Harold Max Pompee v. Secretary, Florida Department of Corrections

Case: 16-13336 Date Filed: 06/05/2018 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13336
________________________
D.C. Docket No. 1:14-cv-24371-RNS
HAROLD MAX POMPEE,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 5, 2018)
Before ED CARNES, Chief Judge, MARCUS, and EBEL, * Circuit Judges.
PER CURIAM:
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
Case: 16-13336 Date Filed: 06/05/2018 Page: 2 of 13
Harold Max Pompee appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition. Pompee, who is mentally ill, alleges that his trial counsel was
ineffective for failing to ask for another competency hearing before he entered his
guilty plea.
I. FACTS AND PROCEDURAL HISTORY
Pompee committed two armed robberies in Miami, Florida, in September
2010. He was arrested and charged with both armed robbery and unlawfully
discharging a firearm in public in two separate cases. After the State filed those
charges, the public defender’s office referred Pompee for a psychological
evaluation. A doctor diagnosed him with schizoaffective disorder, which is a
cyclical psychotic illness. The doctor recommended that Pompee receive treatment
and medication to manage his hallucinations and depressive symptoms. He was
later placed on medication, which changed over the course of his psychological
treatment.
Between September 2011 and March 2013, Pompee underwent ten court-
ordered competency evaluations by five different doctors. He underwent the first
two evaluations in September 2011 and the doctors found him incompetent. The
court entered an order in October 2011 adjudicating him incompetent to stand trial
and requiring that he receive further treatment. Pompee was admitted to a
treatment center, where a doctor examined him on October 27, 2011, and noted
2
Case: 16-13336 Date Filed: 06/05/2018 Page: 3 of 13
that he could be malingering because he denied knowing the meaning of simple
words and exaggerated his memory loss.
Pompee underwent three more evaluations between November 2011 and
January 2012 and the doctors found him competent in all three; in February 2012
the court entered an order to that effect. In June 2012, the court ordered another
evaluation and the doctor found him incompetent, which led to the court
adjudicating him incompetent to stand trial at that time.
In September 2012, Pompee underwent three more evaluations and in each
of them the doctors found him competent to stand trial. At a hearing in October
2012, after all three of those doctors testified that he was malingering and
competent to proceed, the court adjudicated him competent to stand trial. In
February 2013, the court set a final competency hearing for March 11 and
scheduled trials for both cases on that same day.
Pompee underwent his final competency evaluation on March 7, 2013, just
four days before his scheduled trial date. After reviewing his background, prior
psychological treatment, and current medication, the doctor determined that he
appeared “well medicated, stabilized, and cognizant” of the charges he faced. The
doctor also concluded that his responses appeared “to be consistent with an attempt
to appear severely cognitively impaired due to the severity of his charges and in an
attempt to avoid the potential repercussions of his behavior.” The doctor found
3
Case: 16-13336 Date Filed: 06/05/2018 Page: 4 of 13
that he was competent to stand trial, and her competency evaluation report was
filed in open court on March 11, 2013.
Pompee faced a mandatory minimum sentence of 20 years and a maximum
of life imprisonment on the armed robbery charges in each case. He chose instead
to plead guilty in return for ten-year terms of imprisonment in each case. Right
after the plea hearing began, Pompee questioned the court about his potential
sentence, attempted to negotiate a lower sentence, asked if he could receive two
years on probation, and inquired about his anticipated release date.
After responding to Pompee’s questions, the court asked whether he had
taken any medications that day. He denied taking any, but when questioned further
stated that he had taken medication at the hospital. Pompee also said that he did
not understand what was happening, but after the court made clear that Pompee
could either take the plea or go to trial, he affirmed several times that he
understood his charges and the conditions of his guilty plea. After consulting with
his attorney, he confirmed again that he understood the conditions of his plea and
the rights he was giving up. He reiterated that he wanted to plead guilty.
The court found that Pompee had entered into a knowing and voluntary plea
and understood the nature and consequences of the plea. It found him guilty in
both cases and sentenced him to concurrent ten-year sentences.
