The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Following his conviction for first degree murder, Melvin A. Newman filed a petition for a writ of habeas corpus. Newman contends that his trial counsel, attorney Michael Johnson, provided constitutionally inadequate representation by, among other things, failing to request a competency hearing prior to his trial. According to Newman, that inaction cannot be excused, because Newman was evidently mentally retarded and had an IQ in the "extremely low range." At a minimum, Newman maintains that he has offered evidence entitling him to an evidentiary hearing; the Court agrees.
Although his allegations must be tested in an adversarial proceeding, Newman makes a compelling prima facie case that his lawyer's representation fell below the constitutional minimum and that, as a result, Newman suffered prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984) (articulating the familiar two-part test for ineffective assistance of counsel claims). Therefore, under the pre-AEDPA hearing standards that govern in this case, Newman is entitled to an evidentiary hearing on his petition for a writ of habeas corpus.
Two.9 mm shell casings were recovered from the crime scene at 5652 South Wells Street in Chicago. That is where, in July 2001, Andy Dent was shot twice. The shooting brought to a close a several-blocks-long confrontation. Sadly, the wounds proved at once decisive and fatal. One shot pierced Dent's left temple; the other found the middle of his chest. Newman was arrested and brought to trial, at which he maintained his innocence. According to a lawfully constituted jury, however, Melvin A. Newman pulled the trigger. He was sentenced to a term of 47 years behind bars.
After launching an unsuccessful direct appeal of the verdict, Newman mounted a similarly unsuccessful collateral attack on his conviction in state court. Using the procedures called for in the Illinois Post-Conviction Act (725 ILCS 5/122-1(a)(1)), he raised three arguments. Only one of those arguments is pressed in the federal case, so there is no need to recount the others here. The still-pressed argument was that his lawyer failed to investigate and raise the issue of Newman's fitness to stand trial, despite receiving a two-inch-thick stack of diagnoses and other records from Newman's mother and learning that Newman went to a "special school." One of the documents that allegedly found its way into the lawyer's hands was from the U.S. Social Security Administration, and it confirmed that Newman had been found disabled in 1995 on the basis of mental retardation. Pet'rs Ex. D, at 1. Another document, an evaluation from a psychologist, who admittedly equivocated a bit on her findings, stated that Newman had an IQ of 62, "yield[ing] a * * * national percentile rank of 1." Pet'rs Ex. G, at 3. On June 21, 2006, the trial court dismissed Newman's claims, without having held an evidentiary hearing.
The trial court's reasoning was set out in an oral ruling. See Pet'rs Ex. P ("June 2006 Order"). The trial court did not touch on Newman's ineffective assistance of counsel claim for very long, or in the right place. Rather than address whether it was unreasonable for Newman's lawyer to decline to investigate his client's mental condition, the trial judge primarily discussed whether there was enough information available to the trial court such that it should have held a competency hearing on its own motion. To the extent the trial judge made a finding that Newman was fit to stand trial (the second half of the Strickland inquiry, discussed below), the court's conclusions were based on what might charitably be called popular heuristics:
As to fitness, I personally had conversations with Mr. Newman; and I'm not inexperienced in this matter. And his responses were correct. If he was drooling or if his eyes were going someplace, counsel, I assure you, I would have sua sponte asked for a fitness hearing. His responses were appropriate. In fact, it wasn't a yes-or-no matter when I asked him about the second degree murder instruction. He replied no.*fn1
June 2006 Order at 17-18 (emphasis added). See also Am. Psychiatric Ass'n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 46 (4th ed. 1994) ("DSM-IV") (diagnostic criteria for mental retardation are (a) significantly subaverage intellectual functioning, (b) deficits in adaptive functioning in two of eleven specified areas, and (c) onset before age 18).
The trial court also seemed to have concluded, again without an evidentiary hearing, that Newman's most serious allegation was unfounded. The allegation, offered in support of his ineffective assistance of counsel claim, was that his lawyer devised a system of tapping on Newman's leg to indicate whether to answer yes or no to the judge's direct questions. In taking up the matter of percussive coaching, the trial court seemed to suggest that Newman's answer of "no" to a non-yes-or-no question was evidence that Newman had given "appropriate" responses. June 26 Order at 18. Newman's allegations, therefore, were "carrying it a little bit too far." June 26 Order, at 17-18. No witness was put on the stand, and his trial lawyer does not appear to have responded to the allegation even in a subsequently filed affidavit.
Newman appealed the decision to dismiss his petition without an evidentiary hearing to the Illinois Appellate Court; the appellate court affirmed the lower court. The court ruled that the "defendant has failed to demonstrate that a bona fide doubt as to [Newman's] fitness to stand trial existed at the time of trial." People v. Newman, No. 1-06-1977, slip op. at 10 (Ill. App. Ct. Sept. 4, 2007). The Illinois Appellate Court's ruling makes clear that it did not address the question of whether his trial counsel's performance was constitutionally deficient, but rather it took up the issue of whether Newman suffered any prejudice as a result. Compare id. at 7 ("Where a defendant fails to show prejudice, the reviewing court need not determine whether the test of deficient performance was met"), with id. at 8-11 (reasoning that prejudice can be found only if there was, at the time of trial, bona fide doubt about fitness and concluding that no doubt about fitness existed). The court concluded that an expert report (the "Kavanaugh Report"), which indicated that Newman had an IQ within the "extremely low range" (meaning the 2.2 percentile), but which was prepared after Newman's trial, was "irrelevant" because the facts as they existed at the time of trial were what mattered. Justice Wolfson dissented, agreeing with Newman that sufficient evidence had been marshaled to warrant an evidentiary hearing.
Having completed the state-level, post-conviction process, Newman filed with this Court a petition for a writ of habeas corpus. He bases his petition on two grounds. The first ground is that the state courts unreasonably applied clearly established law concerning his competency to stand trial under the Fourteenth Amendment-and concerning his lawyer's ineffectiveness under the Sixth Amendment for failing to tug at that thread.*fn2 The second ground is that the state courts made unreasonable determinations of fact in finding that Newman was competent to stand trial and in finding that there was no bona fide doubt about his competency to stand trial at the time of his conviction.
A. AEDPA and Evidentiary ...