This cause is before the Court on Miguel Rendon's 28 U.S.C. § 2255 allegation that his retained trial counsel, Patrick Doherty (hereinafter "Doherty"), was ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial, and that Rendon's appellate attorney was ineffective for failing to raise this issue on appeal. (Doc 1).*fn1
On October 14, 2011, the Court held an evidentiary hearing on this claim. Retained counsel Michael Robert Ufferman and Don Pumphrey, Jr. represented Rendon at the hearing. Assistant United States Attorney Christopher Tuite appeared for the Government. Special Agent Dan Gordon, the Drug Enforcement Agent on Rendon's underlying criminal case, joined AUSA Tuite at counsel table.
On behalf of Defendant Rendon, the Court heard testimony from Dr. Darren Rothschild (hereinafter "Dr. Rothschild"), a board certified forensic psychiatrist. The Government called Doherty to testify.
At the conclusion of the evidentiary hearing, the Court deferred ruling on the Government's oral motion that Rendon had not met his burden of demonstrating that Doherty was ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial. (Doc 31). After a review of the testimony at the evidentiary hearing, the record, and the submissions of the parties, this Court has determined that Rendon failed to meet his burden and that Doherty was not ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial. In addition, appellate counsel was not ineffective for failing to raise this issue on appeal.
BACKGROUND AND PROCEDURAL HISTORY
This case stems from an investigation conducted by federal, state, and local law enforcement that targeted a large-scale drug trafficking organization operating in the Middle District of Florida, Texas, and California. The investigation involved the use of confidential informants, physical surveillance, telephone records, and federal wiretaps. The wiretaps led to the interception of hundreds of drug-related calls involving Rendon and co-conspirators. Law enforcement was ultimately able to seize over 500 kilograms of cocaine and approximately three millions dollars in drug proceeds and assets from the organization.
Evidence obtained by law enforcement revealed that Rendon had been involved in the conspiracy from at least the late 1990's through Spring 2006, and that he had played a multi-faceted role in the organization. Rendon's role included distributing kilogram quantities of cocaine and pound quantities of both methamphetamine and marijuana to co-conspirators; investing in shipments of these drugs; providing high-interest loans to finance the organization's drug operation; storing large amounts of drug proceeds for the organization; and renting properties to members of the conspiracy for illicit use, sometimes in exchange for drug payments.
On November 14, 2007, Rendon was charged via a Superseding Indictment, with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, 500 grams or more of methamphetamine, and 1,000 kilograms or more of marijuana.
On May 12, 2008, Rendon's case proceeded to trial. Immediately prior to the commencement of trial, the Court held a hearing during which Doherty read into the record the contents of a letter dated May 9, 2008, from Dr. Douglas R. Sinclair. The letter, which was written at the request of Carol Rendon, Rendon's wife, addressed memory problems that Rendon might experience if he testified at the trial. At the hearing, Doherty also referred to an April 6, 2007, medical report from Rendon's treating physician, Dr. Philip Rizzuto, which essentially stated that Rendon's recent and remote memory were normal. Doherty stated that he brought the matter to the Court's attention out of "an abundance of caution," but he made clear that, in the "year or so" he had been representing Rendon, he "never had any impression that ... [Rendon] had a mental or memory problem." He also indicted that he believed Rendon was competent to stand trial; therefore he did not move for a competency hearing.*fn2
During the seven-day trial, the Government called six co-operating defendants who testified regarding Rendon's involvement in the conspiracy. The jury listened to a number of wiretap calls in which Rendon and co-conspirators used code words, including terms such as "ice," "white girls," "young girls," etc. to refer to the cocaine, methamphetamine, and marijuana they were trafficking. In addition, the Government presented testimony and evidence concerning the large quantities of narcotics, drug proceeds, and drug distribution paraphernalia that law enforcement seized during the course of its investigation, much of which was seized from properties Rendon owned and rented to co-conspirators. The Government also presented testimony regarding a box containing $27,930 that Rendon allegedly found on his property. Furthermore, testimony revealed that when law enforcement confronted Rendon about his role in the conspiracy, he admitted to participating in the off-loading of "bricks" of cocaine. Rendon claimed, however, that he thought he was unloading money, not drugs.
In Rendon's case-in-chief, Doherty called several witnesses -- Rendon's friend and member of the local community, Kenneth Lee Bright, Jr., Rendon's sister-in-law, Jean Johnson, and Rendon's wife, Carol Rendon -- to refute the government's evidence.
