United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
Johnston United States Magistrate Judge
case comes before the Court on Petitioner Gary Lee
Enzler's petition for writ of habeas corpus. Enzler is a
state prisoner proceeding with counsel.
the State is required to respond, the Court must determine
whether “it plainly appears from the petition and any
attached exhibits that the prisoner is not entitled to
relief.” Rule 4(b), Rules Governing § 2254 Cases
in the United States District Courts. A petitioner “who
is able to state facts showing a real possibility of
constitutional error should survive Rule 4 review.”
Calderon v. United States Dist. Court, 98 F.3d 1102,
1109 (9th Cir. 1996) (“Nicolas”) (Schroeder,
C.J., concurring) (referring to Rules Governing § 2254
Cases). But the Court should “eliminate the burden that
would be placed on the respondent by ordering an unnecessary
answer.” Advisory Committee Note (1976), Rule 4, §
2011, Enzler pled guilty in Montana's First Judicial
District Court, Lewis and Clark County, to four counts of
sexual assault. Pursuant to a plea agreement, the State
dismissed one count of sexual intercourse without consent.
Before sentencing, Mr. Tracy Vaughn and Dr. Bowman Smelko
conducted psychosexual evaluations to assess Enzler's
treatment needs and the risk he would reoffend. On December
9, 2011, the Honorable Jeffrey Sherlock sentenced Enzler to
serve a total of 45 years in prison, with 29 of those years
suspended. See Case Register Report (Doc. 13-4 at 2-5).
September 2012 and September 2013, Enzler, acting pro se,
filed a few documents in the trial court but received no
response. In November 2013, he filed a petition for writ of
habeas corpus in the Montana Supreme Court. The court denied
it on November 26, 2013. See Enzler v. State, No. OP
13-0746 (Mont. filed Nov. 7, 2013). Enzler petitioned for an
out-of-time appeal in December 2013. The court denied it on
January 7, 2014. See State v. Enzler, No. DA 13-0843
(Mont. filed Dec. 19, 2013).
January 17, 2014, Enzler moved to withdraw his guilty plea in
the trial court. Judge Sherlock appointed attorney Michael
Kakuk to represent Enzler. In August 2014, Kakuk moved the
trial court to declare Enzler unfit to proceed and to
transfer him to the State Hospital at Warm Springs for
observation, evaluation, and treatment. Cf. July 2014 Zook
Report (Doc. 13-2) at 1-4. Judge Sherlock issued the order.
For unknown reasons, the Department of Corrections refused to
comply with it, and for unknown reasons, no further action
was taken on the issue. See Second Am. Pet. (Doc. 11) at 3
¶¶ 4-5; see also Appellant Br. (Doc. 13-3) at 5-6,
Enzler, No. DA 15-0495 (Mont. Aug. 5, 2016).
4, 2015, Judge Sherlock held an evidentiary hearing on
Enzler's motion to withdraw his guilty plea. Kakuk sought
to show Enzler was incompetent when he pled guilty. Enzler
attended but did not testify. A friend of his, Kathleen
Sullivan, testified about her observations of Enzler in 2011,
and Dr. Donna Zook testified about her retrospective
evaluation, in 2014, of Enzler's competence when he pled
guilty in 2011. The State called Dr. Smelko and both trial
counsel to testify. See Evid. Hr'g Tr. (Doc. 13-8) at
iii. After briefing, Judge Sherlock found Enzler was
competent when he pled guilty and denied Enzler's motion
to withdraw his guilty plea. See Order Denying Mot. to
Withdraw Plea (Doc. 13-5 at 644-649) (“Sherlock
appealed, asserting the District Court violated his right to
due process by holding the evidentiary hearing while he was
unfit to proceed. The Montana Supreme Court refused to
consider that issue because Enzler did not present it in the
trial court. The court affirmed the trial court's denial
of Enzler's motion to withdraw his guilty plea on the
grounds that the 2011 plea colloquy demonstrated the
voluntariness of the plea and because “the presentence
psychological evaluations of Enzler both showed he was
competent at the time of his guilty plea.” Order at 3
¶ 7, 4 ¶ 9, Enzler v. State, No. DA
15-0495 (Mont. June 20, 2017) (“Mont. S.Ct.
