Opposition Brief — Sanchez-Velasco v. Florida

Supreme Court, U

CASE NO. 97-1702

IN THE UNITED STATES SUPREME COURT

October Term 1997

RIGOBERTO SANCHEZ-VELASCO,

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

RANDALL SUTTON

Assistant Attorney General

Florida Bar No. 0766070

Office of the Attorney General

Rivergate Plaza -- Suite 950

444 Brickell Avenue

Miami, Florida 33131

(305) 377-5441

QUESTIONS PRESENTED

(Restated)

[Capital Case]

I.

Whether counsel, who has been discharged, has

standing to file proceedings on behalf of the nominal

petitioner, who has been determined to be competent,

and who has not assented to this proceeding?

II.

Whether former counsel’s claims regarding Mr.

Sanchez-Velasco’s waiver of counsel present a

question of federal law, where he had no federal

constitutional right to counsel and where his claim is

premised only upon the assertion that the state-court

factual finding of competence that was supported by

the opinions of ten (10) expert witnesses is incorrect?

TABLE OF CONTENTS

Page

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SAREE PEPE in 65 Se he BRST ili-vi

Se I 5 5S Ee i Se ee ee a 1

PE ov baw oe EL ON BOR we eee be ees 1

CONSTITUTIONAL PROVISIONS INVOLVED .......... 2

STATEMENT OF THE CASE AND FACTS ........... 2-13

REASONS FOR DENYING THE WRIT ............... 14

I. MR. BOWEN LACKS STANDING TO

FILE PROCEEDINGS ON BEHALF OF

THE NOMINAL PETITIONER, WHO HAS

BEEN DETERMINED TO BE

COMPETENT, AND WHO HAS NOT

ASSENTED TO THIS PROCEEDING. ... 14-17

II. MR. BOWEN’S CLAIMS DO NOT

PRESENT A QUESTION OF FEDERAL

LAW, WHERE HIS ONLY CHALLENGE

IS TO THE STATE-COURT FACTUAL

FINDINGS REGARDING THE WAIVER

CP A Dera ee. kia Se HSS SSA 8s 18-27

ee Pe rr Pre rrr Pe te a 28

ii

cinimumdiatninan

TABLE OF AUTHORITIES

CASES PAGE

es im

Ee a 20

california Retail Liquor Del

i ama rea sea 20

carne ase cae Cir.),

Get. Geeees, 497 U.S. 1053 (1990)... we cee 18,25

copap aco precerame signe Ae are i ten aloes Klutdner ee ld 18,19

ee. 9

ee 2

Copsageremp aga Se kh kh Re ee 16,17,19,20,21,23,26

Cs 7

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CASES PAGE

Farr v. State,

COG ae, oe Se oc oe ee ee 15

Godinez v. Moran,

ee ae EE <b ei be ee Oe eee 18,19,21

Griffin v. Lockhart,

Pe ee ROD ib va Reet eee eee aes 25,26

FF » %. 2: a Ae...) Saar anieraenrm CO Ae meer tes h 23

Hunter v. State,

660 So. 2d 244 (Fla.1995),

onst, Gemed, 1165. Ct. S46 (1996) ww ees 12,20

Lenhard v. Wolff,

Sy are Be OE os ER pie ewe Sloe eee 24

Maggio v. Fulford,

SUE 30 ee 2 i he eee ee 19

Medi California

See Bic SET CEE eek skied enn nee eee Den oe 21,26

59 F.3d 1095 (11th Cir 1995),

geet meeeee 116 &. C2. Soe es sew whet eeee ces 23,25

Muhammad y. State,

494 So. 2d 969 (Fla. 1986),

Cot, sop. 4To US. ERG (ISBT) 8 oh kn hee cd Ru 21

Gee trae re Ce ew ein ct enec see 18,19

iv

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CASES PAGE

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Maumee eee 4,15

we etek a eae 16,17,20,21

Prey eR se eae 20

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cert, denied, 498 U.S. 905 (1990) .............-...-. 26

Ree ee 96

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nk Medel 16704 4. OUT)... ou 26

CASES PAGE

Watts v. State,

593 So. 2d 198 (Fla.),

i rn re ae SEO ChWeRy 6 he eee eee es 21

Whitmore v. Arkansas,

wy ea eal 14,15,16,17,21

OTHER AUTHORITY

0 Se a 6 a0 co pa ee ohare wrk bens 19

Te I eos hein e's VS see 9 wa ues 20

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nee RT CE COTTE

CASE NO. 97-1702

IN THE UNITED STATES SUPREME COURT

October Term 1997

RIGOBERTO SANCHEZ-VELASCO,

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent.

OPINION BELOW

The decision from which Petitioner seeks to invoke the

discretionary review of this Court is reported as Sanchez-Velasco v.

State, 702 So. 2d 224 (Fla. 1997). Parallel citation will be made to

the opinion as published in the appendix to the petition, thus: “Pet.

PO on,

JURISDICTION

The Petition claims jurisdiction pursuant to 28 U.S.C.

§1257(a). Respondent submits that because Mr. Bowen was dismissed

as counsel in the state trial court, and has failed to demonstrate that the

nominal petitioner, Mr. Sanchez-Velasco, desires that this petition be

pursued, and has also failed to establish any basis for standing to bring

this petition as a “next friend,” the Court is without jurisdiction.

CONSTITUTIONAL PROVISIONS INVOLVED

The issues presented in this capital case allegedly involve the |

Sixth, Eighth, and Fourteenth Amendments to the United States |

Constitution. |

STATEMENT OF THE CASE AND FACTS

The Florida Supreme Court set forth the following facts

regarding Defendant’s crime and the trial proceedings in the opinion

under review:

In summary, Sanchez-Velasco resided with Marta

Molina in Hialeah. On December 12, 1986, Molina

left her eleven-year-old daughter in the care of

Sanchez-Velasco. Molina returned home from work

that evening to find that her daughter had been

murdered. Sanchez-Velasco was not at the

apartment. The victim’s face was swollen, and she

was naked and bleeding from her vagina. A medical

examination concluded that the victim was raped and

that strangulation was the cause of her death. Missing

from Molina’s apartment were the victim’s gold

chains, her identification bracelet, and Molina’s fur

coat. Sanchez-Velasco was located by the police and

questioned about the murder. Following proper

Miranda warnings, Sanchez-Velasco confessed to

robbery, rape, and murder. Sanchez-Velasco also

remarked that he would prefer to be executed

immediately rather than “rot in jail.” The jury found

Sanchez-Velasco guilty of first-degree murder, sexual

battery of a victim under twelve years of age, and

theft as a lesser included offense of grand theft. Upon

the conclusion of the penalty phase, the jury

recommended the death penalty by a vote of eight to

four, and the judge imposed a sentence of death for

the first-degree murder conviction.

rn RR eT a Ro.

