# Appendix — Bowersox v. Wilkins

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1068%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1094

## Text

?
Supreme Court
(9) Fite p= ’

SUPREME COURT OF THE UNITED STATES
October Term, 1998

MICHAEL BOWERSOX,
Superintendent, Potosi Correctional Center
Petitioner,

Vv.

HEATH ALLEN WILKINS,
Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit

APPENDIX TO PETITION
Volume |

JEREMIAH W. (JAY) NIXON
Attorney General

STEPHEN D. HAWKE
Assistant Attorney General
Counsel! of Record

CASSANDRA K. DOLGIN
Assistant Attorney General

of Counsel
Post Office Box 899
Jefferson City, Missouri 65102
(573) 751-3321

Attorneys for Petitioner
¥)
- J \

YA
(\\
\

ee

SSS Sa ee

2

Table of Contents

Volume i

Opinion in Wilkins v. Bowersox, No. 96-2441
(Rr CAP. ne G 1008) Go 4 iw... 1

Dispositive Order in Wilkins v. Bowersox, No. 91-
0861-CV-W-5 (W.D. Mo. May 15, 1996) .. . 26

Judgment in Wilkins v. Bowersox, No. 91-0861-
CV-W-5 (W.D. Mo. May 15, 1996) ....... 94

Order Denying State's Motion To Preciude Consider-
ation Of Evidence Adduced Before This Court
On Petition For Writ Of Habeas Corpus and
granting Wilkins’ Motion To Expand The
Record, in Wilkins v. Bowersox, No. 91-0861-
CV-W-5 (W.D. Mo. May 15, 1996) ....... 95

Order Denying Rehearing and Rehearing En Banc
in Wilkins v. Bowersox, No. 96-2441 (8th Cir.
My F3; AGED) 652. ee Are abt Ge 103

Order Granting Wilkins' Motion To Set Aside Order
Dated May 16, 1995 and Revised Motion To
Dismiss Certain Claims in the Amended
Petition in Wilkins v. Bowersox, No. 91-
0861-CV-W-5 (W.D. Mo. April 23, 1996) . . 104

Judgment Granting Motion To Remand in Wilkins
v. Delo, No. 95-2724WMKC (8th Cir.
SR Me ae Aa a wee wk so vk 110

Order Denying State's Motion To Alter Or Amend
in Wilkins v. Delo, No. 91-0861-CV-W-5
(W.D. Mo. June 16, 1995) ............ 111

Order Granting Writ of Habeas Corpus in Wilkins
v. Delo, No. 91-0861-CV-W-5 (W.9. Mo.
S| RM ae a ee 113

Judgment in Wilkins v. Delo, No. 91-0861-CV-W-5
(W.D. Mo. May 18, 1995) ............ 139

Opinion of the Missouri Supreme Court in Wilkins
v. State, No. 71936, as reported at 802
S.W.2d 491 (Mo. banc), cert. denied,
SOR US ee TIM ie ES ein . 141

Volume ii

Opinion of the Missouri Supreme Court in State
Vv. Wilkins, No. 68393, as reported at 736
S.W.2d 409 (Mo. banc 1987), cert. granted
in part, Wilkins v. Missouri, 487 U.S. 1233
(1988), affd sub nom. Stanford v. Kentucky,
2US. SH (1008) .5 Ss crtewd. 176

Transcript Of Proceedings On Plea of Guilty And
Sentence Of Death in State v. Wilkins, No.
CR185-491FX, 492°X, 493—X (Response
Exhibit A-2 in Wilkiis v. De.v, No. 91-0861-
CV-W-5 (W.D. Mo.)), pp. 1-194 ........ 212

a ee

United States Court of Appeals
FOR THE EIGHTH CIRCUIT —

No. 96-2441

Heath Alien Wilkins,

Petitioner-Appeliee,
- Appeal from the
United States
vs. District Court
for the Western
District of
Missouri
Michael Bowersox,

Respondent-Appeliant.

Submitted: March 10, 1997

Filed: June 8, 1998

Before McMILLIAN AND HANSEN, Circuit Judges, arid
MAGNUSON,’ District Judge.

HANSEN, Circuit Judge.

‘The Honorable Paul A. Magnuson, Chief
Judge, United States District Court for the District of
Minnesota, sitting by designation.

2

‘The Superintendent of the Potosi Correctional
Center in Mineral Point, Missouri, Michael Bowersox
(napsndecth sepadie tem the jigment of the district

granting Health Allen Wilkins’ petition for a writ of
habeas corpus pursuant to 28 U.S.C. §2254 (1994). In
1986, Wilkins pleaded guilty to first-degree murder and
received a death sentence for a Missouri state trial
court. The district court granted the writ on multiple
grounds, including the court's belief that Wilkins’ waiver
of counsel, his guilty plea, and his waiver of the right to
present mitigating evidence were not entered into
knowingly, intelligently, and voluntarily. Wilkins v.
Bowersox, 933 F.Supp. 1496 (W.D. Mo. 1996). We
affirm.

*The Honorable Scott O. Wright, United States
District Judge for the Western District of Missouri.

3

transferred in and out of mental health facilities. By the
age of 16, Wilkins was living on the streets with three

other teenagers.

On July 27, 1985, at the age of 16, Wilkins and
his three teenaged companions robbed a liquor store
and delicatessen in Avondale, Missouri, and committed
a murder during the court of the robbery. According to
their plan, which the record shows was primarily
formulated by Wilkins, one of the Wilkins’ companions
grabbed the woman working behind the counter, Nancy
Allen, and held her "ie Wilkins viciously inflicted
multiple, fatal stab wounds. A few weeks later, the
Kansas City Police Department arrested Wilkins and his
accomplices.

After questioning by the police, Wilkins confessed
to the murder and robbery. A juvenile court, after
denying a defense motion for a mental examination,
determined that Wilkins could be tried as an adult. At
the arraignment, Wilkins’ court-appointed counsel, Fred
Duchardt, entered pleas of not guilty and not guilty by
reason of mental disease or defect. Pursuant to that
plea, the Missouri trial court ordered Dr. Steven
Mandracchia, a psychologist at the Western Missouri

4

Mental Health Center, to examine Wilkins. Dr.
Mandracchia initially examined Wilkins on November
27, 1985, and concluded in his subsequent written
report that Wilkins was competent to stand trial and that
at the time of the offense, Wilkins was not suffering
from a mental disease cr defect within the meaning of
the Missouri statute. (J.A. at 908-14.)

In January 1986, Wilkins informed Mr. Ducharat
that he wished to be executed, which prompted Mr.
Duchardt to have Wilkins examined a second time. In
March 1986, Dr. William Logan, a psychiatrist at the
Menninger Foundation, examined Wilkins and found
that although Wilkins’ mental state at the time of the
crime did not meet the legal criteria for insanity under
Missouri law, he believed that Wilkins suffered from a
mental disease and that his mental functioning was
significantly impaired. (id. at 930.) Dr. Logan did not
make a conclusive finding regarding Wilkins’
competency to stand trial, but he wrote that "emotional
issues may prevent him from acting in his own best
interests." (id. at 928.)

On April 16, 1986, the Missouri trial court
conducted a competency hearing at which both Dr.
Mandracchia and Dr. Logan testified. Dr. Mandracchia
reiterated his earlier findings, explaining that he
interviewed Wilkins for approximately 95 minutes and
believed that he was competent to stand trial. Dr.
Logan's testimony was also consistent with his earlie7
report. He stated that Wilkins was “psychiatrically ill"
with a "plethora of mental difficulties” and was a "very
impulsive individual who really doesn't think through the
consequences of some of his decisions.” (id. at 627,
637.) Dr. Logan, however, did not make an express
finding regarding Wilkins’ competency to stand trial. At

the competency hearing, neither Dr. Mandracchia nor
Dr. Logan offered opinions on Wilkins’ capacity to make
a knowing, intelligent, and.voluntary decision to be
executed or to waive constitutional rights. At the
conclusion of the testimony, the court found Wilkins to

be competent to proceed to trial.

Immediately after the court judged Wilkins
competent to stand trial, Wilkins stated that he wished
to waive his right to counsel and proceed pro se,
because he desired to receive a death sentence and his
lawyer would not heip him get the death penalty. The
court postponed a determination on Wilkins’ request
and set a hearing date for one week later. On April 23,
1986, after some brief questioning by the court, the |
court accepted Wilkins’ waiver of counsel. The court
appointed Mr. Duchardt as "standby counsel” to act as ;
a resource person for Wilkins when and if Wilkins called
on him. Wilkins then informed the court that he wished
to plea guilty to all of the charges against him. The
court deferred action on the proposed guilty piea until
May 9, 1986.

At the May hearing, he court questioned Wilkins
regarding his decision to plead guilty and encouraged
him to accept the assistance of counsel. Wilkins
reiterated that he did not want the assistance of counsel!
and wished to plead guilty. The court accepted Wilkins’

pro se guilty pleas® and scheduled a sentencing hearing
for June 27, 1986.

At the sentencing hearing, he state presented
evidence of the crime and contended that because the
crime involved depravity of mind and was committed in
the course of a robbery, there were sufficient

circumstances to warrant the death penalty.
Wilkins continued to proceed pro se, through standby
counsel was present. Dr. Logan testified about Wilkins’
mental health background at sentencing, but Wilkins ©
objected to some of the mitigating circumstances thus
offered. The trial court sustained most of Wilkins’
objections. . Wilkins explained that he preferred the
death penalty over life in prison. At the conclusion of
the sentencing hearing, the court sentenced Wilkins to
death. He was 17. He took no steps to appeal his plea
or his sentence.

The Supreme Court of Missouri appointed the
State public defender as amicus curiae to brief and
argue “any issue subject to review" during the
mandatory statutory review of his death sentence.
Wilkins, acting as his own attorney, appeared personally
and told the Supreme Court of Missouri that he did not
want the assistance of an attorney, and he took issue
with some of the remarks made by the public defenders

’In addition to pleading guilty to first degree
murder, Wilkins pled guilty to unlawful use of a weapon
and armed criminal action. He was sentenced to life
imprisonment on the armed criminal action charge and
to five years' imprisonment for unlawful: use of a
weapon. The district court's decision in this habeas
case only addressed Wilkins' murder conviction and
death sentence. See Wilkins, 933 F.Supp. at 1501.

7

arguing the case. he also told the Supreme Court of
Missouri that his decision to seek the death penalty was
a rational one. Wilkins v. State, 802 S.W.2d 491, 496
(Mo. 1991) (en banc). After hearing and observing
Wilkins as he attempted to waive counsel at this
proceeding, the court ordered Dr. Sam Parwatikar, a.
psychiatrist with the Missouri Department of Health, to
examine Wilkins with respect to his competence to
waive counsel on appeal. After examining Wilkins, Dr.
Parwatikar conciuded that Wilkins was not capable of
waiving his right to counsel. Heeding Dr. Parwatikar's
determination, the Supreme court of Missouri set aside
its pnor proceedings and appointed counsel to represent
Wilkins despite his protestations. New briefs were filed
and the court heard arguments anew. Nevertheless,
the court affirmed Wilkins' conviction and death
sentence on a 4-3 vote at the conclusion of its direct
Statutory review. State v. Wilkins, 736 S.W.2d 409 (Mo.
1987) (en banc).

Less than one year later, on June 30, 1988,
Wilkins, who was then 19 years old, decided that he did
not want to be executed and filed a motion for
posiconviction relief pursuant to Missouri Rule of
Criminal Procedure 24.035 (1988), in an attempt to set
aside his conviction and sentence. Among other
Claims, Wilkins asserted that his waiver of counsel and
guilty plea were not knowingly and voluntarily made.
The sentencing court held a hearing regarding Wilkins’
motion from May 22 through May 26, 1989. At this
postconviction hearing, Wilkins, with the assistance of
appointed counsel, introduced the testimony of several
psychiatrists and psychologists who had examined him.
Dr. Dorothy Lewis, a professor psychiatry at the New
York University School of Medicine, explained that
Wilkins' paranoia motivated his decision to waive

counsel and that his thought processes were confused
and illogical throughout the former proceedings. (State
Postconviction Tr. at 27, 47-48.) Dr. William O'Connor,
a psychologist, testified that Wilkins’ guilty plea was not
a voluntary and intelligent decision, but rather an
emotionally-driver decision that was the product of his
mental disorder. (id. at 252.) Dr. Logan also testified
and agreed with Dr. Parwatikar's earlier conclusion that
Wilkins was not "competent" to proceed as his own
attorney, even though Dr. Logan was previously
ambivalent regarding Wilkins’ competence to stand trial.
Dr. Logan also believed that Wilkins' waiver of counsel
was an emotionally-charged impulsive decision. (Id. at
494.)

In response, the state called Mr. Duchardt ‘and
Dr, Mandracchia to testify. Mr. Duchardt stated he did
not believe that any of Wilkins’ decisions were made
knowingly, intelligently, and voluntarily. (id. at 642.) He
had consistently and forcefully made the same point in
the trial court's proceedings. Dr. Mandracchia
explained that his initial 95-minutes examination was
not designed io address the issue of whether Wilkins'
waiver of counsel and guilty plea were knowing,
intelligent, and voluntary. The postconviction court thus
ordered Dr. Mandracchia to perform an additional
evaluation of Wilkins that would be directed at these
issues. After conducting clinical interviews lasting over
seven hours, Dr. Mandracchia concluded that Wilkins’
waiver of counsel, guilty plea, and waiver of offering
mitigating evidence were made knowingly, but these
decisions were not made voluntarily or intelligently. (Tr.
of Resumed State Postconviction Hrg. at 893.) Dr.
Mandracchia explained that throughout the previous
State court proceedings at issue, Wilkins was not
capable of considering and appreciating his full range of

—-
|
|

options and believed that his only course of action was
to receive the death penalty. The postconviction court
simply rejected the uncontroverted evidence as
"unpersuasive." The postconviction court denied relief,
and the Supreme Court of Missouri upheld this decision
with one judge dissenting. Wilkins, 802 S.W-.2d at 501-
02.

