of the habeas
proceedings, that Ford has persisted in his opposition to further review of his
conviction and death sentence, and that Ford understands without further collateral
review he will be executed.
In sum, the district court correctly concluded that under Lonchar, Ford need not
understand the particulars of each legal issue framed into the petition or the likelihood
of prevailing on any or all of them. The district court’s finding that Ford understands
his legal position and the options available to him is supported by substantial evidence
in this record and is not clearly erroneous. Thus, the district court did not err in
finding that Ford does not meet Lonchar’s second requirement for incompetency.
C. Lonchar’s Third Prong
Likewise, we conclude that the district court did not err in finding that Ford also
did not meet Lonchar’s third requirement. Again, Ford’s own testimony and Dr.
Rollins’s reports and testimony support the district court’s findings that Ford has the
36
ability to make a rational choice among his options and has done so. Specifically,
there is substantial evidence in the record that Ford desires to dismiss his petition
because he is weary of languishing in prison, he believes a new trial will only result
at best in a conviction and life in prison, he is justly pessimistic that he will ever get
out of prison, and he believes he will be happier “in his afterlife in Heaven.”
Ford’s testimony demonstrates how he recognizes his options and how he has
rational reasons for choosing the option of execution. At the June 10, 1998 hearing,
Ford stated that “he was tired of being on death row” and was ready to “be with his
Creator if I can get that.” The magistrate judge inquired about Ford’s belief that he
would be convicted again even if he got a new trial as follows:
THE COURT: I made a note here that you told Dr.
Rollins that even if you got a new trial you didn’t think it
would do any good. Could you tell me what you meant by
that?
THE PETITIONER: Well, I don’t think if I got a
new trial that there would still be the possibility of me
going free.
THE COURT: You think you would be convicted
again and you would be right back where you are now?
THE PETITIONER: Yeah, that’s what I believe.
THE COURT: And you don’t want to go through
with that?
37
THE PETITIONER: No I don’t wanting [sic] to go
through that.
Ford also testified that “this situation has become real tiresome to me and everything.
And I realize I am supposed to be punished for my crime. It feels like I’ve been
punished long enough.” During the hearing, Ford explicitly testified that “[w]aiting
is a punishment, you know. It’s better--it wasn’t too bad five years ago, you know.
It was--everything was moving on right. But it don’t stand still, and time and waiting
is a punishment for me right now. So that’s what it’s [his desire to waive his habeas
petition] based on, you know.” Ford further testified, “time is punishment. I don’t
want to subject myself to it any longer just sitting and waiting on how things going
to play out with the legal system.”
In a subsequent August 13, 1998 phone conference with Dr. Rollins and Ford’s
counsel, the magistrate judge questioned Ford, “Now after Dr. Rollins talked to you
again, he told me that it is still his opinion that you are mentally competent to dismiss
your case and your lawyer if that’s what you want to do.” The judge continued, “I
received a letter from you on July the 22nd . . . [that] states that you want to drop your
case and it states some of the reasons why.” Ford responded affirmatively and once
again expressed the reason for his decision–a desire to end the waiting process of
death row appeals and a desire to quicken his transition to the afterlife.
38
In recent letters written on May 9, 1999, June 17, 1999, and August 9, 1999,
Ford again, clearly and lucidly, expressed his desire to terminate his habeas petition
and be executed. For example, his letter written on June 17, 1999 to his counsel
states, “I will like to die so heaven will be my Home [sic] it have been a long wait I
don’t want to stay alive . . . P.S. I don’t have any fear about death so please dont [sic]
file anything. I can’t handle this situation and death is a way out.” His letter written
on August 9, 1999 to respondent’s counsel, also states: “I don’t need a new trail [sic].
I just want my death carry out . . . this letter is for all the judges to read . . . I don’t
need a lawyer and to have my sentence of death carry out is my aim.” In addition to
Ford’s testimony and letters, Dr. Rollins testified and issued two reports expressly
finding that Ford was able to make a rational choice among his legal options.
