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Cole v. Griffith

United States District Court, E.D. Missouri, Eastern Division

April 13, 2015

ANDRE COLE, Petitioner,


CATHERINE D. PERRY, District Judge.

Andre Cole is scheduled to be executed on April 14, 2015. He has filed a Supplemental Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a motion to stay his execution. He claims that he is incompetent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930 (2007). He requests an evidentiary hearing to determine his competence.

The Missouri Supreme Court concluded that Cole was not entitled to an evidentiary hearing, but unlike other recent cases, it did not explicitly hold that he had failed to make a threshold showing of incompetence. Respondent argues that because the Missouri Supreme Court stated that Cole was competent and was not entitled to a hearing, it must have made the required determination. Cole, supported by the dissenting opinion of three Judges of the Missouri Supreme Court, asserts that the Court improperly combined the issue of a threshold showing with improper fact-finding on the ultimate issue. I agree, and conclude that the state court's decision is an unreasonable application of federal law as determined by the United States Supreme Court. Because the decision of the Missouri Supreme Court was an unreasonable application of the law, this Court does not defer to its factual findings. I therefore conclude that Cole has made the requisite threshold showing, and is entitled to an evidentiary hearing on the issue of competence to be executed. He is also entitled to a stay of execution.

Legal Standards

In Ford the United States Supreme Court held that the "Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." Although the Court did not provide a standard for determining competency, in a concurring opinion, Justice Powell wrote that "the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it." 477 U.S. at 422.

In Panetti the Court agreed with Justice Powell's definition, noting that "[a] prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it." 551 U.S. at 959. The Supreme Court held that a rational understanding was required, although it declined to set a more precise standard, and instead directed the lower court to hold a hearing to determine whether the petitioner's delusions "may render a subject's perception of reality so distorted that he should be deemed incompetent." Id. at 961-962.

Title 28 U.S.C. § 2254(d) limits this Court's review of state court decisions. A federal court may not grant relief to a state prisoner unless the state court's adjudication of a claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or... decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08.

In Panetti, the Court noted that Justice Powell's concurrence in Ford "constitutes clearly established' law for purposes of § 2254 and sets the minimum procedures a State must provide to a prisoner raising a Ford -based competency claim." 551 U.S. at 949. "Once a prisoner seeking a stay of execution has made a substantial threshold showing of insanity, ' the protection afforded by procedural due process includes a fair hearing' in accord with fundamental fairness." Id. (citing Ford, 477 U.S. at 426, 424).

State Court Proceedings

The Missouri Supreme Court decided the issue of Cole's incompetence on the basis of exhibits filed by both Cole and respondent, and after consideration of evidence presented in the underlying criminal proceedings. Missouri ex rel. Cole v. Griffith, No. SC94880, Maj. Op., 6-12 (slip op. April 9, 2015).

Cole submitted a report by Dr. William S. Logan, a forensic psychiatrist, who interviewed him for two-and-one-half hours. Dr. Logan discussed Cole's mental state during the interview:

In my examination on February 20, 2015 Mr. Cole was off several days on the date. He denied receiving any psychiatric medicines. He was able to recall the historical elements of the case, but as the interview progressed his thinking became more disorganized and he digressed to talking about his emotional state. He reported being depressed, overwhelmed and distracted by voices of individuals unfamiliar to him who gave him contradictory advice about legal issues and predict the future [sic], telling him to ignore his attorney, Mr. Luby and that he will be [in prison] the rest of his life. Sometimes he hears the voices through the TV. He believes these voices are supernatural. They make derogatory statements about him, his family and legal counsel and discuss how and whether he should kill himself. He cannot concentrate well enough to read as he is distracted by the voices. He sometimes hears repetitive phrases like "see see" or "smart ass." At times the voices have told him they are there to help him, or conversely, that they are working with the state. He believes the voices are trying to scare him with the death penalty thing and have made it nearly impossible for him to sleep. His appetite also has decreased.
The voices have come through the intercom. He has heard them on the yard, in his cell, and even through his headphones, even if he turns up the volume to drown them out. Mr. Cole believes he is innocent, that the state knows this, and wants to execute him in order to "take me down." He believes the state talks to him through the TV.

Dr. Logan also reviewed his previous 4.33 hour examination of Cole in 2002 and "an extensive body of collateral material" included in his 2002 report. He further considered the report of another psychiatrist, which "documented recurrent episodes of major depression..." And he reviewed Cole's prison medical records, "which revealed an unexplained hunger strike which resulted in two hospitalizations in 2010." Dr. Logan concluded:

Mr. Cole is depressed with prominent symptoms of psychosis which adversely affect his comprehension and understanding to the extent that his mental disease causes him to lack the capacity to understand the nature and purpose of the punishment about to be imposed upon him or matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out. Mr. Cole's hallucinations have compromised his understanding to the point he has gross delusions which prevent him from comprehending or forming a rational understanding of the reason for the execution to which he has been sentenced.

Cole also submitted the affidavits of his current and former counsel who state that Cole's mental condition has deteriorated over the last four years and that he suffers from auditory hallucinations.

Respondent submitted the record of a routine wellness check conducted by Dr. Alwyn Whitehead, a psychologist employed by Corizon Medical Services. The wellness check was conducted at Cole's cell door. Dr. Whitehead reported that Cole denied "any hallucinatory experiences and there were no overt symptoms of severe depression, mania, or psychosis." Dr. Whitehead conducted the entire wellness check in fifteen minutes.

Respondent also submitted recordings and transcripts from four telephone calls made by Cole to unknown persons, who are most likely family members. Cole, Majority Op. at 9 n. 6-7. During the phone calls, Cole discussed various topics, including execution issues in other states, that he was placed on "preexecution" status, the execution drugs, his opinion that the prosecutor's story that he stabbed the victim while he had a gun did not make sense, and other things. Id. at 9-11.

Dr. Logan filed a supplemental report in which he reviewed respondent's briefs and exhibits. He concluded that none of respondent's evidence or arguments altered his ...

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