Wilkins then filed his petition for a writ of habeas
corpus in federal court pursuant to 28 U.S.C. §2254,
alleging multiple grounds for relief. The district court
granted Wilkins’ request for an evidentiary hearing and
heard testimony in January 1996. Many of the same
doctors who previously testified in the state cour
proceedings appeared at the federal evidentiary hearing
and reiterated their previous findings, indicating that
Wilkins' decisions were not made intelligently or
voluntarily. Following the hearing, the district court
found that Wilkins did not knowingly, intelligently, or
voluntarily waive his right to counsel, enter his guilty
plea, or waive his right to offer mitigating evidence at
sentencing.* Thus, the district court conditionally
granted Wilkins’ petition for habeas corpus relief, which
will become a permanent grant of relief unless the state
commences proceedings to afford him a new trial within

“The district court also granted relief on two
additional grounds: (1) that the prosecutor had a conflict
of interest that violated Wilkins’ right to due process,
and (2) that the Supreme Court of Missouri's
proportionality review was performed in a manner that
also violated Wilkins’ due process rights. Because we
uphold the district court's decision to grant relief on the
waiver and guilty plea grounds, we find it unnecessary
to address the latter two issues.

10

60 days. The Respondent now challenges the district
"2 court's decision to grant habeas relief.

il.
A. Waiver of Counsel

We review the district court's legal conclusions
de novo and its factual findings for clear error. Miller v.
Lock, 108 F.3d 868, 870 (8th Cir. 1997). We defer to
a state court's findings of fact if they are fairly supported
by the record. Pryor v. Norris, 103 F.3d 710, 712-13
(8th Cir. 1997). See 28 U.S.C. §2254(d) (1994).

An accused has a constitutional right to self-
representation but must knowirgly, intelligently, and
voluntarily waive the right to counsel. Faretta_v.
California, 422 U.S. 806, 819-21, 835 (1975). See
Abdullah _v. Groose, 75 F.3d 408, 412 (8th Cir.), cert.
denied, 517 U.S. 1215 (1996). Whether a defendant
validly waived his constitutional right to counsel is not a
question of historical fact but a question requiring
“application of constitutional principles of the facts as
found,” Brewer v. Williams, 430 U.S. 387, 403 (1977)
(internal quotations omitted), which we review de novo.
Because the assistance of counsel is crucial to our
adversarial system of justice, courts must "indulge every
reasonable presumption against the waiver." Johnson
v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotations
omitted), overruled in part on other grounds by Edwards
v. Arizona, 451 U.S. 477 (1981). To determine the
validity of a waiver of counsel, courts consider the
defendant's waiver in light of the totality of the
circumstances, "including the background, experience,
and conduct of the accused." Young v. Lockhart, 892
F.2d 1348, 1351 (8th Cir. 1989) (internal quotations

11

omitted). The Supreme Court has explained the
requirements for a valid waiver of counsel.

To be valid such waiver must be made
with an apprehension of the nature of the
charges, the statutory offenses included
within them, the range of allowable
punishments thereunder, possible
defenses to the charges and
circumstances in mitigation thereof, and
all other facts essential to a broad
understanding of the whole matter.

Von Moltke v. Gillies, 332 U.S. 708, 724 (1948)
(plurality). To validly waive counsel, a defendant must
actually understand ail of the relevant considerations;
thorough advice from the court alone is not sufficient.
See Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993);
United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.
1995). Consequently, “[a] judge can make certain that
an accused's professed waiver of counsel is
understandingly and wisely made only from a
penetrating and comprehensive examination of all the
circumstances under which such a plea is tendered."
Von Moltke, 332 U.S. at 724 (plurality). The trial court
should not merely take the defendant's statement that
h is knowingly and intelligently waiving counsel “at face
value.” Wise v. Bowersox, 136 F.3d 1197, 1203 (8th
Cir. 1998).

The Respondent contends that the district court
erroneously found Wilkins’ waiver of counsel was not
knowing, intelligent, and voluntary without giving proper
deference to the state court's findings. We disagree.
The district court did not make any findings of historical
fact that conflict with the state court's findiags of

12

historical fact. In fact, the state court made no findings
of fact relevant to the waiver of counsel. The district
court's comprehensive review o the facts simply led it to
a legal conclusion regarding waiver of counsel that
differs from the state court's determination and
demonstrated that the state's court's's conclusion was
not fairly supported by the record.

Initially, we note that the state trial court's inquiry
to determine the validity of Wilkins’ waiver of his right to
counsel was not the kind of "penetrating and
comprehensive examination" required to ensure that an
accused's waiver of counsel is valid. Von Moltke, 332
U.S. at 724 (plurality). The court's colloquy with Wilkins
regarding his decision to waive counsel consisted
predominantly of leading questions that failed to allow
Wilkins to articulate his reasoning process. (See, €.0.,
J.A. at 648-49, 654-60, 675-694.) While Wilkins’ simple
"yes" and "no" answers indicated an intention to waive
his right to counsel, this does not conclusively establish
that his waiver of counsel was valid. A judge has an
obligation to penetrate the surface with a more probing »
inquiry to determine if the waiver is made knowingly,
intelligently, and voluntarily. See Von Moltke, 332 U.S.
at 724 (plurality). Wilkins did, however, make it very
clear to the trial court that the only attorney he would
even consider taking was one who would do everything
he could to clear Wilkins’ path to the gas chamber.
(J.A. at 657.) )

The record reveals that at no time did the state
court explain to Wilkins his possible defenses to the
charges against him, nor did the court inform him of
lesser included offenses or the full range of
punishments that he might receive. (See J.A. at 647-
95). | The Respondent asserts that the statements

13

made by Mr. Duchardt during this inquiry establish that
Wilkins did understand all of his potential defenses and
possible punishments. While Mr. Duchardt indicated to
the court that he had attempted to explain all of the
available options to Wilkins (see J.A. at 659-60, 652),
he testified that he never discussed lesser included
offenses or ranges of punishment with Wilkins and that
Wilkins did not give him an opportunity to explain all of
his potential options (see Postconviction Tr. at 640-43;
Dist. Ct. Evid. Hrg. Tr. at 87-88).

The state court also failed to adequately address
and consider Wilkins’ background in determining the
validity of his waiver of counsel. Relying on the
decision in Colorado v. Connelly, 479 U.S. 157, 164
(1986), the Respondent contends that a defendant's
mental condition and other personal characteristics are
not relevant to a determination of voluntariness unless
there is proof that the defendant was subjecied to
coercive pressures. The Respondent's reliance on
Colorado, is misplaced because that decision pertains
only to the voluntariness of confessions and the
application of the exclusionary rule to police conduct
during interrogations. In the waiver of counsel context,
we have explained that a defendant's background and
personal characteristics are highly relevant in
determining the validity of such a waiver. Young, 892
F.2d at 1351; see Edwards. 451 U.S. 482. Moreover,
the mental health of a defendant is also a relevant
consideration in assessing whether a waiver of counsel
was knowing, intelligent, and voluntary. See Cash, 47
F.3d at 1088. While a findings of coercion bears upon
the voluntary aspect of the waiver, it is not a necessary
prerequisite to reach the conclusion that a waiver was
not made knowingly, intelligently, and voluntarily.

14

In the present , while the state trial court
briefly addressed Wilkins’ youth and limited educational
background (J.A. at 649), the court took no account of
Wilkins’ upbringing. The record is

Wilkins was severely abused as a child by his mothe
and her boyfriends, that he had a history of drug abuse,
and that by the age of 10, he had been in and out of
mental health facilities and had: been described as

record evidence of his severely traubled childhood, the
state trial court's colloquy with Wilkins was far from the
kind of in-depth inquiry that is necessary to ensure a
valid waiver of counsel.°

The state trial court erroneously believed that its
previous finding that Wilkins was competent to stand
trial was alone sufficient to mandate a conclusion that
Wilkins’ waiver of counsel was valid. (See J.A. at 650.)
We believe this legal error also invaded the direct
review proceedings in the Supreme Court of Missouri.
See Wilkins, 736 S.W.2d at 415 (holding that “a finding
of competency necessarily entails the ability to waive
certain rights"). It also permeated the postconviction
court's conclusion. (Resp. Ex. G, at 92 ("The court

5We reject out of hand the Respondent's
assertion that our evaluation of the state trial court's
inquiry regarding the validity of Wilkins’ waiver of
counsel constitutes a new constitutional rule that may
not be applied retroactively under the holding of Teague
v. Lane, 489 U.S. 288 (1989). Fifty years ago, in Von
Moltke, 332 U.S. at 724 (1948) (plurality), the Supreme
Court established the requirement that a judge's inquiry
regarding waiver of counsel must be comprehensive
and probing.

15

concludes that he finding of competency of movant to
proceed entailed the ability to waive certain rights and
to make [the] decision to enter [a] plea of guilty and
under the circumstances of this case to waive counsel
and proceed pro se.")) It is true that the level of
competency required to waive the right to counsel is the
same as that required to stand trial. Godniz v. Moran,
509 U.S. 389, 398 (1993); Branscomb v. Norris, 47 F.3d
258, 263 (8th Cir.), cert. denied, 515 U.S. 1109 (1995).
The Supreme Court has clarified, however, that a valid
waiver of counsel requires more than competency to
stand trial. The trial court must also “satisfy itself that
the waiver of his constitutional rights is knowing and
voluntary.” Godinez, 509 U.S. at 400. The Court
further explained that the competency inquiry focuses
on whether a defendant "has the ability to understand
the proceedings" while the knowing and voluntary
inquiry is aimed at determining "whether the defendant
actually does understand the significance and
consequences of a particular decision and whether the
decision is uncoerced." id. at 401 n.12. Relying on
settled law, the Court explained, "In this sense there is
a ‘heightened’ standard for pleading guilty and for
waiving the right to counsel, but it is not a heightened
standard of competence." Id. at 400-401. The state
court committed legal error by concluding that Wilkins’
waiver was valid merely because he had been found
competent to stand trial. In the postconviction
proceeding, the Supreme Court of Missouri articulated
the proper standard (that a waiver must also be
knowing, intelligent, and voluntary), but affirmed the
denial of relief by emphasizing Wilkins’ competence, the
trial court's opportunity to observe Wilkins, and Wilkins’
use of standby counsel "when it met his purposes."
Wilkins, 802 S.W.2d at 501-02. These elements,

16

= Bly ea S sei lts SAAS

Lao Pini

however, do not necessarily lead to the conclusion that
Wilkins voluntarily and intelligently waived counsel.

The uncontroverted record as a whole throughout
the state proceedings indicates that Wilkins’ waiver of
counsel was not knowing, intelligent, and voluntary.
The state court accepted Wilkins’ waiver of counsel
without making findings of fact and without explicitly
concluding that Wilkins' waiver was made knowingly,
intelligently, and voluntarily. The record before the state
trial court simply does not support the conclusion that”
Wilkins. had the requisite level of understanding
necessary to establish that his waiver of counsel was
knowing, intelligent, and voluntary. In addition to not
being informed of all of his potential options, the
evidence overwhelmingly indicates that Wilkins’ state of
mind precluded him from making a valid waiver of
counsel. As early as the-first competency hearing, Dr.
Logan testified to the numerous mental and emotional
problems that interfered with Wilkins’ "decision making
process at certain critical points." (J.A. at 627.) Dr.
Logan described Wilkins as "a very impulsive individual
who really doesn't think through the consequences of
some of his decisions." (id.) Dr. Logan also indicated
that Wilkins’ upbringing was devoid of "supervision or .
tutoring or guidance in terms of how to use his mind to
make rational common sense decisions." (id. at 629.)

On direct review in state court, the Supreme -

Court of Missouri ordered Dr. Parwatikar to perform a
psychiatric evaluation of Wilkins for the purpose of
determining Wilkins’ capacity to waive the right to
counsel on review before that court. He testified at the
postconviction hearing that in his opinion, Wilkins was
not capable of waiving the right to counsel at the time
of his origina! waiver of counsel and guilty plea. (State

17

~

Postconviction Tr. at 849-50.) Dr. Parwatikar attributed
Wilkins’ inability to validly waive counsel to his mental
disorders and upbringing and informed the court that
Wilkins was also unable to waive counsel on direct
appeal. Acting on Dr. Parwatikar's recommendation,
the Supreme Court of Missouri most tellingly refused to
permit Wilkins to proceed pro se; it appointed counsel
to represent Wilkins on direct review, despite Wilkins’
persistent and professed desire to waive counsel! at its
proceeding as well. ?

At the state postconviction hearing, the
uncontroverted testimony of the several doctors who
had examined Wilkins all indicated that he was mentally
disturbed and that his decisions to waive counsel and
plead guilty were the product of his mental iliness and
immaturity and not rational decision making. Or. Logan,
who for the first time was then addressing the vaiidity of
Wilkins’ waiver, stated that Wilkins’ decision did not
make sense and was impulsive. Moreover, the
postconviction court instructed the state's own witness,
Dr. Mandracchia, to conduct an additional evaluation
after Dr. Mandracchia revealed during the
postconviction hearing that his initial examination was
not directed at Wilkins’ waiver of counsel but at whether
Wilkins met the stizutory competency requirements to
stand trial. After turther evaluation, Dr. Mandracchia
unequivocally stated that Wilkins’ waiver of counsel,
while done knowingly, was not made intelligently or
voiuniarily. (Tr. of Resumed State Postconviction Hrg.
at 893.) The state court made no fact-findings to
indicate why it was unpersuaded by the unanimous
testimony presented at the postconviction hearing, and
the record simply does not support the state court's
conclusion that Wilkins knowingly, intelligently, and
voluntarily waived his right to counsel.