At the conclusion of the case, the jury deliberated for several hours before returning a verdict finding Rendon guilty of conspiracy to distribute all three of the drugs alleged in the Superseding Indictment. In addition, the jury found Rendon accountable for the maximum quantities of those drugs set by statute. On September 19, 2008, the Court sentenced Rendon to 235 months incarceration.
Rendon directly appealed his final judgment to the Eleventh Circuit, arguing that this Court abused its discretion by admitting certain evidence at trial. On September 28, 2009, the Eleventh Circuit affirmed Rendon's conviction. (Copy of opinion attached as Exhibit 1.)
On December 27, 2010, Rendon timely filed a 28 U.S.C. § 2255 motion raising six grounds for relief. In a previous order dated July 15, 2011 (Doc 19), this Court denied all grounds except Rendon's claim that Doherty was ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial and his claim that appellate counsel was ineffective for failing to raise the issue on appeal.
RENDON'S REMAINING 28 U.S.C. §2255 CLAIM
Ground one of Rendon's 28 U.S.C. motion to vacate alleges:
The Petitioner was not competent at the time of the trial. Trial counsel was therefore ineffective for failing to move for a competency hearing. To the extent the issue was preserved for appeal, appellate counsel was ineffective for failing to raise this issue on appeal. As a result, the Petitioner was denied his right to effective assistance of counsel in violation of the Sixth Amendment to the Constitution. But for counsel's ineffectiveness, the result of the proceeding would have been different. (Doc 1). Rendon's memorandum in support of the motion to vacate (Doc 2), elaborates on the claim.
The evidence against Rendon was fact-intensive. Almost all of the government's evidence came from alleged co-conspirators who entered into plea agreements which required them to testify favorably for the Government. Rendon's best defense was to impeach these witnesses based on inconsistencies in their stories. To effectively implement this defense, trial counsel needed Rendon's input to understand the factual background of the case and relationship between Rendon and the government witnesses. Ultimately, only Rendon and his wife could provide the necessary information to trial counsel to enable trial counsel to properly impeach the government's witnesses.
However, Rendon submits that he was not competent at the time of the 2008 trial. At the time of trial, Rendon was 73 years old. Rendon claims that in 2008 he suffered from cognitive problems, including beginning stages of dementia. As a result, Rendon suffered memory loss, thereby preventing him from consulting with trial counsel and assisting counsel in properly impeaching the government witnesses. Moreover, according to Rendon, his mental health problems prevented him from voluntarily, knowingly, and intelligently waiving his right to testify at trial. He also contends that, had he testified, Rendon's mental health problems would have prevented his properly and effectively testifying.
Prior to trial, trial counsel introduced a letter from Dr. Douglas Sinclair, wherein Dr. Sinclair stated:
I'm seeing Mr. Miguel A. Rendon 8/02/1934 in my neurologic practice here in Bradenton. I am writing this letter at the request of he [sic] and his wife. He has a mild cognitive impairment which is a sign or form of early dementia.
He would be expected to have some difficulty with memory or if under duress, such as testifying for Court, could have some trouble formulating thought. I have some suspicion that he also has depression, a likely reaction to his given circumstance, which can impair memory and attention.
This should be taken under consideration if he is to testify. If you have any further questions, contact me. s/Douglas Sinclair, D.O., Bradenton Neurology.
After learning of Dr. Sinclair's concern, counsel and the Court proceeded to ask Rendon questions. The Court stated:
This defendant has an absolute perfect right to take the stand if he elects to do so. if he elects to do so, if this is a sample of his memory, and what he remembers and what he doesn't remember, we may have a few problems. The Court later added:
You all are put on notice as far as I'm concerned, both sides, both the government and the defense. You do whatever you want to do.
Rendon points out that, despite Dr. Sinclair's concern, trial counsel failed to move for a competency hearing. Rendon claims that there was "reasonable cause" to believe that he was not competent to stand trial, especially in light of Dr. Sinclair's letter.*fn3
In support of this assertion, Rendon retained Dr. Rothschild. His report is dated December 23, 2010. In preparing the report, Rothschild reviewed information related to Rendon's case and opined that "the available information supports an assertion that Rendon had problems in his ability to consult with his attorney and assist in preparing his defense, i.e. due from cognitive dysfunction (poor memory, difficulty processing information, etc.)." (See Copy of Dr. Rothschild's December 2010 report attached as Exhibit 2 to this Order and Dr. Rothschild's October 7, 2011 updated report attached to this Order as Exhibit 2a. Exhibit 2a was introduced at the evidentiary hearing as Rendon's Exhibit 1 and Dr. Rothschild testified on and was cross examined on the original and updated reports.)
