
USCA1 Opinion

	




          July 5, 1996          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1005                               ALFRED A. GALLANT, JR.,                                Plaintiff, Appellant,                                          v.                               CORRECTIONS, ME WARDEN,                                 Defendant, Appellee.                                 ____________________        No. 96-1048                                ALFRED A. GALLANT, II,                                Plaintiff, Appellant,                                          v.                              GENE CARTER, CHIEF JUDGE,                                 Defendant, Appellee.                                                                                     _____________________        No. 96-1162                                ALFRED A. GALLANT, II,                                Plaintiff, Appellant,                                          v.                               DONALD ALEXANDER, JUDGE,                                 Defendant, Appellee.                                                                                     _____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Alfred  A.  Gallant on  memorandum in  support  of certificate  of            ___________________        probable cause and on brief pro se.            Gail Fisk Malone, Assistant United States Attorney, on  memorandum            ________________        in support of motion for summary disposition for appellee Gene Carter.                                 ____________________                                 ____________________                 Per Curiam.   In  No. 96-1048, plaintiff  Alfred Gallant                 __________            appeals  from a court  order dated December  20, 1995 denying            his  motion to proceed in forma pauperis (IFP).  As plaintiff                                   _________________            paid the filing fee  that same day, his appeal  is frivolous.            Plaintiff's  motions to  proceed  IFP on  appeal are  denied,                                                                  ______            appellee's motion for summary disposition is allowed, and the                                                         _______            challenged district  court order is summarily  affirmed.  See                                                           ________   ___            Loc. R. 27.1.                 In  No.  96-1162,  plaintiff  appeals  from  a  judgment            dismissing, on the ground  of frivolousness, his action under            42 U.S.C.   1983  against the state court judge  who presided            over his state  habeas proceedings.  For  the reasons recited            by  the district court in  its order dated  February 7, 1996,            the  judgment  is summarily  affirmed.    See Loc.  R.  27.1.                                         _________    ___            Plaintiff's  motions  to  proceed   IFP  on  appeal  and  for            appointment of counsel are denied.                                         ______                 In  No.  96-1005,  plaintiff  seeks  a  certificate   of            probable   cause in order to appeal from the district court's            denial  of his petition for a writ  of habeas corpus.  Having            reviewed the record in full, we discern only one issue of any            conceivable  merit: whether  plaintiff was  improperly denied            his   Sixth  Amendment  right  of  self-representation  under            Faretta  v. California, 422 U.S. 806 (1975).  The trial court            _______     __________            rejected this claim on the ground that plaintiff's request to            proceed pro se had not been "intelligently" made; it noted in                    ______                                         -3-            this  regard  that   plaintiff  was  suffering  from   mental            impairments  and had  disavowed any  intention of  mounting a            defense  in order to "protest"  what he regarded  as a "sham"            trial.  The  Maine Supreme Judicial  Court (SJC) affirmed  on            the   ground  that   plaintiff's   request   had   not   been            "unequivocally"  advanced.   See State  v. Gallant,  595 A.2d                                         ___ _____     _______            413,  416 (Me.  1991).   As  we find  that the  trial court's            rationale is immune from challenge in a federal habeas corpus            proceeding,  we need not address the grounds relied on by the            SJC.                  A review of the record makes clear that the trial court,            although deeming plaintiff mentally competent to stand trial,            considered  him  mentally   incompetent  to  defend   himself            effectively.  Such  a determination runs afoul  of Godinez v.                                                               _______            Moran, 509 U.S.  389 (1993),  where the Court  held that  the            _____            competency  standard  for waiving  the  right  to counsel  is            identical  to  that  for  standing trial.    Yet  plaintiff's            conviction and sentence had become final prior to issuance of            the Godinez decision.  And the  Godinez holding, we conclude,                _______                     _______            constitutes a "new rule" that, under Teague v. Lane, 489 U.S.                                                 ______    ____            288  (1989), cannot  be  applied retroactively  by a  federal            habeas court.                  "[A] case announces  a new  rule if the  result was  not            dictated by  precedent existing  at the time  the defendant's            ________            conviction became final."  Caspari v. Bohlen, 114 S. Ct. 948,                                       _______    ______                                         -4-            953  (1994) (quoting Teague, 489 U.S. at 301).  "The question                                 ______            is 'whether a state court considering [the defendant's] claim            at  the time  his  conviction became  final  would have  felt            compelled  by existing  precedent to  conclude that  the rule            [he]  seeks was  required by  the Constitution.'"   Goeke  v.                                                                _____            Branch, 115  S. Ct. 1275,  1277 (1995) (per  curiam) (quoting            ______            Saffle v. Parks, 494 U.S. 484, 488 (1990)).              ______    _____                 Here, we cannot say that the state court would have felt            compelled,  prior  to Godinez,  to  deem  the two  competency                                  _______            standards  equivalent.    The  Godinez  Court  itself,  after                                           _______            surveying  the caselaw, took note of the divergent views that            then prevailed.   See 509 U.S. at 395 n.5.   And this circuit                              ___            was one  of the ones there identified as adhering to the view            that  the two  competency standards  might not  be identical.            See  United States v. Campbell,  874 F.2d 838,  846 (1st Cir.            ___  _____________    ________            1989) (observing that "the competency required to stand trial            may not always be coterminous with the  capacity necessary to            proceed pro se") (quoted in part in Godinez, 509 U.S. at  395                    ______                      _______            n.5); see also  United States  v. Pryor, 960  F.2d 1, 2  (1st                  ________  _____________     _____            Cir. 1992) (finding of competency to waive counsel "more than            covered" competency to stand trial).                  In turn, neither  of the "two  narrow exceptions to  the            nonretroactivity  principle" applies here.   Caspari,  114 S.                                                         _______            Ct.  at 956.   The  first pertains  to  new rules  that place            certain types  of private  conduct "beyond  the power of  the                                         -5-            criminal law-making authority to proscribe," Teague, 489 U.S.                                                         ______            at 307 (internal quotation  omitted); this is inapplicable on            its  face.    The  second pertains  to  "watershed  rules  of            criminal procedure implicating  the fundamental fairness  and            accuracy of the criminal proceeding."  Caspari, 114 S. Ct. at                                                   _______            956 (internal quotations omitted).  It is not certain whether            Faretta itself  would fit  into this  second category.1   But                                                                  1            _______            however this may be,  it is apparent to  us that the  Godinez                                                                  _______            decision,  which simply  fine-tunes  the competency  standard            underlying   Faretta,   is   not   "such   a   groundbreaking                         _______            occurrence,"  Caspari, 114 S. Ct.  at 956, as  to trigger the                          _______            second Teague exception.                   ______                 We have considered plaintiff's remaining allegations and            find  them  even less  availing.    Accordingly, inasmuch  as            plaintiff has  failed to make  a "substantial showing  of the            denial of  a federal  right," Barefoot  v. Estelle, 463  U.S.                                          ________     _______            880,  893  (1983),  the  application  for  a  certificate  of            probable cause is denied  and the appeal is terminated.   The                              ______                    __________            motions  to  proceed on  appeal  IFP and  for  appointment of                                            ____________________               1   The Sixth Amendment right  to self-representation, for               1            all  its importance  in upholding  "the inestimable  worth of            free  choice,"  Faretta, 422  U.S.  at  834, is  plainly  not                            _______            designed  to enhance  the  reliability  of the  truth-finding            process;  as  the  Faretta  Court noted,  "in  most  criminal                               _______            prosecutions  defendants could  better defend  with counsel's            guidance than by  their own unskilled efforts,"  id.  Indeed,                                                             ___            various  courts declined  to give  retroactive effect  to the            Faretta  decision itself  primarily  for this  reason.   See,            _______                                                  ___            e.g.,  Martin v.  Wyrick, 568  F.2d  583, 587-88  (8th Cir.),            ____   ______     ______            cert. denied, 435 U.S. 975 (1978).             ____________                                         -6-            counsel  are denied.   The  motion for  recusal is  denied as                         ______                                 ______            moot.                                         -7-