18

Similar evidence was adduced at the federal
evidentiary hearing. Dr. Logan appeared once again
and explained that Wilkins was driven by an “internal
coercion” that prevented him from voluntarily or
intelligently waiving his right to counsel. Wilkins, 933
F.Supp. at 1513. After considering the entire record,
we conclude that the district court did not err in finding
that Wilkins’ waiver of counsel was not made knowingly,

intelligently, and voluntarily.

Relying chiefly on the Supreme Court's decision
in Drope_v. Missouri, 420 U.S. 162 (1975), the

Respondent argues that all of the expert testimony
submitted after Wilkins’ waiver of counsel is not relevant
to a determination of the validity of the waiver. in
Drope, the issue was whether the trial court sua sponte
should have suspended trial until a competency
evaluation of the defendant could be made. The
Supreme Court noted in a footnote that the after-the-

fact testimony of psychiatrists submitted in a

postconviction hearing was not relevant to this
determination. See Drope, 420 U.S. at 181 & n.17;
James v. Singletary, 957 F.2d 1562, 1569-71 (11th Cir.
1992) (discussing Pate v. Robinson, 383 U.S. 375
(1966), upon which Drope heavily relies). Additionally,
we have indicated that "[rjetrospective determinations of
whether a defendant is competent to stand trial or to
plead guilty are strongly disfavored.” Weisberg v. State
of Minnesota, 29 F.3d 1271, 1278 (8th Cir. 1994), cert.
denied, 513 U.S. 1126 (1995). The context of the
present case, however, differs significantly from the
circumstances in either Drope or Weisberg. In those
cases, the defendant attempted to attack his
competence to stand trial or to plead guilty without ever
having had the benefit of a contemporaneous
competency hearing. in the present case, Wilkins’

19

competency to stand trial (the same level of
competency being required to waive counsel) was
contemporaneously evaluated, with a focus on whether
Wilkins met Missouri's statutory definition of
competency, and it is not now at issue. Those
contemporaneous evaluations raised immediate, well-
founded concern about Wilkins' ability to make a

knowing, intelligent, and voluntary waiver, though not —
specifically addressing that subject. Dr. Logan's
contemporaneous evaluation acknowledged in particular
the existence of Wilkins’ mental and emotional problems
as well as-the limitations those problems might impose
on his ability to make rational decisions. Thus, the
subsequent testimony of the same doctors is not the
type of after-the-fact speculation of concern in Drope
and Weisberg. Given the state trial court's failure to
make a probing inquiry in spite of the extensive
evidence of Wilkins’ background, which had been in the
record since the competency hearing, the district court
did not err by considering the entire state court record.

B. Guilty Plea and Waiver of Mitigating Evidence

The Respondent asserts that the district court
erred in granting Wilkins relief on the claims that his
guilty plea and waiver of the right to present mitigating
evidence were not made knowingly, intelligently, and
voluntarily. Initially, the Respondent contends that
Wilkins only raised the issue of his competence in state
court and procedurally defaulted these other claims by -
failing to raise them in the state courts’. We disagree.
The record indicates that Wilkins raised these issues in
the state postconviction court and the appeal of that
decision in the Supreme Court of Missouri, specifically
asserting that his guilty plea and waiver of the right to
present mitigating evidence were not knowing,

20

intelligent, and voluntary decisions. Wilkins did not
procedurally default these claims.

| We also believe that the district court correctly
concluded that Wilkins’ guilty plea and waiver of
presenting mitigating evidence were not knowing,
intelligent, and voluntary. To be valid, a guilty plea
must represent “a voluntary and intelligent choice
among the alterative courses of action open to the
: defendant," North Carolina v. Alford, 400 U.S. 25, 31
) (1970), and the defendant must "possess [ ] an

understanding of the law in relation to the facts."
McCarthy v. United States, 392 U.S. 459, 466 (1969).
We find that Wilkins’ guilty plea and waiver of
presenting mitigating evidence were not valid for
essentially the same reasons that lead us to conclude
that his waiver of counsel was not valid.

Initially we note that Wilkins’ conclusory
affirmation that he was pleading guilty voluntarily does
not establish definitively that his plea was in fact valid.
See Von Moltke, 332 U.S. at 724; Gonzales _v.
Grammar, 848 F.2d 894, 900 (8th Cir. 1988). As
demonstrated above, the record indicates that Wilkins’
youth, troubled background, and substantial mental
impairments clouded his decision-making throughout the -
state proceedings. At the state postconviction hearing,
Dr. Mandracchia directly stated his opinion that neither
Wilkins’ guilty plea nor his waiver of presenting
mitigating evidence were intelligent or voluntary.
Moreover, the record does not establish that Wilkins
possessed the required "understanding of the law in
relation to the facts." Mccarthy, 394 U.S. at 466. As
mentioned earlier, the state court did not discuss
possible defenses such as diminished capacity; the
court failed to inform Wilkins of possible lesser included

21

Offenses such as second degree murder and
manslaughter; and the court did not explain the full
range of potential sentences that Wilkins could receive.
The court limited its discussion of sentences to the
death penalty and life imprisonment without parole.
(J.A. at 676, 682, 695-96.) The court's omission of
other potential sentences is quite significant in light of
Wilkins’ statement to the court that he did not absolutely
wish fr the death penalty but merely preferred it over
spending the rest of his life in prison. (See J.A. 791-
92.) Additional reports from Dr. Mandracchia indicate
that Wilkins did not understand his legal alternatives.
Dr. Mandracchia stated that Wilkins "would not, and—
functionally, could not, meaningfully entertain
possibilities such as acquittal, insanity defense,
conviction for a lesser included offense, mitigating
circumstances, parole following a _ period of
incarceration, etc." (Appeliee's Br. at 14, citing Ex. P-33
at 4.) In light of this evidence, we conclude that the
district court properly determined that Wilkins did not
knowingly, intelligently, and voluntarily plead guilty and
waive his right to present mitigating evidence.

C. Evidentiary Hearing a

The Respondent claims that the district court
erred in holding an evidentiary hearing. The
Respondent asserts that the district court's decision to
hold an evidentiary hearing stems from Wilkins’ failure
to fully develop the facts in the state courts and that the
district court impermissibly expanded the record. We
disagree. The district court held the evidentiary hearing
because in its view the state courts had failed to make
factual findings on certain issues, ignored the facts with
respect to certain issues, and arrived at coriclusions
that were not supported by the record. Wilkins, 933

22

F.Supp. at 1504-05. Although the district court was not
required to hold a hearing in this case, it exercised its
discretionary power in an effort to resolve the
deficiencies it found in the state court findings. See
Townsend v. Sain, 372 U.S. 293, 318 (1963) (stating
that in every case, a district judge ‘has the power,
constrained only by his sound discretion, to receive
evidence bearing upon the applicant's constitutional
claim"), overruled in part, Keeney v. Tamayo-Reyes,
504 U.%. 1 (1992) (holding habeas petitioner has no
right to hearing to develop facts not developed in state
court proceeding, absent a showing of cause and
prejudice). See also Clemmons v. Delo, 124 F.3d 944,
952 (8th Cir. 1997) (noting that the Supreme Court's
decision in Keeney v. Tamayo-Reyes did not alter a
court's discretionary power to order an evidentiary
hearing), cert. denied, 118 S.Ct. 1548 (1998); Jamison
v. Lockhart, 975 F.2d 1377, 1381 (8th Cir. 1992)
(same). The district court did not abuse its discretion in
holding such a hearing in this case.°

®Because we find the Respondent's assertion
that the petitioner failed to develop the factual record
in the state court to be erroneous, we need not
decide whether the new statutory provisions
concerning when a district court can hold such an-
evidentiary hearing added to §2254 by the
Antiterrorism and Effective Death Penalty Act of 1996,
signed into law on April 24, 1996, apply to this case.
See 28 U.S.C. §2254(e)(2) (as amended) ("If the
applicant has failed to develop the factual basis of a
claim in the State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless
the applicant shows ...."). We note the evidentiary
hearing in this case was held some four months
before the Act was signed into law. See also Lindh v.

23

D. Jurisdiction to Vacate Previous Order

Finally, the Respondent contends that the district
court erred by vacating its previous order dated May 16,
1995, granting relief on only one of Wilkins’ claims, after
our court remanded the case "for resolution of all
matters contianed in the first amended petition for writ
of habeas corpus.” (J.A. at 976.) Rule 60(b) of the
Federal Rules of Civil Procedure affords district courts
much discretion to vacate their orders. See Tungseth
v. Mutual of Omaha ins. Co., 43 F.3d 406, 409 (8th Cir.
1994). The district court did not abuse its discretion or
exceed the scope of the remand order by choosing to
decide all of Wilkins’ claims in a single order. Similarly,
we reject he Respondent's assertion that Wilkins’.
challenge to the validity of his waiver of counsel
constitutes an abuse of the writ. The Respondent's
abuse-of-the-writ claim hinges upon the argument that
the district court exceeded its jurisdiction by vacating its
previous order. Because the district court had the
authority to vacate its previous order and consider all of
Wilkins' claims together, we reject as meritless
Respondent's assertion that Wilkins has abused the
writ.

In sum, we affirm the judgment of the district
court, conditionally granting relief On Wilkins’ claims that

Murphy, 117 S.Ct. 2059, 2067 (1997) ("The provision
[28 U.S.C. §2264(b) contained in new Chapter 154]
thus confirms that Congress assumed that in the
absence of such a provision, §§2254(d) and (e) (as
new parts of Chapter 153) would not apply to pending
federal habeas cases.")

24

his waiver of his right to counsel, his guilty plea, and his
waiver of the right to present mitigating evidence were
not made knowingly, intelligently, and voluntarily. Given
our decision to uphold the grant of relief on these
claims, we find it unnecessary to review the merits of
Wilkins’ additional arguments.

A true copy.
Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.

25

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

HEATH A. WILKINS,
Petitioner,

)
)
}
vs. ) No. 91-0861-CV-W-5
)
)
)
)

This is a petition for writ of habeas corpus under
28 U.S.C. §2254 by Heath A. Wilkins (petitioner), an
inmate in custody at Potosi Correctional Center, Potosi,
Missouri. The petitioner seeks to vacate his conviction
for first degree murder and sentence of death entered
by the Circuit court of Clay County, Missouri after
petitioner waived counsel and entered a guilty plea. '

Background

‘The original named respondent in this action
was Paul Delo, who was Superintendent of the Potosi
Correctional Center when the petition was filed. Since
then, Michael Bowersox has replaced Mr. Delo as
Superintendent and thus has been substituted as the
named respondent. For purposes of simplicity, the
Court will refer to the respondent as "the State."

26

in the summer of 1985, Petitioner, who was then
sixteen years old, lived in a public park in Kansas City
with three other teenagers, Marjorie Filipiak, Patrick
Stevens and Ray Thompson. The four of them planned
and carried out the robbery of a liquor store in
Avondale, Missouri, on July 27, 1985. According to the
plan, Marjorie Filipiak went to the nearby North Kansas
City Hospital and called a cab while the three boys went
to the liquor store. Ray Thompson stayed outside the
store to act as lookout, and Petitioner and Patrick
Stevens went inside the store to rob it. During the
robbery, Petitioner fatally stabbed the proprietor of the
store, Nancy Allen, as Stevens held her.

Acting on an anonymous tip, Kansas City police
arrested Petitioner and his associates in the park on
August 10, 1985. After questioning by the police,
Petitioner confessed to the murder and robbery.
Because of his age, a hearing was conducted to
determine whether he would be tried as an adult. Fred
Duchardt, the Clay County Public Defender, was
appointed to represent Petitioner at the hearing. After
denying counsel's request for a mental examination, the
juvenile court on August 15, 1985, entered an order
allowing Petitioner to be tried as an adult.

Petitioner was charged as an adult with the
offenses of unlawful use of a weapon, first degree
murder and armed criminal action. At arraignment in
the Clay County Circuit Court, counsel entered the
alternative pleas of not guilty and not guilty by reason
of mental disease or defect on Petitioner's behalf.
Pursuant to that plea, the court ordered a mental
examination of Wilkins. Steven A. Mandracchia, Ph.D.,
a psychologist at Western Missouri Mental Health
Center, examined Wilkins in November, 1985.

27

In January, 1986, Mr. Duchardt visited petitioner
in the Clay County jail. At that time, petiticner told Mr.
Duchardt that he wished to be executed. A second
examination was performed in March, +386 by William
A. Logan, M.D., a psychiatrist with the Menninger
Foundation.

A competency hearing was held on Wednesday,
April 16, 1986. Dr. Mandracchia testified that he did not
believe petitioner had a mental disease or defect "as
defined by" Missouri statute. He gave no opinion
whether petitioner had a mental disease or disorder
outside of the statutory definition, except that he
“agree[d] with the past treatment records and past
psychiatric and psychological diagnoses.” Dr.
Mandracchia concluded that petitioner was "competent
to proceed”. Although Dr. Mandracchia was not aware
of petitioner's desire to be executed when he conducted
his examination, he testified at the hearing that this fact
did not alter his conclusion regarding petitioner's
competency to proceed.

