United States District Court, D. Oregon
RENEE MANES Assistant Federal Public Defender Attorney for
F. ROSENBLUM Attorney General NICK K. KALLSTROM Assistant
Attorney General Department of Justice Attorneys for
OPINION AND ORDER
J. BROWN, United States Senior District Judge.
an inmate at the Two Rivers Correctional Institution, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254.
For the reasons that follow, the Court DENIES the First
Amended Petition for Writ of Habeas Corpus (ECF No. 33) .
Summary of Facts
December 2000, Petitioner purchased a home and property in
Columbia County on contract from the McGilvra Family Trust.
The property was located' about 200 yards from the
residence of Laurene McGilvra, a 73-year-old woman who was
the sole surviving trustee.By April 2002, Petitioner became
frustrated with the condition of his home and the property,
and with a pre-existing water rights agreement that ran with
the property. Petitioner expressed his frustration to Mrs.
McGilvra and to her son, Tom McGilvra, who lived nearby and
whose own property benefited from the water rights agreement.
Petitioner stopped making payments on the contract, and on
May 19, 2002, Petitioner taped a note to Mrs. McGilvra's
door stating that the property was "incorrectly
contaminated in more ways than one, " that he would not
clean up "any poisons or debris on the property, "
that the property sale documents were "a mess which was
designed to excessively control and/or destroy" him, and
that the people named in the agreement were "people who
are gone and/or DEAD." Resp. Exh. 118, Exh. A at p. 89.
The note frightened Mrs. McGilvra, who consulted her
children, her friends, and her attorney for advice.
21, 2002, Mrs. McGilvra was preparing to leave the next day
for a trip out of the state. Her son, Tom McGilvra, spoke
with her that night. When the friend who was going to give
Mrs. McGilvra a ride to the airport arrived at Mrs.
McGilvra's house on the morning of May 22, 2004, the
front door was broken and Mrs. McGilvra was not home. Tom
McGilvra went to the home later that day and found the front
door had been kicked in and a pool of blood in the front
yard, which prompted him to call the police. The responding
officers discovered "significant bloodshed evidence
within the house" suggesting "that some person,
after having been wounded, had been taken from the master
bedroom of the house, through the house and out of the house
through the front door." The officers also found blood
on the siding of the house, in the yard, and at the top of
the driveway. The blood matched Mrs. McGilvra's DNA
officers were unable to locate Mrs. McGilvra and brought in
two search dogs to track her scent. Both search dogs tracked
the scent to the edge of Petitioner's property. When
asked, Petitioner refused permission for the second tracking
dog to continue onto his property.
24, 2002, police officers obtained a warrant to search
Petitioner's residence. They found a knife between a
mattress and box spring. Petitioner stated that he owned the
knife. An Oregon State Police forensic scientist examined the
knife and found blood on the hilt. When later tested, the
blood on the knife also matched Mrs. McGilvra's DNA
morning of May 25, 2002, Petitioner's house and a shed
burned down. Officers arrested Petitioner on suspicion of
arson, and during questioning he admitted to starting a fire
in his house. When asked about Mrs. McGilvra, Petitioner
stated he did not care that she was missing. When asked
whether he did something with her body, he responded, "I
wouldn't say." On July 15, 2003, Petitioner pleaded
guilty in Columbia County Circuit Court to one count of
Arson, and was sentenced to 60 months of probation. On
February 4, 2004, a citizen found human remains near a
logging road in Columbia County. Forensic scientists
identified the remains as those of Mrs. McGilvra.
Summary of Proceedings
February 13, 2004, a Columbia County grand jury indicted
Petitioner on five counts of Aggravated Murder, one count of
Murder, one count of Kidnaping in the First Degree, one count
of Kidnaping in the Second Degree, and two counts of Burglary
in the First Degree. Resp. Exh. 104-A. The trial judge
appointed two attorneys, Joseph Watson and Daniel Woram, to
November 2004, Watson raised concerns with the trial court as
to Petitioner's capacity to assist counsel in his
defense. On November 30, 2004, the trial court conducted a
hearing. At the hearing, Petitioner's attorneys presented
the testimony and written report of Norvin R. Cooley, Ph.D.
Dr. Cooley opined that Petitioner did not meet Oregon
statutory criteria establishing his competency to stand
trial. Following the hearing, the trial judge
ordered Petitioner to be evaluated at the Oregon State
Hospital ("OSH") as to his capacity to proceed.
Petitioner was admitted to OSH on December 7, 2004, where he
remained until his discharge in March 2005. Prior to
Petitioner's discharge, Ronald A. Glaus, Ph.D., Senior
Clinical Psychologist, prepared an evaluation regarding
Petitioner's ability to aid in his defense.
evaluation, Dr. Glaus noted this was Petitioner's second
admission to OSH. Pet. Exh. A, p. 159. Dr. Glaus interviewed
Petition for over an hour, and referred to the charging
documents, OSH chart notes and reports, and the November 9,
2004, evaluation signed by Dr. Cooley. Id. Dr. Glaus
reported that, when asked, Petitioner understood that the
purpose of the interview was to evaluate Petitioner to
determine if he was ready to aid and assist his lawyers.