Order”). Enzler unsuccessfully petitioned for
rehearing. See Order at 1, Enzler, No. DA 15-0495 (Mont. July
the postconviction appeal was pending, Enzler, acting pro se,
mailed to this Court a voluminous, frequently illegible
screed that seemed to allege his custody was
unconstitutional. The Court construed the document as a
petition for writ of habeas corpus and stayed the matter
pending disposition of the state postconviction appeal. See
Order (Doc. 3) at 1-4. On August 10, 2017, the Court lifted
the stay and appointed counsel to represent Enzler.
by Assistant Federal Defender David Ness, Enzler filed an
amended petition and, on December 20, 2017, a second amended
petition (Doc. 11). On January 3, 2018, Enzler filed the
state court record (Doc. 13).
Claims and Analysis
Second Amended Petition contains two claims. First, Enzler
asserts that his trial counsel were ineffective because they
coerced him to plead guilty (“ineffective assistance
claim”). Second, he avers that he was in fact
incompetent when he pled guilty (“competency
order is reversed here, but both claims are addressed.
claim might be procedurally barred, as Enzler did not fairly
present it in the state courts. See 28 U.S.C. §
2254(b)(1)(B)(i); O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999); Gray v. Netherland, 518 U.S.
152, 161-63 (1996); Davis v. Silva, 511 F.3d 1005,
1009 (9th Cir. 2008); see also Reply at 4, Enzler, No. DA
15-0495 (Mont. filed Mar. 15, 2017) (conceding that Enzler
“could not successfully challenge the district
court's denial of his motion to withdraw plea based upon
the present record.”). But it is more efficient to
address the merits. See, e.g., 28 U.S.C. § 2254(b)(2);
Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
standard for competence to stand trial is whether the
defendant has ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding' and has ‘a rational as well as
factual understanding of the proceedings against
him.'” Godinez v. Moran, 509 U.S. 389, 396
(1993) (quoting Dusky v. United States, 362 U.S.
402, 402 (1960) (per curiam)). A competent plea is not the
same thing as a voluntary plea. “The focus of a
competency inquiry is the defendant's mental capacity;
the question is whether he has the ability to understand the
proceedings. The purpose of the ‘knowing and
voluntary' inquiry, by contrast, is to determine whether
the defendant actually does understand the significance and
consequences of a particular decision and whether the
decision is uncoerced.” Moran, 509 U.S. at 401 n.12
(emphases in original).
Enzler's First Competency Evaluation
federal petition misstates the timing of his competency
evaluations. He states that his trial counsel:
did not believe that he was incompetent. As they both
testified during state postconviction proceedings, Enzler had
been evaluated by two mental health professionals and neither
found any reason to question his competency. Their
evaluations, however, were not designed to delve into
Enzler's competency. Both evaluators were asked to
conduct a psychosexual evaluation. It was not until the
post-conviction proceedings that an expert was hired to
specifically evaluate Enzler's competency.
Am. Pet. (Doc. 11) at 22-23.
did undergo two presentence psychosexual evaluations by Tracy
Vaughn and Dr. Smelko. And trial counsel, based on their
interactions with Enzler, believed he was competent and did
not seek an expert opinion before he pled guilty. Enzler is
also correct that a psychosexual evaluation does not assess
fitness to proceed. See, e.g., Drope v. Missouri,
420 U.S. 162, 176 (1975); Mont. Code Ann. §§
46-14-101(1)(a)(i), (2), 46-23-509; see also Evid. Hr'g
Tr. (Doc. 13-8) at 90:2-13, 97:18-23, 100:16-101:10 (Dr.
Smelko explains difference between psychosexual evaluation
and competency and mental state evaluation).
last sentence of Enzler's description is incorrect. The
timing is not entirely clear, but shortly before or after
Enzler pled guilty, in October 2011, trial counsel asked Dr.
Smelko to evaluate Enzler's competency as well as his
mental state at the time of the offenses. Dr. Smelko found
Enzler competent. Because a report explaining this finding
would “not assist” Enzler's counsel, counsel
did not ask him to write one, but he did write a report about
Enzler's mental state at the time of the offense. At the
postconviction hearing, Dr. Smelko explained his opinion of
Enzler's competency in detail. See Evid.