In his sentencing order, the trial judge found

the following two aggravating circumstances: (1) the

capital felony was especially heinous, atrocious, or

cruel, and (2) the capital felony was committed while

the defendant was engaged in the commission of a

sexual battery. The judge found no statutory or

nonstatutory mitigating circumstances. The judge

explained in his order why he did not find

Sanchez-Velasco’s mental condition to be a mitigating

circumstance.

Sanchez-Velasco v. State, 702 So. 2d 224, 225 (Fla. 1997)(footnote

omitted)[Pet. App. 3-4]. On direct appeal, Mr. Sanchez-Velasco had

raised six issues, all of which the Florida Supreme Court found io be

without merit. Sanchez-Velasco v. State, 570 So. 2d 908, 916 (Fla.

1990). Mr. Sanchez-Velasco sought certiorari review of that decision,

which was denied on May 13, 1991. Sanchez-Velasco v. Florida, 500

U.S. 929 (1991).

In the opinion under review, the Florida Supreme Court also

noted that Mr. Sanchez-Velasco had been unanimously adjudged

competent by several mental health professions during his trial:

Sanchez-Velasco’s competency to stand trial

and waive certain rights was evaluated numerous

times during the proceedings below. A pretrial ies

mental health examination demonstrated that

Sanchez-Velasco was competent at the time of the

crime and competent to stand trial. A competency

evaluation ordered by the trial judge during the trial

again demonstrated that Sanchez-Velasco was

competent to stand trial. During the penalty phase, a

defense psychiatrist testified that Sanchez-Velasco

suffered from an emotional disturbance, but was

legally sane. Prior to sentencing, a second defense

psychiatrist testified that Sanchez-Velasco possibly

suffered from a neuropsychological dysfunction, but

was legally competent at the time of the examination.

By the conclusion of the trial, Sanchez-Velasco had

3

Fe ee ee ee ee ee ee

been examined by no less than eight mental health

experts, all of whom found him to be competent to

proceed.

Sanchez-Velasco, 702 So. 2d at 225-26 [Pet. App. 4].

On May 13, 1993, Mr. Sanchez-Velasco, through counsel,

and filed a Motion to Vacate Judgment of Conviction"ind Sentence,

asserting sixteen claims. In relation thereto Defendant was examined

by two doctors hired by his post-conviction counsel. The Florida

Supreme Court noted their findings in the opinion under review:

In support of the rule 3.850 motion, the defense

retained Dr. Jorge Herrera and Dr. Alec Whyte to

evaluate Sanchez-Velasco. Drs. Herrera and Whyte

determined that Sanchez-Velasco suffered from

significant psychological disorders. The defense

planned to present the doctors’ testimony at the rule

3.850 hearing to rebut the previous competency

determinations.

Sanchez-Velasco, 702 So. 2d at 226 [Pet. App. 5]. The court also

noted that Mr. Sanchez-Velasco had been examined in another then-

pending murder case:

During this same time period, Sanchez-Velasco

underwent a competency evaluation by Dr. Richard

Greer in connection with a separate murder trial in

Broward County. Dr. Greer found Sanchez-Velasco

competent in that case to represent himself and enter

a guilty plea.

Id.'

The opinion contains a typographical error: the record reflects

that Mr. Sanchez-Velasco was facing charges in Bradford, not Broward,

County.

On March 31, 1994, and again on April 28, 1994, Mr.

Sanchez-Velasco wrote to Florida Governor Lawton Chiles, requesting

that no further appeals be undertaken on his behalf. (S.R. 10-12).

Circuit Judge Thomas Wilson thereafter had three experts appointed

to examine Mr. Sanchez-Velasco for competency, and set the matter

for hearing on May 19, 1994. (R. 13). On that date, Mr. Sanchez-

Velasco’s brother, Fernando Sanchez, through Mr. Bowen, filed a

petition in the Florida Supreme Court “as next friend” seeking to stay

the proceedings “and all further proceedings which will expedite his

execution.” (Petition for Writ of Prohibition at 6-7). The Florida

Supreme Court denied the petition on May 20, 1994. Sanchez v.

Wilson, 639 So. 2d 980 (Fla. 1994). On May 23, 1994, Mr. Sanchez-

Velasco withdrew his initial request to waive post-conviction

proceedings.* (R. 763). On June 6, 1994, Judge Wilson recused

himself and Judge Leonard Glick was assigned the case. (R. 13). On

June 20, 1995, Mr. Sanchez-Velasco again wrote to the Governor,

seeking to waive his post-conviction proceedings. (R. 776). On

October 3, 1995, the trial court granted the State’s motion to have Mr.

Sanchez-Velasco colloquied on the issue. (1995 T. 4). On October

16, 1995, Mr. Sanchez-Velasco’s counsel filed a petition for

extraordinary relief in the Florida Supreme Court, seeking to prevent

the colloquy. The petition was denied. Sanchez-Velasco v. Glick,

666 So. 2d 144 (Fla. 1995). On October 17, 1995, the trial court

went forward with the colloquy of Mr. Sanchez-Velasco. (1995 T. 5,

9). After Mr. Sanchez-Velasco repeatedly declined to respond to a

question propounded by him, Judge Glick concluded that Mr.

Sanchez-Velasco was not “sincere” in his desire to waive his post-

conviction appeals, and ordered the State to file a response to the Fla.

R. Crim. P. 3.850 motion. (1995 T. 16-20, 22). After noting these

proceedings the Florida Supreme Court concluded “that

Sanchez-Velasco’s own attorneys endeavored to ensure that none of

the requests [by Mr. Sanchez-Velasco to waive collateral appeals]

: Mr. Sanchez-Velasco subsequently explained that he

withdrew the request to dismiss the motion at that time because when he was

brought to Miami, his attorneys “surrounded him” with his entire family

“young and old,” who begged him to change his mind about giving up his

appeals. (1995 T. 12).

were honored.” Sanchez-Velasco, 702 So. 2d at 226 [Pet. App. 6].

On December 6, 1995, pursuant to a defense motion, Judge

Glick recused himself. (R. 786, 842). Judge Victoria Platzer was

assigned to the case. After the State filed its response, and the defense

filed a reply, Judge Platzer held a hearing on August 29, 1996, and

entered orders granting an evidentiary hearing as to two of the R.