Rendon claims that the issue regarding his competency also affected his ability to make a proper decision regarding whether or not to testify during the trial. At the time of the trial, Rendon had no criminal history and the only valid reason that was discussed between trial counsel and Rendon's family as to why Rendon would not testify was a concern regarding: 1) his competency to testify; 2) his ability to understand and answer the questions; and 3) whether he would look confused in the eyes of the jury (and therefore not credible -- meaning that his testimony would cause more harm than good). Yet, Rendon claims, based on the nature of this case, Rendon's testimony was needed to refute the testimony of the government witnesses and deny his guilt to the jury.
Rendon contends that, due to his competency concerns, the decision regarding whether he would testify was not made by Rendon. Instead, the decision was made by trial counsel, with input from Rendon's famly. He also claims that he was not competent to make a decision as to whether he should testify. Rendon claims that he believed he could testify during the appeal, even if he did not testify at trial. Rendon claims his incompetency resulted in his being denied his right to make a proper decision regarding his constitutional right to testify at trial. Rendon contends that, had he been competent, he would have decided to testify and thereafter professed his innocence to the jury and refuted the testimony of the government witnesses.
Rendon's Reply to the Government's Response to Motion To Vacate
In his reply to the government's reponse to his motion to vacate, Rendon claims that the Government "completely failed" to address or acknowledge the report submitted by Dr. Rothschild, where Dr. Rothschild recently concluded that "[i]t is my opinion that the record and available collateral information support an assertion that during Rendon's trial in May 2008, he was not competent to stand trial." He contends the factors that the Government focused on are refuted or explained by Dr. Rothschild in his report. For example, the Government relies on the answers given by Rendon during the May 12, 2008, colloquy: "Rendon reluctantly conceded at one point that he could remember events dating as far back as the year 2000."
However, in his report, Dr. Rothschild addressed Rendon's testimony during the May 12, 2008, colloquy:
The pretrial court transcript on May 12, 2008, gives a glimpse into Mr. Rendon's cognitive functioning at the time of the trial, which correlates with the family's description of Mr. Rendon's cognitive problems. Mr. Rendon was questioned by Mr. Doherty, Mr. Tuite, and the presiding judge in an apparent exploration of Mr. Rendon's competence to stand trial. Mr. Doherty presented the letter from Dr. Sinclair, but did not assert the possibility that Mr. Rendon was incompetent to stand trial. Rather, Mr. Doherty's questions seemingly intended to demonstrate that the defendant did not have significant cognitive problems and that he was competent. Mr. Doherty asked several questions about Mr. Rendon's background and Mr. Rendon's responses demonstrated an acceptable memory for remote events. (Remote memory is typically preserved in the early phases of dementia.) However, Mr. Rendon's recent memory was not adequately assessed. Mr. Rendon gave affirmative answers to leading questions without an assessment of whether or not he provided correct affirmations. For example, when asked if he knew that the date was May 12, 2008, Mr. Rendon said, "Yes." The following responses to questions from Mr. Doherty provide another example of this and demonstrate the appellant's lack of awareness (or denial) of his memory problems.
Q: Do you have difficulty understanding or recalling back to 2000, the year 2000?
A: I can give it a try to remember whatever question you ask.
Mr. Rendon could not recall back to the preceding year when he was asked a series of questions about when he last visited with Dr. Sinclair, his Neurologist, which according to medical records occurred in August 2007.
Mr. Rendon initially said that he did not remember when he last met with Dr. Sinclair. Mr. Tuite and the presiding judge attempted to ascertain the approximate date by asking the appellant [Rendon] approximately thirteen questions about when the last visit with Dr. Sinclair occurred. Mr. Rendon said that he did not remember and ultimately testified, incorrectly, that the most recent visit occurred after January 2010. Following this inquiry, the Judge at a sidebar said, "The defendant has an absolute perfect right to take the stand if he elects to do so. If this is a sample of his memory, and what he remembers and what he doesn't remember, we may have a few problems." (emphasis added). (Doc 2 - Exhibit 1). (The complete transcript of the colloquy (Doc. cr-109) is attached to this order as Exhibit 3.)
