Petition for Writ of Certiorari — Gary Lynn Gatlin, Petitioner v. United States

Supreme Court briefNov 28, 2023

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No. ___________

In The

Supreme Court of the United States

GARY LYNN GATLIN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

______________

PETITION FOR WRIT OF CERTIORARI

______________

Michael W. Patrick, N.C. State Bar #7956

Counsel of Record

LAW OFFICE OF MICHAEL W. PATRICK

100 Timberhill Place, Suite 127

Post Office Box 16848

Chapel Hill, North Carolina 27516

(919) 960-5848 – Telephone

(919) 869-1348 – Facsimile

mpatrick@ncproductslaw.com

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ P.O. Box 1460 (23218) ♦ Richmond, VA

804-249-7770 ♦ www.gibsonmoore.net

23219

QUESTIONS PRESENTED

SHOULD COURTS EVALUATE EVIDENCE SUPPORTING MOTIONS

FOR COMPETENCY EVALUATIONS DIFFERENTLY WHEN THE

CLAIMED BASIS FOR INCOMPETENCY IS INTELLECTUAL

DISABILITY RATHER THAN MENTAL ILLNESS?

II.

WHAT IS THE CORRECT STANDARD FOR REVIEWING DENIED

MOTIONS FOR COMPETENCY EVALUATIONS UNDER 18 U.S.C. §

4241(A) AND CONSTITUTIONAL DUE PROCESS WHEN THE ISSUE

WHETHER

INTELLECTUAL

DISABILITY

AFFECTS

DEFENDANT’S COMPETENCY?

III.

DID THE TRIAL COURT VIOLATE THE STANDARDS FOR

GRANTING A MOTION FOR A COMPETENCY EVALUATION AND

HEARING WHEN THE DENIED MOTIONS WERE SUPPORTED BY

DECLARATIONS OF COUNSEL AND A PSYCHIATRIC REPORT

INDICATING THAT DEFENDANT’S INTELLECTUAL DISABILITY

INTERFERED WITH DEFENDANT’S ABILITY TO UNDERSTAND

THE CHARGES AND PARTICIPATE IN HIS DEFENSE?

TABLE OF CONTENTS

Page:

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

OPINION BELOW......................................................................................................... 1

STATEMENT OF SUPREME COURT JURISDICTION ............................................ 1

STATUTORY PROVISIONS INVOLVED .................................................................... 1

STATEMENT OF THE CASE....................................................................................... 1

REASONS FOR GRANTING THE WRIT .................................................................... 6

CERTIORARI IS NEEDED TO REMEDY SPLITS OF AUTHORITY

BETWEEN THE CIRCUITS AND TO SETTLE IMPORTANT ISSUES

OF CONSTITUTIONAL LAW............................................................................ 6

CONCLUSION............................................................................................................. 12

APPENDIX:

Opinion

U.S. Court of Appeals for the Fourth Circuit

entered August 30, 2023 ......................................................... Appendix A

Judgment

U.S. Court of Appeals for the Fourth Circuit

entered August 30, 2023 ......................................................... Appendix B

TABLE OF AUTHORITIES

Page(s):

Cases:

De Kaplany v. Enomoto,

540 F.2d 975 (9th Cir. 1976) ............................................................................. 11

Drope v. Missouri,

420 U.S. 162, 95 S. Ct. 896 (1975) ...................................................................... 7

Dusky v. United States,

362 U.S. 402 (1960) ............................................................................................. 6

Hall v. Florida,

572 U.S. 701, 134 S. Ct. 1986 (2014) .................................................................. 9

Moore v. United States,

464 F.2d 663 (9th Cir. 1972) ............................................................................. 10

Pate v. Robinson,

383 U.S. 375 (1966) ........................................................................................... 10

United States v. Banks,

482 F.3d 733 (4th Cir. 2007) ............................................................................. 10

United States v. Duncan,

643 F.3d 1242 (9th Cir. 2011) ........................................................................... 10

United States v. Moussaoui,

591 F.3d 263 (4th Cir. 2010) ............................................................................... 7

Statutes:

18 U.S.C. § 111 ............................................................................................................... 2

18 U.S.C. § 922 ............................................................................................................... 1

18 U.S.C. § 924(c) ........................................................................................................... 2

18 U.S.C. § 4241(a) ................................................................................................ 1, 6, 7

28 U.S.C. § 1254(1) ........................................................................................................ 1

iii

Constitutional Provisions:

U.S. Const. amend. V............................................................................................... 1, 10

U.S. Const. amend. VI ................................................................................................. 10

Rules:

Fed. R. Crim. P. 29......................................................................................................... 3

