Opinion
Case No. 01-3400-DES
January 23, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Hutchinson Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY On August 21, 1997, petitioner was convicted of first degree felony murder, attempted first-degree murder, two counts of aggravated robbery, and aggravated burglary. On March 10, 2000, petitioner's conviction was affirmed on direct appeal. State v. Davis, 998 P.2d 1127 (Kan. 2000). No post-conviction motions were filed by petitioner.
Petitioner commenced this action on September 28, 2001. Petitioner's sole ground for relief alleges his Fifth Amendment rights were violated when a court-appointed psychologist elicited incriminating statements from petitioner which were later used against him at a juvenile waiver hearing.
Respondent has filed an answer and return (Doc. 8). Petitioner submitted no traverse in response. STANDARD OF REVIEW
Because Mr. Davis's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of petitioner's claims is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, a writ of habeas corpus cannot be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
THE COURT-ORDERED PSYCHOLOGICAL EVALUATION AND THE FIFTH AMENDMENT
Petitioner contends his Fifth Amendment right against self-incrimination was violated when a court-appointed psychologist elicited incriminating statements which were later used against him at a juvenile waiver hearing. The Kansas Supreme Court summarized the facts surrounding petitioner's claim as follows:
On February 28, 1997, a shooting occurred which left Wanda Norman dead and John Garner wounded. The defendant, 17-year-old Shakeer Davis, was charged as a juvenile with first-degree premeditated murder, attempted first-degree murder, aggravated robbery, and aggravated burglary. The State filed a motion requesting that the trial court certify prosecution of the defendant as an adult.
At the certification hearing, Richard Coulter, the chief social worker at the Youth Center at Topeka (YCAT), testified regarding the defendant's suitability as an inmate. Coulter stated that the defendant could only be retained at YCAT until age 21 and that after that time he would be discharged regardless of rehabilitation. Coulter noted that the typical offenders at YCAT were in the 14-to 16-year-old range.
After reviewing a court-ordered psychological assessment of the defendant and the defendant's offense record, Coulter stated that while YCAT could maintain the defendant, it would be difficult to be optimistic about the prospects for the defendant to show a substantial positive change. Coulter stated that YCAT's programming is designed for adolescents and the defendant's psychological report stated that he had been functioning on his own for some time and viewed himself as an adult.
Dr. John Fajen, the psychologist who had performed the evaluation of the defendant, also testified. He stated that the purpose of the evaluation was to determine whether the defendant should be charged as a juvenile or an adult. His examination of the defendant totaled 5 to 6 hours with 1 1/2; to 2 hours of time spent face to face with the defendant, and the remainder in testing. Dr. Fajen testified that the defendant was cooperative during the testing.
Dr. Fajen testified that the defendant stated he had a number of arrests and had committed numerous other crimes such as breaking and entering, car theft, high speed car chases, trespassing, theft, and shoplifting. The defendant was sent from New York to Kansas at age 15. The defendant reported that he had been smoking marijuana since age 16 and had been involved in outpatient and inpatient counseling, which he found not to be helpful. Further, the defendant reported several suicide attempts. Dr. Fajen noted that the defendant did complete his General Equivalency Diploma.
According to Dr. Fajen, the defendant, while fairly competent to conduct himself appropriately, has shown significant errors in judgment. Dr. Fajen characterized the defendant as introverted and had difficulty interacting with people. Dr. Fajen stated that the defendant used others to meet his own needs without concern for the impact on the lives of the others that he used, and that he did not show remorse or accept blame. Further, according to Dr. Fajen, the defendant lived as an adult, keeping his own apartment and paying his own bills, and thought of himself as an adult. Dr. Fajen concluded that the defendant's history and attitude indicated that he was not amenable to treatment.
The defense moved to strike both the testimony of Dr. Fajen and the part of Coulter's testimony that relied on Dr. Fajen's report. The defense argued that the defendant's statements to Dr. Fajen were inculpatory and that Dr. Fajen had not notified the defendant of his Miranda rights prior to the examination. The trial court determined that it would not consider any inculpatory statements made with regard to the night of the incident but otherwise denied the motion. The court then addressed the required factors under K.S.A. 38-1636(e) and determined that the defendant should be tried as an adult.
Davis, 998 P.2d at 1130-1131.
In its analysis of this issue, the Kansas Supreme Court focused on the Supreme Court's holding in Estelle v. Smith, 451 U.S. 454 (1981). Davis, 998 P.2d at 1134-1136. In Estelle, the Supreme Court held that a defendant may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. 451 U.S. at 468. However, if statements made in a psychiatric interview are only used to determine competency to stand trial, their stated intended purpose, and are not introduced in the penalty phase, no Fifth Amendment issue arises. Id. at 465.
The Kansas Supreme Court held that like the defendant in Estelle, a juvenile does have the Fifth Amendment right to refuse to participate in a court ordered psychological examination to determine whether he should stand trial as an adult. Davis, 998 P.2d at 1136. However, because the results of the examination were used exclusively in the certification determination, its intended purpose, and not introduced at trial, there was no need for Miranda warnings. Id.
The precise issue presented here has been examined by three federal courts. In U.S. v. Mitchell H., 182 F.3d 1034 (9th Cir. 1999) and U.S. v. A.R., 38 F.3d 699 (3rd Cir. 1994), it was held that the Fifth Amendment was not implicated in adult certification proceedings because the evaluation serves a limited, neutral purpose which does not bear on the question of guilt or innocence. Mitchell H. at 1035, A.R. at 703-704. However, in U.S. v. J.D., 517 F. Supp. 69, 71 (D.C.N.Y. 1981), the court found that the Fifth Amendment was implicated by juvenile transfer proceedings because "defendants would be open to a far longer period of incarceration if the transfer motion were to be successful than if they were to be proceeded against as juveniles. Their liberty is therefore very much at stake."
Estelle cautioned that the Fifth Amendment was implicated only in the "distinct circumstances" involved and that the same Fifth Amendment concerns would not "necessarily [be] presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination." 451 U.S. at 466, 469, n. 13. The Supreme Court has recently reiterated that the holding of Estelle was a very limited one: "we have never extended Estelle's Fifth Amendment holding beyond its particular facts." Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1919 (2001).
The Kansas Supreme Court distinguished Estelle from the circumstances present in Mr. Davis' case because the statements made during the evaluation were not used against him at trial and were only used for their intended purpose, determining whether he should stand trial as an adult. Davis, 998 P.2d at 1136. This court cannot say that this was an objectively unreasonable application of Estelle because Estelle expressly held that had the examination been confined to its intended function, "no Fifth Amendment issue would have arisen." 451 U.S. at 465. In addition, considering the limited nature of the holding of Estelle, it cannot be said that Estelle dictated its protections to extend to adult certification proceedings. See Penry, 121 S.Ct. at 1919 (Estelle was limited to the unique circumstances present in that case). This court need not decide how the differences between petitioner's case and the circumstances in Estelle affect the merits of petitioner's Fifth Amendment claim because the Kansas Supreme Court's decision was not "contrary to" or an "unreasonable application" of the holding in Estelle. See Penry, 121 S.Ct. at 1919 (declining to address whether the differences between petitioner's case and Estelle affect the merits of the Fifth Amendment claim because of the standard of review articulated in 28 U.S.C. § 2254(d)(1)). RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.