3.850 claims and summarily denying the remainder. Sanchez-

Velasco, 702 So. 2d at 226 [Pet. App. 5]. Prior to the scheduled

evidentiary hearing, however Mr. Sanchez-Velasco again sought to

discharge counsel:

On October 24, 1996, Sanchez-Velasco moved to

discharge his post-conviction counsel, Michael

Bowen. Sanchez-Velasco claimed that Bowen could

not effectively represent him because Bowen had only

minimal contact with him, was not familiar with

Florida law, and primarily practiced civil law.

Sanchez-Velasco referred to Bowen as his “enemy,”

and asked the judge to force Bowen to stay at a

distance from him ‘before a misfortune could take

place.” Sanchez-Velasco also sought to have his rule

3.850 motion withdrawn and his execution expedited.

Id. The Florida Supreme Court detailed the subsequent proceedings

in the opinion under review:

Immediately following Sanchez-Velasco’s

motion, the trial judge questioned Bowen and

determined that he was not ineffective in his

representation. The judge then told Sanchez-Velasco

that she would not appoint another attorney to

represent him, and that he could either represent

himself or continue with Bowen as his attorney.

Sanchez-Velasco responded, “The reason I’m here

right now is because I don’t need an attorney. I don’t

want him, nor do I want any other attorney, nor have

I asked the Court for another attorney.” The judge

stated, “He appears very intelligent to me,” but

6

ordered an emergency competency evaluation before

she ruled on whether Sanchez-Velasco could represent

himself and waive his appeals. The next day, Dr.

Sonia Ruiz personally interviewed and evaluated

Sanchez-Velasco.

702 So. 2d at 226 [Pet. App. 7]. Dr. Ruiz issued a four-page, single-

spaced report. The Florida Supreme Court quoted from her

summarized conclusions:

It is this evaluator’s opinion that this

defendant is fully competent to

proceed. He has a factual and

rational understanding of the

proceedings. He has sufficient

present ability to consult with his

lawyer with a reasonable degree of

rational understanding. He

appreciates the possible consequences

of his decisions. He has the ability to

manifest appropriate courtroom

behavior. He has the capacity to

testify relevantly in his behalf. There

is no major mental illness noted. No

overt thought disorder was present at

the time of this examination. The

defendant does not appear to suffer

from a major mood disorder, such as

major depression. He has no

cognitive deficits. There are no

apparent neurological deficits. His

thoughts are clear and related in a

coherent fashion. He did not express

any suicidal or homicidal ideations.

His affect and mood were deemed to

be appropriate. No major mental

illness or defect is deemed to be

present that could interfere with his

Capacity to reasonably assist counsel

7

or himself in his defense. No

psychiatric interventions are deemed

to be necessary at this time.

702 So. 2d at 226-27 [Pet. App. 7]. After Dr. Ruiz examined Mr.

Sanchez-Velasco, the trial judge again colloquied him, as set forth in

the opinion below:

On October 25, 1996, the trial judge

questioned Sanchez-Velasco to determine if he

understood the consequences of waiving his

post-conviction counsel and proceedings. The judge

explored Sanchez-Velasco’s age, education and

employment history. The judge asked if

Sanchez-Velasco understood that if he prevailed on

the rule 3.850 motion he would be entitled to a new

sentencing hearing. Sanchez-Velasco replied that he

understood. The judge explained that by withdrawing

the rule 3.850 motion his right to any further appeals

would be forever lost, and again recommended that

he represent himself or allow Bowen to represent him.

Sanchez-Velasco stated that he understood the judge

would not appoint another attorney for him, and that

he did not want Bowen to serve as his attorney.

Sanchez-Velasco then told the judge, “It’s my right to

represent myself and to withdraw my 3.850 motion.

And I hope that you grant it. It’s my own will, and

I’m competent to make my own decisions, and that

I’m thankful for your consent, but it’s my decision.”

702 So. 2d at 227 [Pet. App. 7-8]. As noted in the opinion, the trial |

judge then determined that the evidence showed Mr. Sanchez-Velasco |

to be competent to waive his counsel and collateral appeals:

On the basis of Dr. Ruiz’s evaluation, the

1995 evaluation by Dr. Greer, and the colloquy, the

trial judge found Sanchez-Velasco competent to

dismiss his counsel and withdraw his rule 3.850

motion. The judge’s order concluded as follows:

8

ee

The Court finds that the

8 Defendant is well-aware and fully

understands the consequences of his

actions. The Court further finds that

the Defendant has sufficient mental

Capacity, education and life

experience to appreciate the nature of

the proceedings and the consequences

of withdrawing the Rule 3.850 and in

representing himself.

The Court finds the

Defendant has freely, voluntarily,

knowingly and intelligently waived

his right to counsel for his collateral

appeal. The Court further finds the

Defendant, representing himself, has

intelligently and knowingly moved to

withdraw his Motion for

Post-Conviction Relief and that the

Defendant has the “right to control

his own destiny to whatever extent

remains.” Durocher v. Singletary,

623 So.2d 482 (Fla.1993), at 484.

Sanchez-Velasco, 702 So. 2d at 227 [Pet. App. 8].

Mr. Bowen appealed to the Florida Supreme Court, which

summarized his claims as follows:

Bowen, Sanchez-Velasco’s former counsel,

now appeals the trial judge’s order. Bowen claims

that Dr. Ruiz’s competency evaluation, upon which

the trial judge’s order was based in part, was facially

deficient and Sanchez-Velasco was actually

incompetent to represent himself and withdraw his

rule 3.850 motion. Bowen asserts that

Sanchez-Velasco’s competency was placed in

legitimate doubt at the hearing of October 24, 1996,

9

when he simultaneously demanded to (1) dismiss |

Bowen due to ineffectiveness in pressing his

post-conviction appeal and to (2) withdraw his

post-conviction appeal. Bowen contends that

Sanchez-Velasco’s incompetence is demonstrated by

the fact that his two demands are in diametric

contradiction. Bowen claims it was this contradiction

that likely prompted the trial judge to order

Sanchez-Velasco’s competency evaluation. Bowen

asserts that the report submitted by Dr. Ruiz was

insufficient because it failed to discuss or analyze this

evidence of Sanchez-Velasco’s incompetency. Bowen

concludes that the order of the trial court cannot be

sustained because it is based in part on the deficient

competency report.