Other Authorities:

McCarthy, J., Chaplin, E., Harvey, D., Marshall-Tate, K., Ali, S. and Forrester,

A Recognizing & Responding to defendants with intellectual disabilities in

court settings; 4 Forensic Science International: Mind and Law Journal

https://openresearch.lsbu.ac.uk/item/93185 ............................................................... 11

Penelope Brown, Ioannis Bakolis, Elizabeth Appiah-Kusi, Nicholas Hallett,

Matthew Hotopf, and Nigel Blackwood, in Prevalence of Mental Disorders in

defendant at Criminal Court, 8 BJPsych Open. 3: e92 (2022), Table 3

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9169500/ ........................................ 11

Rand Corporation, Joan R. Petersillia,

Criminal Justice Policies Toward the Mentally Retarded Are Unjust and

Waste Money: https://www.rand.org/pubs/research_briefs/RB4011.html................... 9

The AAIDD Position Statement

https://www.aaidd.org/news-policy/policy/position-statements/criminal-justice ........ 8

The ARC, Position Statement on the Criminal Justice System,

https://thearc.org/positionstatements/criminal-justice-system.................................... 8

OPINION BELOW

The decision of the Fourth Circuit affirming Defendant Gatlin’s conviction and

sentence was issued on August 30, 2023 and is unpublished. The opinion is reprinted

as Appendix A to this Petition. (Appendix A pp. 1, infra).

STATEMENT OF SUPREME COURT JURISDICTION

The jurisdiction of the Supreme Court is invoked under 28 U.S.C. § 1254(1) to

review the decision rendered by the United States Court of Appeals for the Fourth

Circuit on August 30, 2023.

STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides:

No person shall be * * * deprived of life, liberty, or property, without due

process of law; * * *

18 U.S.C. § 4241(a) provides:

At any time after the commencement of a prosecution for an offense and

prior to the sentencing of the defendant, or at any time after the

commencement of probation or supervised release and prior to the

completion of the sentence, the defendant or the attorney for the

Government may file a motion for a hearing to determine the mental

competency of the defendant. The court shall grant the motion, or shall

order such a hearing on its own motion, if there is reasonable cause to

believe that the defendant may presently be suffering from a mental

disease or defect rendering him mentally incompetent to the extent that

he is unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.

STATEMENT OF THE CASE

An indictment returned in the Eastern District of North Carolina charged the

Defendant Gary Gatlin with one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922, one count of assaulting federal officials in the course of

their duties in violation of 18 U.S.C. § 111, and one count of using, carrying and

discharging a firearm in further of a crime of violence in violation of 18 U.S.C.

§ 924(c). The Defendant pled not guilty. Prior to trial the government and the

defendant filed a stipulation that defendant was a convicted felon, that he knew he

was a convicted felon, and that firearms had traveled in interstate commerce prior to

February 8, 2019.

A jury trial began on April 20, 2021 before the Honorable Louise Flanagan.

Blake Harrell, a Lumberton police detective assigned to an ATF task force he was

working with ATF agent Wishon on February 9, 2019 to investigate a tip that two

persons would be trafficking firearms. Because of the difficulty in finding a concealed

place to watch the suspects’ residence Harrell and Wishon parked their unmarked

vehicle on Gatlin Drive where they could watch the residence. Both agents were in

plain clothes and somewhat scruffy in appearance. Their car was parked between “no

trespassing” signs and bore out of state tags.

A short time later an American Indian female and black male walked up and

asked the agents what they were doing. The agents told them a false story that they

were there to work on the nearby water tower. The couple told the agents that they

were on their father’s land, there had been some thefts recently, that Defendant

Gatlin didn’t like people on his land, and that they should leave. The agents did not

leave. A short time later, Defendant Gary Gatlin drove up on a lawn tractor and

irately told the agents that they were on his land. After telling Gatlin the false story

about working on the water tower, the agents told him it was none of his business

what they were doing there and to call the police if he wasn’t satisfied. Gatlin told

them that he would blow their heads off if they didn’t leave his land and drove off on

his lawn tractor. About five minutes later Mr. Gatlin walked back up carrying a

shotgun and fired a shot into the air. Gatlin subsequently fired two shots at the car.

After Blake pulled out a handgun, Gatlin fired two more shots and the agents drove

off.

After calling for help from the sheriff’s department, the agents return to the

scene and Defendant Galin was arrested. The scene was processed and searched.

Wadding and spent shotgun shells were found slightly to the left of a car parked

immediately behind the residence. Ammunition, a rifle and a shotgun, and a .22

rifle were found in a barn on the property. A shotgun and .22 rifle were found in the

Gatlin residence, and a shotgun in a shed at the rear of the residence.