4
Case: 16-13336 Date Filed: 06/05/2018 Page: 5 of 13
Pompee sought postconviction relief in Florida state court. Pompee v. State,
150 So. 3d 1158 (Fla. 3d DCA 2014). After that did not succeed, in November of
2014 he filed the pro se § 2254 petition involved in this appeal. Pompee’s petition
claimed that trial counsel had rendered ineffective assistance by failing to request
another competency hearing before he pleaded guilty. The district court denied his
petition on the merits. Pompee appealed, and a judge of this Court granted a
certificate of appealability on the following issue: Whether Pompee was denied
constitutionally effective assistance of counsel because of counsel’s failure to
request another competency hearing. He was appointed counsel to represent him
in this appeal.
II. STANDARD OF REVIEW
“When examining a district court’s denial of a § 2254 habeas petition, we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error.” Maharaj v. Sec’y for the Dep’t of Corr., 432 F.3d 1292,
1308 (11th Cir. 2005). “An ineffective assistance of counsel claim is a mixed
question of law and fact subject to de novo review.” Ward v. Hall, 592 F.3d 1144,
1155 (11th Cir. 2010). Pompee did not raise his ineffective assistance claim in
state court, so we review that claim without any AEDPA deference. 1 Lawrence v.
Sec’y, Fla. Dep’t of Corr., 700 F.3d 464, 481 (11th Cir. 2012).
1
Pompee concedes that his ineffective assistance claim is procedurally defaulted because
5
Case: 16-13336 Date Filed: 06/05/2018 Page: 6 of 13
III. DISCUSSION
“The Sixth Amendment secures to a defendant who faces incarceration the
right to [effective] counsel at all critical stages of the criminal process,” and a “plea
hearing qualifies as a critical stage.” Iowa v. Tovar, 541 U.S. 77, 87, 124 S. Ct.
1379, 1387 (2004) (quotation marks omitted); see also Chatom v. White, 858 F.2d
1479, 1484 (11th Cir. 1988). Pompee contends that the district court erred in
rejecting his claim because a reasonable attorney would have asked for another
competency hearing before he pleaded guilty and his attorney’s failure to do so
prejudiced him.
“The Due Process Clause of the Fourteenth Amendment prohibits states
from trying and convicting mentally incompetent defendants.” Medina v.
Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995). The standard for competence to
plead guilty is “whether the defendant has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding and has a rational as
well as factual understanding of the proceedings against him.” Godinez v. Moran,
509 U.S. 389, 396, 402, 113 S. Ct. 2680, 2685, 2688 (1993) (quotation marks
omitted). Pompee’s mental illness alone is not enough to establish that he was
he did not properly raise it in state court, but he argues that he can show cause and prejudice to
excuse that procedural default. Because his petition fails on the merits, we decline to address the
procedural bar issue. See DeYoung v. Schofield, 609 F.3d 1260, 1283 n.22 (11th Cir. 2010)
(“Rather than wade through [the] complexities [of the procedural bar issue], we discuss the
merits of [the] claims, as that alone resolves the case.”).
6
Case: 16-13336 Date Filed: 06/05/2018 Page: 7 of 13
incompetent to plead guilty. See Medina, 59 F.3d at 1107 (“Not every
manifestation of mental illness demonstrates incompetence to stand trial; rather,
the evidence must indicate a present inability to assist counsel or understand the
charges.”) (quotation marks and alterations omitted); Bolius v. Wainwright, 597
F.2d 986, 990 (5th Cir. 1979) (“[T]he mere presence of mental illness or other
mental disability at the time [the defendant] entered his plea does not necessarily
mean that he was incompetent to plead . . . .”).
Pompee does not allege that he was incompetent when he pleaded guilty.
Instead, he argues that his trial counsel was ineffective because she failed to
request another competency hearing before he pleaded guilty. See Johnston v.