702 So. 2d at 227 [Pet. App. 8-9]. The Florida Supreme Court found

these claims to be without basis:

We disagree that Dr. Ruiz’s report was deficient and

find no reasonable basis for any doubt concerning

Sanchez-Velasco’s competency to dismiss his attorney

and withdraw his post-conviction motion.

702 So. 2d at 227 [Pet. App. 9]. The court then reviewed its holding

in Durocher vy. Singletary, 623 So. 2d 482 (Fla. 1993), which

provided that when a capital defendant expresses a desire to dismiss |

collateral counsel and proceedings, the judge must conduct a “Faretta-

type evaluation” to ascertain whether the defendant understands the |

consequences of his request. Sanchez-Velasco, 702 So. 2d at 228

[Pet. App. 9-10]. The court further noted that a competency

evaluation was required only if, after inquiry, the trial court had

“doubt” as to the defendant’s competency. 702 So. 2d at 228 [Pet.

App. 10], citing Durocher, 623 So. 2d at 483. The court concluded

that the trial court had complied with Durocher:

The trial judge fully followed the procedure

outlined in Durocher in determining

Sanchez-Velasco’s competency to proceed.

10

er acct er ra ear aac

Following Sanchez-Velasco’s motion, the judge

thoroughly explored his education and experience,

and repeatedly stressed the implications of dismissing

his collateral appeal. The judge determined that

Sanchez-Velasco appeared to be “very intelligent”

and “very competent.” The record discloses that the

judge then ordered the competency evaluation, not

because she had a reasonable doubt as to

Sanchez-Velasco’s competency, but in an abundance

of caution because Sanchez-Velasco was requesting to

be put to death. The evaluation conducted by Dr.

Ruiz was comprehensive and responsive to the needs

of the trial court. Dr. Ruiz inquired about

Sanchez-Velasco’s childhood, education, employment

history, religious beliefs, criminal history,

relationship with his attorney, and decision to

expedite his execution. Dr. Ruiz concluded in the

report:

Overall, this defendant presents as an

individual who is fully competent to

proceed with legal matters. There is

no major mental disorder noted.

There is no thought disorder, nor any

major mood disorder evidenced at

this time. He is able to reason

properly, without any mental illness

or defect interfering with his capacity

to assist counsel or himself in his

defense.

Upon receiving the report, the judge stated

that Dr. Ruiz’s findings and conclusions supported

her own belief that Sanchez-Velasco was competent to

make his own legal decisions. Dr. Ruiz’s evaluation

was consistent with nine other competency

determinations. The judge’s determination of

competency was also supported by the fact that

Sanchez-Velasco arrived at the hearing with a

1]

presumption of competence attributable to the

previous determinations of his competency. See

Whitmore vy. Arkansas, 495 U.S. 149 (1990); Hunter

y. State, 660 So. 2d 244 (Fla.1995); Durocher, 623

So. 2d at 484. The judge then discharged Bowen as

Sanchez-Velasco’s counsel and dismissed the rule

3.850 motion.

Sanchez-Velasco, 702 So. 2d at 228 [Pet. App. 10-11]. The Florida

Supreme Court therefore rejected Mr. Bowen’s claim that Dr. Ruiz’s

report failed to address the purported contradictions between Mr.

Sanchez-Velasco’s claims:

We find that, to the extent such a contradiction may

exist, it does not in and of itself lead us to doubt

Sanchez-Velasco’s competence in the face of at least

ten evaluations determining him to be competent.

Our decision in Durocher requires a mental health

evaluation only when the Faretta-type evaluation

leaves the judge with doubts as to the defendant’s

competency. Here, the record discloses that the judge

had no such doubts but merely ordered the evaluation

in an abundance of caution. In effect, she was

making certain her conclusions were correct as well

as consistent with prior competency determinations.

Sanchez-Velasco, 702 So. 2d at 228 [Pet. App. 11-12]. The court

therefore affirmed the order of the trial court discharging Mr. Bowen

and dismissing his rule 3.850 motion. 702 So. 2d at 228 [Pet. App.

12).

On or about January 29, 1998, Mr. Bowen filed a petition for

writ of certiorari in this Court, seeking to proceed in forma pauperis.

No affidavit of indigency was filed, apparently because Mr. Sanchez-

Velasco declined to execute it.’ This Court therefore denied the

. See 45-6 of Mr. Bowen’s Motion to Direct Clerk to File

Request to Proceed in Forma Pauperis Without Petitioner’s Affidavit, dated

12

motion to proceed in forma pauperis on February 2, 1998. The instant

petition was then filed on or about April 10, 1998. The Court has

ordered the State to file its brief in opposition by June 16, 1998.

February 18, 1998.

13

REASONS FOR DENYING THE WRIT

I, MR. BOWEN LACKS STANDING TO

FILE PROCEEDINGS ON BEHALF OF

THE NOMINAL PETITIONER, WHO

HAS BEEN DETERMINED TO BE

COMPETENT, AND WHO HAS NOT

ASSENTED TO THIS PROCEEDING.

Il. MR. BOWEN’S CLAIMS DO NOT

PRESENT A QUESTION OF FEDERAL

LAW, WHERE HIS ONLY CHALLENGE

IS TO THE STATE-COURT FACTUAL

FINDINGS REGARDING THE WAIVER

OF A STATE RIGHT.

I.

MR. BOWEN LACKS STANDING TO FILE

PROCEEDINGS ON BEHALF OF THE

NOMINAL PETITIONER, WHO HAS BEEN

DETERMINED TO BE COMPETENT, AND

WHO HAS NOT ASSENTED TO THIS

PROCEEDING.

In Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), this

court held that before the merits of an issue may be considered, the

“litigant must clearly and specifically set forth facts sufficient” to show

that the litigant has standing. Further, the Court “is powerless to

create its own jurisdiction by embellishing otherwise deficient

allegations of standing.” Whitmore, 495 U.S. at 155-56. Mr. Bowen

prefaces his petition with a plain statement that it is he, not the

nominal petitioner, Mr. Sanchez-Velasco, who is seeking review:

Michael Bowen, as special appointed post-

conviction counsel for Rigoberto Sanchez-Velasco,

movant, in the trial court and appellant in the Florida

Supreme Court, respectfully petitions this Court ...

14

|

|

|

|

.

(Pet. 1).* Despite his self-characterization as appointed counsel, Mr.

Bowen was in fact discharged of his duties as counsel in the state trial

court, and that order was affirmed on appeal by the Florida Supreme

Court. Mr. Bowen wholly fails to even allege any basis for his

continued “representation” of Mr. Sanchez-Velasco. At best, then,

Mr. Bowen is filing this petition as “next friend.” Yet he proffers no

grounds upon which such status might be conferred. Thus, there are

no “allegations of standing” upon which this Court could “embellish”

even were it authorized to do so. Under Whitmore, it follows that Mr.