Dr. Logan testified that petitioner was
“psychiatrically ill" with a "plethora of mental difficulties”.
However, he did not give an opinion on petitioner's
competency to proceed because he interpreted Missouri
law to require a psychotic disorder. Dr. Logan stated
that although petitioner had no cognitive deficits, his
emotional disabilities "could interfere with his decision-
making process at certain critical points." Mr. Duchardt
insisted that there was "considerable question" about
petitioner's competency. Over Mr. Duchardt's proiests,
the court found him competent to proceed.

28

Mr. Wilkins then informed the court that he
wanted to be sentenced to death. He also stated that
he wanted to waive counsel because Mr. Duchardt
would not help him get the death penalty. Counsel
again reiterated his belief that petitioner was not acting
competently. The court deferred action on Petitioner's
request until a hearing the following week. On April 23,
1986, the court accepted the waiver of counsel.

Petitioner immediately asked to plead guilty to all
charges and be executed. After a brief hearing two
weeks later, the court accepted petitioner's pro se guilty
plea on May 9, 1986 and a sentencing hearing was
held on June 27, 1986. The State presented evidence
of the crime and testimony by Dr. Mandracchia and Dr.
Logan. Petitioner objected to any evidence of his
mental disorders that could be construed as mitigating
and joined in the State's request for the death penalty.
The court found that the murder was wantonly vile,
horrible or inhuman because it involved depravity of
mind, and that the murder was committed in the course
of a robbery. Then the court sentenced petitioner to
death.

The sentence was reviewed by the Missouri
Supreme Court pursuant to Mo. Rev. Stat. §565.035
(1986). The Office of the Public Defender was
appointed to act as amicus curae for petitioner on the
“appeal”. At oral argument, Mr. Wilkins appeared
personally before the Missouri Supreme Court, repeated
his wish to be executed and requested that amicus
counsel be discharged. The court ordered Sam
Parwatikar, M.D., a psychiatrist with the Missouri
Department of Mental Health, to examine petitioner to
determine his “competence to waive counsel" on
appeal. Dr. Parwatikar concluded that Petitioner "was

29

not capable of waiving his constitutional _ to
counsel.”

Amicus counsel then moved to remand the
matter to the Circuit Court for an evidentiary hearing on
Wilkins' mental competence and waiver in light of Dr.
Parwatikar's findings. The State objected, arguing that
the review was limited to the statutory criteria in
§565.035. The Missouri Supreme Court denied the
motion for remand and appointed the Public Defender
to act as counsel for Petitioner.

The Missouri Supreme Court affirmed Petitioner's
conviction and sentence on direct statutory review,
State v. Wilkins, 736 S.W.2d 409 (Mo. banc 1987), with
Justices Blackmar, Donnelly and Welliver dissenting on
proportionality grounds. Judge Donnelly also wrote
separately that proportionality was the only issue
properly before the court. On June 30, 1988, the
United States Supreme Court granted certiorari to
decide whether the execution of a sixteen-year-old
offender per se violates the cruel and unusual
punishment clause of the Eighth Amendment, and
eventually heid that it did not. Stanford v. Kentucky,
492 U.S. 361 (1989). ~

On the same day that the Supreme Court
granted certiorari, petitioner filed a motion in the
sentencing court pursuant to Mo.R.Crim.P. 24.035 to
set aside his convictions and sentences. By that time,
petitioner was nineteen years old and did not aspire to
be executed. Counsel was appointed to represent
Petitioner and a hearing on Wilkins' motion was heid
May 22-26, 1989. Dorothy Lewis, M.D., Jonathan
Pincus, M.D., and William O'Connor, Ph.D., conducted
testing and clinical interviews and concluded that

30

Wilkins suffers from schizoaffective disorder, a mental
disease which rendered him incompetent to proceed at
the time of his plea. Dr. Logan also testified that had
he been asked to respond to the question posed in the
Missouri Supreme Court's order to Dr. Parwatikar, he
would have concurred with Dr. Parwatikar -- that Wilkins
was not "competent" to proceed as his own attorney.

The State called Mr. Duchardt and Dr.
Mandracchia. Mr. Duchardt again stated that he
believed that Wilkins was not competent at the time of
his plea dn sentencing hearing. Dr. Mandracchia
testified that he would need to perform an additional
examination of Petitioner to respond to the State's
question about Wilkins’ "competence to waive" counsel.
Claiming surprise at Dr. Mandracchia's testimony, the
State requested a mental evaluation by Dr.
Mandracchia to determine whether petitioner was
"competent to waive" his constitutional rights and plead
guilty and whether petitioner's waiver of counsel and
guilty plea were in fact knowing, intelligent and
voluntary. After conducting the court-ordered
supplemental examination, Dr. Mandracchia testified
that the waiver of counsel, guilty plea and waivers of
other constitutional rights were not intelligent and
voluntary. Nevertheless, the hearing court denied the
motion and the Missouri Supreme Court affirmed.
Wilkins v. State, 802 S.W.2d 491 (Mo.) cert. denied
Wilkins v. Missouri, 112 S.Ct. 131 (1991). 7

Petitioner then filed the Petition for Writ of
Habeas Corpus currently before this Court. The First
Amended Petition alleged thirteen grounds of
constitutional error. On May 16, 1995, this Court
entered an Order conditionally granting the Writ on one
of Petitioner's claims on the basis of the state court

31

record, without an evidentiary hearing. The Court also
considered and denied one other claim, but did not
address the eleven remaining claims. After filing a
timely notice of appeal, the State requested the Court
of Appeals for the Eighth Circuit to remand the case to
this Court of resolution of all remaining claims. The
motion was granted on October 3, 1995.

After remand, Petitioner renewed his previous
request for an evidentiary hearing. Over the State's
objections, this Court heard testimony on January 5 and
30, 1996. Petitioner then voluntarily dismissed several
claims. On April 23, 1996, this Court set aside the
previous Order of May 16, 1995 pursuant to
Fed.R.Civ.P. 60(b)6). The six claims remaining in the
Amended Petition will now be considered. The facts
relevant to each will be outlined as necessary. For the
reasons set forth below, the petition will be granted.

Evidentiary Hearing

After the remand from the Court of Appeals, this
Court exercised its power to hold an evidentiary hearing
on dispositive factual issues in the amended petition.
The Court's broad authority to do so is well-estabiished
under Townsend v. Sain, 372 U.S. 293 (1963). In
Townsend, the Supreme Court heid that district courts
always have the discretion to hold evidentiary hearings
on dispositive factual issues in habeas litigation: “In
every case, [the district court] has the power,
constrained only by his sound discretion, to receive
evidence bearing upon the applicant's constitutional
claim." Id., 372 U.S. at 318.

In reliance on Keeney v. Tamayo-Reyes, 112
S.Ct. 1715 (1992), the State asserts that the hearing

aa”

32

was not authorized. The standard adopted in Keeney
to limit mandatory hearings in certain situations,
however, does not purport in any way to limit a habeas
court's prerogative to hear additional evidence if there
is a factual dispute on nonfrivolous claims. €.9.
Jamison v. Lockhart, 975 F.2d 1377, 1381 (8th Cir.
1992) ("we do not read Tamayo-Reyes as altering our
discretionary power to order this hearing"); Pagan v.
Keane, 984 F.2d 61, 64 (2d Cir. 1993); Burden v. Zant,

975 F.2d 771, 775 (11th Cir. 1992) rev'd on other

grounds 530-U.S. 132 (1994); Sims v. Livesay, 970
F.2d 1575 (6th Cir. 1992). See Yohn v. Love, 76 F.3d
508, 516 (3d Cir. 1996).

The Court also believes that a hearing may have
been mandatory. Under Townsend, a federal district
court must hold an evidentiary hearing in six situations,
including some circumstances in which the state courts
previous held a hearing and made fact findings.
Townsend, 372 U.S. at 313.2 Although it is not
necessary to thoroughly examine the Townsend
requirements now becuase there was a discretionary
hearing, the Court notes that the first two circumstances

2A hearing is mandatory if: (1) the merits of the
factual dispute were not resolved in the state court
hearing; (2) the state factual determination is not
supported by the record as a whole; (3) the fact-finding
procedure employed by the state court was not
adequate to afford a full and fair hearing; (4) there is a
substantial allegation of newly discovered evidence; (5)
the material facts were not adequately developed at the
state court hearing or (6) if for any reason it appears
that the state trier of fact did not afford the habeas
applicant a full and fair fact hearing. Townsend, 372
U.S. at 313-319.

33

in Townsend may have compelled it in this case: (1) the
merits of many dispositive facts were not resolved in the
state court hearing; and (2) the state courts’
determinations on some facts are not supported by the
record as a whole.

Again, the State's objection based on Keeny v.

Tamayo-Reyes is not persuasive. The limitaton on
mandatory hearings imposed by Keeney has no
relevance here. Keeney overruled Townsend only in
part. It held that a hearing is not mandatory under
Townsend's fifth circumstance ("the material facts were
not adequately developed at the state court hearing")
unless the petitioner can show cause for failing to
develop the material facts in the state court and
prejudice resulting therefrom or actual innocence
Keeney, 112 S.Ct. at 1719. Petitioner did not fail to
develop the material facts in this case. The
determinative evidence was presented to the state
courts.

*On Aprii 29, 1996, the State filed a motion to
preciude consideration of all evidence presented at
the hearing in this Court on the basis the April 24,
1996 amendment to 28 U.S.C. §2254(e)(2), which
provides:

"If the applicant has failed to develop the
factual basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that (a) the claim
relied on (i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and (B) the facts underlying the claim would

34

After an exhaustive review of the entire file, this
Court found that many disputed factual issues were not
settled and some findings by the state courts were
perplexing. The state record contains ambiguous or
contradictory support for certain findings and
conclusions, particularly those related to the claims

a hearing, the Court elected to hear additional evidence. ‘

1990). The facts left unresolved by the state courts and
the disputable findings will be set forth as necessary in
the section of the Order addressing the individual claims
for relief.

Presumption of Correctness of State Court
Findings

An issue distinct from the power to hold an
evidentiary hearing is whether this Court is bound by
the state courts’ findings on dispositive factual
questions. Under 28 U.S.C. §2254(d), a state court's

be sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable fact finder would have found the applicant
guilty of the underlying offense.”

This Court need not determine whether this
provision applies retroactively to the evidentiary
hearing this court heid in January, 1996. Again, this
limitation on evidentiary hearings in a federal habeas
court applies where a petitioner failed to develop facts
in state court, which did not happen in this case.

35

factual finding is entitled to a presu
correctness unless one of seven factors in
§2254(d)(1)-(7) is present or unless the factual finding

“is not fairly supported by the record”. ‘

*28 U.S.C. §2254(d) provides in part:
In any proceeding . . . in a Federal court .. . for a writ
of habeas corpus by a person in custody pursuant to
the judgment of a State court, a determination after a
hearing on the merits of a factual issue, made by a
State court of competent jurisdiction. .. evidenced by
. adequate written indicia, shall be presumed to be
correct, unless the applicant shall establish or it shall
otherwise appear, or the respondent shall admit

(1) that the merits of the factual dispute were
not resolved in the State court hearing;

(2) that the fact finding procedure employed by
the State court was not adequate to afford a full and
fair hearing;

(3) that the material facts were not adequately
developed at the State court hearing;

(4) that the State court lacked jurisdiction of the
subject matter or over the person of the applicant in
the State court proceeding;

(5) that the applicant was an indigent and the
State court, in deprivation of his constitutional right,
failed to appoint counsel to represent in the State
court proceeding;

(6) that the applicant did not receive a full, fair,
and adequate hearing in the State court proceeding;

or
(7) that the applicant was otherwise denied due
process of law in the State court proceeding;
(8) or unless . . . the Federal court on a
consideration of the record as a whole concludes that
such a factual determination is not fairly supported by

36

This Court is also aware of the changes in the
presumption of correctness standard set out in the
amendment to §2254 which was signed into law on
April 24, 1996.° However, the new statute does not

case. [Clongressional enactments will not be
construed to have retroactvie application unless their
language this result.”

Bowen v. Georgetown
A 488 U.S. 204, 208 (1988). At least one
district court has already rejected the state's position:

Although certain provisions of Title | of the
Antiterrorism and Effective Death Penalty
Act of 1996 contain specific effective
dates, neither the Act as a whole nor the
amendmerits to §2254 contains such a
date. See, Chapter 154, 28 U.S.C.
§266(c). In contrast to Congress’ silence
with respect. to the effective dates of the
amendments to §2254, Chpater 154,
which applies only to capital cases,
contains a specific effective date
provision. See, 28 U.S.C. §2266(c)
- (stating that “Chapter 154 of title 28,

the record.

®That statute, 28 U.S.C. §2254(e)(1), provides:
"In a proceeding instituted by an application for a writ
of habeas corpus by a rerson-in custody pursuant to
the judgment of a State court, a determination of a
factual issue made by a State court shall be
presumed to be correct. The application [sic] shall
have the burden of rebutting the presumption of
correctness by clear and convincing evidence.

37

United States Code (as amended by
subsection (a)) shall apply to cases
pending on or after the date of enactment
of this Act.") The relevant legislation
contains no language indicating that
Congress intended the amendments to
§2254 to apply to cases such as
Petitioner's. The inclusion of language in
Chapter 154 to the effect that the
provisions in Chapter 154 "apply to cases
pending on or after the date of enactment
of this Act" indicates that Congress knows
how to indicate that new legislation
applies to pending cases when it intends
to do so. The absence of. similar
language in the amendments to §2254
indicates that Congress only intended for

such amendments to apply prospectively.