Singletary, 162 F.3d 630, 635 (11th Cir. 1998) (“[U]nder certain circumstances,
trial counsel’s failure to apprise the court of a client’s changing mental state —
thereby depriving the court of critical information regarding its own potential duty
to hold a Pate v. Robinson hearing — can constitute ineffective assistance.”).2
A showing of both deficient performance and prejudice is required to
establish an ineffective assistance claim. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984). To establish deficient performance of the type
he claims, Pompee must show that his counsel failed to bring “information raising
2
The Supreme Court held in Pate that where “the evidence 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].” 383 U.S. 375, 385, 86 S. Ct. 836, 842 (1966) (quotation marks omitted).
7
Case: 16-13336 Date Filed: 06/05/2018 Page: 8 of 13
a bona fide doubt as to [his] competency” to the trial court’s attention when every
reasonable attorney would have done so. James v. Singletary, 957 F.2d 1562, 1570
(11th Cir. 1992). And to establish prejudice, he must show that “there was a
reasonable probability that he would have received a competency hearing and been
found incompetent had counsel requested the hearing.” Lawrence, 700 F.3d at
479. He has not, and cannot, meet either of those requirements.
A. Deficient Performance
The “defendant’s attorney is in the best position to determine whether the
defendant’s competency is suspect,” which means that the failure of Pompee’s
counsel “to raise the competency issue at [the plea hearing], while not dispositive,
is evidence that [his] competency was not really in doubt and there was no need for
a Pate hearing.” Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996).
Pompee argues that several facts should have given his attorney reason to doubt his
competence: (1) his history of mental illness, (2) his history of irrational behavior
(such as suicide attempts), and (3) his statement at the plea hearing that he did not
understand what was happening.
That argument fails. To begin with, there is no evidence that Pompee’s
counsel deprived the court of any information related to his mental health. See
Johnston, 162 F.3d at 635 (stating that trial counsel may render ineffective
assistance where she deprives “the court of critical information regarding its own
8
Case: 16-13336 Date Filed: 06/05/2018 Page: 9 of 13
potential duty” to hold a competency hearing); see also Burt v. Uchtman, 422 F.3d
557, 568–69 (7th Cir. 2005) (“The failure by defense counsel to investigate
apparent problems with a defendant’s mental health may be deficient performance
as defined by the first prong of Strickland.”). Instead, the record shows that the
trial court was well aware of Pompee’s history of mental illness and irrational
behavior. It knew everything that trial counsel knew.
And there was a lot to know. During the year and a half from September
2011 through March 2013, Pompee underwent ten competency evaluations from
five different doctors; all of those evaluations contained detailed information about
his mental illness, history of irrational behavior, and competence to stand trial.
The court held four competency hearings between October 2011 and October 2012
in which it reviewed the evaluations of experts and entered four separate
adjudications about whether Pompee was competent to stand trial. Not only that,
but the court also ordered that Pompee undergo one final competency evaluation
just days before his March 11, 2013 trial date. The doctor evaluated Pompee on
March 7, determined that he was competent, and her report was filed in open court
on March 11, the day Pompee pleaded guilty. 3
3
Pompee argues that the change in his medicine after his final competency hearing on
October 22, 2012, but before his plea on March 11, 2013, was a red flag that should have alerted
his counsel to the need for another competency hearing. But the doctor who examined him on
March 7, 2013, took his latest medication into account when assessing his competency and found
that he was competent. The “fact that [he was taking] anti-psychotic drugs [did] not per se
render him incompetent to stand trial.” See Medina, 59 F.3d at 1107.
9
Case: 16-13336 Date Filed: 06/05/2018 Page: 10 of 13
Those facts show that the court was familiar with Pompee’s mental illness
and history of irrational behavior and that his counsel did not withhold any
information from the court. Cf. Burt, 422 F.3d at 567–68 (concluding that counsel
performed deficiently where they “were aware of several pieces of information
beyond what was available to the trial court that should have alerted them to the
need for a new competency hearing”) (emphasis added). His counsel did not
render deficient performance by failing to ask for yet another competency hearing
just four days after he was found competent to stand trial in the last evaluation that
was conducted. See Johnston, 162 F.3d at 635.