Hr'g Tr. at 96:24-104:19 (Smelko), 122:21-123:19
(Penner), 130:19-131:23 (Abbott); see also Smelko
Report at 1, 8-9 (Doc. 13-4 at 34, 41-42). Judge
Sherlock's findings reflect these facts. See
Sherlock Order at 4 (Doc. 13-5 at 647-648).
Smelko's evaluation was not the only contemporary
evidence of Enzler's competency. Trial counsel found
Enzler “was very distraught and outraged at the
charges” and “kind of meandered, you know, going
a little bit off kilter, but he would always ultimately
answer the questions” they were asking, and he assisted
in his own defense. See, e.g., Evid. Hr'g Tr. at
111:19-112:12, 113:19-114:24, 129:13-131:23.
the trial court and the Montana Supreme Court later pointed
out, Enzler's behavior and statements at the change of
plea hearing indicated he was competent. See
Sherlock Order at 3 (Doc. 13-5 at 646); Mont. S.Ct. Order at
4 ¶ 9; Change of Plea Tr. (Doc. 13-7 at 4:1-13:18). As
late as his Montana Supreme Court petition for an out-of-time
appeal in December 2013, his pro se submissions did
not suggest incompetency. The issue arose for the first time
about three years after he was sentenced.
questions the state courts' factual findings on the
grounds that he was not competent to testify at the
postconviction evidentiary hearing. See Second Am.
Pet. at 16; see also 28 U.S.C. § 2254(e)(1);
Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014)
(discussing Taylor v. Maddox, 366 F.3d 992, 999-1000
(9th Cir. 2004)). But even assuming Enzler was incompetent at
the time of the postconviction proceedings (without a state
court's finding to that effect), there is no reason to
suppose his testimony could prove he was incompetent when he
pled guilty. And, as explained below, the evidence he
presented to show he was incompetent when he pled guilty does
not warrant further proceedings in this Court.
Dr. Zook's Report and Testimony
January 2014, Judge Sherlock found reason to question
Enzler's ability to represent himself in postconviction
litigation. New counsel appeared and obtained a retrospective
competency evaluation from Dr. Donna Zook.
Zook determined whether Enzler “had the capacity to
‘act with knowledge and purpose' at the time of the
Change of Plea.” She concluded that he did not,
“due to not being capable of forming the mental state
necessary to make the plea.” December 2014 Zook Report
(“Zook Report”) at 1, 3 (Doc. 13-4 at 44, 46).
and “purposely” are elements of criminal offenses
under Montana law. See Mont. Code Ann. §§
45-2-101(35), (65), 46-14-101(1)(a)(ii), (2), -102 (2017).
These elements are not relevant to or mentioned in the
Montana statutes defining fitness to proceed. See
id. §§ 46-14-101(1)(a)(i), (2), -103.
Zook's written report discussed Enzler's ability to
appreciate the significance of the rights he waived by
pleading guilty, his independence of thought, whether he
could “give informed consent to a plea, ” his
ability to differentiate his own best interests from what
counsel advises and to “fully appreciate” the
long-term consequences of a decision to plead guilty, and
whether Enzler “mean[t] to agree” to change his
plea rather than going to trial. Dr. Zook found that
“despite having an understanding of the
adversarial and legal process, Mr. Enzler was most likely
unable to fully appreciate the magnitude or potential
consequences of the legal proceeding or adversarial
process.” Zook Report at 3 (Doc. 13-4 at 46)
(underlining in original).
Zook's observations might be relevant to whether Enzler
actually did understand the significance and
consequences of the decision to plead guilty, see
Moran, 509 U.S. at 401 n.12, but she was not asked to
opine on that issue. Her observations do not address
Enzler's “‘ability to consult with his lawyer
with a reasonable degree of rational
understanding'” and “‘rational as well
as factual understanding of the proceedings against
him.'” Id. at 396 (quoting Dusky,
362 U.S. at 402). Her written report is not persuasive
evidence of Enzler's incompetence three years earlier,
when he pled guilty.
both her written report and in her hearing testimony, Dr.
Zook asserted that Enzler was suffering from a
Prosecutor: And you indicated that he didn't understand
the consequences of his change of plea. And what specific
information are you ...