United States Court of Appeals: Published
United States Court of Appeals: Published
No. 02-23
COUNSEL
ARGUED: Walter Lamar Jones, CLIFFORD, CLENDENIN,
OHALE & JONES, L.L.P., Greensboro, North Carolina, for Appellant. Valerie Blanche Spalding, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: William G. Causey, Jr., High
Point, North Carolina, for Appellant. Roy Cooper, Attorney General
PAGE v. LEE
of North Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
OPINION
LUTTIG, Circuit Judge:
Petitioner-appellant George Page challenges the validity of his conviction and death sentence, imposed by a North Carolina court for the
shooting death of a North Carolina police officer. He claims that the
state trial court erred by denying his request for appointment of a
mental health expert, in violation of the Due Process Clause as elucidated in Ake v. Oklahoma, 470 U.S. 68 (1985), and by denying his
request to interview jurors during voir dire as to their understanding
of the concept of "life without parole," in violation of principles
established in Kelly v. South Carolina, 534 U.S. 246 (2002), and Simmons v. South Carolina, 512 U.S. 154 (1994). As no judge on the
panel believes that petitioner has made a substantial showing of the
denial of a constitutional right as to his Simmons claim, no certificate
of appealability on this claim is issued, and the appeal as to that issue
is dismissed. See 28 U.S.C. 2253(c)(1). We do grant a certificate of
appealability on petitioners Ake claim. We conclude, however, that
the district court did not err in rejecting that claim, and therefore
affirm its judgment as to that issue.
I.
The relevant facts underlying petitioners conviction for first
degree murder and related other crimes are succinctly set forth in the
North Carolina Supreme Courts opinion affirming petitioners conviction and sentence on direct appeal:
[A]t around 8:00 a.m. on 27 February 1995, Sandra
McGill was sitting in her apartment when she heard a loud
explosion coming from the bar counter. Because she was
blind, McGill called maintenance personnel, who discovered
that a bullet had gone through her fish tank. The shot was
fired by defendant George Franklin Page, who was pointing
PAGE v. LEE
PAGE v. LEE
Petitioner was, for some time before and after the offense, being
treated by both a psychiatrist and a psychologist for various disorders.
At a pre-trial hearing on March 7, 1996, petitioner, according to the
North Carolina Supreme Court, "moved for appointment of a third
expert, a forensic psychiatrist, arguing that this type of expert was
better equipped than a clinical psychologist to prepare a legal
defense." State v. Page, 346 N.C. at 696. There was no dispute that
petitioners sanity at the time of the offense would be an issue at trial.
The trial court, however, denied this motion. It noted that petitioner
was being treated by two mental health specialists (a psychiatrist and
a psychologist), that these specialists were available to aid petitioner,
and thus that there was no need for a third such expert. On direct
appeal, petitioner "contend[ed] that the trial court erred in providing
the State with access to a forensic psychiatrist while denying his
request for the same type of expert." Id. The North Carolina Supreme
Court concluded, applying North Carolinas interpretation of Ake,
that, "[g]iven the facts before the trial court when it made its ruling,"
petitioner "did not demonstrate a particularized need for a forensic
psychiatrist or a reasonable likelihood that such an expert would
materially assist him in the preparation and the presentation of his
case." Id. at 697. Thus, the North Carolina Supreme Court held that
the trial court did not err, and it affirmed petitioners conviction and
sentence.
Petitioner then brought his petition for a writ of habeas corpus in
federal district court, again raising his Ake claim. The district court
concluded that the North Carolina Supreme Courts adjudication of
the claim was neither contrary to nor an unreasonable application of
Ake, and denied the petition. Petitioner thereafter moved for a certificate of appealability with this court. Because Judge Gregory concluded that, as to this issue, petitioner made a substantial showing of
the denial of a constitutional right, we issue a certificate of appealability on petitioners claim under Ake. And we now address the merits
of that claim.
PAGE v. LEE
II.
A.
As the petition for writ of habeas corpus in this case was filed on
December 3, 1999, after the April 24, 1996 effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
Pub. L. No. 104-132, 110 Stat. 1214, AEDPA applies to the federal
courts adjudication of petitioners claim. See Beck v. Angelone, 261
F.3d 377, 380 n.3 (4th Cir. 2001). In particular, since the North Carolina Supreme Court addressed the merits of petitioners Ake claim on
direct appeal, 28 U.S.C. 2254(d) applies.1 Section 2254(d) bars the
granting of habeas relief upon any claim adjudicated on the merits in
state court unless the petitioner can show that the state courts decision was either "contrary to" or involved an "unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States," or an "unreasonable determination of the
facts" given the evidence before the state court.