Schlup v. Bowersox, No. 4:92CV443, slip op. at 16-17
(E.D. Mo. May 2, 1996). This Court agrees with this
sound analysis regarding the retroactivity of this portion
of the new legislation.

Moreover, even if the revised provision
§2254(e)(1) did apply, there are certain relevant legal
doctrines preliminary to §2254(d) or §2254(e)(1) which
are not affected by the new statute. The threshold
question is what constitutes a “factual” finding, as
opposed to a “mixed” question or a purely legal
question. Further, common sense dictates that the firs!
exception to the presumption of correctness under
§2254(d) -- that the "merits of the factual dispute were
not resolved in the state court hearing" -- would
continue under the new statute. Here, this Court
decides questions of law and decides factual issues not

38

resolved by the state courts even though the evidence
had been developed there. The end result thus is the

same, regardiess of which statute applies.

Where factual determinations were made in the
state court here, this Court affords a "high measure of
deference." Sumner v. Mata, 455 U.S. 591, 598 (19682).
"This deference requires that a federal habeas court
more than simply disagree with the state court before
rejecting its factual determinations. Instead, it must |
conclude that the state court's findings lacked even fair

support in the record." Marshall v. Lonberger, 459 U.S.
422, 429 (1983).

Further, §2254(d) prvoides that even if the
presumption applies, a habeas petitioner may rebut the
presumption by establishing "by convicing evidence that
the factual determination by the state court was
erroneous". Such convincing evidence includes proof
presented “at an evidentiary hearing. . . in the federal
court." See Demosthenes v. Baal, 494 U.S. 731, 735
91990); Lahay v. Armontrout, 923 F.2d 578 (8th Cir.
1991). Under the new §2254(e)(1), the standard for
rebuttal is essentially the same: by “clear and
convincing evidence".

_ Section 2254(d) applies only to the state court's
findings of historical facts. Legal conclusions are not
entitled to deference on federal habeas corpus review.
Wright v. West, 112 S.Ct. 2482 (1992); Sumner, 455
U.S. at 597; Brown v. Allen, 344 U.S. 443 (1953). This
Court is also free to conduct an independent review of
"so called mixed questions of fact and law which require
the application of a legal standard to the historical fact
determinations." Thompson v. Keohane, 116 S.Ct. 457,

459 (1995); Cuyler_v. Sullivan, 466 U.S. 335, 342

39

(1980); Jones v. Jones, 938 F.2d 838, 842 (8th Cir.
1991).° For each allegation of constitutional error, the
court will employ these legal standards in reference to
the state courts’ findings.

®As stated above, new §2254(e)(1) does not
change this.
40

Analysis
|. Waiver of Counsel

Petitioner contends that he was denied his
constitutional rights under the Sixth and Fourteenth
Amendments because the waiver of his right to counsel

the abuse-of-the-writ defense -pars this Court's
consideration of the claim after the remand from the

Court of Appeals.
A. Abuse of the Writ

The abuse-of-the-writ doctrine generally prohibits
a petitioner from raising claims in a subsequent habeas
petition that could have been, but were not, raised in
the first federal habeas proceeding. McCleskey v. Zant,
499 U.S. 467, 490 (1991). The general bar against
abusive claims also extends to successive claims which
raise grounds identical to those heared and decided on
the merits in a previous petition. Sawyer v. Whitley,
505 U.S. 333 (1992).

This court did determine that petitioner had not
validly waived his right to counsel and granted the writ
of habeas corpus on that basis in an Order dated May
16, 1995. However, under the procedural
circumstances in this case, this is not a successive
claim and the abuse-of-the-writ defense is not
applicable.

44

In the previous Order, this Court declined to
address eleven of the thirteen allegations of
constitutional error raised in the amended petition. The
Court of Appeals thus remanded the case, before
briefing or arguments on appeal, for resolution of the
remaining issues. Petitioner raised the waiver of
counsel issue again after remand, perhaps fearing that
the failure to do so would be taken as a default. He
also voluntarily dismissed with prejudice several other
claims, paring down to six the number of remaining
claims for relief.. This Court then set aside the previous
order and judgment under Fed.R.Civ. P. 60(b) so
all six issues would be decided in a single order, for
sake of clarity and judicial economy. Order dated April
23, 1996. Under no tenable theory is the claim barred
from this Court's review. See Murray v. Delo, 34 F.3d
1367, 1374 (8th Cir. 1994). This is a first habeas
corpus petition to which the doctrine of abuse of the writ
does not apply. Lonchar v. Thomas, No. 95-5015 (U.S.
Apr. 1, 1996).’

B. Merits

"It is unclear from earlier pieadings whether the
State asserts a procedural default defense to this
claim. The Court notes, however, that the claim is
not procedurally barred. The issue was presented to
the Missouri Supreme Court in the "Motion to. Reverse
Judgment and Sentence and to Remand for
Appointment of Counsel”, filed by appointed amicus
counsel after Dr. Parwatikar reported that Petitioner
had not intelligently and voluntarily waived his right to
counsel. The issue was raised again in the Rule
24.035 appeal, with reference to the relevant federal
case law. See Walton v. Caspari, 916 F.2d 1352 (8th
Cir. 1990).

42

The Sixth and Fourteenth Amendments of the
United States Constitution guarantee a criminal
defendant in a state proceeding the right to counsel.
Gideon _v. Wainwright, 372 U.S. 335, 342-44 (1963).
The accused person does have a corollary right to
waive counsel and proceed pro se, but only if the
waiver is knowing, intelligent and voluntary. Faretta v.
California, 422 U.S. 806 (1975). The constitution
"imposes the serious and weighty responsibility upon
the trial judge [to determine] whether there is an
intelligent and competent waiver by the accused.”
Johnson v. Zerbst, 304 U.S. 458, 465 (1938). in doing
so, the court must “indulge every reasonable
presumption against waiver" because the purpose of the
right to counsel is “to protect an accused from
conviction resulting from his own ignorance of his legal
and constitutional rights”. Id., at 464, 468 (1938) (citing

Aetna insurance Co. v. Kennedy, 301 U.S. 389, 393
(1937).

"The determination of whether there has been an
intelligent waiver of the right to counsel must depend, in
each case, upon the particular facts and circumstances
surrounding that case, including the background,
experience, and conduct of the accused.” Johnson, 304
U.S. at 464. “To discharge this duty properly in light of
the strong presumption against waiver of the
constitutional right to counsel, a judge must investigate
as long and as thoroughly as the circumstances of the
case before him demand." Von Moltke v. Gillies, 332
U.S. 708, 723-24 (1948).

The trial court must make a meaningful inquiry to
determine whether a particular defendant's waiver of
these rights is a “voluntary and intelligent choice among
the alternative courses of action". Schone v. Purkett,

43

:
:
g
:
5
|
:

defendant must be examined, the fact that an accused
person tells the trial court that "he is informed of his
right to counsel and desires to waive this right does not
automatically end the judge's responsibility ....A
judge can make certain that an accused's professed
waiver of counsel is understandingly and wisely made
only from a penetrating and comprehensive examination
of all the circumstances under which such a plea is
tendered." Von Moltke, 332 U.S. at 723-724. “[T]he
ultimate test for whether there has been a valid waiver
of the right to counsel is not the trial court's express
advice, but rather the defendant's understanding”.

United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.
1995).

A finding that a criminal defendant is "competent
to proceed" does not resolve the issue whether his
waiver of counsel is knowing, intelligent and voluntary. °
These are two separate questions. Both must be
answered in the affirmative before there can be an
effective waiver of the constitutional right to counsel.

“Petitioner has dismissed the claim that he was
not competent to proceed, which this Court had
denied in the previous order.

Ge

Godinez v. Moran, 113 S.Ct. 2680 (1993). In Godinez,
the United States Supreme Court explained that "when
a defendant seeks to waive his right to counsel, a
determination that he is competent to stand trial is not
enough; the waiver must also be intelligent and
voluntary before it can be accepted". Id. at 2688. The
Godinez Court finally explained the distinction between
these two requirements, which has caused much
contusion in this and other cases. The “focus of the
competency inquiry is the defendant's mental capacity;
the question is whether he has the ability to understand ~
the proceedings. - The purpose of the ‘knowing and
voluntary’ inquiry, by contrast, is to determine whether
the defendant actual does understand the significance
and consequences of a particular decision and whether
the decision is uncoerced." Id. at 2687, n.12 (emphasis
in original) (citations omitted).

Thus, “a finding that a defendant is competent to
stand trial... . is not all that is necessary before he
may be permitted to plead guilty or waive his right to
counsel. In addition to determining that a defendant
who seeks to plead guilty or waive counsel is
competent, a trial court must satisfy itself that the
waiver of his constitutional rights is knowing and
voluntary.” Id. at 2687 citing Parke v. Raley, 113 S.Ct.
517, 523 (1992) (The test is whether the waiver
represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant), -
and Faretta, 422 U.S. at 835 (accused must "knowingly
and intelligently" forego benefits of sight to counsel).

In this case, as in others throughout the circuits
before Godinez, the courts and the parties have
repeatedly confounded and often interchanged the
terms “competency to proceed” with "competency to

45

223i
sit tk
eel viel

Ahi sjasas
HT
ae ee
Lill
£ S882"

aR

competent waiver" requirement

determine whether there is an intelligent and competent
waiver by the accused”. id. at 2688.

The semantic chaos after Westbrook has
additional relevance in this habeas corpus proceeding
because a state court's determination of competency is
@ factual finding entitied to a presumption of correctness
under §2254(d). Thompson, 116 S.Ct. at 459 citing
Maggio v. Fulford, 462 U.S. 111, 117 (1983). However,
@ “waiver of the Sixth Amendment right to assistance of
ceuaieatitine tacts meeemsaeneh tone”

requires application of constitutional principles of facts."
Thompson, 116 S.Ct. at 459 citing Brewer v. Williams,
430 U.S. 387, 404 and n.4 (1977). Although subsidiary
factual findings must be presumed correct, the ultimate
question requires an assessment of the totality of
circumstances. See Miller v. Fenton, 474 U.S. 104
(1985). This is a matter for independent federal
determination. Cuyler, 446 U.S. at 342; Miller, 474 U.S.
at 112 (voluntariness of confession context).

The initial question here then, is whether the trial
court or the Missouri Supreme Court made the sort of

ulti
on the waiver of counsel. Sumner, 449 U.
State court's resolution of an issue does not always

examine whether one of the sittetons in §2254(d)
negates the presumption of correctness. Finally, this

47

Court will determine the legal conclusion supported by
the relevant facts.

The record in this case shows that the trial court
made no factual findings when it consented to
Petitioner's waiver of counsel. (Cir. Ct. Tr. at 42-90).°
Rather, the trial judge expressed the mistaken belief
that he was obliged to accept the waiver of counsel

of the offense, this court feels that the
availability of legal counse! is essential so
that he can rely upon it, at least if he
wants to, you see?

(Cir. Ct. Tr. at 45-46). See also Cir. Ct. Tr. at 62.

The trial court had just found that petitioner was
competent to proceed when defense counsel Fred
Duchardt and Mr. Wilkins announced that he wanted to

*The Court will refer to the transcript of the
arraignment, competency hearings, pleas of guilty and
sentencing before Judge McFarland as the "Circuit
Court Transcript” or "Cir. Ct. Tr."

48

waive counsel, plead guilty and seek the death penalty.
(Cir. Ct. Tr. at 42-45). The court told petitioner many
times that he had the right to counsel and the right to
waive counsel. Acknowledging that petitioner was
sixteen years old with only a ninth grade education and
no legal knowledge or experience, the court stated that
the circumstances ‘of the case cautioned against the
waiver of counsel. (Cir. Ct. Tr. at 43-44)."° The trial
judge urged Mr. Wilkins-to accept counsel and
instructed him to think about his decision for a few
days. The court ordered Mr. Duchardt to remain
available to answer any questions petitioner might have.
(Cir:-Ct. Tr. at 59, 67.)

The next hearing on the motion to waive counsel
was held one week later. The court again cautioned
petitioner about the dangers of proceeding pro sé, and
informed him about other constitutional rights, reciting
a list including the right to confrontation, compulsory
process, appeal and so forth. (Cir. Ct. Tr. at 69-79).
The court explained that counsel could help protect
thove rights and expressly told Mr. Wilkins that he faced
two possibilities for punishment upon conviction: the
death penalty or life in prison without parole. (Cir. Ct.
Tr. at 69-79). Petitioner continued to assert that he
wanted to waive counsel. (Cir. Ct. Tr. at 70-79). Mr.
Duchardt continued to asserts that he did not believe
Mr. Wilkins was “competent to make those decisions."
(Cir. Ct. Tr. at 41, 81). The court then provided

The prosecutor also argued that the
assistance of counsel may be necessary, and urged
to court to require defense counsel to stay available:
"We simply believe with the court that there may be
some matters where assistance or advice or counsel
may be necessary". (Cir. Ct. Tr. at 62).

49

petitioner with waiver of counsel forms and accepted
the waiver, but again advised petitioner to reconsider.
(Cir. Ct. Tr. at 83-88, 94-95).

Although the trial court strongly encouraged
petitioner to accept the services of counsel, the

circumstances of this case demanded more. The
Constitution required the trial court to consider the
“background and experience” of Mr. Wilkins, who at the
time was a juvenile with a long history of
institutionalization for mental disorders and suicide
attempts. Here, as in Von Moltke, the judge did not
make a “penetrating and comprehensive" examination
of all the circumstances or “investigate as long and
thoroughly" as the circumstances of this case
demanded to determine if Mr. Wilkins actually made a
knowing, intelligent and voluntary waiver. Von Moltke,
332 U.S. at 723-724.