On appeal, Ford’s counsel argues primarily (a) that Dr. Rollins did not
adequately consider Ford’s specific religious belief that at death he will join the “Holy
Trinity” or his bizarre translation statements, such as how through translation he
travels and has many wives and Swiss bank accounts, (b) that Dr. Rollins’s
evaluations are thus inadequate and unreliable, and (c) that therefore Dr. Rollins’s
opinions, and the district court’s findings relying thereon, are fatally flawed. These
arguments lack merit because the record shows that both Dr. Rollins and the district
court fully considered these subjects, that Dr. Rollins’s mental evaluations of Ford
39
were adequate and reliable, and that the district court did not err in crediting Dr.
Rollins’s testimony and reports in determining Ford’s competency under Lonchar’s
third prong.
Regarding Ford’s religious beliefs, Dr. Rollins specifically testified that, in his
professional opinion, he viewed Ford’s beliefs about being part of the “Holy Trinity”
to represent Ford’s view that “in the afterlife that he is going to have a cherished
position in heaven, that he is going to be respected, and that he is going to be
comfortable and happy there.” Dr. Rollins testified that Ford’s religious beliefs were
not delusional, but instead, what “Ford thinks will happen following his death . . .
[based on] his own interpretation of the Bible and his religious beliefs.” According
to Dr. Rollins, “when people are in difficult situations, they often have wishes that
things would be different. . . . [W]ish fulfillment, per se, is fairly normal behavior.”
Dr. Rollins continued, “It is my view that [Ford’s religious views represent] Mr.
Ford’s assessment of what will happen to him in the afterlife.” According to Dr.
Rollins, Ford’s religious views also must be examined in light of the fact that:
[Ford] doesn’t have the educational or philosophical
background . . . to take more than a fairly direct
interpretation of the Bible. . . . [H]e is a person under stress
who is turning to religion for support and particularly
because he doesn’t have other kinds of support to him. . . .
[C]linicians have to be very careful in characterizing
religious beliefs as delusional . . . an assessment of that,
40
again has to be made in terms of the context of the whole
presentation.
We agree with the district court that “Dr. Rollins’s consideration of the petitioner’s
beliefs about an afterlife does not appear to be unreasonable or perfunctory, and it
does not render Dr. Rollins’s findings unreliable or unacceptable.”
Similarly, the record shows that Dr. Rollins also considered fully all of Ford’s
“translation” related statements. Ford stated to Dr. Rollins that he had not told him
previously about his translation powers, wives, travels, and bank accounts because
Ford was concerned that Dr. Rollins would find him mentally ill. However, at the
June 10 hearing, Davis, as counsel, asked Ford to explain his translation powers.
According to Ford, “translation” is the power he possesses to leave his body and travel
around the world. Through translation, Ford believes he has been able to live in the
third world, have 400,000 wives, and invest in businesses overseas, thus making
millions which he then placed in Swiss bank accounts. Upon hearing Ford’s
translation statements at the hearing, Dr. Rollins requested to examine Ford again.
After the hearing, Dr. Rollins reexamined Ford and talked with a psychiatrist
and psychologist who had treated Ford during his incarceration. Those medical
experts advised Dr. Rollins that Ford had never talked about translation with them.12
12
See footnote 8 supra.
41
During the reexamination, Ford reiterated his belief in his translation powers. Dr.
Rollins then filed an Addendum report in which he outlined Ford’s translation
statements and found that Ford’s translation beliefs did not impair Ford’s ability to
choose rationally among his legal options in this case. According to Dr. Rollins, “Mr.
Ford’s ability to make decisions is not impaired . . . Mr. Ford is able to communicate
and interact with others. He makes decisions about his daily activities and
interactions. He decides who to ask for money and how to spend his money. He
would be considered competent to consent to surgery, make a will, or enter in
financial transactions.”
Dr. Rollins further found that Ford’s statements about his translation ability and
experiences also represent “fantasy or wish fulfillment” on Ford’s part. Alternatively,
Dr. Rollins determined that even if Ford’s “translation represents impaired reality
testing (i.e., psychoses), it is an isolated delusional disorder and does not impair Mr.