Pompee’s statements during the plea hearing also would not have alerted a
reasonable attorney to the need for another competency hearing. He did express
confusion about his medication and state that he did not understand what was
going on, but those isolated statements do not show that he was incompetent to
stand trial. See Thompson v. Wainwright, 787 F.2d 1447, 1458 (11th Cir. 1986)
(concluding that the trial court was not required to inquire further into the
defendant’s competency because “one incorrect response” at a plea hearing “hardly
indicates that [the defendant] was incompetent,” and noting that the defendant
“correctly answered numerous questions from the judge”). The plea hearing
transcript shows that Pompee tried to negotiate a lower sentence, asked whether he
could appeal his sentence, and was satisfied with his counsel’s representation.
10
Case: 16-13336 Date Filed: 06/05/2018 Page: 11 of 13
Pompee confirmed that he understood the rights he was giving up by pleading
guilty and repeatedly confirmed that he understood the conditions and effect of his
plea. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977)
(“Solemn declarations in open court carry a strong presumption of verity.”).
What happened during the plea hearing and the totality of Pompee’s
statements during it show that he had a rational understanding of the proceedings
against him and, as a result, counsel did not act unreasonably in failing to ask for
another competency hearing. Godinez, 509 U.S. at 396–99, 402, 113 S. Ct. at
2685–86, 2688; see also Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245,
1259 (11th Cir. 2002) (“The best evidence of [the defendant’s] mental state at the
time of trial is the evidence of his behavior around that time, especially the
evidence of how he related to and communicated with others then.”).
Because Pompee cannot show that his counsel failed to bring to the court’s
attention “information raising a bona fide doubt as to [his] competency,” James,
957 F.2d at 1570, he cannot establish deficient performance. That failure is
enough to defeat his claim, and there is more.
B. Prejudice
Even if Pompee could show that his counsel’s performance was deficient, he
cannot establish prejudice. He must show that “there was a reasonable probability
that he would have received a competency hearing and been found incompetent
11
Case: 16-13336 Date Filed: 06/05/2018 Page: 12 of 13
had counsel requested the hearing.”4 Lawrence, 700 F.3d at 479. He cannot make
either showing.
There is no evidence that the court would have held a competency hearing
had Pompee’s counsel requested one. The plea hearing transcript indicates that the
court did not doubt Pompee’s competency; the court repeatedly told him that he
either had to plead guilty or go to trial, and it refused to put off the plea for another
day. The court also told Pompee that it wanted him to “drop [the] façade” of
incompetence and “[s]top the pretending,” which further shows that it would not
have been open to delaying proceedings for another competency hearing. The
competency evaluations supported the court’s belief that Pompee was pretending,
as did the conclusions of several doctors that he was feigning and exaggerating his
symptoms to avoid facing his charges. And even if the court had held another
hearing, there is no reasonable probability that Pompee would have been found
incompetent. Three different doctors found him competent in September 2012,
another doctor found him competent only four days before the plea, and there is no
evidence that his competency changed in the four-day interim between that final
4
The typical standard for establishing prejudice in the guilty plea context is to “show that
there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have
pleaded guilty and would have insisted on going to trial.” Diveroli v. United States, 803 F.3d
1258, 1263 (11th Cir. 2015) (quotation marks omitted). Even if that standard applies, Pompee
cannot satisfy it. He was facing a 20-year to life sentence in each case, and under the guilty plea
he received only two 10-year, concurrent sentences. There is no reason to believe that he would
have refused to plead guilty if only his counsel had requested another competency hearing.
12
Case: 16-13336 Date Filed: 06/05/2018 Page: 13 of 13
evaluation and the plea hearing. As a result, he cannot establish that any alleged
deficient performance prejudiced him.
Because Pompee cannot establish deficient performance or prejudice, the
district court did not err in denying his § 2254 petition.5
AFFIRMED. 6
5
Pompee has also filed a “Notice of Appeal for Action,” which asks us to hear this
appeal; we DENY it as moot.
6
We thank the Georgetown University Law Center Appellate Litigation Program for
representing Pompee in this appeal. The clinic in its brief, and third-year law student Nicole
Pacheco at oral argument, did as good of a job as possible in an appeal about as hopeless as they
come.
13