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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 2:17-cv-00091-EJL Document 1 Filed 02/28/17 Page 1 of 231 1 HEATHER E. WILLIAMS, CA Bar No. 122664 Federal Defender 2 LINDSAY BENNETT, GA Bar No. 141641 Assistant Federal Defender 3 801 I Street, 3rd Floor 4 Sacramento, California 95814 Telephone: (916) 498-5700 5 Facsimile: (916) 498-6656 Email: [email protected] 6 MARK E. OLIVE, FL Bar No. 578533 7 Law Offices of Mark E. Olive 8 320 W. Jefferson Street Tallahassee, Florida 32301 9 Telephone: (850) 224-0004 Facsimile: (850) 224-3331 10 Email: [email protected] 11 Attorneys for Petitioner, 12 JOSEPH EDWARD DUNCAN, III 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF IDAHO 15 16 JOSEPH EDWARD DUNCAN, III, ) Case No. 2:07-cr-00023-EJL 17 ) Petitioner, ) 18 ) v. ) DEFENDANT’S MOTION FOR 19 ) COLLATERAL RELIEF 20 UNITED STATES OF AMERICA, ) ) 21 Respondent. ) ) 22 23 24 25 26 27 28 Case 2:17-cv-00091-EJL Document 1 Filed 02/28/17 Page 2 of 231 1 TABLE OF CONTENTS 2 I. INTRODUCTION ................................................................................................................... 1 3 II. STATEMENT OF THE CASE ............................................................................................... 3 4 A. Federal Trial Proceedings ...................................................................................................... 3 1. Federal Indictment and Initial Defense Team .................................................................. 3 5 2. Five Months Before Trial – Lead Counsel Seeks to Withdraw ........................................ 4 6 3. Mr. Duncan Pleads Guilty to all Charges and the Sentencing Trial is Reset for April 2008 ............................................................................................................................ 8 7 4. Expert Disclosures Under Fed.R.Crim.P. 16(b)(1)(C) and 12.2 ....................................... 9 8 5. Mr. Duncan Requests to Proceed Pro Se, Which the Court Allows, Resulting in 9 Mr. Duncan Being Sentenced to Death .................................................................................. 10 6. Mr. Duncan Equivocates Regarding His Appeal ............................................................ 10 10 7. The Appeal of the District Court’s Order ....................................................................... 12 11 8. The Retrospective Competency Hearing and Subsequent Related Proceedings ........... 12 12 III. CLAIM 1: MR. DUNCAN WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY 18 U.S.C. § 3006A AND THE 13 SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND HIS RIGHT TO A RELIABLE DEATH JUDGMENT AS GUARANTEED BY THE EIGHT 14 AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE MULTIPLE 15 PREJUDICIAL ERRORS AND OMISSIONS OF TRIAL COUNSEL, ALL OF WHICH WERE EXACERBATED BY THE ERRONEOUS AND PREJUDICIAL RULINGS 16 OF THE COURT ........................................................................................................................... 13 17 A. Lead Counsel, Roger Peven’s, Dysfunction and the Devastating Effects it had on Counsel’s Capacity to Provide Constitutionally Adequate Counsel ............................................ 14 18 1. July 2005 to October 2006 .............................................................................................. 14 19 2. October 2006 to September 2007 ................................................................................... 16 3. September 2007 to December 3, 2007 ........................................................................... 24 20 4. December 4, 2007 to April 16, 2008 ............................................................................... 26 21 5. April 17, 2008 to November 24, 2008 ............................................................................ 32 22 B. The Trial Court’s Role in Compounding the Problems Permeating Mr. Duncan’s Defense Team .............................................................................................................................. 34 23 C. The Impact of Mr. Duncan’s Significant Mental Illness of the Proceedings ...................... 37 24 D. The Deprivation of the Effective Assistance of Counsel Rendered Mr. Duncan’s 25 Proceedings Unconstitutional ...................................................................................................... 38 1. The Breakdown of the System in Mr. Duncan’s Case, Including But Not 26 Limited to the Deprivation of His Sixth Amendment Right to Counsel, Constituted Structural Error ........................................................................................................................ 