Ford’s daily functioning.” Dr. Rollins expressly found that Ford’s “ability to make
decisions is not impaired by translation.”
Ford’s attorney complains that Dr. Rollins did not assign the proper
significance to Ford’s statements about the “Holy Trinity” and having, through
translation, wives, travels, and bank accounts. However, the district court correctly
found that Dr. Rollins’s testimony and reports show that he did consider these factors,
42
but that they simply did not lead him to conclude that Ford was incompetent. The
district court also properly found that although Ford’s counsel may disagree with the
emphasis Dr. Rollins placed on certain information, the court was satisfied, after an
independent review of Dr. Rollins’s reports and testimony, that Dr. Rollins considered
all record information relevant to his competency opinion, that his assessment of Ford
was not “unreasonable or unacceptable,” and that his mental evaluation of Ford was
adequate and reliable.13
Because there was significant evidence of other rational reasons behind Ford’s
decision to dismiss his habeas petition, this Court also finds that Ford’s statements
regarding translation and the “Holy Trinity” do not demonstrate, per se, that he is
incompetent as Ford’s counsel, in effect, contends, but were correctly considered and
weighed with all of the other evidence by both Dr. Rollins and the district court. The
arguments of Ford’s counsel relate at best to the weight to be given to Dr. Rollins’s
13
Ford’s counsel also challenged Dr. Rollins’s conclusion that Ford’s belief at
trial that God would reveal himself and resurrect his murder victims was “a wish
fulfillment under stress that represents impaired reality testing.” Ford’s counsel
argued that such beliefs could only be the result of mental illness. The district court
disagreed, noting that Dr. Rollins stressed that his explanation was only one possible
explanation among many, but that he had not thoroughly assessed the issue, because
he was charged with evaluating Ford’s current competence in 1998, as opposed to
Ford’s competence at the time of trial in 1984. The district court found that this
objection by Ford’s counsel does not reveal Dr. Rollins’s findings to be unreliable or
unacceptable in any regard.
43
competency opinions but do not show that his mental evaluations were inadequate or
that his opinions are unreliable.
It is also significant that Dr. Rollins was not hired by the prosecutor, but was
the court’s neutral psychiatric witness selected from a list of names provided by
Ford’s counsel. More importantly, Dr. Rollins has extensive experience in
competency evaluations, having conducted approximately 200 mental evaluations in
criminal cases each year since 1972. The record also reveals that Dr. Rollins has
found defendants mentally incompetent in approximately twenty-five percent of his
evaluations. Furthermore, Ford has been evaluated several times in state court and
found competent each time. Dr. Rollins’s findings concerning Ford’s mental health
are similar to the findings of the previous evaluations. Given this and the totality of
the evidence reviewed in detail above, we find no merit to the claims that Dr. Rollins’s
evaluations of Ford are inadequate or that his opinions are unreliable.
Ford’s counsel also asserts that Dr. Rollins allowed racial stereotypes to infect
his evaluation of Ford and improperly attributed certain of Ford’s religious beliefs to
his cultural background as an African-American rather than appropriately to mental
illness. The district court accurately details Dr. Rollins’s explanation about how he
attempts to discern whether a stated religious belief is part of a cultural background
or a mental disorder. The district court correctly observed that Dr. Rollins’s
44
comments arose only in an attempt to explain how different cultural backgrounds
might affect evaluations of mental health and how those differences can be obstacles
in performing an effective evaluation. The district court noted that Dr. Rollins
indicated that certain of Ford’s religious beliefs were held not only by African-
Americans but also by Caucasians, particularly in the southeastern area of the United
States. The district court found that Dr. Rollins explained why in the course of
forming his opinion he had not assigned as much significance to Ford’s religious
beliefs as Ford’s counsel thought proper. The district court found that, in the context
of Dr. Rollins’s complete testimony at the June 10, 1998 hearing and of his written
reports, Ford’s counsel had not shown that Dr. Rollins’s opinion on Ford’s
competency to be “in any way unreliable or unacceptable.” All of these findings of
the district court are supported by the record and are not clearly erroneous.