The omission is significant in this case.
Petitioner was a sixteen year-old boy with less than a
ninth grade education when he waived his right to
counsel, entered the guilty plea and was sentenced to
death. He had lived in mental institutions since he was
~ ten. His background before being institutionalized
included severe beatings and abuse by his mother and
her live-in boyfriends. Child care frequently consisted
of being locked alone in a room for hours without toilet
facilities. (Cir. Ct. Tr. at 66, 357, 528-534, 358). The
mother regularly used illegal drugs. An uncie, with her
permission, gave petitioner marijuana and other drugs
since he was only six years old "as a joke". (Cir. Ct. Tr.
at 523-532).

At Tri-County Mental Health Center in 1979,
Psychologist Robert Urie, Ph.D. described petitioner,

50

eee eee aaa _aaa~a eee

then age ten, as "a severely depressed boy with
homicidal and suicidal ideation", "borderline thought
disorder” and “emotional neglect." (Exhibit 7). Robert
Walker, M.D., a psychiatrist, also reported then that he
was at "serious risk" of becoming "homicidal and
suicidal". (Exhibit 7).

The state court record included accounts from
Butterfield Youth Ranch from 1980-1983, where
petitioner was institutionalized from age eleven to
fourteen. Those records documented bizarre behavior,
depression, hallucinations and the mother's lack of
interest. (Exhibit 8}. In 1982, psychiatrist James
Chappel, M.D., reported that petitioner showed "bizarre
behaviors, especially when stressed" and possible
schizophrenia. (Exhioit 8). Dr. Chappel feared tnat with
stress, petitioner “would decompensaie". (Exhibit 8 at
42, 539-545, 793-794).

in 1983 at Crittenton Psychiatric Center, Michael
Harty, Ph.D., a psychologist, and Huseni Poonawala,
M.D., the treating psychiatrist, predicted that petitioner
would have a "psychotic breakdown" and become
“violent or self-destructive". (Exhibit 5). By age 16 and
at the time of this homicide, petitioner was living in a
public park with other troubled teenagers, taking drugs
and drinking excessively. (Cir. Ct. Tr. at 540-542).

Immediately before petitioner announced his
waiver, psychiatrist Dr. William Logan had testified at
the competency hearing that Mr. Wilkins had emotional
impairments that caused him to act against his own
best interests and “could interfere with his decision
making process at certain critical points." (Cir. Ct. Tr.
at 22). Dr. Logan had explained that petitioner was
very impulsive, had not learned "how to use his mind to

51

make rational common sense decisions", and that
“when it comes to making critical decisions, he's very
easily frustrated and prone to give out and just take the
quick, easy solution primarily based on how he feels
and not on what he thinks or what might be the wisest
course of action". (Cir. Ct. Tr. at 23-25). .

instead of further exploring the circumstances in
light of this background, the trial court's inquiry here
consisted almost entirely of leading questions, recited in
a manner directed more toward making a record than
meaningfully probing whether the waiver was a
“voluntary and intelligent choice among the alternative
courses of action.” Schone, 15 F.3d at 788-789. Most
of Mr. Wilkins' responses are simply "yes" or "no"
answers, as if on cross-examination. (Cir. Ct. Tr. at 75-
89)."’ The court's extensive use of leading questions on
the record and the lack of any reference to his mental
disorders provides no fair support for the conclusion
that the waiver was intelligent and voluntary. Mental
iliness is a factor the trial court must consider when

ruling on the validity of a waiver. E.g., Cooper v. Griffin,
455 F.2d 1142 (5th Cir. 1972).

“At the arraignment on October 17, 1985,
petitioner said only two words ("yes sir") and the
hearing was very brief. (Cir. Ct. Tr. at 3-5). At the
competency hearing on April 16, 1986, Mr. Wilkins
said nothing. Id. at 6-15. Petitioner then stated that
he wanted to waive counsel. Although the court
questioned him for several minutes, petitioner's
responses were very limited. In the Hearing on
Waiver of Counsel, on April 23, 1986, the court asked
only a series of generic standard leading questions.
petitioner, answered all questions with "yes", "no" or a
nod. Id. at 69-96. |

52

The Missouri Suprerne Court also erroneously
equated "competency to proceed” with the requirements
for a waiver of the constitutional right to counse/. In the
opinion on the mandatory statutory direct review of the
conviction and sentence of death under Mo. Rev. Stat.
§565.035, the court states that "any finding of
competency necessarily entails the ability to waive
certain rights beginning with the very first strains of
Miranda” and that "juveniles may validly waive the right
to counsel”. State v. Wilkins, 736 S.W.2d 409, 415 .
(Mo. 1987). This legal conclusion sets forth no finding
of fact entitied to a presumption of correctness.
Thompson, 116 S.Ct. at 459; Brewer, 430 U.S. at 404;
Cuyler, 446 U.S. at 342.

The Missouri Supreme Court did make some
factual findings on the statutory direct review which are
entitled to a presumption of correctness under §2254(d).
None of those findings, however, require the legal
conclusion that Mr. Wilkins’ waiver of counsel was
knowing, intelligent and voluntary. The court found that
the trial judge tried to dissuade petitioner from waiving
counsel and had “admonished” petitioner to “talk to
those whom he trusted and who could advise him about
his chosen course"” and stated that the judge had
urged petitioner to change his mind. Wilkins, 736
S.W.2d at 411-413. This finding, however, relates only
to the trial court's recommendation. It does not compel
the conclusion that Mr. Wilkins intelligently and

"The record also shows that petitioner did not
talk to anyone else about the decision to waive
counsel. When the trial judge asked petitioner if he
had consulted with anyone about that, Mr. Wilkins
replied "There's nobody else, nobody else who has a
hand in my decision, your honor." (Cir. Ct. Tr. at 75).

53

voluntarily waived his rights. "The ultimate test for
whether there has been a valid waiver of the right to
counsel is not the trial court's advice, but rather the
defendant's understanding.” Cash, 47 F.3d at 1088. A
detailed admonition by the trial court on the record does
not necessarily mean that the defendant acted
knowingiy, intelligently and voluntarily.

Moreover, the Missouri Supreme Court's
appointment of counsel for Mr. Wilkins on the direct
review and order for additional briefing and oral
argument is consistent only with a finding that Petitioner
validly did not intelligently and voluntarily waive his right
to counsel. As outlined above, that court had initially
appointed amicus counsel to brief issues and appear at
arguments. However, when petitioner asked to waive
amicus counsel on appeal, the court ordered Dr. Sam
Parwatikar to examine him regarding his "competence
to waive his right to counsel". (Exhibit 32)."° After Dr.
Parwatikar's evaluation, which included a review of all
prior records and an extensive personal interview, he
reported back to the court that Mr. Wilkins had mental —

Again, the language has caused confusion.
Dr. Parwatikar responded in the same terms.
However, he explained to this Court that he
interpreted the order as asking whether petitioner's
waiver of counsel was knowing, intelligent and
voluntary. He determined it was not. Dr. Parwatikar
testified that petitioner's decision to waive counsel
was not a rational choice because his reasoning
process was irrational. Dr. Parwatikar further noted
that petitioner's mental disorders made him less
capable that other sixteen year old boys in making
intelligent and voluntary decisions. (§2254 Hrg. Tr. 1-
30-96 at 19)..

54

disorders that "affect his rational reasoning and impair
his behavior". Dr. Parwatikar concluded that petitioner
was “not competent to waive his constitutional right to
counsel." (Exhibit 13 at 16).

After receiving Dr. Parwatikar's report, the
Missouri Supreme Court appointed counsel to represent
Mr. Wilkins on appeal and ordered supplemental briefs
and argument. (Order of Mo. Sup. Ct., Jan. 26, 1987).
The court's opinion on direct appeal refers to Mr.
Wilkins request to waive counsel, its order for the
evaluation from the Department of Mental health and
their subsequent appointment of counsel, but neglects
to set forth the findings of Dr. Parwatikar that prompted
the court to refuse petitioner's request and to appoint
counsel. Wilkins, 736 S.W.2d at 411. The court's
actions, however, constitute a findings in accord with
Dr. Parwatikar's report: that the waiver of counsel was
not intelligent and voluntary. See e.g., Parker v.
Dugger, 498 U.S. 308, 316 (1991).

On the collateral review under Mo.R.Crim.P.
24.035, the state postconviction court did not make any
findings binding on this Court. The postconviction
court listed several factual findings that support
petitioner's competency to proceed, but that issue is not
before this Court. The court's conclusion that the
waiver of counsel was valid was again based on the
erroneous legal view that a determination of

“The Court will refer to the Findings and
Conclusions by the trial court on the motion for
postconviction relief under Mo.R.Crim.P. 24.035 as
R.24.035 Order. The transcript from the evidentiary
hearing on that motion will be designated R.24.035
Tr.

55

competency necessarily includes a valid waiver of the
right to counsel. R.24.035 Order at 5-9. The only part
of the court's order that addresses the waiver of
counsel states:

The court concludes that the finding of
competency of movant to proceed
entailed the ability to waive certain rights
and to make decision necessary for the
disposition of the case including the
decision to enter plea of guilty and under
the circumstances of this case to waive
counsel and proceed pro se. The court
also concludes a review of all the
evidence shows that movant knowingly,
voluntarily, and intelligently, and
competently waived his right to counsel.
The court further concludes that movant
suffered no deprivation under the Sixth
and Fourteenth Amendments to the
United States Corstitution and Article |,
Section 18(a) of the Missouri Constitution.

Court further cor.cludes that no prejudice
resulted to movant because of his waiver
of counsel. The court concludes that
movant is not entitled to relief because of
his change of feeling regarding the death

penalty.

Court concludes movant was mentally
competent to proceed as his own counsel.

R.24.035 Order at 9-10. This ruling is a legai
determination not compelled by any findings of historical
fact, and thus is not entitled to a presumption of

56

correctness. See Elem, 64 F.3d at 1200; Jones, 938
F.2d at 842.

_ The state postconviction court made no reference
to extensive evidence regarding the background of
petitioner, a necessary consideration in determining
whether his waiver of counsel was knowing, intelligent
and voluntary. Von Moltke, 332 U.S. at 723-724;

petitioner before the crime, other mental health expe
examined him and testified in the state court that
was “severely disturbed”.

hearing that petitioner's lifetime without affection and
nurturance had caused a “profound developmen
arrest", severe mental disturbances and that he had
attempted suicide several times. (Exhibit 14 and Cir.
Ct. Tr. 467-472, 511). Dr. Logan affirmed at this
Court's hearing that petitioner was extremely disturbed
and immature at age sixteen. His opinion is that
petitioner did not voluntarily or intelligently waive his
right to counsel and that he was strongly affected by
“internal coercion”. (§2254 Hrg. Tr. at 21-23).

Dr. Logan testified at the state evidentiary
tal

Dr. Dorothy Lewis, a psychiatrist, testified in the
state court that Mr. Wilkins had a strong family history
of psychotic ilinesses, had hallucinations and was
paranoid. This was consistent with an earlier diagnosis
of “childhood psychosis”. (Cir. Ct. Tr. at 24-26, 32-75).
Dr. Lewis stated that petitioner's “paranoid orientation .
. . played a major role in his dismissing his attorney."
(Cir. Ct. Tr. at 28).

57

Dr. William O'Connor, a clinical psychologist,
agreed that petitioner was "probably psychotic". (Cir.
Ct. Tr. at 139-170). Dr. Jonathan Pincus, a neurologist,
confirmed an earlier 1982 diagnosis of schizoaffective
disorder. (Cir. Ct. Tr. at 319-327).

guilty plea. The state court's only reference to the
hearing was the conclusion that "the court further finds
the testimony of the doctors relied upon by movant to
be unpersuasive and can find no basis for disturbing the
court's prior findings of movant's competency." R.
24.035 Order at 9:'

After a careful examination of the record as a
whole, this Court concludes that the finding is not
entitled to a presumption of correctness because it does
not resolve the factual dispute and is not fairly
supported by the record. §2254(d). The trial court does
not explain which doctors it found to be "unpersuasive"
or why. The judge does not set out whether he
believed that any or all of the doctors were mistaken,
lying or whether he just believed their testimony was
irrelevant in light of his mistaken view of the law. The
court did not make an credibility determination and did
not refer to the substance of any expert's testimony.

The express wording of the order refers only
to competency, but the court made the finding under
"Point Ill" of the order, which purports to address the
waiver of counsel. See R. 24.035 Order at 5-10.

58

Even more important, the trial court failed to even
mention that Dr. Mandracchia, a witness for the state,
testified that petitioner did not voluntarily and
intelligently waive his right to counsel or plead guilty.
(Exhibit 33 and Cir. Ct. Tr. 891-904). Although the
court made findings that Dr. Mandracchia believed
petitioner was competent to stand trial, it did not refer to
his testimony about the waiver of counsel and guilty
plea. (R.24.035 Order at 12-13). The exclusion is
conspicuous because the trial court, at the state's.
request, had expressly ordered Dr. Mandracchia to
conduct an additional examination to determine whether
petitioner's waiver of counsel, guilty plea and waiver of
mitigation were made "knowingly, voluntarily and
intelligently”. (Exhibit 35).

After examining petitioner as directed, Dr.
Mandracchia reported:

1. In the opinion of this examiner, the
Movant's waiver of counsel was made
knowingly but not voluntarily or
intelligently.

2. In the opinion of the examiner, the
Movant's plea of guilty and waiver of trial
by jury was made knowingly but not
voluntarily or intelligently; therefore, the
Movant is not viewed as having been
competent to make such a decision.