B.
1.
In Ake v. Oklahoma, the Supreme Court addressed "whether the
Constitution requires that an indigent defendant have access to the
psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the
time of the offense is seriously in question." 470 U.S. at 70. The
defendant in that case, Ake, was arrested and charged with murdering
two individuals and wounding their children. Although his behavior
at the arraignment was "so bizarre that the trial judge, sua sponte,
ordered him to be examined by a psychiatrist" to determine whether
1
PAGE v. LEE
he needed to be committed, id. at 71, the trial court denied his attorneys request for the appointment of a psychiatrist to aid the defense.
At trial, Ake attempted to use the testimony of the state psychiatrists
who had treated him in the hospital to establish his insanity defense,
but the prosecution "asked each of these psychiatrists whether he had
performed or seen the results of any examination diagnosing Akes
mental state at the time of the offense, and each doctor replied that
he had not. As a result, there was no expert testimony for either side
on Akes sanity at the time of the offense." Id. (emphasis in original).
The prosecution used this testimony in the sentencing phase as well,
to establish Akes future dangerousness. The jury convicted Ake and
imposed a death sentence.
On appeal, Ake challenged as a violation of due process the courts
refusal to provide a court-appointed psychiatrist. The Supreme Court
sustained the challenge: "We therefore hold that when a defendant
demonstrates to the trial judge that his sanity at the time of the offense
is to be a significant factor at trial, the State must, at a minimum,
assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation,
and presentation of the defense." Id. at 83. The Court had no trouble
determining that Ake had established to the trial court that his mental
state at the time of the offense would be a substantial factor in his
case, and thus concluded that Ake was entitled to the assistance of a
psychiatrist. See id. at 86-87.
Subsequent to the Supreme Courts decision in Ake, the North Carolina Supreme Court set forth the appropriate test by which trial
courts in that state are to determine whether expert witnesses should
be appointed. Under that test, "[i]n order to make a threshold showing
of specific need for the expert sought, the defendant must demonstrate
that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it will materially
assist him in the preparation of his case." State v. Moore, 321 N.C.
327, 335 (1988). "In determining whether the defendant has made the
requisite showing of his particularized need for the requested expert,
the court should consider all the facts and circumstances known to
it at the time the motion for psychiatric assistance is made." Id. at
336 (quoting State v. Gambrell, 318 N.C. 249, 256 (1986)). This test
PAGE v. LEE
was applied by the North Carolina Supreme Court in evaluating petitioners Ake claim on direct appeal. See Page, 346 N.C. at 696-97.
North Carolinas test, considered in the abstract, is surely a reasonable interpretation of Ake. Ake does not mandate that the trial court
be omniscient, nor does it require the trial court to divine without
direction what expert the defendant wishes, nor why such an expert
is needed. The phrase within the holding of Ake "assure the defendant
access to a competent psychiatrist" is of particular significance. If it
appears to the trial court that the defendant already has access to a
competent psychiatrist who can assist the defense, it follows that such
access has been "assure[d]," and thus that the State need do no more.
It is thus not unreasonable to conclude, as has the Eleventh Circuit,
that "a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the
defense and that denial of expert assistance would result in a fundamentally unfair trial." Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.
1987). Or, phrased another way, Ake, reasonably read, permits the
dispositive inquiry on appellate review to be, "having heard petitioners explanation, should the trial judge have concluded that unless he
granted his request petitioner would likely be denied an adequate
opportunity fairly to confront the States case and to present his
defense?" Id. at 710. This formulation of the question facing a reviewing court is consistent with North Carolinas approach to handling the
appointment of expert witnesses to indigent defendants.
As the North Carolina Supreme Court has formulated a legal test
that represents a reasonable reading of Ake, we now turn to the North
Carolina Supreme Courts application of this test to the case before
us.
2.
Petitioner has presented to this court what can be understood as
two distinct arguments, one, that Ake mandates that petitioner have
access to a forensic mental health expert (as opposed to a nonforensic expert) when a defendant has shown that his sanity will be
a significant factor at the trial, and two, that the availability of Drs.