The Government also relied, in its response to Rendon's 28 U.S.C. §
motion to vacate, on the fact that Rendon "flatly 'denie[d] any
history of mental or emotional
problems.'"(quoting from the PSR at ¶ 50). But as explained by Dr.
Rothschild, "Mr. Rendon [had a] lack of awareness about his cognitive
problems, and [he had a] tendency to minimize  them." Finally,
Rendon complains that the Government relied on the statements of
Rendon's trial counsel regarding his belief that Rendon was competent.
Dr. Rothschild included in his report a comment that he "recently"
contacted Doherty when preparing his report and Doherty stated that
"he (Doherty) would 'not be surprised if (Rendon's) mental capacity
was not all there . He was not hitting on all cylinders.'"*fn4
Rendon claims that this case does not concern an
after-the-fact attempt to create a previously nonexistent
post-conviction claim. According to Rendon, there is a reasonable
probability, based on Dr. Rothschild's recent report, Dr. Douglas
Sinclair's pretrial letter, and the record in this case, that Rendon
was not competent at the time of trial, and therefore was not able to
consult with counsel or assist with the defense due to memory loss
and/or was not able make a proper decision regarding whether he should
TESTIMONY AT THE EVIDENTIARY HEARING
Dr. Darren Rothschild, Board Certified Forensic Psychiatrist Dr. Rothschild was accepted by the Court as "qualified to render an opinion in these proceedings." (Doc. 36 - Pg 22). Dr. Rothschild testified that he was asked to perform an evaluation regarding Rendon's competency at the time of trial. (Doc 36 - Pg 24). Dr. Rothschild reviewed collateral information in conducting his evaluation. (Doc 36 - Pgs 26).
In particular, Dr. Rothschild interviewed family members, reviewed medical records and trial transcripts, and had phone conversations with Rendon's neurologist and Doherty. (Doc 36 -Pg 26, 29). Dr. Rothschild wrote that in order for a criminal defendant to be competent, the defendant must have a present rational and factual understanding of the charges or allegations against him or her, the defendant must appreciate the potential consequences, and the defendant must have a present ability to assist in his or her own defense. (Doc 36 -Pg 27). Dr. Rothschild explained that as part of the "ability to assist component of competency," a defendant must be able to provide historical accounts to defense counsel in preparation of the defense and a defendant must be able to remember facts during the trial as such facts are being presented so that the defense can adequately confront witnesses during the trial. (Doc 36 - Pg 27). Dr. Rothschild also stated that "decision making capacity" is also a factor to be considered when determining competency (i.e., one's ability to understand and potentially waive rights, such as the decision to testify). (Doc 36 - Pg 27).
Dr. Rothschild explained that memory is a type of cognitive functioning that can affect competency. (Doc 36 - Pg 31). He stated that dementia often affects the ability to learn new memories (i.e., a person with dementia may have difficulty remembering a name that was just recently said). (Doc 36 - Pgs 33-34). Dr. Rothschild opined that Rendon's ability to form "new memories" was an issue in this case:
So if there's a two-minute statement by a witness, he has to be able to remember all of that so he can go to his attorney and say this is not consistent with that, or I remember that this really happened then, but that - so if he can't record new memories, then that would bear on his competency. (Doc 36 - Pgs 48-49).
Dr. Rothschild testified that it is common for someone with dementia to be unaware of the deficit. (Doc 36 - Pg 34). Dr. Rothschild stated that Rendon fit within this category
(i.e., his family observed cognitive problems but Rendon was not aware of the problems*fn5 ). (Doc 36 - Pgs 34-35).
Dr. Rothschild explained that prior to trial, Carol Rendon noticed that Rendon had gradually been suffering from memory problems for approximately the previous ten years. (Doc 36 - Pg 35). Dr. Rothschild opined that based on all of the information that he reviewed, Rendon suffered from mild cognitive impairment, which was the same conclusion that Rendon's treating physician, Dr. Sinclair, had reached. (Doc 36 - Pg 37). Dr. Rothschild added that Dr. Sinclair's letter stated that prior to trial, Rendon was suffering from symptoms of depression and anxiety and that he was under a significant amount of stress. Dr. Rothschild explained that cognitive problems become more pronounced when the person with the cognitive problem is under stress. (Doc 36 - Pg 37).
Dr. Rothschild testified that he reviewed Rendon's prison records (i.e., records created following the trial in this case) and that the records contain notations about possible dementia and memory loss. (Doc 36 - Pg 40). Dr. Rothschild added that the Pinellas County Jail records ...