Glaus noted that as of the evaluation date, Petitioner
continued to receive prescription Risperidone, and had
"shown stabilization in his mental condition and
currently presents with no signs or symptoms of a mental
illness." Pet. Exh. A, p. 164. After relating
Petitioner's medical and mental health history, and the
results of cognitive testing, Dr. Glaus provided the
following "Mental Health Summary/Conclusions:"
[Petitioner] presented upon examination as focused,
goal-directed, and cognitively clear. He did not demonstrate
any signs or symptoms of a formal thought disorder. His
affect was calm and his mood appropriate to the circumstance.
His intellectual level appeared to be at least average, if
not slightly above average. His behavior was purposeful and
within normal limits.
Pet. Exh. A, p. 166.
Glaus gave Petitioner an Axis I diagnosis of
"Schizophrenia, paranoid type (by history only), "
and an Axis II diagnosis of "History of diagnosis of a
personality disorder, not otherwise specified."
Id. Regarding Petitioner's ability to assist in
his defense, Dr. Glaus stated that Petitioner "showed a
good understanding of the proceedings against him, "
"appear[ed] quite able to assist and cooperate with his
legal counsel, " and "demonstrated a sound ability
to participate in his defense." Pet. Exh. A, p. 167. Dr.
Glaus concluded that Petitioner's "mental disease of
schizophrenia, paranoid type, by history only, does not
presently incapacitate his basic understanding of the legal
proceedings against him, the ability to cooperate with
counsel, or the ability to participate in his defense. He
presents as having the capacity to stand trial and to
maintain the psychological resiliency to endure the distress
of a trial." Id. Dr. Glaus recommended that
Petitioner "[f]ollow the directions of medical authority
in the use of psychotropic drugs." Pet. Exh. A, p. 168.
Petitioner's discharge from OSH on March 7, 2005, the
trial judge scheduled an aid-and-assist hearing for May 2005.
On May 4, 2005, however, Attorney Watson moved to withdraw,
citing a breakdown in the attorney-client relationship. The
trial judge granted the motion, but cautioned Petitioner,
"I don't want you to think that lack of cooperation
with future counsel will result in a similar response from
the court." Tr. 101. Petitioner agreed to Attorney
Woram's continuation as co-counsel, and the trial judge
appointed Charles Fryer as lead counsel. On May 19, 2005,
Petitioner formally accepted Fryer as his lead attorney.
Fryer then reported to the court that "he was authorized
by [Petitioner] to say that he does not wish to take
advantage of his right to request a hearing on the [aid and
assist] issue and wishes the court to make the decision based
upon the information the court has." Tr. 109. It is not
clear from the record before this Court what information,
other than Dr. Glaus's report, the trial judge had before
the next several months, several pretrial motions were
litigated, a number of which were argued at an omnibus
hearing on November 30, 2005. On March 27, 2006, the trial
judge ruled on several of the motions by letter opinion.
April 2006, Petitioner filed a pro se motion for the
appointment of a new attorney or.to represent himself, and
Fryer filed a motion regarding Petitioner's fitness to
proceed. In support of his motion, Fryer offered an extensive
affidavit detailing Petitioner' mental health treatment
and diagnosis history, information from Columbia County Jail
personnel, and reports of investigators' together with
counsels' interactions with Petitioner. Fryer concluded
that Petitioner was not able to aid and assist. Resp. Exh.
123. Fryer also noted Petitioner's adamant denial that he
suffered from any mental illness and strenuous objection to
the motion. Id. On April 6, 2006, the trial judge
issued an order finding reason to doubt Petitioner's
fitness to proceed by reason of insanity and ordering
Petitioner to OSH for a competency evaluation. Resp. Exh.
123. On April 13, 2006, Petitioner was re-admitted to OSH.
22, 2006, consulting psychiatrist Gary Field, Ph.D.,
conducted an evaluation of Petitioner's ability to stand
trial and prepared a written report. Pet. Exh. A, pp. 66-72.
In conducting his evaluation, Dr. Field relied upon an
hour-plus clinical interview with Petitioner, as well as OSH
records and reports from Petitioner's current
hospitalization. Pet. Exh. A, p. 66.
