originally submitted: May 17, 1977; October 7, 1977, Resubmitted.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CRIM. No. 74-82.
Adams, Van Dusen and Gibbons, Circuit Judges.
In this case, the appellant, Horace Hollis, raised the issue of his mental competency at arraignment, but no hearing was held to evaluate that claim. He then pleaded guilty. After being incarcerated, Hollis filed a petition for habeas corpus, claiming he was incompetent at the time of his plea, and therefore should be permitted to withdraw it. At the habeas hearing, the trial judge placed on petitioner the burden of proving incompetency at the time of the guilty plea, and denied relief. On this appeal, the question is whether the trial court erred in allocating the burden of proof.
Hollis was arrested on September 3, 1974, and was indicted a week later for transporting a firearm in interstate commerce in violation of 18 U.S.C. § 922(g)(1).*fn1 At his initial appearance before the district judge, the defendant, then unrepresented by counsel, moved for a psychiatric examination. On that occasion, Hollis indicated that he had been under the care of a psychiatrist during a prior period of incarceration, and that after he was paroled in January of 1974, he unsuccessfully had sought further psychiatric treatment.
The trial judge denied Hollis' motion, but ordered the Assistant United States Attorney to advise defense counsel, when appointed, of Hollis' request. The prosecutor later complied with the court's instructions.
On September 25, 1974, with appointed counsel present, Hollis pleaded not guilty to the charge against him. On April 4, 1975, again in the presence of appointed counsel, Hollis withdrew his original plea and entered a plea of guilty. He was then sentenced to a two-year term of imprisonment. No request by Hollis or his counsel was made for a mental examination at the time of sentencing.
Eleven months later, Hollis filed a pro se motion pursuant to 28 U.S.C. § 2255, seeking an order to vacate his sentence on the ground, inter alia, that the district court had erred in failing to grant his request - at his initial appearance before the court - for a mental examination. In response to the § 2255 petition, the court-appointed counsel for Hollis ordered Dr. Robert Patton to complete a psychiatric examination of Hollis.
On October 8, 1976, a hearing was held regarding Hollis' claim of incompetence. Evidence was offered that, at the time of his guilty plea, Hollis may have experienced an organic brain disfunction causing temporal lobe seizures. Hollis presented three witnesses. Frank Grant, an FBI agent, testified that at the time of his arrest, Hollis had been fearful and quite upset. Andrea Williams, Hollis' sister, indicated that the petitioner had been incoherent and depressed during April of 1975, when the guilty plea was entered. Finally, Hollis himself testified with regard to his initial request for a mental examination and his prior treatment for mental disorders. The evidence adduced by the petitioner indicated that he had a history of an abnormal electroencephalogram, which suggested the possibility of temporal lobe seizures; that at the age of eight Hollis had suffered from measles-encephalitis, which resulted in brain-cell damage; that an EEG performed in 1949 was grossly abnormal; and that medical records interpreting this EEG, which were introduced at the hearing, demonstrated that Hollis had been subject to "petit mal" type of seizures.
The government produced two witnesses: Robert Stewart, Esquire, who had been appointed counsel for Hollis at the time of the guilty plea, and Dr. Patton. Mr. Stewart testified that he believed that Hollis had understood the nature of the guilty plea negotiations, of the charges against him, and of the consequences of his plea. Dr. Patton, who had conducted two interviews with the petitioner, testified that Hollis was then suffering from severe depression and a serious personality disorder of a sociopathic type that necessitated regular and intense psychiatric care. Additionally, Dr. Patton stated that because the recent EEG's were normal, in all probability Hollis had not been subject to seizures at the time of the guilty plea. The doctor expressed the view that Hollis probably had been mentally competent when the guilty plea was entered.
In an opinion dated November 4, 1976, the district court denied Hollis' motion to vacate the sentence, stating that Hollis had failed to discharge his burden of proving incompetency at the time of the guilty plea. After referring to the standard set out in Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960), the trial judge determined that Hollis had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him." In reaching its conclusion, the trial court relied on statements by Hollis at the plea hearing which the judge construed as indicating that Hollis had understood the substance and implications of the plea agreement. The judge also noted that he relied upon Mr. Stewart's testimony that, as appointed counsel for Hollis, he believed that Hollis had grasped the nature of his plea. And the district court emphasized Dr. Patton's testimony that Hollis' recent normal EEG's probably indicated that he had not been subject to seizures at the time of his guilty plea.
Hollis filed a timely appeal from the district court's order. While the appeal was pending, Hollis, on April 11, 1977, moved this Court to remand the case to the district court and to direct it to reconsider the denial of Hollis' motion in light of newly discovered evidence, namely, two abnormal EEG's taken after the notice of appeal had been filed. In an order dated May ...