Bowen has no standing to prosecute the instant petition.

Whitmore is factually quite similar to this case. To the degree

the cases differ, the instant case presents a more compelling basis for

rejecting Mr. Bowen’s petition.’ In Whitmore, the defendant,

Simmons, was convicted and sentenced to death. At the time of

sentencing, Simmons professed a desire to waive all appeals. Pursuant

to established state procedure, the trial court conducted a competency

evaluation and determined that Simmons’s waiver was knowing and

intelligent. No direct appeal was taken to the Arkansas Supreme

Court beyond review of the adequacy of the waiver inquiry. The

inquiry was found valid by that court, and Whitmore, as “next

friend,” sought certiorari review in this Court.

. As noted in the statement of the case, there is further

evidence of Mr. Bowen’s role as an intermeddler in Mr. Sanchez-Velasco’s

apparent refusal to execute an IFP affidavit.

: Unlike in Arkansas, direct appeal of a death sentence may not

be waived in Florida. Farr v, State, 656 So. 2d 448, 450 (Fla. 1995). While

in Whitmore the defendant had waived his right to direct appeal, here, Mr.

Sanchez-Velasco’s conviction and sentence of death have already been

challenged on direct appeal. The Florida Supreme Court reviewed the

proceedings and record and determined them to be valid. Sanchez-Velasco v.

State, 570 So. 2d 908 (Fla. 1990). This Court declined to review that

determination. Sanchez-Velasco v. Florida, 500 U.S. 929 (1991). As such,

Mr. Bowen’s right to intervene for the purpose of carrying out another round

of assaults on presumptively valid conviction and sentence is even less

substantial.

15

In the case at bar, Mr. Sanchez-Velasco professed a desire

during the state-court post-conviction proceedings to waive any further

challenges to his conviction and sentence, and to discharge collateral

counsel. As in Whitmore, the trial court, following the established

state procedure for such cases,° conducted a competency evaluation

and determined that Sanchez-Velasco’s waiver was knowing and

intelligent. As in Whitmore, the Florida Supreme Court reviewed the

adequacy of the waiver inquiry, and found the waiver valid. Sanchez-

Velasco v. State, 702 So. 2d 224, 228 (Fla. 1997) [Pet. App. 12].

Now, as in Whitmore, Mr. Bowen, acting essentially as a purported

“next friend,” seeks certiorari review in this Court. For the reasons

expressed in Whitmore, the petition should be denied.

In Whitmore, the court noted that in the habeas context, next

friend” status “is by no means granted automatically to whomever

seeks to pursue an action on behalf of another.” 459 U.S. at 163.

Rather, there must be some significant relationship between the next

friend and the real party in interest, and the next friend has the burden

“clearly to establish the propriety of the status and thereby justify the

jurisdiction of the court.” 459 U.S. at 164. These requirements exist

to prevent the filing of federal claims by “intruders or uninvited

meddlers.” Jd. Without deciding whether next-friend status was ever

available absent statutory authorization, the Court concluded that any

common-law right to such status would not be any broader than that

permitted in the habeas context. 495 U.S. at 164-65. As such, one

seeking the status may proceed only on a showing that “the real party

in interest is unable to litigate his own cause due to mental incapacity,

lack of access to court, or other similar disability.” 495 U.S. at 165.

In Whitmore, the Court concluded that the prerequisite for

standing was not met where the state-court hearing established that the

defendant had made a knowing, voluntary and intelligent waiver of his

right to proceed. The Court noted that Arkansas required a

competency hearing as a matter of state law. The Court further

. See Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993).

16

eT

observed that the state supreme court had affirmed the trial court’s

finding that the defendant was competent, and declined to disturb that

judgment, despite counsel’s claim that the waiver was invalid. Id,

The Court therefore dismissed the petition for lack of standing. 495

U.S. 166.

As in Whitmore, the trial court here conducted a competency-

to-waive inquiry pursuant to state law. As in that case, the trial

court’s determination was affirmed over counsel’s claim that the

waiver was invalid.’ And, as in that case, there is no basis to disturb

the state court findings that Mr. Sanchez-Velasco was competent to

waive any further remedies.* As Defendant is competent, Mr. Bowen

lacks standing,’ and this petition should be dismissed.

7

The State did not challenge Mr. Bowen’s standing to bring

the appeal in the Florida Supreme Court, despite his dismissal as counsel at that

point because the procedure dictated by that court in Durocher appears to

contemplate review of the waiver proceedings. Neither the state-court

procedures nor the State’s acquiescence to Mr. Bowen’s “representation” of

Mr. Sanchez-Velasco in a state proceeding can confer jurisdiction on this

Court, however. Notably, in the opinion of which he seeks review, Mr.

Bowen is referred to as “former counsel” by the Florida Supreme Court.

Sanchez-Velasco, 702 So. 2d at 227 [Pet. App. 8}.

See Point II, infra.

There has also been no showing that Mr. Bowen possesses

some “special relationship” with Mr. Sanchez-Velasco justifying his self-

anointed role as next friend.

17

Il.

MR. BOWEN’S CLAIMS DO NOT PRESENT A

QUESTION OF FEDERAL LAW, WHERE HIS

ONLY CHALLENGE IS TO THE STATE-

COURT FACTUAL FINDINGS REGARDING

THE WAIVER OF A STATE RIGHT.

Assuming, arguendo, that Mr. Bowen had standing to bring

this petition, his claims would be without merit. He fails to explain

how proceedings surrounding the waiver of counsel, in a context

where there is no federal constitutional right to counsel, could violate

Mr. Sanchez-Velasco’s federal constitutional rights. Even assuming,

arguendo, that the waiver implicated federal rights, Mr. Bowen raises

no objection to the legal premises applied by the court below. Rather,

his complaint is with the factual findings reached in the trial and

appellate state courts. Claims of this sort rarely present a basis for

review in this Court. Moreover, the substance of Mr. Bowen’s factual

claims, that Mr. Sanchez-Velasco was not competent to waive his

rights, is also without merit where ten experts have examined him and

determined him to be competent.

Mr. Bowen's entire argument is premised upon the notion that

the waiver of state-court post-conviction counsel is governed by the

Sixth Amendment of the United States Constitution. The soundness

of that premise is by no means apparent, and Mr. Bowen fails to cite

any authority supporting it.