Along the same lines, Ford’s counsel argues that the district court, like Dr.
Rollins, did not adequately consider Ford’s core beliefs about his translation
experiences and becoming part of the “Holy Trinity” in the afterlife. Counsel asserts
that the district court incorrectly stopped its competency inquiry when it found that
Ford articulated certain logical reasons for his desire to waive his appeals. We
disagree. As outlined above, the record shows that the district court considered all of
the evidence and all of Ford’s beliefs in concluding that Ford’s decision was
45
motivated by rational reasons. The court also acknowledged Ford’s mental disorders
but found they did not drive Ford to make his decision to waive further appeals.14
Lastly, Ford’s counsel complains that Dr. Rollins gave “short shrift” to the full
picture of Ford’s mental health by failing to review all available mental health records
and to interview persons other than Ford. We again disagree. Dr. Rollins reviewed
some twenty-five pounds of records regarding Ford’s mental health. Those records
included, for example, records from Ford’s childhood, records from his youth, records
from Taylor Hardin Secure Medical Facility, the trial transcript in this case, records
from the hearing on Ford’s motion to proceed pro se and his competence to stand trial,
and prison records. The district court correctly noted that Dr. Rollins acknowledged
that not every significant thing was included in his written reports but that he included
what ultimately was most significant amongst the records he reviewed. Dr. Rollins
14
Ford’s counsel claims that the district court erred by discussing mainly Ford’s
translation beliefs in its order and by not acknowledging in its order other
manifestations of Ford’s mental disorders, such as his statements about having
400,000 wives and millions in Swiss bank accounts. The mere fact that the district
court’s order only discussed certain specific statements by Ford does not provide
evidence that the court did not consider all relevant record evidence in reaching its
conclusion. In addition, the court refers specifically to Dr. Rollins’s Addendum report
in which these very statements by Ford are discussed and diagnosed. The district
court’s order also addresses the general argument that Ford’s desire to dismiss his
appeal is based upon insane religious delusions which are, in effect, driving him to
commit suicide. The district court expressly rejects this contention by Ford’s counsel,
finding that “petitioner’s testimony proves otherwise.”
46
testified that his reports included the more significant material, but that he considered
a great deal more of Ford’s history than was included in his reports. We agree with
the district court that Dr. Rollins’s testimony reflects his familiarity with information
regarding Ford’s background and mental health history. While Ford’s counsel
correctly points out that Dr. Rollins’s first examination failed to uncover Ford’s
beliefs about translation, the evidence shows that Ford purposely had not told Dr.
Rollins about his translation. Additionally, Dr. Rollins remedied this by examining
Ford a second time and specifically reassessing Ford’s competency in light of Ford’s
beliefs about his translation powers and having wives, travels, and bank accounts.
After the June 10 hearing, Dr. Rollins also spoke to a prison guard and two mental
health professionals who worked with Ford during his incarceration and reviewed
Ford’s mental health records during his incarceration.
In sum, the district court’s findings under Lonchar’s third prong–that Ford has
the ability to make rational choices among his options and has done so–are supported
by substantial, reliable evidence. Thus, the district court’s determination that Ford
does not meet Lonchar’s third requirement is not clearly erroneous.
D. Dr. Pincus
Ford’s counsel also challenges the district court’s decision to reject the findings
of Dr. Jonathan Pincus, who reported that Ford was incompetent. The district court
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considered Dr. Pincus’s report but observed that Dr. Pincus assumes that Ford’s
motion to dismiss his petition is per se irrational. The district court found that this
assumption detracts from the weight and credibility of Dr. Pincus’s findings and raises
doubts whether he would ever find a death row inmate competent to dismiss a habeas
petition. The district court also noted that the Supreme Court essentially rejected Dr.