Mr. Gatlin told an ATF agent on the day of the incident that he was cutting

grass at his house and that after seeing an unfamiliar vehicle on his property near

the water tower he sent his daughter and his son-in-law to find out who was in the

vehicle. Gatlin told the agent when his daughter and son-in-law came back they told

him the men said they worked for the county. Gatlin told the agent he knew the men

didn't work for the county because there wasn’t a symbol on the vehicle and that he

thought they were drug dealers.

The district court denied defendant Gatlin’s Rule 29 motion and the defense

offered no evidence. Defendant Gatlin was convicted on April 21, 2021 of all charges.

On May 4, 2021, Mr. Gatlin mailed a handwritten motion from jail asking for

an extension of time to file for a new trial and for appointment of new counsel. After

new counsel was retained, Mr. Gatlin’s new counsel filed a motion for a competency

evaluation, and a supplemental motion to extend the time to file a motion for new

trial until 30 days after the competency evaluation was received. This motion was

supported by an affidavit from Defendant’s trial counsel questioning defendant’s

understanding of the proceedings. After reciting the basis for his opinions, trial

counsel stated:

I am executing this affidavit because I have doubts as to Mr.

Gatlin’s competency at trial, and competency in this proceeding

going forward.

10.

My communications with Mr. Gatlin have created a bona fide

impression that Mr. Gatlin is presently suffering from a mental

defect and is therefore unable to assist in his defense at trial and

unable to understand the nature and consequences of the

proceedings against him.

The government opposed the motion for a competency evaluation. On August 9, 2021,

the district court denied the motion for a competency evaluation but extended the

time to file a motion for new trial for 30 days until September 8, 2021. Relying on the

magistrate judge’s pretrial interactions with Defendant Gatlin, and its own

observations at trial, the district court ruled that counsel’s affidavit was not credible

and did not establish reasonable grounds for granting the motion for a competency

evaluation.

Despite the denial of the motion for a competency evaluation, Mr. Gatlin’s new

counsel obtained an evaluation by James H. Hilkey, Ph.D., a forensic psychologist.

Dr. Hilkey’s report was not issued until September 10, 2021 two days after the

deadline for filing a motion for new trial. In his report, Dr. Hilkey found that:

Based on current testing, Mr. Gatlin has significant intellectual

limitations, as reflected in a Verbal Comprehension Index score of 61,

which places him in the extremely low range and at the 0.5 percentile of

his peers. This is further compounded by Mr. Gatlin’s Processing Speed

Index Score of 56, which is extremely low. His Full-Scale IQ score is a

63, which is extremely low. Functioning at this level would create

significant problems in his understanding of the legal process, including

weighing various options or assisting counsel.

Dr. Hilkey recommended a full competency evaluation.

On November 10, 2021, Mr. Gatlin’s counsel filed a renewed motion for a

competency evaluation and requested the trial verdict be vacated. This motion was

supported by trial counsel’s statement and Dr. Hilkey’s report. The government again

opposed a competency evaluation. On January 31, 2021, the district court denied the

renewed motion for a competency evaluation. Again relying on the magistrate judge’s

pretrial interactions with Defendant Gatlin, the probation officer’s interactions with

the defendant and its own observations at trial, the court rejected the conclusions in

Dr. Hilkey’s report, and again ruled the proffered evidence did not establish

reasonable grounds for granting the motion for a competency evaluation.

At the sentencing hearing held on February 25, 2022, the district court

sentenced Mr Gatlin to imprisonment of 12 months on Counts 1 and 2 to run

concurrently, and to a mandatory minimum 120 month sentence on Court 3 to run

consecutively to the 12 months imposed on Counts 1 and 2.

On March 11, 2022, Defendant Gatlin filed a motion for new trial and on March

14, 2022, a corrected Motion for New trial based upon the intellectual disabilities

disclosed in Dr. Hilkey’s report. The government opposed the motion for new trial.

On May 18, 2022, the district court denied the motion for new trial. Defendant Gatlin

filed his notice on appeal on May 26, 2022.

On appeal, Defendant Gatlin raised three issues: (1) the trial court’s failure

to correctly instruct the jury on the issue of self defense, (2) the trial court’s denial

of the motions for a competency evaluation and new trial and (3) whether trial

counsel provided ineffective assistance of counsel. In its short opinion, the Court of

Appeals affirmed the conviction finding no reversible error on the first two issues

and dismissing the third issue as not established on the record in the direct appeal.