This Court has held there is no federal constitutional right to

counsel in state-court post-conviction proceedings. Pennsylvania v.

Finley, 481 U.S. 551, 555-57 (1987); Coleman v. Thompson, 501

U.S. 722, 752 (1991)(no right to post-conviction counsel in capital

proceedings). In Finley, this court also rejected the contention that

once the state has granted such a right, the contours of that right are

dictated by federal law. 481 U.S. at 558-59. Moreover, in Coleman,

the court further clarified that where there is no Sixth Amendment

right to counsel, no claim predicated on the Sixth Amendment may be

asserted. 501 U.S. at 753. Mr. Bowen’s reliance on Godinez v.

Moran, 509 U.S. 389 (1993), is thus misplaced. The waiver-of-

counsel aspect of that case is squarely based upon Faretta v.

18

California, 422 U.S. 806 (1972), Godinez, 509 U.S. at 399, which in

turn rests on the Sixth Amendment. Faretta, 422 U.S. at 818.

Finally, in Finley, the Court concluded that where the right to

post-conviction counsel is created by a state, its courts are the sole

arbiters of whether the right had been satisfied. 481 U.S. 564.

Below, the Florida Supreme Court determined that the trial court had

properly complied with its holding in Durocher v. Singletary, 623 So.

2d 482 (Fla. 1993), which governs the waiver of post-conviction

capital counsel in Florida, in determining that Mr. Sanchez-Velasco

was Competent to waive Mr. Bowen’s assistance. Plainly no federal

question is presented, and the petition should be denied. Coleman.

501 U.S. at 729 (“this Court has no power to review a state law

determination that is sufficient to support the judgment”).

Even were a colorable Sixth Amendment issue presented, Mr.

Bowen does not fault the procedure prescribed by the Florida Supreme

Court in Durocher for determining the competence of a capital

defendant to waive collateral review of his sentence.'® Rather, his

complaint is that the state courts should not have credited the multitude

of experts who have examined Mr. Sanchez-Velasco and determined

him to be competent. This Court has traditionally granted great

deference to the states regarding the factual determination of

competence. See Demosthenes v. Baal, 495 U.S. 731, 736-37

(1990)(federal appellate court erred in reweighing evidence of

defendant’s competency to waive post-conviction remedies after state

court had found him competent); Maggio v. Fulford, 462 U.S. 111,

117-18 (1983)(federal appellate court erred in reweighing evidence of

defendant’s competency to stand trial after state court had found him

competent). Although these habeas cases involve the application of

the presumption of correctness under 28 U.S.C. §2254(d), they do

establish that competence vel non is an issue of fact. This court

generally defers to factual findings fairly supported by the record on

~ To the extent that he is claiming that the state-court procedure

was inadequate, that claim is still based upon a factual premise that was

rejected below: that there was a legitimate doubt as to Mr. Sanchez-Velasco’s

competency, as is discussed, infra.

19

direct review of state-court decisions as well. See Sup. Ct. R. 10(“A

petition for a writ of certiorari is rarely granted when the asserted

error consists of erroneous factual! findings or the misapplication of a

properly stated rule of law”); Arizona v. Fulminante, 499 U.S. 279,

287 (1991)(“We normally give great deference to the factual findings

of the state court”); Tison v. Arizona, 481 U.S. 137, 151 (1987)\(“We

take the facts as the [state] Supreme Court has given them to us”);

Barclay v. Florida, 463 U.S. 939, 947 (1983)(opinion of Rehnquist,

J.)Supreme Court’s review of state court findings under state law “is

iimited to the question of whether they are so unprincipled or arbitrary

as to somehow violate the United States Constitution”); California

Retail Liquor Dealers Ass'n. v. Midcal Aluminum, Inc., 445 U.S. 97,

111-12 (1980)(“we customarily accept the factual findings of state

courts in the absence of ‘exceptional circumstances’”); Exxon Co.,

U.S.A. v. Sofec, Inc., 116 S. Ct. 1813, 1819 (1996)(“A court of law,

such as this Court is, rather than a court for correction of errors in fact

finding, cannot undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and exceptional showing

of error”). Given the abundant evidence of competence, it cannot be

concluded that the Florida Supreme Court’s application of its rule in

Durocher was arbitrary. The petition thus fails to present any valid

basis for this Court to accept review.

At the time of his trial, Mr. Sanchez-Velasco was examined

by no less that 8 experts, none of whom was of the opinion that Mr.

Sanchez-Velasco was incompetent. Sanchez-Velasco, 702 So. 2d at

225-26 [Pet. App. 4]. The Florida Supreme Court also cited the

conclusion of competency of Dr. Richard Greer, Chief of the Division

of Forensic Psychiatry at the University of Florida, who had examined

Mr. Sanchez-Velasco in relation to his Bradford County case eleven

months before the Durocher hearing and specifically found him to be

competent. 702 So. 2d at 226, 227 [Pet. App. 5,8], (S.R. 17). In

view of the foregoing, Mr. Sanchez-Velasco plainly arrived at the

Durocher hearing with a presumption of competency. Sanchez-

Velasco, 702 So. 2d at 227 [Pet. App. 11]; Hunter vy. State, 660 So.

2d 244, 248 (Fla. 1995), cert. denied, 116 S. Ct. 946 (1996);

20

aerial

Durocher, 623 So. 2d at 484."" The Florida Supreme Court properly

concluded that nothing that had occurred in the trial court would have

caused a reasonable jurist to question Mr. Sanchez-Velasco’s

competence. As such, no further inquiry into Mr. Sanchez-Velasco’s

competency was required. See Durocher, 623 So. 2d at 485

(mandating a competency hearing only if a question arose in the

judge’s mind as to the defendant’s competency); Drope v. Missouri,

420 U.S. 162, 180 (1975)(requiring inquiry only where circumstances

create “sufficient doubt” as to defendant’s competency); Godinez v.

Moran, 509 U.S. at 398 (the level of competence required to waive

counsel is the same as that required to stand trial). Nevertheless,

despite her own expressed lack of doubt as to Mr. Sanchez-Velasco’s

competence, Sanchez-Velasco, 702 So. 2d at 228 [Pet. App. 10], the

trial judge, in an abundance of caution, had Mr. Sanchez-Velasco

examined by yet a tenth expert, who also concluded that Mr. Sanchez-

Velasco was competent. With that opinion, combined with the court’s

own observations that Mr. Sanchez-Velasco appeared intelligent and

aware of what was going on, the court concluded he was competent.

702 So. 2d at 228 [Pet. App. 11]. This fully complied with both

Durocher and Drope.

