Petition for Writ of Certiorari — Charles M. Torrence, Petitioner v. Hazel Peterson, Warden

Supreme Court briefJun 24, 2022

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Q9 —

Case No.

ORIGINAL

Supreme Court, U.S.

FILED

JUN 2 k 2022

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES M. TORRENCE

Petitioner

vs.

■ t

HAZEL PETERSON, WARDEN

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals For The

Tenth Circuit

PETITION FOR CERTIORARI

Charles M. Torrence, #8977

Norton Correctional Facility

P.O. Box 546

Norton, Kansas 67654-0546

Pro Se

f i

-iQUESTIONS PRESENTED

ONE:

Whether it is of statewide, and even nationwide importance,

for the United States Supreme Court to declare definitively

whether a mental competency hearing harbors "significant consequences " for a criminal defendant which makes it a "critical

stage" in the criminal prosecution requiring representation by

counsel under the Sixth Amendment to the United States Constitu

tion?

TWO:

If the answer to ONE is yes, did the state of Kansas deny

Charles M. Torrence his Sixth Amendment constitutional right to

counsel at his competency hearing?

-iiLIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

Complaint Informations: Sedgwick County, Wichita, Kansas Case Nos.

13 CR 0942, 13 CR 1383, and 13 CR 1713.

April 28, 2017: The Kansas Court of Appeals affirmed Torrence's

convictions. State v. Torrence, 394 P.3d 152; 2017 WL 1535137

(unpublished opinion).

(Torrence I) February 27, 2018, the

Kansas Supreme Court denied review.

April 2, 2018: Torrence filed a motion for post-conviction relief

("Motion") pursuant to K.S.A. 60-1507 (habeas corpus) in the Dis

trict Court of Sedgwick County (Case No. 18 CV 795). April 23,

2018, the district court denied relief under K.S.A. 60-1507.

November 25, 2020: The Kansas Court of Appeals affirmed the dis

trict court's denial of Torrence's K.S.A. 60-1507 motion. State

(Torrence II)

v. Torrence, 475 P.3d 1294; 2020 WL 6930802.

?■

December 17, 2020: Petitioner filed an Application for federal

habess corpus relief pursuant to 28 U.S.C. § 2254 in the United

States District Court for the District of Kansas, in Case No.

20-CV-3310-JWB. February 9, 2022, the federal district court

denied Torrence § 2254 relief. March 4, 2022, Torrence docketed

his appeal from said denial in the United States Court of Appeals

for the Tenth Circuit (case No. 22-3045).

-iiiTABLE OF CONTENTS

Questions Presented

Opinion Below

Statement of Jurisdiction

1-2

Constitutional and Statutory Provisions Involved ..

2-3

Statement of the Case

3-4

Statement of Relevant Facts

5-10

Reasons for Granting the Writ

10-30

Significant Consequences of a Competency

Hearing ...................................................................

II. Mr. Torrence is Entitled to Habeas Relief Because

He Was Denied Counsel at a Critical Stage in the

Criminal Prosecution ......................................................

III.

Another Feature Establishing the Illegitimacy

of Torrence's Conviction and Sentence .............

12-16

16-24

24-26

IV. Torrence has not Procedurally Defaulted his Claim

that he was Denied his Right to the Assistance of

Counsel at his Mental Competency Hearing ...........

26-30

Conclusion

30-31

Certificate of Service

TABLE OF CITED AUTHORITIES

Appel v. Horn, 250 F.3d 203, 215

(3rd Cir. 2001)

Barnett v. Hargett, 174 F.3d 1128, 1134

(10th Cir. 1999)

Bell v. Cone, 535 U.S. 685, 695-96 (2002)

27, 29

12, 16

Table of Contents, -ivCarnley v. Cochran, 369 U.S. 506, 515-16 (1962)

Coleman v. Alabama,

399 U.S.

...

1, 9 (1970)

Cooper v. Oklahoma, 517 U.S. 348, 364 (1996)

13,

Estelle v. Smith, 451 U.S. 454 (1981)

Gideon v. Wainwright, 372 U.S. 335, 344 (1963)

...

Godinez v. Moran, 509 U.S. 389, 400-02 (1993)

Harris v..Nelson, 394 U.S. 286 (1969)

111 20-23,

Johnson v. Zerbst, 304 U.S. 458 (1938)

Kentucky v. Stincer, 482 U.S. 730, 745 (1987)

Kirby v. Illinois, 406 U.S. 682, 690 (1972)

Lee v. Kemma, 534 U.S. 362, 366 (2002)

13,

Medina v, California, 505 U.S. 437, 450

Miller v. Foulston,

18,

246 Kan. 450, 468-69,

790 P.2d 404 (1990)

Panetti v. Quarterman, 551 U.S. 930, 953 (2007)

...

Pate v. Robinson, 383 U.S. 375 (1938)

Raymond v. Weber, 552 F.3d 680, 684

(8th Cir. 2009)

Riggins v. Neveda, 504 U.S.

127,

139-40 (1992)

...

Shayestah v. City of S. Salt Lake,

217 F.3d 1281 (10th Cir. 2000)

State v. Booker,

re v.

379 P.3d 1152

denied 2017 Kan. LEXIS 603

State v. Davis,

281 Kan.

130 P.3d 69 (2006)

169, 177-78,

Table of Contents, -vState v. Ford, 302 Kan. 455, 467,

27, 28

353 P.3d 1143 (2015)

State v. Osbey, 238 Kan.

280, 283,

710 P.2d 676 (1985)

State v. Stewart, 306 Kan. 237, 252,

393 P. 3d 1031

(24.17)

State v. Torrence, 394 P.3d 152,

2017 WL 1535137

state v. Vann, 280 Kan. 782,

127 P,3d 307 (2006)

State v. Williams, 311 Kan. 88, 95-96,

456 P.3d 540 (2020)

Sturges v. Goldsmith,

(9th Cir.

796 F.2d 1103, 1108-09

1998)

Torrence v. State, 475 P.3d 1294,

2020 WL 6930802

Townsend v. State, 215 Kan. 485, 487,

524 P.2d 758 (1974)

Trotter v. State, 288 Kan. 112,

200 P.3d 1236 (2009)

.................................................

United States v. Barfield, 969 F.2d 1554, 1556

(4th Cir. 1992)

...........................................................