38 27 Defendant’s Motion for Collateral Relief i Joseph Edward Duncan, III v. United States of America, 28 Case No.2-07-cr-00023-EJL Case 2:17-cv-00091-EJL Document 1 Filed 02/28/17 Page 3 of 231 1 2. Had There not Been a Breakdown of the Adversarial System a Significantly Different Picture of Mr. Duncan Would Have Emerged ....................................................... 40 2 3. Counsel’s Ineffectiveness Set the Stage for Mr. Duncan’s Invalid Guilty Plea ............... 45 3 E. Conclusion ........................................................................................................................... 47 4 IV. CLAIM 2: THE TRIAL COURT’S REFUSAL TO ALLOW MR. LARRANGA TO ATTEND THE AUGUST 28, 2007 STATUS CONFERENCE AND REFUSAL TO HAVE 5 THE PROCEEDINGS RECORDED AND ITS SUBSEQUENT RELIANCE ON THE PROCEEDINGS TO DISALLOW A REASONABLE TIME FOR PREPARATION 6 VIOLATED MR. DUNCAN’S RIGHTS UNDER THE FIFTH, SIXTH AND EIGHTH 7 AMENDMENTS ............................................................................................................................ 48 V. CLAIM 3: AS A RESULT OF MENTAL DISEASE, DISORDER OR DEFECT, 8 MR. DUNCAN WAS INCOMPETENT TO PLEAD GUILTY AND HIS PLEA WAS 9 NOT A KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF HIS RIGHT TO STAND TRIAL ....................................................................................................................... 53 10 A. The Retrospective Competency Hearing – The “Thorny” Waiver Issue ........................... 54 11 1. Defense Experts ............................................................................................................... 54 a. Dr. James R. Merikangas ........................................................................................... 54 12 b. Dr. Ruben Gur .......................................................................................................... 56 13 c. Dr. George W. Woods ................................................................................................. 58 14 d. Dr. Ari Kalechstein .................................................................................................... 59 15 e. Dr. Xavier Amador .................................................................................................... 61 f. Dr. Michael First ........................................................................................................... 63 16 g. Dr. Craig Beaver ............................................................................................................ 63 17 2. Prosecution Experts ......................................................................................................... 64 18 3. Lay Witnesses .................................................................................................................. 67 19 4. The Court’s Prior Order ................................................................................................. 72 B. The Unresolved Question of Mr. Duncan’s Competency to Plead Guilty ......................... 74 20 1. The Evidence Clearly Establishes that Mr. Duncan has a Mental Disease, 21 Disorder, or Defect. ................................................................................................................. 74 2. Competency Can Vary Over Time ................................................................................. 77 22 3. The Court’s Description of Mr. Duncan’s In Court Statements As Rational and 23 Coherent Is Contrary to the Verbatim Record and the Uncontroverted Expert Opinion ..... 78 24 4. The Evidence Establishes that Mr. Duncan’s Belief System is a Delusion, Not a Rational Insight .............................................................................................................. 85 25 5. The Court Overstated the Importance of Areas of Strengths ......................................... 98 26 6. Even the Supposed Assessments of Credibility Themselves Fail to Withstand Scrutiny .................................................................................................................................. 102 27 Defendant’s Motion for Collateral Relief ii Joseph Edward Duncan, III v. United States of America, 28 Case No.2-07-cr-00023-EJL Case 2:17-cv-00091-EJL Document 1 Filed 02/28/17 Page 4 of 231 1 a. The “Compelling” and “Sound” Opinions Defended On Cross-Examination Hinge on an Objectively Erroneous View of the Facts ...................................................... 103 2 b. The Prosecution Experts Conceded the Issue was “Thorny” ................................. 104 3 c. In Clear Contrast to the Defense Experts, the Prosecution Experts Testified 4 as to Subjective, Unverifiable Conclusions Not in accord with Prevailing professional norms. ............................................................................................................ 106 5 d. The Defense Experts’ Opinions Were Based on Reliable,
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