In assessing competency, the question is whether the defendant

had a sufficient reasonable degree of rational understanding of the

proceedings. Godinez, 509 U.S. at 402 (“Requiring that a criminal

defendant be competent has a modest aim: It seeks to ensure that he

has the capacity to understand the proceedings”). Here, based upon

the reports of ten experts, as well as its own observations, the trial

court reasonably concluded that Mr. Sanchez-Velasco was competent.

The Florida Supreme Court’s own precedent requires that where the

trial court had the opportunity to observe the defendant’s behavior, to

review documents written by the defendant, and review the proffer of

expert evidence, the trial court’s finding of competency will not be

disturbed, absent evidence which “dispositively demonstrates”

incompetence. Muhammad v. State, 494 So. 2d 969, 972-73 (Fla.

1986), cert. denied, 479 U.S. 1101 (1987); Watts v. State, 593 So.

” Such a presumption does not violate the constitution. See

Whitmore; Medina v. California, 505 U.S. 437, 453 (1992).

21

2d 198, 201 (Fla.)(upholding finding of competency as not abuse of

discretion; noting that counsel never challenged qualifications of

experts below), cert. denied, 505 U.S. 1210 (1992). Mr. Bowen at no

point in the trial court challenged that conclusion beyond his assertion

that Mr. Sanchez-Velasco’s requests were contradictory. Nor did he

present evidence on appeal that “dispositively demonstrate[d]” that

Defendant was not competent.

Thus, Mr. Bowen’s central premise -- that Mr. Sanchez-

Velasco’s competency was “legitimately in doubt,” (Pet. 13), is

flawed. The only alleged evidence of incompetency cited by Mr.

Bowen is the purported contradiction between Mr. Sanchez-Velasco’s

assertion that Mr. Bowen was not competent and his desire to

terminate the proceedings. This alleged contradiction is not as

irrational as Mr. Bowen would portray it to be. The hearing in

question was the result of Mr. Sanchez-Velasco’s fourth request to

forego further proceedings. At the time of his initial request, Mr.

Sanchez-Velasco was returned to Dade County for the purpose of

determining his wishes. By Mr. Sanchez-Velasco’s own description,

his counsel then arranged to have all his family members, “young and

old,” surround him and persuade him, through emotion and guilt, to

withdraw his request to terminate his appeals. (1995 T. 12). At the

time of the second hearing regarding Mr. Sanchez-Velasco’s waiver

of his appeals, the VLRC attorneys filed a petition in the Florida

Supreme Court seeking to prevent the trial court from colloquying him

on the issue, and they and Mr. Bowen asserted that Mr. Sanchez-

Velasco was not competent. (1996 T. 15). The latter action was a

particular bone of contention Mr. Sanchez-Velasco had with Mr.

Bowen’s performance. (1996 T. 13). By the time of the hearing

under review, the VLRC lawyers had withdrawn from representing

Mr. Sanchez-Velasco due to their organization’s demise. (R. 884-87).

With the VLRC attorneys gone, the only impediment to Mr.

Sanchez-Velasco carrying out his desire to terminate the appeals

process was Mr. Bowen. Seeking to have Mr. Bowen discharged, on

whatever grounds were available, was therefore a rational way to

achieve his oft-stated goal of ending the post-conviction proceedings.

By all accounts, Mr. Sanchez-Velasco is intelligent, if unschooled in

the law. His complaints against Mr. Bowen were factually grounded,

22

if ultimately legally unsound.’? Tellingly, Mr. Sanchez-Velasco

concluded his complaints concerning Mr. Bowen with the assertion

that he wanted Mr. Bowen discharged and to waive his post-conviction

rights. (1996 T. 11). Upon the court’s suggestion that he consult with

Mr. Bowen prior to seeking to waive his appeals, Mr. Sanchez-

Velasco again asserted that he did not want or need an attorney:

THE DEFENDANT: I appreciate your honor’s

intentions, but the reason I’m here right now is

because I don’t need an attorney, J don’t want him.

nor do I want any other attorney. nor have I asked the

Court for another attorney.

(1996 T. 19)(emphasis supplied). Later, during the Durocher

colloquy, Mr. Sanchez-Velasco again asserted that he only wanted the

attorneys to leave him alone and let him die in peace. (1996 T. 40).

Rather than the contradiction Mr. Bowen asserts, Mr.

Sanchez-Velasco has consistently and repeatedly sought to waive his

appeals. His attorneys have just as consistently and repeatedly sought

to prevent that from happening. As such Mr. Sanchez-Velasco’s

attempt to get Mr. Bowen removed on the pretext of incompetence

was wholly consistent and reasonable. Likewise, Mr. Sanchez-

Velasco’s perception of Mr. Bowen, who has sought to thwart his

wishes at every turn, as his “enemy” is hardly remarkable. See also

Medina v, Singletary, 59 F.3d 1095, 1107 (11th Cir 1995)(bizarre or

irrational behavior cannot be equated with mental incompetence to

proceed), cert. denied, 116 S. Ct. 2505 (1996); Hernandez-

Hernandez _v. United States, 904 F.2d 758, 761 (Ist Cir.

1990)(rejecting argument similar to that presented by Mr. Bowen

ey Mr. Sanchez-Velasco asserted that Mr. Bowen was

unqualified because he was not admitted in the State of Florida, primarily

practiced civil law, lacked capital case experience, and had had little contact

with Mr. Sanchez-Velasco, the witnesses, or Mr. Sanchez-Velasco’s family.

(1996 T. 3, 9-10). The trial court rejected, upon Mr. Bowen’s responses, the

claim that Mr. Bowen was not competent. The factual bases of Mr. Sanchez-

Velasco’s claim were not refuted, only the legal conclusions. (1996 T. 14-18).

23

because it “would require a competency inquiry in virtually every case

in which an accused person makes a decision perceived by others as

being unwise”). Finally, to the extent Mr. Bowen is suggesting that

Mr. Sanchez-Velasco’s incompetency should be presumed from his

desire to forego further appeals, that notion has been squarely

rejected:

The idea that the deliberate decision of one under

sentence of death to abandon possible additional legal

avenues of attack on that sentence cannot be a rational

decision, regardless of motive, suggests that

preservation of one’s own life at whatever cost is the

summum bonum, a proposition with respect to which

the greatest philosophers and theologians have not

agreed and with respect to which the United States

Constitution by its terms does not speak.

Lenhard v. Wolff, 443 U.S. 1306, 1312-13 (1979)(Rehnquist, J.).