United States v. Collins, 430 F.3d 1260, 1264

(10th Cir. 2005)

>■

■>

Table of Contents, -viUnited States v. Cronlc, 466 U.S. 648 (1984)

20, 30

United States v. Klat, 156 F.3d 1258, 1262

(D.C. Cir. 1998)

United States v. Nixon, 418 U.S. 683, 692

1, 2

United States v. Wade, 388 U.S. 218, 226-27

Von Moltke v. Gillies, 332 U.S. 708, 722 (1948) .. .

Williams v, Taylor, 529 U.S. 362, 405-06 (2000) ...

Ylst v. Nunnemaker, 501 U.S. 797, 801-03 (1991) . • •

Constitutional and Statutory Provisions:

Sixth and Fourteenth Amendments

28 U.S.C. 2101(e)

28 U.S.C. 1254(1)

28 U.S.C. 2254

K.S.A. 22-3302

K.S.A. 22-4503

■» -»

K.S.A. 60-1507

Rules:

Fed. R. App. P. 24(a)(3)

Kan. S. Ct. Rule 8.03B

Other Authorities:

Karen L. Hubbard et al., Competency Restoration . .

HUM. BEHAV. 127, 127 (2003).

. 27 LAW &

Doris J. James & Lauren E. Glaze, "Mental Health Problems of

Prison and Jail Inmates, Bureau of Just. stat. special rep. 1

(Sept. 2006)"

Table of Contents, -viiAppendix:

Appendix A: MEMORANDUM AND ORDER, Case No. 20-3310-JWB, U.S.

District Court for the District of Kansas (19 pages), ENTERED

February 9, 2022.

Appendix B: MEMORANDUM AND ORDER, Case No. 20-3310-JWB, U.S.

District Court for the District of Kansas (2 pages), ENTERED

March 8, 2022.

NOTE TO THE COURT:

This Petitioner includes Appendix A and B (supra)on the

authority of Supreme Court Rule 14(i)(vi), and solely as "any

other material the petitioner believes essential to understand

the petition" he submits for review under Supreme Court Rule 11.

-1QUESTIONS PRESENTED

ONE:

Whether it is of statewide, and even nationwide importance,

for the United States Supreme Court to declare definitively

whether a mental competency hearing harbors "significant conse

quences" for a criminal defendant which makes it a "critical

stage" in the criminal prosecution requiring representation by

counsel under the Sixth Amendment to the United States Constitution?

TWO:

If the answer to ONE is yes, did the state of Kansas deny

Charles M. Torrence his Sixth Amendment constitutional right to

counsel at his competency hearing?

OPINION BELOW

The federal district court's findings of fact, conclusions of

law, and final judgment in Mr. Torrence's 28 U.S.C. § 2254 pro

ceeding are reported in its MEMORANDUM AND ORDER, Case No. 203310-JWB; entered on February 9, 2022.

STATEMENT OF JURISDICTION

Under 28 U.S.C. § 1254(1), the Court may grant a petition for

a writ of certiorari to review any case that is "in" the court of

appeals, even if a final judgment has not yet been entered by the

court.

See United States v. Nixon. 418 U.S. 683, 692; id. at 686-

87 (reviewing claims "because of the public importance of the

-2issues presented and the need for their prompt resolution").

Torrence hereby invokes Rule 11 of the U.S. Supreme Court for this

Court to review his case pending in the Tenth Circuit, U.S. Court

of Appeals, before judgment is entered in that case.

Under 28 U.S.C. § 2101(e), a petition for a writ of certio

rari before judgment is timely filed "at any time before judgment"

in the court of appeals.

Because a notice of appeals has been

filed by Mr. Torrence in this case and his case has been docketed

in the court of appeals, invocation of 28 U.S.C. § 1254(1) is

proper. 1 Issue of public importance; prompt resolution is needed.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution as

sures that no person shall be subjected to criminal prosecution

without the assistance of counsel:

"In all criminal prosecutions, the accused shall enjoy the

right ... to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his

favor; and to have the assistance of counsel for his defense."

The Fourteenth Amendment provides:

"All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside, No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws."

1 Appeal currently pending in 10th Circuit Court of Appeals

of the United States, in Case No. 22-3045.

-328 U.S.C. § 1254(1) provides that cases in the court of

appeals may be reviewed by this Court as follows:

By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after

rendition of the judgment or decreet.]

28 U.S.C. § 2101(e) provides:

An application to the Supreme Court for a writ of certio

rari to review a case before judgment has been rendered in

, the court of appeals may be made at any time before judgment.

Kan. Stat. Annot. § 22-3302 provides in pertinent parts:

(1 )-:At any time after the defendant has been charged with a

crime and before pronouncement of sentence, the defendant,

the defendant's counsel or the prosecuting attorney may re

quest a determination of the defendant's competency to

stand trial. If, upon the request of either party or upon

the judge's own knowledge and observation, the judge before

whom the case is pending finds that there is reason to be

lieve that the defendant is incompetent to stand trial the

proceedings shall be suspended and a hearing conducted to

determine the competency of the defendant.

(7) The defendant shall be present personally at all pro

ceedings under this section.

Kan. Stat. Annot. § 22-4503(a) provides:

"A defendant charged by the state of Kansas in a complaint,

information or indictment with any felony is entitled to

have the assistance of counsel at every stage of the pro

ceeding against such defendant . . .[.]"

STATEMENT OF THE CASE

A Sedgwick County Court jury in Wichita, Kansas convicted

Mr. Torrence of attempted aggravated robbery, aggravated robbery

(x3>, robbery, and unlawful possession of a firearm.

dict forms in Case No. 13 CR 0942).

(Jury Ver

Torrence appealed.

-4In April 2017, the Kansas Court of Appeals affirmed the trial

court's judgment.

15351 37.

State v. Torrence, 394 P.3d 152; 2017 WL

Petition for Review to the Kansas Supreme Court was

denied on February 27, 2018.

In April 2018 Torrence sought postThe court summarily

conviction relief pursuant to K.S.A. 60-1507.

denied the petition on April 23, 2018.

(Order Summarily Denying

60-1507 Habeas Corpus Petition, Case No. 18 CV 795).

appealed again.

The appellate court affirmed.

* 475 P.3d 1294; 2020 WL 6930802.

Torrence

Torrence v. State,

Kansas Supreme Court Rule 8.03B

allowed Torrence to bypass the Kansas Supreme Court to file his

28 U.S.C. § 2254 in federal district court.

#1 ) .