3. In the opinion of the examiner, the
Movant's waiver of his right to offer
evidence in mitigation of punishment was
made knowingly but not voluntarily or
intelligently; therefore, the movant is

59

. See e.g.,
1188, 1191 (8th Cir. 1981).

getting the death penalty and did not explore or
consider any other options. (id. at 51). Dr.
Mandracchia explained that although some sixteen year
old boys might be able to voluntarily and intelligently
waive such rights, petitioner did not. id. at 73, 76-77.
The record indicates that the state courts gave
inadequate weight in this case to petitioner's young age
at the time of the waiver. Dr. Mandracchia’s findings
are credible and relevant to the law. See Von Moltke,

60

While thare is a presumption of correctness to
historical facts such as the court's finding that petitioner

mentioned by the court was proof of Petitioner's serious
psychiatric history as a child. (Cir. Ct. Tr. at 237).

Other findings are not fairly supported in the
record. Contrary to the Missouri Supreme Court's

61

description, Wilkins, 802 S.W.2d at 502, the hearing
court did not make any credibility determinations or
state that Dr. Mandracchia’s testimony was
“unpersuasive". The motion court only referred to the
“doctors relied on" by petitioner. (R. 24.035 Order at 9).
Dr. Mandracchia was the state's witness.

Even though the trial court made no factual
judge's conclusion could not be wrong:

in the protracted proceedings
hereinbefore discussed, Judge McFarland
perhaps more than any person was
favorably positioned to understand
defendant and evaluate the evidence. He
had ample opportunity to observe the
defendant and learn the innermost reason
for his decision to waive counsel. This
observation and oral examination of the
defendant could not be ignored and was
necessarily taken into account when
assessing the competency of a defendant
to waive counsel.

Wilkins, 802 S.W.2d at 501. The court's account of the
trial judge's "many hours of counseling and
conversations" is contradicted by the record and does
not resolve the waiver of counsel issue. The trial court
asked very few questions that could not be answered
with a "yes" or "no". Neither state court considered
petitioner's background or the unanimous opinion of all
mental health professionals that the waiver was not

62

intelligent and voliuntary."° Further, the Missouri
Supreme Court's resolution of the issue repeatedly
refers back to Judge McFarland's determination that
petitioner was competent to proceed. However, at the
time that the trial court made that decision, petitioner
had uttered only two words in the court's presence. "

The Missouri Supreme Court's most tenuous
Statement is that “though defendant did not renounce
his waiver of counsel, he manifested his cunning,
availing himself of the services of "standby" counsel -
when it met his purpose." id. at 502. Although the trial
court had insisted that Mr. Duchardt remain available as
“standby counsel", he did not provide any legal advice
or assistance to petitioner. (Cir. Ct. Tr. at 60-69, 81,
161). The designation was artificial. Mr. Duchardt
objected in the state court and testified in this Court that
he was no more than a reference book that remained
on the shelf. (§2254 Hrg. Tr. at 87).

“This Court has found but one passage in the
State court record where the trial court asked
petitioner to explain the reasons why he wanted to be
executed. (See Cir. Ct. Tr. at 296-97). Petitioner's
answer does not indicate an awareness of available
defenses that might have resulted in a sentence
where he would be eligible for parole at some time.
Rather, Mr. Wilkins' response is similar to his
Statements during interviews with Dr. Parwatikar and
Dr. Mandracchia where he gives contradictory and
inconsistent explanations for his decision.

""Q. (by the court): Are you Heath Wilkins?
A. (by petitioner): Yes, sir.
(Cir. Ct. Tr. at 3).

63

The ultimate question of waiver is an issue of
federal law. For these reasons, and based on the
record as whole, this Court concludes that petitioner did
not knowingly, voluntarily and intelligently waive his right
to counsel.

ll. Guilty Plea and Waiver of Mitigation

Analogous to the waiver of counsel claim,
Petitioner also asserts that his guilty plea and waiver of
mitigation evidence were not knowing, intelligent and
voluntary. The State argued that the claim is
procedurally barred and that the state court's finding is
entitied to a presumption of correctness.

A. Procedural Bar

Petitioner fairly presented this claim to the state
postconviction court and the Missouri Supreme Court
with factual support and extensive briefs citing to

Westbrook v. Arizona, 354 U.S. 150 and Von Molike,
332 U.S. 708, as outlined above, and Boykin

Alabama, 398 U.S. 238 (1969), Brady v. Unted Sates
397 U.S. 742 (1970) (voluntariness of guilty plea), as
well as Lockett v. Ohio, 438 U.S. 586 (1986) and
Eddings v. Oklahoma, 455 U.S. 104 (1982) (mitigating
evidence). There is no procedural bar to this Court's
review of the merits. Further, the state courts’
conclusion is not entitled to a presumption of
correctness under §2254(d). This is a mixed question
of federal law and fact. Cuyler v. Sullivan, 446 U.S. at
342.

B. Merits

The Unites States Supreme Court has repeatedly
pronounced that in order to satisfy the dictates of due
process, a plea of guilty must be a knowing, intelligent
and voluntary act. E.g. Brady v. United States, 397
U.S. at 748. As with a waiver of counsel, the resolution
whether the plea was intelligently made depends on the
particular facts and circumstances of each case. See
Johnson, 304 U.S. at 463. If petitioner's waiver of
counsel was not knowing and intelligent, then the guilty
plea entered without counsel also must be invalid.

Arsenault_v. Massachusetts, 393 U.S. 5 (1968).

However, the court will address this claim
independently.

Under Boykin v. Alabama, 395 U.S. at 243-44,
the trial court must undertake a factual inquiry to
determine if the plea is voluntary and made with an
understanding of the -nature of the charge and
consequences of the plea. The Boykin Court
admonished state trial courts that the prerequisites of a
valid waiver of constitutional rights must be "spread on
the recerd." A federal court will not presume from an
incomplete or silent record that there has been a valid
waiver of constitution rights:

Several federal constitutional rights are
involved in a waiver that takes place when
a plea of guilty is entered in a state
Criminal trial. First, is the privilege against
compulsory seif-incrimination guaranteed
by the Fifth-Amendment and applicable to
the States by reason of the Fourteenth.
Second, is the right to trial by jury. Third,
is the right to confront one's accusers.
We cannot assume a waiver of these
three important rights from a silent record.

65

Id. at 243 (footnote and citations omitted).

The test for determining the validity of a guilty
plea is “whether the plea represents a voluntary and
intelligent choice among the alternative courses of
action open to the defendant." North Carolina v. Alford,
400 U.S. 25, 31 (1970). The trial court must establish
on the record that the defendant understands all
elements of the charges, including the required mental
State, and the possible ranges of punishment.
Henderson v. Morgan, 426 U.S. 637 (1976); Nash v.
Israel, 707 F.2d 298 (7th Cir. 1983). [Blecause a guilty
plea is an admission of all the elements of a formal
criminal charge, it cannot be truly voluntary unless the
defendant possesses an understanding of the law in
relation to the facts." Boykin, 395 U.S. at 243, n.5.

A guilty plea can be involuntary not only because
the defendant doesn't understand the nature of the right

he is surrendering, Johnson v. Zerbst, 304 U.S. 458,
464-65, but also because he has an incomplete

understanding of the charge. Smith v. O'Grady, 312
U.S. 329, 334. "Evidence of guilt establishes a factual
basis for the plea, not that the defendant understand
the law in relation to the facts." Gregory v. Solem, 774
F.2d 309, 314 8th Cir. 1965) quoting Nash, 707 F.2d at
303, n.8.

The record does not show that petitioner knew or
understood the specific elements of the charges he
faced or all his “alternative courses of action". There
was no discussion of the lesser included offenses of
second degree murder or manslaughter. The trial court
never explained the different degrees of homicide under
Missouri law and the difference in punishment.

Mo. Rev. Stat. §565.020 (1984) provides that a
person commits the crimes of murder in the first degree
if he "knowingly causes the death of another person

$
,
z
:

degree murder, which carries a parolable sentence,
does not include "deliberation". §565.021; State v.
Jackson, 511 S.W.2d 771 (Mo. 1974). Under Missouri
law, deliberation means that the defendant acted after

The word “deliberation” or its equivalent was never
used when he entered his guilty plea. (Cir. Ct. Tr. at
104-167). The only words used in relation to mental
States were “premeditated” and "knowingly" -— terms
that describe the mental state for second degree
murder under Missouri law. (Cir. Ct. Tr. at 125). Yet
Mr. Wilkins entered a plea of guilty to first degree
murder.

Moreover, the trial court expressly told Mr.
Wilkins that there were only two potential punishment
options: the death penalty and life in prison without
parole. (Cir. Ct. Tr. at 77). The record does not
establish that petitioner knew, or was ever told, that at
a tral, an attorney could present a "diminished
responsibility” defense that might result in a conviction

67

on the lesser included offense of second degree murder
and receive a parolable sentence. “

The trial judge's constitutional duty to establish
on the record the defendant's understanding of a
charge with a guilty plea does not depend on whether
the charge is complex or simple. However, the trial
judge must be even more soiicitous in fulfilling this duty
when the charge is not readily understandable by a
layman." Nash, 707 F.2d at 303, n.6.

Respondent argues that petitioner must have
understood about the lesser included option of second
degree murder and the diminished responsibility
defense because in the hearing on the waiver of
counsel Mr. Duchardt told the court that he had
“attempted” to tell petitioner his options. This general
statement, however, does not satisfy the requirements
of Boykin or establish that petitioner understood the
elements or difference between first degree murder and
second degree murder and the different penalties. See
Nash, 707 F.2d at 303.

“The "diminished responsibility" defense
permits a defendant to introduce evidence of a mental
disease or defect to prove the absence of a particular
mental element of the crime. E.g., State v. Anderson,
515 S.W.2d 534, 537 (Mo. 1974); See also Mo. Rev.
Stat. §552.015.2. Unlike the defense of "not guilty by
reason of insanity", the defendant accepts criminal
responsibility for his conduct, but is convicted of a
lesser degree of the crime because the mental defect
prevented the defendant from forming the mental
element of the higher degree of the crime. Id.

Mr. Duchardt never explicitly said what defenses
they had discussed. He testified in this Court that he
never explained the diminished responsibility defense to
him. Mr. Duchardt was certain petitioner did not
understand all the possible defenses. (§2254 Hrg. Tr.
at 89-90, 93-94, 97, 105-106).'® The postconviction
court praised Mr. Duchardt's “talents and ability [and]
also his dedication to his clients in the administration of
justice." (R.24.035 Order at 11). Having heard Mr.
Duchardt's testimony in the federal hearing and
reviewed the record in its entirety, this Court concur's
with that court's assessment of his professional
integrity. This Court fines the testimony of Mr. Ducharat
to be clear and convinc'ng that petitioner's waiver of
counsel and plea of guilty were made without an
adequate understanding of the charges against him and
the available defenses.

Although the trial court asked petitioner whether
he understood the rights he was waiving, the judge did
not ask him to say what he thought these defenses
were. The petitioner's own conclusory statement that
he was making an intelligent and voluntary plea is
directly contradicted by the record. See Gonzales v.
Grammer, 848 F.2d 894, 900 (8th Cir. 1988). -

"Mr. Duchardt's testimony was apparently
overlooked by the state courts. When asked at the
postconviction hearing whether he viewed Mr. Wilkins’
decision to dismiss counsel, plead guilty and seek the
death penalty as a decision made after "an intelligent
weighing of the alternatives", Mr. Ducharct replied: "I
never have and | never will." (R.24.035 Hrg. Tr. at
642).

69

It was particularly important for petitioner to
understand the option of a second degree murder
conviction because there is much evidence to suggest
that, due to his mental disorders, he may not have been
capable of deliberation. Although Dr. Logan found that
petitioner would be competent to assist an attorney at
trial, he testified that petitioner could not deliberate.
(Cir. Ct. Tr. at 511-512). Mr. Duchardt, a seasoned
defense lawyer, described this case as a very
defensible one on this issue of mental state. Indeed, all
of petitioner's co-defendants entered pleas of guilty to
lesser offenses and received parole-eligible sentences.

Further, the trial court's only inquiry into
"voluntariness" during the guilty plea was a question
whether petitioner had received any promises or
threats. (Cir. Ct. Tr. at 104-165). But when petitioner
reported that a guard had assaulted him that day, the
court dismissed it without delving into the circumstances
or effect of the incident:

Court: Now then, this guilty plea petition consists of 6
pages. One of the things in here, even though you've
not signed it, it says question No. 18, "| do not have
any complaints against any law enforcement officials
concerning my treatment while in jail. | had sufficient
food, water, medical care, and bedding and | was not
mistreated by any inmate while in jail. There are no
exceptions to any of these statements except,” and you
put yes there. . ." | suffered abuse verbally and
physically, 10:40, May 9, 1986, before entering the
court."

Petitioner: That is correct.

Court: Do you wish to tell the court more about that?

70

have to come off to me that way. And he pushed me
in my face up against the | and told me that, you
know, he can do whatever he wants or something along
the lines of, you know, there's nothing | can do about it,
he can do what he wants. And when | told him
wasn't so he said, he goes, "You're nothing but a
assed murderer." And he made a statement, oh, yeah,
he said, "What are you going to do about it?” And
was up in my face when this, you know, he did,
nst the wall and made
Statement that | was a bad assed mu r. ]
was going to do about it and |
didn't say nothing. | just looked at him. And he was
right up in my face. And he said, "! thought so," And
then he left and we came in here.

a
Z

Q: All right. Is that the extent of your complaints
against your treatment, or about your treatment?

