338 F.2d 283 - Hunter v. United States — 338 F.2d 283

¶1For former opinion see 116 U.S.App. D.C. 323, 323 F.2d-625.

¶2Miss Mabel D. Haden, Washington, D. C. (appointed by the court), for appellant.

¶3Mr. Gerald A. Messerman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

¶4Before Bazelon, Chief Judge, Wilbur K. Miller, Fahy, Washington, Dana-her, Bastían, Burger, Wright, and McGowan, Circuit Judges, in Chambers.

¶5Order

¶6PER CURIAM.

¶7On consideration of appellant’s petitition for rehearing en banc, it is

¶8Ordered by the court en banc that appellant’s aforesaid petition is denied.

¶9 *284Circuit Judges Fahy and Washington did not participate in the foregoing order.

¶10BAZELON, Chief Judge

¶11(dissenting):

¶12The court’s opinion treats this case as if it presented only a problem of construing a provision of the District of Columbia Code which has since been both thoroughly revised (1955), and supplemented (by the enactment of 18 U.S.C. § 4244 in 1949). Although I disagree with the court’s construction, I do not think this alone would warrant a rehearing en banc. However, after petitioner was discharged in 1952 from his confinement under the adjudication of insanity, a District Court judge ordered him examined under 18 U.S.C. § 4244. One of the examination reports, although stating that petitioner was then of sound mind, included this significant passage:

“There is no disturbance of memory for recent events, however, there appears to be a long lapse of memory from about the middle of the year 1948 and continuing through the first year or two of his residence in St. Elizabeths Hospital.” [Emphasis supplied.]

¶13It is conceded that no judicial determination of competency was made after the § 4244 inquiry was begun or this report submitted.

¶14In my view, § 4244 requires judicial determination1 of competency in every case in which a motion for mental examination is granted.2 It may be that-failure to inquire into a report indicating no mental disorder would be harmless error, although I think otherwise. But the failure of the court to inquire-into a report indicating the existence of amnesia is not harmless, particularly where, as here, the court proceeds to accept a guilty plea for an offense covered by the period of amnesia.3

¶15This court’s opinion assumes that a petitioner must establish actual incompetency at the time of conviction in order to obtain relief in post-conviction proceedings. At the hearing below, this was the standard applied.4 But I think Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), means that the existence of substantial doubts of competency at the time of trial or plea, plus a failure adequately to-determine competency at trial or plea, is-sufficient. Although Dusky was a direct appeal, the Court’s reason for ordering a new trial, rather than a now-for-then5 inquiry into prior competency, is applicable here. This reason was the great, difficulty of proving a mental state existing one year earlier, even on the fairly full psychiatric evidence disclosed by the-record there.6 This difficulty is much, magnified here by the passage of eleven, years and the absence of any such record. Doubts of prior competency may be so great that, even though mcompeteney cannot be established, “to deny …" *285relief under section 2255 of Title 28 would be tantamount to a denial of due process.” Sullivan v. United States, 205 F.Supp. 545, 553 (S.D.N.Y.1962) (Weinfeld, J.). This is such a case.7

¶16The record here discloses another matter which may require relief without regard to the issue of prior competency, As already noted, there was evidence that petitioner had no independent memory of the alleged crimes when he pled guilty. The insanity defense available to petitioner was so strong that the prosecutor even urged it as a reason to accept the guilty plea: “the government feels that by no possible stretch of the imagination during the course of the trial that a jury would bring in a verdict of first degree murder.” These circumstances might preclude a valid plea of guilty, even after a thorough inquiry.8 But here there was no more than a superficial inquiry into the voluntariness of the plea.9 Rule 11, Fed.R.Crim.P., requires *286a thorough inquiry before acceptance of a plea of guilty. Failure to observe this requirement may be the subject of post•convietion relief.10

¶17Although petitioner has not directly raised the issue here, I think there is sufficient doubt concerning the basis for his now eleven-year old detention to require us in the interests of justice to remand the cause forthwith for inquiry un•der Rule 11.

¶24. The record reveals the following: there was a lengthy period of confirmed mental disorder, first detected immediately upon apprehension of petitioner; eight months before the challenged plea, a fellow judge had found good cause, on his own motion, to submit petitioner for a mental examination under 18 U.S.C. § 4244; although the resultant psychiatric reports indicated a presently sound mind, they also suggested the presence of amnesia; these reports had never been judicially acted upon; at the proceedings in which plea was entered, petitioner’s counsel (speaking to sentence, which was imposed without benefit of pre-sentence report) informed the court of petitioner’s mental difficulties:

“ … be exhibited those paranoid features in two different courts; before Judge Keecli on the last occasion in which during one of his more or less lucid intervals he made gestures of violence both toward the court and to his counsel. At that time he was not only unable to confer with counsel, he did not recognize me and I went to see him some dozen times …

The trial judge neither recognized that a question of competency was raised nor concluded the proceedings initiated eight months earlier under § 4244; a guilty plea was being entered, with its special call for judicial caution in proceeding to enter a judgment of conviction, yet no such caution appears.

¶26. The entire examination of petitioner and his counsel made by the trial judge is as follows:

The Court: … Mr. Johnson [defense counsel], have you apprised the defendant of his right?

Mr. Johnson: Yes, sir.

The Court: He understands the consequence of his plea and the sentence that will be imposed upon him?

Mr. Johnson: Yes.

The Court: And he desires to plead guilty?

Mr. Johnson: Yes, sir.

The Court: The Court will accept the plea.

The Deputy Cleric: Joseph W. Hunter, in Criminal cases 161-49 and 162-49, in each case in which you are charged with first degree murder, do you wish to withdraw your plea of not guilty heretofore entered and enter a plea of guilty to manslaughter in each of the eases?

Tee Dependant: Yes, sir.

¶27At the § 2255 hearing, the trial judge sought to justify the plea proceedings by referring to a Virginia charge of homicide which was apparently outstanding against petitioner at that time. He asserted that the charge, and the dangers of presenting the insanity defense in Virginia, were the principal reasons for the guilty pleas. These comments are interesting for two reasons. First, they seem to reflect an awareness of the failure to inquire into the pleas when they were made. The suggested impetus to plead was not then discussed in any way. Second, the judge’s comments reveal just how pervasive the failure properly to attend to petitioner’s mental state was. The Virginia charge arose from a “confession” obtained from petitioner by the District *286police in 1949, less than a month before he was committed as “insane,” and during a time when all observers of whom we have record agree that he was showing markedly deviant behavior. Its evidentiary value, under the circumstances, .is virtually nil. Had there been any proper inquiry into the basis for petitioner’s plea in 1952, it is hardly to be doubted that the compulsion of this “confession” would have been revealed and countered.