2022.

(Petition, Page 1,

The federal district court denied his § 2254 February 9,

(Memorandum and Order, Page 5 #31 and #32).

Torrence filed his (timely) Notice of Appeal on March 4,

2022.

(Notice of Appeal, Page 5 #36).

The district court issued

a Certificate of Appealability on March 8, 2022, but limited it

to Torrence's claim that the State denied him his right to counsel

at his mental competency hearing.

#41 ) .

(Memorandum and Order, Page 5

Because Mr. Torrence was permitted to proceed "in forma

pauperis" in federal district court, Fed. R. App. P. 24(a)(3)

allowed Torrenceato continue to proceed in forma pauperis in the

Court of Appeals without further authorization.

#5).

NOTE:

(Order, Page 2

Documents referencedoherein are contained in the

Civil Docket for Case No. 20-3310-JWB, U.S. District Court.

-5STATEMENT OF RELEVANT FACTS

The road to here begun when the state judge cramed Mr. Tor

rence's separate cases together until his competency to stand

trial was resolved.

2013, pg§. 2-5).

(Transcript of Motion, held on June 27,

This became a problem because the court did so

without having determined beforehand whether Torrence made a

-<*

knowing, voluntary, and intelligent decision to waive counsel in

each of the latter cases, and, at his competency hearing,

scripts

(Tran-

of Initial Appearance on 13 CR 1163, 13 CR 1383, and 13

CR 1713; see also Transcript of Finding of Competency, held on

August 13, 2013, pg. 2).

It is always advisable to answer such an

inquiry, because otherwise the record may misinform as to a defen

dant's station and answering the inquiry may avoid consequences

that abridge his or her constitutional rights.

Mr. Torrence's

case hinges equally on this determination.

The State of Kansas charged Mr. Torrence in four separate

complaint/informations ; having allegedly committed six different

crimes.

(Complaint'Informations in 13 CR 0942, 13 CR 1163, 13 CR

1383, and 13 CR 1713).

The first was on April 12, 2013.

second, sometimes after May 3, 2013.

The

The third on May 27, 2013.

The fourth on June 26, 2013.

On May 3, 2013, judge Warren Wilbert granted Torrence's request to represent himself,

(May 3, 2013, Transcript).

waiver of counsel was confined to Case No. 13 CR 0942.

2013, Transcript).

This

(May 3,

Judge Wilbert warned Torrence of the dangers

-6of representing himself, questioned Torrence, and found that he

knowingly and voluntarily waived his right to counsel.

(May 3,

Judge Wilbert appointed Torrence standby

2013, Transcript),

counsel (Charles S. Osburn) and informed him that standby counsel

could not be involved in the proceedings in any way; but could

(May 13, 2013,

only answer legal questions Mr . Torrence may have.

Transcript, pg. 5).

Mr.‘'Torrence soon afterwards filed a motion to remove standby counsel from the case,

Mr. Osburn responded by filing a motion

under K.S.A. 22-3302 to have Torrence's mental competency determined.

Mr. Osburn noted in his motion,

. . from my conversa-

tion with Mr. Torrence , I think that there is a good faith belief

(June

that there is concern here regarding his competency[.]

27, 2013, Transcript, pg. 3 & 4) .

Mr. Osburn requested the court

to utake Mr. Torrence off the docket for the time being and order

(June 27, 2013, Trans

an evaluation by ComCare in that regard.

Mr. Torrence had, in addition to Obbutn's motion, filed

mental defect defense under K.S.A. 22a pro se motion raising a

cript ) .

3219.

(June 27, 2013, Transcript).

The prosecution concurred

(June 27, 2013, Transcript, pg. 4) .

in the motions.

Judge William Woolley heard the motions on June 27, 2013.

(Transcript).

Judge Woolley granted all but the motion to remove

standby counsel.

(June 27, 2013, Transcript, pg. 4) .

f ied, "everything will be off the docket,

He speci-

"until we get this re-

-7-

solved."

(June 27, 2013, Transcript, pg. 4).

Torrence be evaluated by ComCare.

He ordered that

(June 27, 2013, Transcript).

The court consolidated Torrence's new criminal cases (i.e.,

13 CR 1163, 13 CR 1383, and 13 CR 1713) with the first one from

(June 27th

13 CR 0942 — for competency evaluation purposes,

and August 13th, 2013 Transcripts),

-j,

The state court records de-

monstrate the court did not obtain from Mr. Torrence a knowing,

voluntary, and intelligent waiver of counsel in the latter cases

on or before the competency hearing.

(Transcripts of Initial

Appearance on 13 CR 1163, 13 CR 1383, 13 CR 1713; and, August 13,

2013, Transcript of Finding of Competency).

The court assumed because Torrence opted for self-represen' tation in 13 CR 0942 that he intended the same with the subsequent

charges.

Torrence asserted early on the State erred by making

this assumption:

(Affidavit of Charles M. Torrence in Support of

K.S.A. 60-1507 Motion, pg. 7, paragraph 27(f) & (g); see also Reply Brief of Appellant, No. 18-1 2031 2-A<)K

Primarily because the

new charges differed as to the facts, the charges, and the punish(Cf. Complaint/Information in 13 CR 1163, 13 CR 1383, 13

ment.

CR 1713, and 13 CR 0942).

Torrence noted he did not know what

punishment the Kansas Sentencing Guidelines Act proscribed for

(Reply Brief of Appellant, No. 18his subsequent offenses.

120312-A, pg. 8).

Torrence has asserted he would have requested

counsel on the new charges, if asked.

(Reply Brief, No. 18-

•s.

-8-

120312-A, pg. 3).

Torrence appeared pro se at his competency hearing.

gust 13, 2013, Transcript, pg. 2) .

(Aufe

The cover page of the trans-

cript indicates an appearance by standby counsel Charles S. Osburn, but the record shows Osburn was never addressed and never

spoke during the hearing.

(August 13, 2013, Transcript, pg. 2) .

The court "directed all inquiries concerning Torrence's competency

to Torrence.

Torrence asserted in his K'i'iS.A. 60-1507 habeas mo-

tion that-his pro se appearance at the competency hearing was not

(Affidavit of

a knowing, voluntary, and intelligent decision.

Charles M. Torrence, Case No. 18 CV 0795, paragraph 27)(f)).

Mr.