Nor do the cited reports of Drs. Whyte and Herrera meet Mr.

Bowen’s burden of dispositively demonstrating incompetence. First

of all, at no time during the proceedings below did Mr. Bowen call

them to the attention of the trial court. Moreover, these reports,

particularly given the ten disinterested expert opinions to the contrary,

are highly suspect. They alone of the opinions in the record were the

product of experts hired by Mr. Sanchez-Velasco’s post-conviction

counsel. Further, their analysis of Mr. Sanchez-Velasco’s competence

in no way addressed the specific criteria for competence set forth in

the Florida Rules of Criminal Procedure or Dusky v. United States,

362 U.S. 402 (1960). Rather, their conclusion that Mr. Sanchez-

Velasco was incompetent at the time of trial was based largely upon

their belief that Mr. Sanchez-Velasco was administered Thorazine on

a daily basis at the time of trial. There has been no suggestion

whatsoever that Mr. Sanchez-Velasco was being administered any

psychotropic medications at the time of the 1996 proceedings. Indeed,

Dr. Greer, who reviewed Mr. Sanchez-Velasco’s prison medical

records did not observe that Mr. Sanchez-Velasco was on any

24

medication at the time.'’ Further, these doctors’ conclusion that Mr.

Sanchez-Velasco suffered from various mental disorders (contrary to

the findings of the other, non-partisan, experts) is not in itself relevant

to the question of whether Mr. Sanchez-Velasco was competent.

Medina, 59 F.3d at 1107 (not every manifestation of mental illness

demonstrates incompetence; evidence must indicate present inability

to understand the charges to support finding of incompetence);

Coleman v., Saffle, 912 F.2d 1217, 1226 (10th Cir.)(no competency

hearing was required despite evidence of previous hospitalization and

mental illness where experts opined defendant was competent), cert.

denied, 497 U.S. 1053 (1990); United States v. Pryor, 960 F.2d 1,

2 (Ist Cir. 1992)(not determinative that defendant had drug problems

and psychiatric treatment in the past).

Both Dr. Whyte and Dr. Herrera further based their belief that

Mr. Sanchez-Velasco was incompetent upon Mr. Sanchez-Velasco’s

allegedly inappropriate courtroom behavior and disregard of counsel’s

advice. However, these factors, without more, also do not raise

questions sufficient to raise questions of mental competency. Neither

doctor persuasively related just how these alleged problems would

have prevented Mr. Sanchez-Velasco from being able to knowingly

and intelligently waive the right to counsel.

Finally, the cases upon which Mr. Bowen relies, in which no

competency evaluation was conducted, despite the issue of competency

having been raised, have no relevance to the issue Mr. Bowen posits.

For example, in Griffin v. Lockhart, 935 F.2d 926 (8th Cir. 1991),

habeas relief was granted where the defendant moved prior to

arraignment for a mental examination pursuant to Arkansas Statutory

provisions. The three doctors who examined the defendant were

unable to reach a consensus as to their conclusions, and recommended

further testing. Id. at 927-28. The defendant subsequently, against

~ Moreover, the defense experts’ belief that Mr. Sanchez-

Velasco was being medicated at the time of trial is not supported by any record

evidence beyond the affidavit (also not brought to the trial court’s attention) of

an inmate who was also in the Dade County Jail in 1986.

25

the advice of counsel, withdrew the motion and proceeded to trial. Id,

at 928. On the eve of trial, counsel again raised the issue of the

defendant’s competency. After merely asking the defendant how he

felt about the competency issue, the court directed the trial to proceed.

Id. Under these circumstances, the Circuit Court concluded that the

defendant should have had a competency hearing. Id, at 930. The

Eighth Circuit specifically noted that under its own precedent, in

nearly every case where the denial of a competency hearing had been

upheld, “‘there was some form of psychiatric evidence’” that indicated

to the court “‘the absence of mental illness.’” Id, (quoting Harkins v.

Wyrick, 552 F.2d 1308, 1311 (8th Cir. 1977)). Here, nine mental

health professionals, all concluded before the Durocher hearing that

Mr. Sanchez-Velasco was competent. An evidentiary hearing was

held during trial, and the court concluded Mr. Sanchez-Velasco was

competent. Thus unlike in Griffin, but more like Harkins, there was

ample basis to have forgone a hearing. See also Treadwell v.

Lockhart, 948 F.2d 453, 454 (8th Cir. 1991)(distinguishing Griffin

where “a reasonable judge” would not have entertained doubt as to the

defendant’s competency where counsel presented no such evidence to

the trial court). Mr. Bowen presents no authority that can be

reasonably read as requiring more than that which the trial court did

below. Mr. Bowen certainly did not in any way suggest to the trial

court that he felt its procedures were inadequate. See Watts v.

Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996)(defense counsel’s

failure to raise issue at trial level was indicative of the lack of

necessity for further competency proceedings), cert. denied, 117 S.

Ct. 2440 (1997); United States v. Garrett, 903 F.2d 1105, 1117 (7th

Cir.)(same), cert. denied, 498 U.S. 905 (1990); Cf. Griffin (counsel

consistently objected to the procedure followed by the trial court);

with United States v, Premachandra, 32 F.3d 346, 348 (8th Cir.

1994)(distinguishing Griffin where trial experts agreed defendant was

competent and defense counsel did not request hearing in trial court).

The Florida ang Court therefore properly followed state law, and

affirmed. See Medina v. California, 505 U.S. 437, 451

(1992)(“Consistent with our precedents, it is enough that the State

affords the criminal defendant on whose behalf a plea of incompetence

is asserted a reasonable opportunity to demonstrate that he is not”).

In view of the foregoing, Mr. Bowen’s postulation that a competency

hearing was required is simply without merit.

26

. In view of the foregoing, to the extent that he has even

| asserted the violation of any federal right, it is apparent that Mr.

Bowen’s real complaint is not with the state courts’ procedures, but

their factual findings. However, the state courts properly concluded,

based on the record, that Mr. Sanchez-Velasco was competent, and

that his waiver of collateral counsel and appeals was knowing,

intelligent, and voluntary. Those factual findings should not be

disturbed here, and Mr. Bowen’s petition should be denied.

CONCLUSION

Based on the foregoing, Petitioner respectfully requests that

this Court DENY the petition for writ of certiorari.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

RANDALL SUTTON

Assistant Attorney General

Florida Bar No. 0766070

Office of the Attorney General

Rivergate Plaza -- Suite 950

444 Brickell Avenue

Miami, Florida 33131

(305) 377-5441

28