Field noted that when Petitioner arrived he was not taking
psychotropic medications, and had not been doing so since May
2005. Pet. Exh. A, p. 67. Upon Petitioner's arrival, an
Interdisciplinary Treatment Note indicated he "presented
with no signs of mental illness, " that he was not a
behavior problem on the ward, and that he "presented
highly suspicious to paranoid thinking, but not at the level
of a delusional disorder." Id. Other treatment
notes indicated that Petitioner "perseverated on his
legal case, " but that his "thinking was clear
except for his perseveration and negativity regarding his
legal case;" that he "presented as defensive and
grandiose" and "became upset when others challenged
his logic;" that he was "agitated and angry about
his lawyer" and was "often irritable." Pet.
Exh. A, p. 68. It was also noted, however, that
Petitioner's "thoughts were organized and
goal-directed, " that he was "knowledgeable about
the legal system, " his "thinking was clear and
well-organized, " he "participated in ward
treatment groups and classes, " and that "[n]o
evidence of psychosis was present." Id. Dr.
Field summarized the treatment notes as follows:
In summary, the clinical record documents no reports of
observable evidence of psychosis during this hospital
admission. In a May 24, 2006, Treatment Note, the ward
psychiatrist reports a review of [Petitioner's] treatment
records and concludes that insufficient evidence was found to
justify a diagnosis of schizophrenia, paranoid type. Given
the absence of significant signs of psychosis, the ward
psychiatrist concludes [Petitioner] likely suffers from an
Axis II personality disorder only.
Mental Summary and Conclusions, Dr. Field noted that while
Petitioner was previously diagnosed with schizophrenia,
paranoid type, Petitioner's current treating
psychiatrist, Dr. Chen, "raises questions regarding the
existence of any Axis I mental disorder." Pet. Exh. A,
p. 70. Dr. Field's review concluded that while Petitioner
has "a personality disorder involving paranoid,
narcissistic, and antisocial features; the personality
disorder alone may explain his presentation, " and that
Petitioner "has been off psychotropic medications for
more than a year without presentation of psychotic
symptoms." Id. Dr. Field further noted that
while Petitioner has shown "consistent suspiciousness of
others, a demandingness that his needs be met immediately,
denigration of others by attitude and statements, and
defensiveness if challenged, " he has not
"presented evidence of psychosis" during the course
of his hospitalization." Id.
Field stated that Petitioner's diagnostic picture
"is unclear." Pet. Exh. A, p. 71. While Petitioner
"has some history that would suggest schizophrenia . . .
his presentation over the past several months (or years)
argues against that diagnosis." Id. Dr. Field
explained the existence of two prominent hypotheses:
The 'first is that [Petitioner] has an Axis I mental
illness (along with his personality disorder) that is in
current remission. The second hypothesis is that
[Petitioner's] personality disorder stands alone, and
that he may become psychotic in certain prolonged stressful
situations. The prevailing evidence (i.e. -recent functioning
without psychotropic medications) currently favors this
second possibility. Certainly [Petitioner's] personality
characteristics of paranoia and narcissism dominate his
clinical picture. It is likely with stress his paranoia and
narcissism rise to a level of meeting criteria for delusional
disorder, persecutory type.
Id. Ultimately, Dr. Field rendered the following
Axis I Delusional disorder, persecutory type, in remission
Rule out schizophrenia, paranoid type, in remission
Axis II Paranoid personality disorder with narcissistic and
Petitioner's ability to assist in his defense, Dr. Field
stated that Petitioner "appears currently capable of
understanding the proceedings against him, "
"appears currently capable of assisting and cooperating
with a legal counsel as a technical advisor, " and
"appears currently capable of participating in his
defense." Pet. Exh. A, pp. 71-72. Dr. Field concluded:
[Petitioner's] mental disease of delusional disorder,
persecutory type, in remission, does not presently
incapacitate his basic understanding of the legal proceedings
against him, the ability to cooperate with counsel, or the
ability to participate in his defense. He presents as having
the capacity to stand trial and to maintain the psychological
resiliency to endure the distress of a trial.
Id. Petitioner was release from OSH on June 28,
3, 2006, the trial court held a competency hearing. Although
the trial judge had before him Dr. Field's report,
neither the prosecutor nor Petitioner's counsel offered
any other evidence. The trial court concluded that,
"Given the report of Dr. Field I believe this court has
no option but to find that [Petitioner] is able to aid and
assist in his defense in this matter and will so find."
found Petitioner able to aid and assist in his defense, the
trial court turned to the matter of Petitioner's motion
for removal of counsel. In an extensive colloquy with
Petitioner (spanning over twenty pages of transcript), the
trial judge discussed Petitioner's dissatisfaction with
his attorneys and his intent to represent himself. In
particular, Petitioner explained that he was unhappy about
the delay in bringing the case to trial and about the
challenges to his mental health. He was also unhappy that his
attorneys had not followed through in investigating witnesses
and issues he deemed important to his defense. Tr. 201-17.