Torrence did not neglect to assert that standby counsel was not

present at the hearing (§ 60-1507 moipion, pg. 4). Torrence argued below that "the task of challenging the mental evaluation

understanding of how

was unlawfully left to [him] who displayed no

to subject hliis evaluation to meaningful adversarial testing; par

ticularly without having been allowed at any time to review the

evaluation or had it read to him.

petition, Page 6(a), #3).

(See, e.g., 28 U.S.C. § 2254

Torrence attested as much in his Af-

fidavit in support of his K.S.A. 60-1507 motion, at page 7(g):

"I did not understand how the competency procedure operated

otherwise I would have objected to not having an actual com

petency hearing and also objected to Mr. Osburn not being

present at the August 13th, 2013 proceeding and being forced

to proceed pro se before my competency to stand trial

been resolved[.]"

-9-

On top of this, Torrence presented an Exhibit with his

Traverse , and Memorandum in support, titled !,'Document #1' , verifying that the agency (ComCare) the court ordered to evaluate him

never did.

("Visit Cross-Reference Report).

Torrence also at-

tached therewith documentation that ComCare did not file a mental

evaluation report on him with the Clerk of the Sedgwick County

(Memorandum in support of Traverse, "Document

District Court.

#3", letter from District Court Clerk).

As far back as in his

Affidavit in support of his § 60-1507 motion, Torrence asserted:

"The real controversy of identification, my incompetency,

the reliability of the State's evidence, and my alibi U-e.,

my medical records and hospital personnel verifying my facial

injury, etc.), was not fully tried, because evidence integral

to my theory of defense or incompetency was unlawfully

wrongfully excluded by either the court, the prosecution, law

enforcement or by my lawyers. This denied me due process.

(Page 8, paragraph 29).

There was no medical testimony presented at Torrence's competency hearing, and Torrence did not have the opportunity to

cross-examine the alleged mental evaluator from ComCare as to his

purported finding of competency.

(August 13, 2013, Transcript).

What is more, Judge Waller, whom presided over the competency

hearing, is now deceased and therefore we have no way to detera written

mine what "report" he relied on for his finding (i.e.,

one or "word of mouth").

In this appeal no one denies that Mr. Torrence was not represented by counsel at his competency hearing.

No one denies

that a competency hearing is a critical stage of the criminal

-10proceedings.

No one denies that Mr. Torrence was entitled to

counsel at critical stages.

REASONS FOR GRANTING THE WRIT

Researchers estimate that well over 35,000 adults with

serious mental illnesses are booked into U.S. jails on any given

. I

day.

Researchers also estimate that approximately 60,000 adult

competency- evaluations are conducted annually in the D.S., and

about 30% of the defendants referred for evaluation are found by

the courts to be incompetent.

petency Restoration . .

(See Karen L. Hubbard et al., Com-

., 27 LAW & HUM. BEHAV. 127, 127 (2003)).

The Bureau of Justice Statistics reported that during one

sample year, "more than half of all prisons and jails had a men

tal health problem, including 705,000 in state prisons, 78,800 in

federal prisons, and 479,900 in local jails."

(See Doris J.

James & Lauren E. Glaze, "Mental Health Problems of Prison and

Jail Inmates, Bureau of Just, stat. special rep. 1

(Sept. 2006),"

https://www.bj s.gov/content/pub/pdf/mhppji.pdf.).

Not having definitive Supreme Court precedent holding a

competency hearing is a critical stage in the criminal prosecu

tion requiring representation by counsel contributes to the dis

parity in numbers between state and federal prisoners with mental

problems passing on to prison from the courts.

-11 Under 28 U.S.C. § 2254(d), habeas relief shall not be

granted to a state prisoner from a judgment of the State with

respect to any claim adjudicated on the merits in State court

proceedings unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Fed

eral law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence pre

sented in the State court proceeding.

The State of Kansas denied Mr. Torrence counsel at his

court-ordered mental competency hearing.

It did so without deter-

mining beforehand whether Torrence made a knowing, voluntary, and

intelligent decision to appear pro se at the hearing.

The Su

preme Court has made plain that if the accused, by whatever manner

or means , is not represented by counsel, the Sixth Amendment

stands as a jurisdictional bar to a valid conviction and sentence;

particularly where the accused has not competently and intelli

gently waived his or her constitutional right to counsel.

See

Johnson v. Zerbst, 304 U.S. 458, at 467-69 (1938)

In the instant matter, the lower courts have avoided deter

mining whether Torrence's pro se appearance at his competency

hearing was a competent and intelligent decision by claiming now

there is no Supreme Court precedent available to state prisoners

holding a mental competency hearing is a "critical stage

which representation by counsel is constitutionally required.

‘y

-12I.

Significant Consequences of a Competency Hearing

Critical stages are those steps of a criminal proceeding

that hold significant consequences for the accused.

Bell v.

Cone, 535 U.S. 685, 695-96 (2002).

The trial court found reason to believe Mr. Torrence was

incompetent to stand trial and, therefore, ordered a mental eval

uation by "ComCare" of Torrence followed by a competency hearing.

The Kansas Supreme Court has held once a defendant has received a

competency evaluation, a statutory hearing under K.S.A. 22-3302

must.be held "where competency could be judicially determined."

See State v. Davis, 281 Kan. 169, 130 P.3d 69 (2006); see also

K.S.A. 22-3302(1).

The Kansas Court of Appeals recognized that a

competence hearing "has significant consequences for how a dis

trict court addresses a defendant's motion to proceed pro se."

See State v. Booker, 379 P.3d 1152 , rev. denied 2017 Kan. LEXIS

603.

A competency determination has significant consequences for

both the defendant and the state.

In Riggins v. Neveda, 504 U.S. 127, 139-40 (1992), the

Court noted:

"Unless a defendant is competent, the State cannot put him

on trial. Competence to stand trial is rudimentary, for

upon it depends the main part of those rights deemed es

sential to a fair trial, including the right to effective

assistance of counsel, the right to summons, to confront,

and to cross-examine witnesses, and the right to testify on

one's own behalf or to remain silent without penalty for doing so. Drope v. Missouri, 420 U.S. 162, 171-72, [ ]

(1975)."

-13Four years later, in Cooper v. Oklahoma, 517 U.S. 348, 364 (1996),

the Court added:

"The importance of these rights and decisions demonstrate

than an erroneous determination of competence threatens a

'fundamental component of our criminal justice system' -the basic fairness of the trial itself."