REASONS FOR GRANTING THE WRIT

CERTIORARI IS NEEDED TO REMEDY SPLITS OF AUTHORITY

BETWEEN THE CIRCUITS AND TO SETTLE IMPORTANT ISSUES OF

CONSTITUTIONAL LAW.

18 U.S.C. § 4241(a) requires courts to hold competency hearing, “if there is

reasonable cause to believe that the defendant may presently be suffering from a

mental disease or defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings against him or

to assist properly in his defense.”

While the Supreme Court has addressed the standards on what constitutes

mental competency 1, it has not addressed the standards for judging when a

1The

standard for mental competency is whether the defendant “has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding—and whether he has a rational as well as factual understanding of

the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960).

competency evaluation should be conducted under 18 U.S.C. § 4241(a). 2 The Court

and the appellate courts further have not addressed whether there are any

differences in how to judge whether to order a competency evaluation when the

alleged issue is defendant’s intellectual disability versus his or her mental illness.

The Courts of Appeal, however, have adopted differing approaches to what

showing is necessary to order a competency evaluation. For example, the Court of

Appeals for the Fourth Circuit has ruled that in determining whether there is

reasonable cause to order a competency hearing, the “district court should examine

all of the record evidence pertaining to the defendant’s competence, including: (1) any

history of irrational behavior; (2) the defendant’s demeanor at and prior to

sentencing; and (3) prior medical opinions on competency.” United States v.

Moussaoui, 591 F.3d 263, 291 (4th Cir. 2010). The district court in the present case

explicitly followed this directive on what evidence to examine. In following this

standard, the district court used the first two factors to discount the medical opinions

of Dr. Hilkey and the observations of trial counsel.

While these general directives may serve well where the asserted basis of

incompetency is mental illness, these standards do not work well when defendant’s

problems are based on intellectual disability because persons with intellectual

disability frequently do not display behaviors that would recognized by courts as

impairing or irrational. The difficulties facing persons with intellectual disabilities in

2 The Court has addressed the issue of a state court’s refusal to consider a competency

evaluation in the context of apparent mental illness in Drope v. Missouri, 420 U.S.

162, 95 S. Ct. 896 (1975).

the criminal justice system have been repeatedly articulated by organizations focused

on assisting those with intellectual disabilities.

As explained by ARC, a leading national advocacy group for the rights of the

intellectually disabled:

Individuals with IDD are frequently undiagnosed or misdiagnosed,

especially by evaluators, including law enforcement personnel, who are

not trained in assessment of individuals with intellectual disability and

who do not recognize common characteristics such as individuals’

attempts to hide their disability. Defendants with IDD are often denied

a fair evaluation of whether they are entitled to legal protection as

having IDD on the basis of false stereotypes about what individuals with

IDD can and cannot understand or do. 3

Similarly, the American Association on Intellectual and Developmental

Disabilities recognizes that those with intellectual disabilities have a tendency to

deny or hide their disabilities while in the criminal justice system. AAIDD notes in

its materials:

[P]eople living with IDD who enter the criminal justice system

encounter unique problems not faced by their nondisabled peers, such

as:

Failing to have their disability correctly identified by authorities who

lack the expertise to discern the presence and nature of their disability

(especially when the disability is denied by the person or somewhat

hidden).

...

Experiencing inappropriate assessments for competency to stand trial

even when the individual cannot understand the criminal justice

proceeding or is unable to assist their lawyer in their own defense; 4

The ARC, Position Statement on the Criminal Justice System, available at

https://thearc.org/positionstatements/criminal-justice-system.

4 The AAIDD Position Statement is available on the internet here:

https://www.aaidd.org/news-policy/policy/position-statements/criminal-justice.

Moreover, the information from these and other organizations 5 indicate that,

standing alone, intellectual disability without mental illness can render it unlikely

that these persons can understand their rights, understand the proceedings, and

assist in their own defense.

The district court in Mr. Gatlin’s case relied on the factors that both ARC and

AAID have criticized to deny Mr. Gatlin’s motions for a competency evaluation. The

district court relied on Mr. Gatlin’s responses at his arraignments and its observation

of his demeanor to deny the motions and rejected information from trial counsel and

Dr. Hilkey who had closely interacted with Mr. Gatlin.

As noted, the Supreme Court has not examined the question of how to

determine competency in the context of intellectual disability. It has, however,

addressed the issue of whether intellectual disability can render the imposition of the

death penalty inappropriate. In Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986 (2014),

the Supreme Court recognized that a multifaceted examination was needed in

evaluating how intellectual disability affects culpability in the criminal justice

systems. The Court noted that special care is required in this situation:

These persons face “a special risk of wrongful execution” because they

are more likely to give false confessions, are often poor witnesses, and

are less able to give meaningful assistance to their counsel. Id., at 320321, 122 S. Ct. 2242, 153 L. Ed. 2d 335.

