Steven T. Wax, Federal Public Defender, Portland, Oregon, Attorney for Petitioner
Ellen F. Rosenblum, Attorney General, Kristen E. Boyd, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state - court convictions for Assault and Attempted Murder. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.
On June 19, 2008, the Lane County Grand Jury indicted petitioner on one count of Assault in the First Degree and one count of Attempted Murder after he stabbed his girlfriend with a butcher knife following an argument.
On October 20, 2008, two days before his trial was scheduled to begin, petitioner attempted to commit suicide while in custody in the Lane County Jail. Petitioner was transported to the Sacred Heart Medical Center where he informed medical staff that, for the past two months, he had been hearing voices commanding him to kill himself. Respondent's Exhibit 111, p. 1. Petitioner was examined, treated, and returned to the Lane County Jail where he was put on suicide watch with scheduled checks every 15 minutes. Id. at 2-3.
The next day, October 21, 2008, petitioner appeared for the "ready call" hearing before the Honorable Maurice K. Merten to address any final pretrial issues. During that hearing, petitioner's trial attorney filed a motion to withdraw. The motion was based upon counsel's representation that petitioner refused to communicate with him or the defense investigator, and that the attorney-client relationship had broken down to the point where counsel felt he could no longer represent petitioner effectively at trial. Respondent's Exhibit 110, pp. 2-3. When the court asked petitioner for his comment, the following ensued:
Petitioner: I uh - I don't want him as an attorney.
Petitioner: Because what's- I don't'know. I urn - I don't even want to be alive no more. I don't know.
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Court: Do you know what you want to do with this case, Mr. Bolt?
Petitioner: I don't want to be alive. No.
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Def. Counsel: I am concerned about his mental well being. It's obvious to me that he, at this point, isn't capable of cooperating. In a trial or basically anything else. So I guess in addition to my motion to withdraw, I would request a motion to postpone for a mental examination. First time I've had a client just refuse to talk to me period and can't represent him that way very well.
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Court: Mr. Bolt, why won't you talk to your lawyer?
Petitioner: Urn, I got - her brother, her youngest brother, has given me a hot shot when I came in. And her brother Shane threatened to kill my daughter if she got my stuff. Went to get my stuff when I couldn't get it. And - and I got messages already inside the jail, you know, I need to do this or not - or not come out so I don't even know if my daughter's okay now.
Court: Why won't you talk to your lawyer?
Petitioner: He don't know nothing about it. I've tried to ask for police involvement because of them threatening my family and myself and he won't bring no police in. He told me he don't feels - it will let it hurt - it will hurt their case to talk to them.
Court: Do you have a clue as to what he's talking about?
Id. at 3-5.
The prosecutor had "no idea" what petitioner was talking about, and defense counsel indicated that there had been threats made from the victim's brother to petitioner's daughter. At this point, Judge Merten noted that nobody had made a claim that petitioner was unfit to proceed by virtue of mental disease or defect, and he was denying the motion to withdraw and would not allow a continuance, but wanted petitioner to have a mental evaluation that day. Id. at 6. Judge Merten was of the opinion that if petitioner was found fit to proceed, he would simply have to suffer the consequences of his decision not to cooperate with his defense team. Id. at 7. The court issued a written order for petitioner to have a mental health evaluation conducted at the Lane County Jail. The Order specifically provided that "The Court finds that the Court has reason to doubt defendant's fitness to proceed by reason of incapacity, and has ordered an evaluation." Respondent's Exhibit 133.
The mental evaluation Judge Merten ordered did not take place. Instead, approximately two hours after Judge Merten ordered the evaluation, petitioner appeared before the Honorable Charles Carlson for another change of plea hearing. Respondent's Exhibit 104. Judge Carlson noted that there was a pending order for a mental health evaluation:
Court: Let me ask you this. I also note there is an amended order for the defendant to have a mental health evaluation done at the jail, and it's signed by Judge Merten... it looks like today at 11:30 a. m. Having just gotten this file, I'm not sure how all this came about, but this morning the deal you've come forward with, there's no issue here regarding Mr. Bolt's fitness.
Def. Counsel: ...