Pincus’s view when it held a death row inmate may waive his habeas petition and be
executed in Gilmore v. Utah, 429 U.S. 1012 (1976) (holding that death row petitioner
may competently waive further review of his conviction and sentence). In light of the
district court’s discussion concerning Dr. Pincus’s report and the evidence that Ford
has rational reasons for dismissing his petition, this Court finds that the district court
was not clearly erroneous in rejecting the findings of Dr. Pincus that Ford’s decision
is irrational and that he is incompetent.
E. Davis’s Standing
As outlined earlier, Ford permitted Davis as his attorney to file and litigate his
§ 2254 habeas petition from 1995 until 1997. Thus, as noted in our earlier opinion in
this case, Davis has standing to the limited extent necessary to appeal the district
court’s findings that Ford is mentally competent. Ford v. Haley, 179 F.3d 1342, 1345-
46 (11th Cir. 1999).
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Having ruled on the merits of this competency issue, we now examine whether
Davis has standing to pursue any other issues in Ford’s habeas petition. Davis has the
burden to establish her standing to proceed on behalf of Ford and thereby to invoke
the jurisdiction of the federal courts. See Whitmore v. Arkansas, 495 U.S. 149(1990); Lonchar, 978 F.2d at 640. Article III of the United States Constitution limits
the jurisdiction of federal courts to actual cases and controversies. U.S. Const. art. III,
§ 2; see Whitmore, 495 U.S. at 154-55. In habeas corpus cases, courts have long
permitted a next friend to proceed on behalf of a prisoner who is unable to seek relief
himself. As this Court explained in Lonchar, “Congress expressly codified this next
friend standing in 1948 by allowing for application for a writ of habeas corpus ‘by the
person for whose relief it is intended or by someone acting in his behalf.’ 28 U.S.C.
§ 2242 (1988).” 978 F.3d at 641. However, the Supreme Court has indicated that
next friend status is not automatic, but instead the would-be next friend must first
prove that the real party in interest cannot pursue his own cause due to some
disability, such as mental incompetence, and must show some relationship or other
evidence that demonstrates the next friend is truly dedicated to the interests of the real
party in interest. Whitmore, 495 U.S. at 163-64. Although Whitmore involved next
friend standing to pursue a direct appeal, this Court held in Lonchar that the logic of
49
Whitmore applies where a would-be next friend seeks a writ of habeas corpus on
behalf of another. Lonchar, 978 F.2d at 637, 640.
Throughout her representation of Ford for several years, Davis has shown that
she is sufficiently dedicated to the best interests of Ford. In certain circumstances,
attorneys, such as Davis, who have a long history of representing a client with mental
disorders may appear as “next friend” to challenge competency rulings with as much
justification as a relative of a defendant. See Lenhard v. Wolff, 443 U.S. 1306, 1310
(1979) (observing that “it strikes me that from a purely technical standpoint a public
defender may appear as ‘next friend’ with as much justification as the mother of [the
defendant]”). However, because Ford is mentally competent, Davis has not shown that
Ford, the real party in interest, cannot pursue his own cause. Indeed, the evidence
shows just the opposite. Ford can pursue it, but has chosen not to. Therefore, once
the competency issue is resolved, there is no longer any case or controversy between
Ford and the respondent. Since Davis has not shown next friend status, she lacks
standing to pursue any other issues in this habeas petition. Therefore, we lack
jurisdiction over any other issues raised in this habeas petition.
VII. CONCLUSION
For the foregoing reasons, we conclude that the district court did not clearly err
in its findings that Ford is competent to dismiss his § 2254 habeas petition and Davis
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as his counsel. Since Ford has dismissed his § 2254 habeas petition, we vacate our
stay of Ford’s execution entered on July 7, 1999. Because there is no longer any
controversy between Ford and respondent and because Davis lacks standing to pursue
any other issues in this habeas petition, we dismiss this appeal for lack of jurisdiction
under Article III of the United States Constitution.
AFFIRMED AND DISMISSED; STAY VACATED.
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