Mr. Torrence argues in his Briefs before the Tenth Circuit

Court of Appeals that Estelle v. Smith and Medina v. California

are precedent holding that a mental competency hearing is a criti

- ,*

’

cal stager of the criminal prosecution at which the defendant

through the Sixth Amendment is entitled to representation by

counsel.

Estelle, 451 U.S. 454 (1981); Medina, 505 U.S. 437

(1992).

In Medina, Justice Kennedy expressly recognized: "Once

a competency hearing is held, however, the defendant is entitled

to the assistance of counsel, e.g • 9 Estelle v. Smith, [451 U.S.

454], and psychiatric evidence is brought to bear on the question

of the defendant's mental condition[.]"

The federal district court for Kansas, and counsel for the

state of, Kansas, disagree, claiming they do "not provide clearly

established Supreme Court precedent to support Torrence's specific

claim that he has a Sixth Amendment right to counsel at a mental

competency hearing."

(Appellee's Brief, at pgs. 18-21).

They

characterize Estelle and Medina on this specific point as nothing

more than dicta.

But counsel acknowledges Estelle was denied his

Sixth Amendment right to the assistance of counsel because he did

not have counsel to help him make (1) "the significant decision

-1 4of whether to submit to the [psychiatric] examination and" (2)

"to what end the psychiatric findings may be employed."

(Appellee's Brief at 19).

Mr. Torrence had counsel to help him make "the significant

decision on whether to submit to the [psychiatric] examination."

(Transcript of Motion Proceeding, held June 27, 2013, pgs. 3 & 4).

Torrence had neither full-time nor standby counsel at the compe

tency hearing to present what counsel believed to be evidence of

his incompetency, to lodge his objections about results of the

' (

mental evaluation report, nor to help him decide to what end the

psychiatrist's findings may be employed.

Standby counsel Charles

S. Osburn notified Torrence after-the-fact, "Kansas law prohibits

those type of examinations to be shared with the client."

(See

Exhibit §2 filed in support of Torrence's § 2254 motion on Decem

ber 17, 2020; letter to Torrence from Mr. Osburn).

In Kansas,

"[a] party who raises the issue of the defendant's competency to

stand trial has the burden of going forward with the evidence."

State v. Stewart, 306 Kan. 237, 252, 393 P.3d 1031 (2017).

was Torrence's standby counsel who raised the issue of his incompetency.

The problem was, "standby counsel does not qualify

as the assistance of counsel required by the Sixth Amendment."

See State v. Vann, 280 Kan. 782, 127 P.3d 307 (2006).

Under K.S.A. 22-3302 et seq. — the mental competency deter

mination statutes — the psychiatric interview and competency

hearing necessarily become intertwined.

-15The reports of the court-appointed psychiatrists are essential,

necessary, indispensable and elementary prerequisites to the ultimate determination of competency.

Kansas law provides that a

court's finding of incompetency will be made on the basis of,

inter alia, "a hearing conducted to determine the competency of

the defendant."

See K.S.A. 22-3302(1).

Significant consequences

emanating -from the results of Torrence's psychiatric interview

ranged from the convening of a jury at the outset under K.S.A.

22-3302(c )<( 1 ), involuntary commitment under K.S.A. 22-3303 to a

treatment facility for a period of 90 days or indefinitely, to

dismissal without prejudice of the charges against him under

K.S.A. 22-3305(2).

Without definitive Supreme Court precedent on the "specific"

point herein under scrutiny, the restriction 28 U.S.C. 2254(1)

imposes on Torrence and similarly situated individuals (i.e., no

Supreme Court precedent, no § 2254 relief), endorses that the

state of Kansas did not evaluate Torrence as court-ordered (see

Section III, infra), that he did not competently and intelligently

waive his right to counsel at each critical stage in the proceed

ings, did not have the guiding hand of counsel to help him make

the significant decision "to what end the psychiatrist's findings

[if any] may be employed," and endorses that the State tried, con

victed, and allowed Torrence to proceed pro se while incompetent.

The Fourteenth Amendment does not allow anyone to make or enforce

a law endorsing such an abridgement.

-1 6The guidance of this Court is needed,

State prisoners are

without remedy under 28 U.S.C. § 2254 — against a state's failure to adopt and adhere to adequate procedures to protect a de

fendant's right not to be tried and convicted while incompetent —

without definitive Supreme Court precedent holding a mental com

petency hearing is a critical stage in the criminal prosecution

at which representation by counsel under the Sixth Amendment is

required.

11 =

Mr. Torrence is Entitled to Habeas Relief Because He Was

Denied Counsel at a Critical Stage in the Criminal Prose

cution.

The Sixth Amendment entitles a defendant to the assistance

of counsel at every critical stage of a criminal prosecution.

Kirby v. Illinois, 406 U.S. 682, 690 (1972).

Critical stages are

those steps of a criminal proceeding that hold significant con

sequences for the accused.

(2002) .

Bell v. Cone, 535 U.S. 685, 695-96

Thus, a defendant is entitled to counsel at any proceed

ing where an attorney's assistance may avoid the substantial pre

judice that could otherwise result from the proceeding.

Coleman

v. Alabama, 399 U.S. 1, 9 (1970).

In addition to counsel's presence at trial, the accused is

guaranteed that he need not stand alone against the State at any

stage of the prosecution, formal or informal, in court or out,

where counsel's absence might derogate from the accused's right

to a fair trial . .

-1 7The Court in United States v. Wade, 388 U.S. 218, at 226-27 (1967)

held, "We scrutinize any pretrial confrontation of the accused to

determine whether the presence of his counsel is necessary to

preserve the defendant's basic right to a fair trial."

Under K.S.A. 22-4503(a), "A defendant charged . . . with any

felony is entitled to have the assistance of counsel at every

stage of the proceeding against such defendant . .

The

Supreme Court recognized that "a defendant is guaranteed the right

to be present at any stage of the criminal proceeding that is crii

tical to its outcome if his presence would contribute to the

fairness of the procedure."

730, 745 (1987).

See Kentucky v. Stincer, 482 U.S.

The competency statute, K.S.A. 22-3302(7), pro

vides: "The defendant shall be present personally at all proceedings under this section."

This means that Torrence's presence at

his competency hearing was "critical to its outcome."

These

statutes "supplement the constitution and are to be regarded as

rendering the constitutional guarantee effective."