572 U.S. at 709.

5 See for example a report from the Rand Corporation, Joan R. Petersillia, CRIMINAL

JUSTICE POLICIES TOWARD THE MENTALLY RETARDED ARE UNJUST AND WASTE MONEY,

available on the internet here:

https://www.rand.org/pubs/research_briefs/RB4011.html.

The Courts of Appeal also use differing appellate standards to review the

denial of a motion for an evaluation. The appellate review standard used in the

Fourth Circuit to review a district court’s decision compounds the danger of

improperly treating the intellectually disabled defendants. That appellate review

standard is abuse of discretion. See United States v. Banks, 482 F.3d 733 (4th Cir.

2007). This lax standard of review ensures that the district court’s denial of a

competency evaluation will be affirmed so long as the district court considers the

various types of evidence presented. In cases of intellectual disability such a standard

allows the district court to rely on the type of evidence criticized as invalid by

organizations who are familiar with the peculiar vulnerabilities of the intellectually

disabled in the criminal justice system. This problem can only be remedied by the

courts of appeals or this Court adopting a different standard of review for these cases

or by directing the district courts to weigh the factors differently in cases involving

intellectual disabilities.

In contrast to the Fourth Circuit’s approach, the Court of Appeals for the Ninth

Circuit has stressed primary reliance on medical opinions in determining whether a

trial court should order a competency evaluation. The Ninth Circuit has repeatedly

held this test satisfied “any time ‘there is any evidence which, assuming its truth,

raises a reasonable doubt about the defendant’s competenc[e].’” United States v.

Duncan, 643 F.3d 1242, 1247-50, fn.2 (9th Cir. 2011); Moore v. United States, 464

F.2d 663, 666 (9th Cir. 1972) (“due process evidentiary hearing is constitutionally

compelled at any time that there is ‘substantial evidence’ that the defendant may be

mentally incompetent to stand trial” (citing Pate v. Robinson, 383 U.S. 375 (1966));

U.S. Const. amends. V, VI.

The Ninth Circuit also employs a different appellate review standard. Instead

of the abuse of discretion standard where a formal competency-hearing motion was

denied, the Ninth Circuit has applied "‘comprehensive' review of the evidence, ... ‘not

limited by either the abuse of discretion or clearly erroneous standard,'" in asking

"whether a reasonable judge, situated as was the trial judge who denied the motion,

should have experienced doubt with respect to the defendant's competence." Duncan,

643 F.3d at 1247; see also De Kaplany v. Enomoto, 540 F.2d 975, 980-81 (9th Cir.

1976) (en banc).

Although these issues involving the intellectually disabled in the criminal

justice system have not been addressed by the courts, the problems potentially affect

large numbers of defendants. While there appears to be limited information available

on how many defendants are impacted by intellectual disabilities, available studies

indicated that it is a large, but unrecognized, problem. For example, a recent study

has estimated that between 3.1% and 9.9% of persons in custody are likely affected

by intellectual disabilities. 6 Another study which screened criminal defendants for

intellectual disabilities found about 4% of defendants were intellectually disabled. 7 If

the incident is similar for federal defendants, these issues would potentially affect

several thousand defendants each year in the federal criminal justice system.

6 See Penelope Brown, Ioannis Bakolis, Elizabeth Appiah-Kusi, Nicholas Hallett,

Matthew Hotopf, and Nigel Blackwood, in PREVALENCE OF MENTAL DISORDERS IN

DEFENDANT AT CRIMINAL COURT, 8 BJPsych Open. 3: e92 (2022), Table 3 available at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9169500/.

7 See McCarthy, J., Chaplin, E., Harvey, D., Marshall-Tate, K., Ali, S. and Forrester,

A RECOGNIZING & RESPONDING TO DEFENDANTS WITH INTELLECTUAL DISABILITIES IN

COURT SETTINGS; 4 Forensic Science International: Mind and Law Journal p. 100116;

available at https://openresearch.lsbu.ac.uk/item/93185.

Certiorari is required to preserve these fundamental rights of the intellectually

disabled and the uniformity of precedent protecting them, and to address the split of

authority regarding the appropriately “comprehensive,” unlimited, standard of

review for failures to hold competency hearings.

CONCLUSION

Petitioner respectfully requests that the Supreme Court grant his petition to

review this case and order a remand to the Court of Appeals for consideration of the

effect of the decision on this case.

This the 28th day of November 2023

/s/ Michael W. Patrick