A. Verbally and physically, yeah.

Q: Do you have any other compiaints about your
treatment while in jail?

71

A: No.

Q: All right, now, I'll ask you this, as to this treatment
that you've complained about, did that have anything to
do with your decision to come in here today and waive
your right to trial by jury and tel! the court that you want

to plead guilty?

A: Not that I'm aware of.

Q: Okay. Did you want to sign this petition to enter
plea of guilty?

A: Yes, your Honor.
(Cir. Ct. Tr. at 118-120).

The assaulting officer remained in the courtroom
throughout the plea and there were no_ further
questions. Although the trial court did not explore this
further, Dr. Logan testified that the incident would have
intensified petitioner's decision to plead guilty by
confirming that the future was hopeless with potential
for further abuse. (§2254 Hrg. Tr. at 24).

The record does not establish that the guilty plea
was intelligent and voluntary, as required by Boykin,
395 U.S. at 243. The circuit court's record, made with
leading questions, does not show that petitioner entered
the plea with an understanding of the elements and
consequences of ali charges and “the alternative
courses of action" open to him. See Alford, 400 U.S. at
31. The inquiry did not comply with the court's duty to
"investigate as long and as thoroughly as the
circumstances of the case demand” in order to protect

72

k

Petitioner from making an involuntary and unintelligent
waiver. Von Moltke, 332 U.S. at 724. The petitioner
has established on the record as a whole that the guilty
plea was not valid. The conviction can not stand.

ili. Juvenile Proceedings

Petitioner next claims that the procedures by
which he was ordered to be tried as an adult violated

argues that the claim is procedurally barred and is not
an issue for federal habeas review, but merely a
challenge to state law procedures for certification of
juveniles.

A. Procedural Bar

The state relies on the Missouri Supreme Court's
holding that the claim was defaulted because petitioner
did not challenge the certification in the state circuit
court requesting dismissal of the information or seeking
remand to the juvenile court. Wilkins, 802 S.W.2d at
496-97. A habeas petitioner's failure to comply witha —
State procedural requirement may bar federal review of
the merits if the state bar is "independent and
adequate", unless the petitioner shows "cause and ;
prejudice” for the default or a fundamental miscarriage -
of justice. Wainwright v. Sykes, 433 U.S. 72 (1977). A
State procedural rule is not adequate to bar federal
relief if the petitioner was acting pro se at the time of
the default and did not make a knowing and intelligent
waiver of rights. See e.g., Cooper v. Griffin, 455 F.2d
1142 (5th Cir. 1972). The Missouri rule barring a
challenge to the certification procedures when a guilty

73

Pn

plea is entered in circuit court does not apply if the
guilty plea was not valid. See State v. Simpson, 836
S.W.2d 75 (Mo. App. 1992). Whether a state
socadaiel aie tesainnsintn Rallies
issue of federal law, to be decided by the tom wy Mote
Williams v. Lockhart, 873 F.2d 1129, 113 pene
1989). Wis reer on echoes Sa caotte of the claim

B. Merits

later, however, that other important records were
missing. In light of this history, counsel requested the

scope and nature of petitioner's problems. (Cir. Ct. Tr.
at 464-467).

The adequacy of notice and need for the mental
evaluation are issues which implicate due process
concerns. The portions of the juvenile file that were
available revealed a significant history of mental
problems which suggests the need for further
evaluation. Given the seriousness of the charges and
petitioner's history of mental illness, the notice to
counsel does not seem sufficient to give petitioner the
benefit of the adversarial process. See Lankford v.
Idaho, 114 S.Ct. 1723, 1733 (1991).

However, in order for petitioner to prevail on this
due process claim, he must prove that, under the
totality of circumstances, the errors were so prejudicial
they rendered the entire proceeding fundamentally
unfair. See e.g., Donnelly v. DeChristoforo, 416 U.S.
637 (1974). Petitioner has made no showing that the
outcome of the juvenile proceeding would have been
any different if counsel had been given additional time
to prepare or if a mental evaluation had been ordered.
There is no indication that the juvenile court would not
have still waived its jurisdiction. Without such proof of
prejudice, the claim must be denied.

IV. Conflict of Interest — Prosecutorial Misconduct

Petitioner next asserts that his right to due
process of law was violated because the prosecutor,
Larry Harmon, had previously represented him in a
juvenile case, failed to disclose that prior representation
to counsel or the court and used confidential information
in prosecuting the case. The state argues that the
issue is procedurally defaulted and without merit.

76

A. Procedural Bar

The Missouri Supreme Court denied this claim on
the basis of a procedural bar, stating that the issue was
not timely presented in petitioner's first motion for
postconviction relief. Wilkins, 802 S.W.2d at 504.
Petitioner did raise the issue in a second amended
motion filed outside ofthe time limits in Rule 24.035,
" “but the court refused to consider the merits, holding that
the limitation period was mandatory and could not be
extended. Id. citing White v. State, 779 S.W.2d 571,
572 (Mo. 1989).

A federal habeas court may consider the merits
of a petitioner's procedurally defaulted claims if the
petitioner establishes both cause for the prejudice from
his default. Wainwright v. Sykes, 433 U.S. at 87; Engle
v. Isaac, 456 U.S. 107, 126-130 (1982). To establish
Cause, petitioner must show that "some objective factor
external to the defense impeded counsel's efforts to
comply with eh State procedural rule." Murray _v.
Carrier, 477 U.S. 478, 488-89 (1986). Proof that the
factual basis for the claim was not reasonably available
to counsel or that the interference by state officials
made compliance impracticable are examples of such
factors. Amadeo v. Zant, 486 U.S. 214, 222 (1988);
Parkus v. Delo, 33 F.3d 933, 938 (8th Cir. 1994); Bliss
v. Lockhart, 891 F.2d 1335, 1341 (8th Cir. 1990).

Petitioner has established cause for his default
because the factual basis for his claim was not
available to counsel at the time that the first amended
postconviction motion was filed on August 30, 1988.
Counsel learned for the first time on April 19, 1989 that
Mr. Harman had represented petitioner in juvenile court
Proceedings. On that date, postconviction counsel

77

found an order from the Juvenile Court, dated 1979,
committing petitioner to the Department of Mental
Health for psychiatric treatment, which listed Mr.
Harman as his attorney. Apparently there is no other
record of Mr. Harman's representation because the
Juvenile Court file and the Clay County Public Defender
file had both been destroyed.

Mr. Harman did not disclose this conflict of
interest to the court or to counsel, and counsel could
not otherwise reasonably have know: of the
prosecutor's prior relationship with petitioner. The
record shows that in August, 1985, Mr. Duchardt had
asked the Western Missouri Mental Health Center for
copies of all records on petitioner, but was told by a
clerk on August 21, 1985 that none were available.
Postconviction counsel began requesting files from the
Mental Health Center shortly after being appointed in
1988, but no records were found until April 19, 1989,
when a records supervisor searched in the basement
files.

When postconviction counsel learned of Mr.
Harman's prior involvement with petitioner, he
immediately filed the second amended Rule 24.035
motion alleging that Mr. Harman's prosecution of his
former client was a conflict of interest that violated due
process. After the Missouri Supreme Court refused to
consider the merits of the claim on the Rule 24.035
appeal, the issue was presented to that court in a
Petition for Writ of Habeas Corpus filed under Missouri
Supreme Court Rule 91, with supporting proof. Under
these circumstances, factors external to the defense
prevented the discovery of the only existing document
showing Mr. Harman's prior representation. See
Amadeo, 486 U.S. at 222; Parkus, 33 F.3d at 938.

78

Petitioner did all he could to exhaust the claim in the
State court. Principals of comity and federalism are not
offended. There is cause to overcome the procedural
bar.

B. Merits

As a public defender in 1979, Mr. Harman
represented petitioner, then age ten, on a burglary
charge in the juvenile court. Petitioner's mental
condition was a key issue in those proceedings. A
number of confidential psychiatric reports were made
which included sensitive personal data about petitioner
and information about his attempt to poison his mother
a year earlier. The records included opinions by mental
health professionals that petitioner was severely
depressed and had suicidal and homicidal impulses.
The outcome of the 1979. matter was that Mr. Harman
Stipulated to petitioner's commitment to the Division of
Mental Health.

Six years later, as the lead prosecutor on this
case, Mr. Harman actively sought a conviction and the
death penalty for his former client. There is no question
that the prosecutor remembered the earlier
representation. On August 14, 1385, the day before the
juvenile certification hearing, Mr. Harman requested an
advisory opinion on the matter from the Missouri Bar
Advisory Committee.*’ The Committee's response,
dated August 29, 1985, stated:

‘The exact content of Mr. Harman's letter to
the Advisory Committee is not clear. The state has
not provided a copy of the document to this Court.

79

ii |

lt is the opinion of the Advisory
Committee that there would be no conflict
of interest for you to prosecute a criminal
case against an individual whom you
represented in an unrelated juvenile court
matter in 1979. This assumes that no
information was obtained at the time of
the earlier representation which would be
used against the defendant in the course
of this prosecution.

(Exhibit 23) (emphasis added). The state contends that
this answer constitutes a finding that there was no
conflict of interest and that the prosecutor violated no
ethical rule. This Court is not convinced. The
Committee's response is generic and does not refer to
any specific circumstances in this case. Under the facts
in the record as a whole, the assumption that the
matters were “unrelated” or that information obtained in
the earlier representation would not be used in the
prosecution of Mr. Wilkins is refuted. It is presumed
that an attorney received confidential information in the

course of representing a ciient. United States v.
Shepard, 675 F.2d 977 (8th Cir. *982).

The Missouri disciplinary rules, also adopted in
this federal district, restrict an attorney's employment
adverse to a former client.” Rule 1.9 is derived from

“Rule 1.9 provides:

Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a
matter shall not thereafter:

(a) represent another person in the same or a
substantially related matter in which that person's
interests are materially adverse to the interests of the

80

counsel's duty to preserve the confidences of his client
in order to preserve the integrity of the adversary
System. As a prosecutor, however, Mr. Harman also
had additional ethical obligations. “The responsibility of
@ public prosecutor differs from that of the usual
advocate; his duty is to seek justice, not merely to
convict." Young v. United States, 481 U.S. 787, 802
(1987) quoting Ethical Consideration (EC) 7-13 of
Canon 7 of the American Bar Association Mode! Code
of Professional Responsibility (1982). See also Berger
v. United States, 295 U.S. 78 (1938) and EC 5-15 (if
there is a possible conflict of interest, lawyer "should
resolve all doubts against the propriety of the
representation"); EC 906 (lawyer has duty to avoid “not
only professional impropriety but aiso the appearance
of impropriety”).

Concerns for potential misconduct in this setting
are not merely speculative. In Young, 481 U.S. at 807,
the Supreme Court noted that “an arrangement
represents an actual conflict of interest if its potential for
misconduct is deemed intolerable. The determination
whether there is an actual conflict of interest is therefore
distinct from the determination whether that conflict
results in any actual misconduct.”

The question for this Court, however, is not
whether the prosecutor's actions violated the ethical
code. Habeas corpus relief is available only where

former client unless the former client consents after
consultation; or

(b) use information relating to the representation to
the disadvantage of the former client except as Rule
1.6 would permit with respect to a client or when the
information has become generally known.

81

there are errors of constitutional magnitude. Cupp v.
McNaughten, 414 U.S. 141, 146 (1973); Newlon v.
Armontrout, 885 F.2d 1328, 1336 (8th Cir. 1989).
Petitioner asserts that the prosecutor's failure to
disclose his prior representation to the trial court or to
counsel! violated the due process protections of the
United States Constitution.

it is well-settled that a fair trial in a fair tribunal is
a basic requirement of due process. In re Murchison,
349 U.S. 133, 136 (1955); Tumey v. Ohio, 273 U.S.
510, 523.(1927). There is a constitutional violation of
due process when an attorney represents a client and
then participates in the prosecution of that client in the
same matter or another matter with a substantial
relationship to the first. See United States v. Schell,
775 F.2d 559, 566 (4th Cir. 1985); United States v.
Wilson, 497 U.S. 602 (8th Cir. 1974); Smith v. Whatcott,
757 F.2d 1098 (10th Cir. 1985). "The right to due
process and a fair trial include the essential element
that there is no unfair advantage to the prosecution by
reason of a prior professional relationship between [the
prosecutor] and a criminal defendant concerning the
same or closely related matter." See State v. Boyd,
560 S.W.2d 296 (Mo. App. 1977).

The threshold question then is whether the
prosecution for the murder of Nancy Allen had a
substaniial relationship to the juvenile court matter in
1979. The applicable test is that described in Arkansas

v. Dean Foods Products Co., 605 F.2d 380 (8th Cir.
1979) overruled on other grounds in In re Multi-Piece

Rim Products Liability Litigation, 612 F.2d 377, 378
(1980):

82

aa |

;
;

The former client need show no more
than that the matters embraced within the
pending suit wherein his former attorney
appears on behalf of his adversary are
Substantially related to the matters or
cause of action (where) the attorney
previously represented him, the former
Client. The Court will assume that during
the course of the former representation
confidences were disclosed to the
attorney bearing on the subject matter of
the representation.

Dean Foods, 605 F.2d at 383.

Under the law of this Circuit, "the attorney-client
relationship raises an irrefutable presumption _ that
confidences were disclosed." id. at 384. If there was
@ substantial relationship between the two matters, and
if the prosecutor will be called on to use against his
former client any confidential knowledge gained through
their former association, then there is prejudice

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1068%3A2. Public record. Not legal advice.