See, e.g

Townsend v. State, 215 Kan. 485, 487, 524 P.2d 758 (1974).

♦ /

They

constitute a legislative definition of what is, under the circum

stances named, a reasonable and proper procedure for safeguarding

effective assistance of counsel at a defendant's competency hear

ing and protection against trying and convicting a defendant while

incompetent.

It was the apparent intent of the Kansas legisla

ture, in passing/reconciling together § 22-4503(a) and § 22-3302

-18(7), to prevent the oppression of a citizen by subjecting him or

her to trial and conviction without counsel and while incompetent.

K.S.A. 22-4503(a) and § 22-3302(7)

where the concern was

whether a competency hearing is a critical stage — are evidence

that the lower courts

consideration of Torrence's denial of his

right to counsel claim resulted in a decision that was based on

an unreasonable determination of the facts.

t '

The Supreme Court has not yet considered in primal whether

a competency hearing is a critical stage in the process for these

purposes.

The case of Estelle v. Smith entertained a set of facts

which indicate as much.

Id., 451 U.S. 454.

In Medina v. Califor-

nia Justice Kennedy remarked in unequivocal fashion, "Once a competency hearing is held, however, the defendant is entitled to the

assistance of counsel . . .[.]"

Id., 505 U.S. 437, at 450.

the opposition, and federal District Court, wants more,

But

They

want that "spotted calf," i.e., "an on-point Supreme Court case

a competency hearing is a

for the 'specific proposition' that

critical stage of a criminal proceeding to which the Sixth Amendment right to counsel attaches. I II

(Appellee's Brief at pg. 22).

Notwithstanding, this Court's holding in Panetti v. Ouarterman,

551 U.S. 930, at 953, that "AEDPA does not require state and

federal courts to wait for some nearly identical factual pattern

before a legal rule must be applied."

-1 9However, every federal court of appeals to take up the

question has answered it affirmatively.

Raymond v. Weber, 552

F.3d 680, 684 (8th Cir. 2009); United States v. Collins, 430

F.3d 1260, 1264 (10th Cir. 2005); Appel v. Horn, 250 F.3d 203,

215 (3rd Cir. 2001); United States v. Barfield, 969 F.2d 1554,

1556 (4th Cir. 1992); Sturges v. Goldsmith, 796 F.2d 1103, 1108—

09 (9th Cir. 1998); United States v. Klat, 156 F.3d 1258, 1262

(D.C. Cir.;, 1:998) .

Because it is a critical stage under the

governing sstandard, an accused must be represented at competency

hearing.

As the D.C. Circuit has explained, "We find it contra

dictory to conclude that a defendant whose competency is reason

ably in question could nevertheless knowingly and intelligently

waive her Sixth Amendment right to counsel.

Such a defendant

may not proceed pro se until the question of her competency to

stand trial has been resolved."

. The Supreme Court took it a step further in Godinez v.

Moran, 509 U.S. 389, 400-02, by holding that a determination

that he or she is competent to stand trial is not enough; the

waiver must also be intelligent and voluntary before it can be

accepted.

That the assistance of counsel is absolutely essential to

the functioning of a fair trial is by now well understood.

See

Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (The accused in a

criminal case requires the guiding hand of counsel at every step

of the proceedings against him.)

-20So is the principle that actual denial of counsel at a critical

stage of trial is a per se Sixth Amendment violation, without

the necessity for any further inquiry into prejudice or other

harm to the defendant.

See United States v. Cronic, 466 U.S. 648,

at 659 & n. 25 (1984).

Cronic establishes that "an actual or

constructive denial of the assistance of counsel altogether" con

stitutes Sixth Amendment error.

The Cronic standard, of course, applies only rarely.

this is the rare case that squarely implicates Cronic.

But

At the

most critical stage of Torrence's criminal prosecution — the

stage that would determine whether he is incompetent to stand

trial

the state of Kansas denied him counsel.

In Medina v.

California, 505 U.S. 437, at 450, the court emphasized, "The

rule announced in Pate [v. Robinson, 383 U.S. 375] was driven by

our concern that it is impossible to say whether a defendant

whose competence is in doubt has made a knowing and intelligent

waiver of his right to a competency hearing."

In that same vein,

once Torrence's competence was in doubt, it became impossible to

say whether his walk to and pro se appearance at his hearing was

knowing and intelligent.

Torrence, at the state and federal level, cited to Johnson

v. Zerbst, 304 U.S. 458 (1938), for the proposition that the State

lost jurisdiction to proceed in his case at the point it denied

him his right to counsel at his competency hearing.

It provides:

-21"If the accused, however, is not represented by counsel and

has not competently and intelligently waived his constitu

tional right, the Sixth Amendment stands as a jurisdictional

bar to a valid conviction and sentence depriving him of his

or her liberty."

Id., 304 U.S. at 467-69; emphasis added.

The key word in the quote is "however."., Webster's II New

College Dictionary defines the word "however" as "1. By whatever

manner or .means."

The word "however," therefore, includes Mr.

Torrence whom, early on in his case, opted for self-representation.

Johnson shows the principal concern in Torrence's case

must-be whether he competently and intelligently waived his right

to counsel on or before the date of his competency hearing.

The

Supreme Court in Carnley v. Cochran, 369 U.S. 506, at 515-16

held the principles in Johnson are equally applicable to asserted

waivers of the right to counsel in state criminal proceedings.

The court must look to the circumstances of each individual case

when determining whether the waiver of counsel was knowing and

intelligent.

Johnson, 304 U.S. at 464.

The opposition hopes to avoid answering why the record in

Torrence's case does not demonstrate a knowing, voluntary, and

intelligent decision to waive counsel by him in Case Nos. 13 CR

1163, 13 CR 1383, 13 CR 1713, nor at the "Finding of Competency"

hearing heldxon August 13, 2013.

They do so by claiming there

is no Supreme Court precedent designating a competency hearing a

critical stage warranting Sixth Amendment protection via effec

tive assistance of counsel.

-22-

(Memorandum and Order, Page 5 #31; Appellee's Brief, pg. 23;

Case No. 22-3045, U.S. Court of Appeals for the Tenth Circuit).

K.S.A. 22-4503(a) and K.S.A. 22-3302 channel the Sixth

Amendment right to counsel to Mr. Torrence,

§ 22-4503(a) in

eludes a competency hearing within the "specific proposition"

that "a competency hearing is a critical stage of a criminal

proceeding to which the Sixth Amendment right to counsel at

taches."' The statute achieves this with its language "A defen

dant charged . . . with any felony is entitled to have the as

sistance of counsel at every stage of the proceeding against such

defendant . . .[.]"

