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Enzler v. Fender

United States District Court, D. Montana, Helena Division

September 24, 2018

GARY LEE ENZLER, Petitioner,


          John Johnston United States Magistrate Judge

         This 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.

         I. Preliminary Review

         Before 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, § 2254 Rules.

         II. Background

         In 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).

         Between 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.[1] 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).

         On 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).

         On May 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 Order”).

         Enzler 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 19, 2017).

         While the postconviction appeal[2] 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.

         Represented 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).

         III. Claims and Analysis

         The 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 claim”).

         Their order is reversed here, but both claims are addressed.

         A. Competency

         This 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).

         “[T]he 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).

         1. Enzler's First Competency Evaluation

         Enzler's federal petition misstates the timing of his competency evaluations.[3] 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.

         Second Am. Pet. (Doc. 11) at 22-23.

         Enzler 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).

         But the 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).

         Dr. 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.

         As both 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.

         Enzler 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.

         2. Dr. Zook's Report and Testimony

         In 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.

         a. Standard Employed

         Dr. 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).

         “Knowingly” 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.

         Dr. 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).

         Dr. 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.

         b. Factual Basis

          In both her written report and in her hearing testimony, Dr. Zook asserted that Enzler was suffering from a “delusion”:

Prosecutor: And you indicated that he didn't understand the consequences of his change of plea. And what specific information are you ...

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