Michael H. BLAKENEY, Appellant,
UNITED STATES, Appellee.
Argued Dec. 4, 2012.
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Michael A. DeBernardis, with whom Robert L. Shapiro, Kathleen M. Fones, and Elizabeth C. Solander, Washington, DC, were on the brief, for appellant.
Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and Kacie M. Weston, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and FARRELL, Senior Judge.
GLICKMAN, Associate Judge:
Prior to appellant Michael Blakeney's first-degree murder trial, his defense attorneys arranged for a psychologist to evaluate his competency. The psychologist opined that Blakeney was not competent to stand trial. However, Blakeney's attorneys discounted the significance of that opinion and, after consulting with their client, chose not to raise the issue of his competency with the court. Blakeney proceeded to trial and was convicted of first-degree murder while armed and associated weapons offenses. He subsequently moved to vacate his convictions on Sixth Amendment ineffective assistance of counsel grounds, claiming that his attorneys were constitutionally ineffective in failing to raise the issue of his competency to stand trial.
The trial court held an evidentiary hearing on Blakeney's motion. After taking testimony from trial counsel and the psychologist who had evaluated him, the judge ruled that Blakeney was not entitled to relief. The judge reasoned that Blakeney was not prejudiced by his counsel's arguably deficient performance, because even if counsel had raised the issue before trial, there was no reasonable probability that Blakeney actually would have been found incompetent.
Blakeney noted an appeal. In addition, he moved in the trial court for reconsideration of his motion, proffering a second opinion of a psychiatrist that he indeed was incompetent at the time of his trial. In light of this proffer, the judge agreed to take further evidence and, at the request of the government, referred Blakeney to St. Elizabeths Hospital to have clinicians perform a retrospective evaluation of his competency. The hospital psychiatrist and psychologist who performed this evaluation concluded that Blakeney was competent to be tried at the time of his trial.
After a second evidentiary hearing, at which the psychiatrists testified to their conflicting conclusions, the judge retrospectively found that Blakeney was competent to stand trial. The judge therefore adhered to his earlier ruling that Blakeney was not entitled to relief because he could not show prejudice. In addition, deciding an issue he had left unresolved after the first hearing, the judge ruled that trial counsel's failure to raise the question of Blakeney's competency with the court prior to trial did not amount to constitutionally deficient performance, because the expert opinion counsel had obtained was outweighed by other, contrary information in their possession. Blakeney noted a second appeal, which we consolidated with his first.
Blakeney challenges both aspects of the trial court's decision. He contends his trial
counsel had more than enough information to require them to raise the issue of competency and urges us to adopt a bright-line rule that their failure to do so despite an uncontroverted expert opinion of incompetence amounted to constitutionally deficient performance as a matter of law. Blakeney further argues that he is entitled to a presumption of prejudice from counsel's unwarranted failure to raise the issue of competency, but that even without such a presumption, the evidence shows he was prejudiced by his attorneys' inaction.
We decline Blakeney's invitation to adopt a bright-line rule of deficient performance and a presumption of prejudice. We consider it a close question whether his attorneys were obligated to bring the issue of his competency to the court's attention prior to trial. Ultimately, however, we do not decide that question, because we affirm the trial court's ruling that Blakeney did not show he was prejudiced by his attorneys' putative error.
Blakeney was tried and convicted in April 2007 for the murder of Laurisa Ryland, who was shot to death while sitting in her minivan on the night of January 6, 2005. This court affirmed Blakeney's conviction on direct appeal.  In November 2009, while that appeal was pending, Blakeney filed a motion in Superior Court to vacate his convictions pursuant to D.C.Code § 23-110 (2013 Repl.). In that motion Blakeney charged that his trial attorneys, J. Christopher McKee and Samantha Buckingham of the Public Defender Service, had provided ineffective assistance of counsel by failing to alert the court to concerns about his competency.