"The Sixth Amendment withholds from [state

and] federal courts, in all criminal proceedings, the power and

authority to deprive an accused of his life or liberty unless he

has or waives the assistance of counsel."

Johnson v. Zerbst,

304 U.S. at 463.

The addition, deletion, or alteration of a factor in a test

established by the Supreme Court constitutes a failure to apply

controlling Supreme Court law under the "contrary to" clause of

AEDPA.

Williams v. Taylor, 529 U.S. 362, at 405-06 (2000).

Mr.

Torrence's waiver of counsel at the competency hearing and

whether it was a competent and intelligent decision are joined

at the hip.

The deletion or alteration of the latter is cer

tainly "contrary to" Johnson v. Zerbst, 304 U.S. 458.

-23The Court in Johnson added, "While an accused may waive the right

to counsel, whether there is a proper waiver should be clearly

determined by the trial court, and it would be fitting and appro

priate for that determination to appear upon the record."

304 U.S. at 465.

Id.,

Judge Woolley's finding that he had reason to

believe Torrence was incompetent foreclosed obtaining from Mr.

Torrence,- on that evaluation commencement date, a competent and

intelligent waiver of his right to counsel in Case No. 13 CR 1713

(for certain) and for the competency hearing.

(Transcript of

Motion, pgs. 3 & 4, held on June 27, 2013).

The opposition would have this Court believe that the valid

waiver obtained from Torrence in 13 CR 0942 was all encompassing.

That it enveloped the subsequent offenses, as well; i.e., in 13

CR 1163, 13 CR 1383, 13 CR 1713, and his pro se appearance at

the "Finding of Competency" hearing held on August 13, 2013.

The

waiver in 13 CR 0942 on May 3, 2013, was "offense specific."

(See May 3, 2013 "Transcript of Motion and Approval to Proceed

Pro Se).

Those waivers occurring after the competency hearing do

not operate retrospectively,

At any place in Torrence's file

where the record contains no more than his acknowledgement of and

desire to waive his right to counsel, such a waiver is not valid

without thorough inquiry into whether Torrence comprehend the

nature of the charges and proceedings, the range of punishments

(jointly or severally), and all facts necessary to a broad under-

•*

4‘

-24standing of the case.

See Von Moltke v. Gillies, 332 U.S. 708,

722 (1948); and. State v. McCormick, 37 Kan. App. 2d 828, 839,

159 P.3d 194 (2007).

Publishing, definitively, Supreme Court precedent holding

a mental competency hearing is a critical stage in the criminal

prosecution at which representation by counsel under the Sixth

Amendments is required, affirms that the lower court's decisions

hereon were contrary to, or an unreasonable application of Su

preme Court precedent; or, as well, constituted an unreasonable

determination of the facts in light of the trial record.

As such,

Mr. Torrence application for habeas relief should have been

granted.

III.

Another Feature Establishing the Illegitimacy of Torrence1s

Conviction and Sentence

The conviction of a legally incompetent defendant violates

due process.

(1 966) .

See Pate v. Robinson, 383 U.S. 375, Syl. 1(a)

A conviction in a case where the defendant has not en

joyed that fundamental right is void.

His imprisonment also

violates the Thirteenth Amendment which forbids involuntary ser

vitude, except as "punishment for crime," since no punishment can

be valied unless after a valid trial or a valid plea of guilty.

Because the Writ of Habeas Corpus is intended to safeguard

Individual freedom against arbitrary and lawless State action',1

it must be administered with the initiative and flexibility essental to insure the miscarriage of justice within its reach are

surfaced and corrected.

Harris v. Nelson, 394 U.S. 286 (1969).

-25Judge Woolley's June 27, 201 3, Order to perforin mental eval

uation on Mr. Torrence created a presumption of his incompetency

to stand trial, until officially rebuted.

See State v. Davis,

281 Kan. 169, 177-78, 130 P.3d 69 (2006).

Early on Torrence docu-

mented suspensions he had:

that this is

"And from the start I have said that this

a fabrication and that the police is just using -all a

concocting stuff," (Transcript of Sentencing, held on June

10, 2015, pg. 22, lines 10-12).

* * *

"I believe the 'man1 performing the interview on me was a

police or assistant district attorney rather than a mental

health professional, awaiting an opportunity for me to let

my guard down about my case in a way to then incriminate

myself."

(Affidavit of Charles M. Torrence, Case No. 18

CV 0795, paragraph 24).

* * *

"The real controversy of identification, my incompetency,

the reliability of the State's evidence, and my alibi (i.e.,

my medical records and hospital personnel verifying my

facial injury, etc.), was not fully tried, because evidence

integral to my theory of defense or incompetency was unlaw

fully or wrongfully excluded by either the court, the prose

cution, law enforcement or by my lawyers. This denied me

due process." (Affidavit of Charles M. Torrence, Case No.

18 CV 0795, paragraph 29).

Mr. Torrence presented post-conviction evidence to federal

district court that demonstrated ComCare mental evaluators, in

fact, did not evaluate Torrence as the court ordered it to.

Post-

conviction evidence can often be relevant to establishing substantive incompetency.

See 28 U.S.C. 5 2254(e)(1)■

The mental competency determination process commenced on

June 27, 2013, and ended Atlgust 13, 2013.

The jail visitation

records verify no ComCare personnel visited Torrence at the jail

' V

-26between those dates.

("Visit Cross-Reference Report"; see

"Evidence in Support of Petitioner's Traverse" titled "Document

The Clerk of Sedgwick County District Court verified Com-

#1") .

Care did not filedwith the court the evaluation it supposedly

performed on Mr. Torrence.

titled "Document #3").

(Memorandum in Support of Traverse,

All this explains why the State presented

no medical:-testimony, nor the report, at Torrence's competency

hearing.

<■

(.August 13, 2013 "Finding of Competency" transcript).

Because ComCare did not evaluate Torrence as court ordered, the

presumption is the state of Kansas convicted and sentenced him

during a period of incompetency.

IV.

Torrence has not Procedurally Defaulted his Claim that he

was Denied his Right to the Assistance of Counsel at his

Mental Competency Hearing.

