Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 86 C 2271--Harold A. Baker, Chief Judge.
Cummings, Cudahy and Manion, Circuit Judges.
On November 1, 1982, petitioner Jack Estock appeared before the Circuit Court of Kane County, Illinois, changed his prior not guilty plea, pled guilty to the charge of rape and received a twelve-year sentence of imprisonment.*fn1 At that time, neither the assistant public defender appointed to represent him nor the judge who accepted his plea and sentenced him knew that six days earlier Estock had tied a sheet around the bars of his cell and around his neck in an attempt to hang himself.
Contending that Estock was incompetent to stand trial, his new counsel subsequently filed a petition for post-conviction relief, a motion to withdraw the guilty plea and a motion for a psychiatric examination. The trial court, Judge Nickels presiding rather than Judge Schnake, who had taken the plea, held that Estock failed to raise a bona fide doubt as to his incompetence at the time the plea was entered and therefore denied all three motions. The Appellate Court of Illinois affirmed the orders and the Illinois Supreme Court denied leave to appeal. However, in reviewing Estock's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, the district court found that, contrary to the finding of the trial court, a bona fide doubt existed as to Estock's fitness to plead guilty. The district court then ordered an evidentiary hearing from which it determined that Estock was incompetent to plead guilty. The court therefore granted Estock's writ of habeas corpus. We affirm.
The initial issue presented by the grant of the petition is whether the district court accorded the proper deference to the decision of the state court regarding the existence of a bona fide doubt as to Estock's competence to stand trial. Although cases in this circuit have held that "the question of bona fide doubt is a conclusion of law, or at the least a mixed determination of law and fact," United States ex rel. Rivers v. Franzen, 692 F.2d 491, 497 (7th Cir. 1982), this conclusion is no longer applicable in habeas corpus proceedings. United States ex rel. Mireles v. Greer, 736 F.2d 1160, 1168 n. 4 (7th Cir. 1984). Instead, in a habeas corpus proceeding, a state court's finding of no bona fide doubt is a factual finding entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Maggio v. Fulford, 462 U.S. 111, 116-117, 76 L. Ed. 2d 794, 103 S. Ct. 2261 (per curiam); United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1011 (7th Cir. 1984), certiorari denied, 460 U.S. 1193, 105 S. Ct. 972, 83 L. Ed. 2d 975 (1985); Mireles, 736 F.2d at 1167-1168. This shift follows the trend of recent Supreme Court cases to accord particular determinations by state courts a presumption of correctness. See Perri v. Director, Department of Corrections, State of Illinois, 817 F.2d 448, 451 n. 3 (7th Cir. 1987), and cases cited therein.
However, this presumption of correctness is lost if "such factual determination is not fairly supported by the record." 28 U.S.C. § 2254(d)(8). To assess whether the determination is fairly supported by the record the district court must consider "that part of the record of the State court proceeding in which the determination of such factual issue was made." Id. Accordingly, we consider the evidence that was before Judge Nickels in the state court and the record of the proceedings before him.
On April 18, 1983, prior to the transfer to Judge Nickels, Estock filed, as his pro se petition for post-conviction relief, a pre-printed sample petition form with the relevant information printed above the instructions. The same day, Judge Schnake, finding a conflict in the appointment of a public defender, ordered the appointment of a special public defender to prosecute the petition on behalf of Estock. The new counsel for Estock subsequently filed a petition for a psychiatric examination and an addition to the petition for post-conviction relief contending that on the date the plea was entered, Estock was mentally unstable and unfit to comprehend the consequences of entering a plea of guilty. In addition to the petition for post-conviction relief and the documents in support thereof, counsel for Estock also filed a motion pursuant to Illinois Supreme Court Rule 604(d) for leave to withdraw Estock's guilty plea and vacate his conviction.
In support of the petition and motion, counsel for Estock submitted documentation of the suicide attempt. She also filed an affidavit of prior counsel stating that at the time of the hearing he was unaware of the suicide attempt and that if he had been aware of it, he would have advised the court of the attempt and moved the court to appoint a psychiatric expert to evaluate Estock for the purpose of determining his competence to stand trial, assist in his own defense and understand the entry of a plea of guilty. Finally, she filed psychiatric evaluations of Estock. The first, dated November 5, 1982, by Dr. Joseph Finney at the Illinois Department of Corrections Adult Reception and Classification Services, described Estock as a "paranoid personality, borderline on the psychotic" and ordered that Estock be immediately transferred as an emergency case to Menard Psychiatric Center. Two subsequent reports, dated November 10 and 17, 1982, from Menard Psychiatric Center describe Estock as "marginally oriented" and evaluate his insight and judgment as poor.
Judge Nickels, without holding an evidentiary hearing, held that Estock failed to raise a bona fide doubt as to his competence at the time the plea was entered and therefore denied all three motions pending before him. On habeas review, the district court found the finding of no bona fide doubt not supported by the record. We agree with the district court's assessment. Because the evidence before the state court was sufficient to raise a bona fide doubt, the state court's finding otherwise is not fairly supported by the record and is therefore not entitled to a presumption of correctness.
Although this finding alone is sufficient to remove the presumption of correctness, the position and conduct of the deciding judge contradict the rationale for the presumption. In Maggio the Supreme Court stressed that the federal habeas court owes the state trial court deference because:
"'Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. . . . How can we say the judge is wrong? We never saw the witnesses. . . .'"
Maggio, 462 U.S. at 118 (quoting United States v. Oregon Medical Society, 343 U.S. 326, 96 L. Ed. 978, 72 S. Ct. 690, quoted in Marshall v. Londonberger, 459 U.S. at 434).*fn2 If Judge Nickels had seen Estock face to face at the time of his pleading or had held an evidentiary hearing and seen live witnesses face to face, it might be difficult to look only at the documentary evidence and ...