Petitioner told the court: "It's my right to
represent and defend myself and that is what I must do. I am
competent, my case is winnable." Tr. 217. Petitioner
also noted that he had successfully worked with attorneys in
the past and acknowledged that he may need a "legal
advisor" to help him "with the protocol in the
court." Tr. 219.
hearing Petitioner's concerns, the trial judge cautioned
Petitioner against representing himself:
You've indicated that you wish to represent yourself,
which seems to me to be a huge mistake. Obviously there is no
more difficult technical type of legal proceeding that is
held in the state Circuit Court than a capital Murder case,
and as you've identified, understandably you have no
legal training and even if you did have legal training it
would seem to me that as the defendant you may not have the
objectivity to do an appropriate defense of the case.
And so I guess I cannot state anymore strongly-it seems to me
to be an absolute mistake if not a disaster for you to
attempt to defend yourself. But you are also competent, as
has been determined by the state hospital and this court, to
make decisions good and bad and so if you wish to be
represented in this matter, which I would recommend, then you
will have to work with Mr. Fryer and Mr. Woram.
And in the event that you decide to represent yourself I
would not be appointing different counsel for purposes of
giving you advice. You would still be required to rely on Mr.
Fryer and Mr. Woram for your legal assistance in the event
that you were to decide to try the case.
Tr. 230. Following this warning, Petitioner explained that he
would not work with Fryer or Woram, stating: "I do
assert my rights to defend myself. I realize-I know all the
things you're saying." Tr. 231. He further
explained, "I do understand the heavy responsibility put
on me." Tr. 232.
trial court presented Petitioner with a waiver-of-attorney
form. Resp. Exh. 125. The form explained in some detail the
benefits Petitioner would for ego by representing himself,
and required Petitioner to acknowledge each of those benefits
would be lost. Id. On the form, Petitioner indicated
that he had "16 " years of education; that he had
been represented by an attorney in a criminal proceeding in
the past; that he understood his rights; and that, he
understood the disadvantages to self-representation.
Id. Petitioner inquired of the judge whether he
could amend the form by interlineation to specify that any
appointed legal advisor would be appointed "only for
protocol." Tr. 233; Resp. Exh. 125, p. 1. The court then
engaged in further colloquy with Petitioner to confirm that
Petitioner would be permitted to conduct jury selection,
receive discovery, and receive his attorneys' "work
product." Tr. 236-38, 256. The trial judge ultimately
accepted Petitioner's Waiver of Attorney form:
I'm going to allow you to waive your right to counsel. I
am going to continue Mr. Fryer and Mr. Woram as counsel to
provide you with advice in this case and I'm going to
instruct them to be present throughout the course of the
trial to provide you that assistance.
It's up to you to choose whether you utilize them or not.
I would urge that you do so.
days later, at a further hearing on July 7, 2006, the trial
judge re-visited the matter of self-representation:
[B]efore we continue today I just wanted to make sure that it
is still your intention to represent yourself in this matter.
You've had a few days to give some thought to it.
Obviously you've received a fair amount of materials. I
don't know whether or not you've had any change of
heart, realizing the grave responsibility that you are taking
And I don't believe that I have any additional words that
I can offer that would express my concern about the decision
that you've made to represent yourself and the
seriousness of this matter and the general, almost I would
say universal belief that representing one's self is an
absolute mistake, and that -- and feel the need just to once
again reiterate that before we proceed further and insure
that it is still your desire to represent yourself given the
court's indication that it would not disqualify or remove
your attorneys from this case that have been appointed.
is it still your intention to represent yourself? Tr. 259-60.
Petitioner confirmed that he still intended to represent
himself, explaining, "I give it serious consideration
quite often[.]" Tr. 260. The court again accepted
Petitioner's waiver, and explained that the appointment
of Fryer and Woram would continue such that "[t]hey are
available to you at anytime in this case." Tr. 260-61.
selection took place from July 18, 2006, through July 26,
2006. Petitioner questioned prospective jurors, including as
to the degree of knowledge they had about the case, their
knowledge of and/or relationship to persons involved the
case, and whether they would give additional weight to the
testimony of police officers. Petitioner argued bases to
exclude several jurors, and exercised his peremptory
August 1, 2006, the guilt phase of Petitioner's trial
began. Petitioner gave a brief opening statement. Tr. 359-60.
Throughout the trial, he cross-examined the prosecution's
witnesses-, and was often able to bring out prior
inconsistent statements made by witnesses, often at
particular pages of the discovery. See, e.g., Tr.
598-601; 1075. Petitioner elicited testimony that he was a
person with no prior history of violence. See, e.g., Tr.
743-44; 788; 836-37; 910; 1035. Petitioner elicited testimony
portraying the note left on Mrs. McGilvra's door as
containing no overt threats other than dissatisfaction over a
property sale. See, e.g., Tr. 540, 678, 3199-20. Petitioner
pointed out other potential suspects, such as previous
renters Ms. McGilvra had evicted from the property, or ...