The State denied Mr. Torrence his right to counsel at the

hearing to determine his competency to stand trial.

It did so

without establishing beforehand whether Torrence's pro se appear

ance at the hearing was knowing, voluntary, and intelligent.

(Finding of Competency transcript, pg. 2, held on August 13,

2013).

Torrence reiterates that § 22-4503(a)'s language encompasses

a competency hearing by providing "A defendant charged . . . with

any felony is entitled to have the assistance of counsel at every

stage of the proceeding against such defendant . . .[.]"

)

-27True, Torrence did not lodge an objection about this during his

criminal case (i.e., posttrial motions) nor on direct appeal.

The Kansas Supreme Court held, "It is the task of the district

judge to insure that a defendant's Sixth Amendment right to counsel is honored."

307

See State v. Vann, 280 Kan. 782, 789, ]21_ P.3d

(2006) .

In determining whether a state procedural bar rule is ade

quate and -independent ground to bar federal review of a constitu

tional claim, a federal habeas court must apply the state's rule

in effect at the time of the purported procedural default.

See

Barnett v. Hargett, 174 F.3d 1128, 1134 (10th Cir. 1999).

On July 31, 2015, the Kansas Supreme Court implemented the

following rule in State v. Ford, 302 Kan. 455, 467 (2015):

"Future movants seeking to reverse a conviction because of

an alleged violation of K.S.A. 22-3302 [mental competency

determination procedure] must utilize the procedures in

K.S.A. 60-1507 or be subject to summary dismissal."

At the state level, "[a] party may seek and obtain the benefit of

a change in the law during the pendency of a direct appeal."

State v. Williams, 311 Kan. 88, 95-96, 456 P.3d 540 (2020).

See

conviction is not considered final until the judgment of convic

tion has been rendered, the availability of an appeal has been

exhausted, and the time for any rehearing or final review has

passed."

State v. Osbey, 238 Kan. 280, 283, 710 P.2d 676 (1985).

In the present case, the jury convicted Torrence on January

29-30, 2015.

(Jury Verdicts, Counts 1-6).

on June 10, 2015.

Sentencing occurred

Torrence filed his Notice of Appeal on June

-28-

16, 2015.

Docketed his appeal October 26, 2015.

The direct

appeal became final on February 27, 2018, or thereabouts.

(Mandate, Appellate Court No. 15-114546-A (consolidated cases)).

Torrence's conviction was not final until final judgment on both

the conviction and the sentence had been entered on direct appeal.

Because a final judgment had not been entered on July 31, 2015,

Torrence's conviction was not yet final when Ford was decided.

As such, Torrence is entitled to the benefit of the court's holding in Ford (supra).

Torrence presented his complaint about the

K.S.A. 22-3302 violation in his case in a K.S.A. 60-1507 motion

as ordered.

The State used the Ford rule to lull Mr. Torrence into not

lodging his complaint about being denied counsel at his competency

hearing until his K.S.A. 60-1507 application,

Torrence asserts

he would have raised his denial of counsel claim on direct appeal

had it not been for the Kansas Supreme Court holding "the Ford

rule" out as sole means to better develop the factual underpinning

of such a claim.

Even Kansas highest court recognizes "a party

may not lull another into forbearing [to raise a claim] during

the limitation period and then asserting a limitations bar after

an action has been filed."

468-69, 790 P.2d 404

Miller v. Foulston, 246 Kan. 450,

(1990).

A state's procedural rule does not

bar federal review if petitioner actually complied with the

rule.

Lee v. Kemma, 534 U.S. 362, 366 (2002) .

-29In Johnson v. Zerbst, 304 U.S. 456, the Court held that unless a waiver of counsel is shown to have been a competent and

intelligent decision, "the Sixth Amendment stands as a jurisdic

tional bar to a valid conviction and sentence depriving him or

Id., 304 U.S. at 468.

his life or his liberty."

"Subject matter

jurisdiction may be raised at any time, and a party does not waive

jurisdictional defects by not objecting to the procedure in district court>:" , Trotter v., State> 288 Kan. 112, 126, 200 P.3d 1236

(2009 ) .

Procedural bar was not an option in Torrence's case.

In addition, Torrence raised a substantive competency claim

below and presented post-conviction evidence that the courtordered mental competency evaluation to determine his competency

to stand trial never occurred.

(Evidence in Support of Torrence's

Traverse, titled "Document #1," i.e., "Visit Cross-Reference Report") .

Torrence from his § 60-1507 application onward raised a

threshold doubt about his competency at the time of trial by clear

and unrebuted convincing evidence.

(See also Affidavit by Charles

M. Torrence, in support of K.S.A. 60-1507 motion, paragraphs 19,

24, 25, 26, 27, and 29).

"A substantive competency claim is not

subject to procedural bar."

Barnett v. Hargett, 174 F.3d at 1133.

Torrence's allegations, and evidence in support, warranted a full

evidentiary hearing.

Barnett, supra.

■»

-30At both the state and federal court level the courts delved

into the merits of Torrence's denial of counsel claim.

In rul

ing on Torrence's K.S.A. 60—1507 post-conviction motion, the

state district court determined Torrence'was competent to stand

trial and that "[n]o irregularities, legally or factually, occur

red at either hearing."

("Order Summarily Denying 60=1507 Habeas

Corpus Petition, filed April 23, 2018, in Case No. 18 CV 795, at

pgs. 5 & 6.) .

Where, as here, a state court actually decides an

issue on the merits, state procedural bars will not preclude federal habeas review.

Ylst v. Nunnemaker, 501 U.S. 797, 801-03

(1991).

Besides, because Torrence was improperly denied counsel

"such denial constitutes cause sufficient to overcome procedural

bar."

Cf. Shayestah v. City of S. Salt Lake, 217 F.3d 1281 (10th

Cir. 2000).

Where there has been a complete denial of the con

stitutional right to counsel, as here, prejudice is presumed.

See United States v. Cronic, 466 U.S. 648, at 658-59 (1984).

CONCLUSION

For the foregoing reasons, this Court should grant certio

rari before judgment in Torrence's case before the United States

Tenth Circuit Court of Appeals in aid of its jurisdiction to

review the final judgment of the federal District Court for Kan

sas .

V’

■

■*

-31Respectfully submitted,

Charles M. Torrence,

Pro Se

Inmate No. 8977

Norton Correctional Facility

P.0. Box 546

Norton, Kansas 67654-0546

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.