Citing widely accepted standards promulgated by the American Bar Association, Blakeney argued that criminal defense attorneys have a duty to notify the court whenever they have a bona fide doubt as to the defendant's competency. Blakeney alleged that his counsel violated that duty when they remained silent despite having a clinical psychologist's opinion that he was incompetent, medical records showing his history of mental illness and attempts at suicide, and letters from him to his attorneys and the judge evincing paranoid and bizarre ideation. Blakeney claimed there was a reasonable probability that, had his attorneys informed the court of these facts, he would have been found incompetent to stand trial.
The government opposed the motion, arguing that Blakeney's attorneys did not have a good faith doubt as to his competency and therefore had no duty to raise the issue, and that there was no reasonable likelihood the court would have found Blakeney incompetent had the issue been raised before trial.
A. The July 2010 Hearing
The trial court held an evidentiary hearing on Blakeney's § 23-110 motion in July 2010. Judge Kravitz, who had presided over Blakeney's trial, conducted the hearing. Three witnesses testified: defense attorneys McKee and Buckingham, and clinical psychologist Dwight Colley, who in 2006 had provided them with his opinion that Blakeney was incompetent. Blakeney's medical records and letters to counsel and the court also were placed in evidence.
Blakeney's medical records established that he had a history of mental illness
predating his arrest for Ryland's murder. He had been treated at St. Elizabeths Hospital and elsewhere and had been diagnosed as suffering from paranoid schizophrenia and other mental disorders.
Blakeney manifested symptoms of his mental illness when he was detained at the D.C. Jail following his arrest in this case. As a result, he spent much of his time in the Jail's Mental Health Unit. A series of mental health assessments by psychiatrists and other Jail medical personnel who examined him between January 2005 and December 2006 documented that Blakeney suffered from auditory hallucinations, delusions, paranoia, depression, and disordered thought processes. On two occasions during his first month in the Jail, Blakeney apparently attempted to commit suicide by taking overdoses of the antipsychotic medications he was prescribed. The Jail reports also note, however, that Blakeney responded well to the antipsychotic medications he was administered, though his compliance with the treatment regimen was uneven. Throughout his stay at the Jail, Blakeney exhibited a pattern in which his mental health problems alternately worsened and then improved.
While at the Jail, Blakeney wrote several letters to the court and to his defense attorneys. Some of these letters evinced his paranoia and mental instability. A letter in January 2006 to Judge Bayly (to whom the case was then assigned) began with the assertion that Blakeney was the " son of God" and the judge was " the devil." The letter went on to accuse the judge in florid terms of hiring agents to spy on him and other fantastic charges. A June 2006 letter to Buckingham complained that the FBI had implanted a chip in his body, hidden speakers in his cell, and so on. Blakeney wrote that Buckingham's co-counsel McKee " work[ed] for the devil" and was " with some kind of secret society so we have to be careful about what we say to him and in front of him." On other occasions, though, Blakeney wrote lucid letters to his counsel, reporting that his medication was working and offering coherent and useful advice on his case.
In light of Blakeney's history of mental illness and the bizarre content of some of his letters, McKee and Buckingham engaged Dr. Dwight Colley in July 2006 to evaluate whether Blakeney was competent to stand trial or (as they suspected) was malingering. Dr. Colley reviewed Blakeney's medical records and correspondence and had a meeting with him at the Jail. The session lasted some two to three hours, after which Dr. Colley phoned Buckingham and orally reported to her that he thought Blakeney was not competent to stand trial.
Dr. Colley was not asked to prepare a written report of his findings and did not do so, and by the time of the § 23-110 hearing, he had lost his notes of the evaluation and had little recollection of the specific tests he had performed to assess Blakeney's competency. Buckingham's fragmentary notes of their telephone conversation constituted the only surviving documentation of the evaluation. According to those notes, Dr. Colley stated that Blakeney's short term memory was not functioning well, he could not take in information and retain it, and he had a " bizarre thought process." Dr. Colley told Buckingham he did not think Blakeney was faking, and that one of the tests, which involved matching numbers and symbols, suggested possible brain damage. Dr. Colley believed that because of his deficits, Blakeney " cannot cooperate with his defense."
Dr. Colley testified at the § 23-110 hearing that these conclusions were not preliminary or tentative, but rather represented ...