Crandell and Pollock to testify for petitioner did not satisfy the States
duty under Ake to provide access to a mental health expert, as the two
PAGE v. LEE
experts could not or would not perform all the tasks (including the
non-testimonial tasks) required of a court-appointed defense expert
witness, as envisioned by North Carolinas interpretation of Ake.2 See
Gambrell, 318 N.C. at 259 (defense mental health expert witness will
"assist[ ] defendant in evaluating, preparing, and presenting his
defense in both the guilt and sentencing phases"). For the reasons that
follow, neither of these arguments is availing to petitioner.3
2
Petitioner did not make this second argument, nor anything approximating this argument, to the North Carolina Supreme Court, as an examination of his brief to that court reveals. See Def-Apps Brief, Rec. on
App. Vol. 6, Ex. C, at 6-15 (contending only that petitioners expert witnesses were incompetent because, one, Dr. Pollock was easily impeachable, and two, that neither witness was forensically trained).
3
A magistrate judge was assigned to petitioners case when it was
before the federal district court. Within ten days of submission of the
magistrate judges recommendation, petitioner filed his objections to the
magistrate judges recommendation. The sum total of petitioners written
objections to the recommendation of the magistrate judge was as follows:
Now comes petitioner, by and through undersigned counsel,
who respectfully objects to the recommendations of the United
States Magistrate Judge as required by Rule 72(b) of the Federal
Rules of Civil Procedure.
As undersigned counsel is unaware of any new authority for
the issues raised in the brief in support of the habeas petition
counsel relies on the argument presented in that brief.
Respectfully submitted this the 14th day of March, 2002.
Pet.s Objections to Recomm. of Magis. Jud., Rec. on App. Vol. 1, Document No. 20.
Federal Rule of Civil Procedure 72 (b) states that, "[w]ithin 10 days
after being served with a copy of the recommended disposition, a party
may serve and file specific, written objections to the proposed findings
and recommendations." (emphasis added). Petitioner obviously did not
satisfy the requirement of this Rule. As we have long held, the failure to
raise objections to a magistrate judges recommendations waives the
right to appellate review. See United States v. Schronce, 727 F.2d 91, 9394 (4th Cir. 1984). Although not yet specifically addressed by our circuit
in a published opinion, other circuits have held that the failure to raise
an objection "sufficiently specific to focus the district courts attention
PAGE v. LEE
10
PAGE v. LEE
Of course, the mere fact that an expert might be called by the State
as a fact witness does not render him or her partial or "beholden to the
prosecution" as that term is used in Ake. 470 U.S. at 85; see J.A. 206
(prosecutor mentioning that State would possibly call both doctors as
they observed events surrounding the offense). A mental health expert is
PAGE v. LEE
11
MR. EUBANKS:
THE COURT:
MR. EUBANKS:
Yes.
12
PAGE v. LEE
PAGE v. LEE
13
14
PAGE v. LEE
As it was entirely reasonable for the trial court, after "having heard
petitioners explanation," to conclude that petitioner would not "likely
be denied an adequate opportunity fairly to confront the States case
and to present his defense," Moore v. Kemp, 809 F.2d at 712, were
the requested motion to be denied, the North Carolina Supreme
Courts holding that the trial court did not err in its denial of petitioners motion for appointment of a third mental health expert neither
constitutes an unreasonable application of Ake nor is contrary to that
decision, the relief sought by petitioner is barred under 28 U.S.C.
2254(d).6
CONCLUSION
Petitioners request for a certificate of appealability on his Ake
claim is granted, and his request for a certificate of appealability on
his Simmons claim is denied. The judgment of the district court as to
petitioners Ake claim is affirmed, and the appeal from the district
courts denial of petitioners Simmons claim is dismissed.
AFFIRMED IN PART, DISMISSED IN PART
GREGORY, Circuit Judge, concurring in the judgment:
I concur with the majoritys conclusion that petitioner has failed to
demonstrate that the state courts rulings were "contrary to or
involved an unreasonable application of clearly established federal
law, as determined by the Supreme Court of the United States." 28
U.S.C.A. 2254(d)(1) (West 2003); Williams v. Taylor, 529 U.S.
362, 402-03 (2000). I write separately to emphasize the requirements
of Ake v. Oklahoma, 470 U.S. 68, 82 (1985).
6
PAGE v. LEE
15