                    Supreme Court of Missouri
                                         en banc

State ex rel. John C. Middleton,                      )
                    Petitioner,                       )
                                                      )
vs.                                                   ) No. SC94325
                                                      )
Terry Russell,                                        )
                    Respondent.                       )

Per Curiam

                    ORIGINAL PROCEEDING IN HABEAS CORPUS

                                Opinion issued July 16, 2014

       On May 30, 2014, this Court issued its order setting inmate John C. Middleton’s

execution for July 16, 2014. As the Eighth Circuit Court of Appeals held in its opinion

dated July 15, 2014, if Middleton believes that he is incompetent to be executed and that his

execution would violate the Eighth Amendment, he is required to present that claim to this

Court before asserting it in the federal courts. Middleton v. Roper, No. 14-2667 (July 15,

2014). A petition for a writ of habeas corpus under Rule 91 is a proper means of asserting

such a claim in this Court and has been used by inmates facing execution in the past. It was

not until July 16, however, after his execution was scheduled to occur, that Middleton

asserted his Eighth Amendment claim in this Court for the first time. After careful

consideration of Middleton’s petition for habeas corpus and the exhibits thereto, this Court

denies that petition on the merits for the reasons set forth below.
                                               1
       Last week, Middleton filed a motion in this Court seeking a stay of execution and the

appointment of a master to gather evidence and make findings regarding whether Middleton

is competent to be executed. Though Middleton suggested he may assert an Eighth

Amendment claim at some point in the future, Middleton carefully avoided doing so at that

time. In support of that motion, however, Middleton offered virtually all of the same

evidence on which he now relies in his petition for a writ of habeas corpus. Included in his

motion last week was a letter from Middleton’s forensic psychiatrist, Dr. Logan. That

letter, dated July 2, 2014, includes the following:

       Over time he [Middleton] has developed certain beliefs about his charges and
       the resulting legal proceedings that are distorted by this paranoia, and may
       now be indicative of a psychotic delusional disorder. I am exploring whether
       these beliefs now could significantly color his perception / or relational
       understanding of his execution.

       Plainly, this stops far short of opining that Middleton is suffering from “gross

delusions preventing him from comprehending the meaning and purpose of the punishment

to which he has been sentenced.” Panetti v. Quarterman, 551 U.S. 930, 960 (2007). See

also Ford. v. Wainwright, 477 U.S. 399 (1986).

       In his habeas petition now before the Court, Middleton offers much the same

evidence that the Court considered in denying his motion for a stay of execution last week.

There is one notable addition, however. Rather than continue to rely on the equivocal

statements in Dr. Logan’s July 2 letter, Middleton now offers a sworn statement from Dr.

Logan dated July 14. In this statement, Dr. Logan lists all the information on which he

bases the opinions set forth in that statement, including his single encounter with Middleton

that occurred on June 16. In stating those opinions, however, Dr. Logan does not state or

                                               2
suggest that he did not have all of this same information when he wrote his July 2 letter, or

explain why he was unable to state the opinions he now offers in that letter.

       In his July 14 statement, Dr. Logan states:

       With regard to his scheduled execution, while Mr. Middleton can recite the
       reason it was imposed, he in fact believes his conviction was the result of a
       conspiracy which included his associates, law enforcement, the courts,
       prosecutors and his defense attorneys. Furthermore, he shows little to no
       emotional reaction to his impending execution date but instead believes he
       will not die while incarcerated but will be cleared on the charges and return to
       the community.

       In conclusion, it is my preliminary opinion (preliminary in the sense that
       additional materials and, critically, input from MDOC staff directly familiar
       with Mr. Middleton, may be available for review and consultation) that Mr.
       Middleton lacks a rational understanding of the reason for his execution and is
       therefore not competent to be executed due to a diagnosis of delusional
       disorder, a psychotic mental illness.

       The Court concludes that this evidence – by itself and in conjunction with the other

evidence offered in support of Middleton’s petition – does not constitute the substantial

threshold showing of incompetence required by Panetti and Ford before he is entitled to a

full hearing to determine his competence.

       First, Dr. Logan opines that Middleton is delusional because he “believes his

conviction was the result of a conspiracy which included his associates, law enforcement,

the courts, prosecutors and his defense attorneys.” This analysis does not account for the

fact that Middleton’s lawyers have raised a series of claims asserting that Middleton’s trial

and appellate counsel were ineffective and that he is an innocent victim of over-zealous

prosecutors and illicit “secret deals” between law enforcement officers and prosecution

witnesses. That Middleton is now persuaded as to the legitimacy of these claims (despite

their having failed to convince any state or federal court) does not make Middleton
                                               3
delusional in the way that renders him incompetent to be executed under the Eighth

Amendment.

       Dr. Logan’s other basis for his opinion is that Middleton “shows little to no

emotional reaction to his impending execution date but instead believes he will not die while

incarcerated but will be cleared on the charges and return to the community.” Even though

Middleton’s optimism may be misplaced, even illogical, it hardly constitutes proof that he is

delusional under Panetti and Ford in light of the fact that Middleton has faced three or more

execution dates since his conviction nearly 20 years ago and has received a stay each time.

Moreover, it does not constitute the sort of delusion that Panetti and Ford declare renders an

inmate incompetent to be executed under the Eighth Amendment.

       The opinion offered by Dr. Logan, and the other arguments asserted by Middleton,

misperceive the Supreme Court’s decisions in Ford and Panetti. There was no question

that the inmate in Panetti made a sufficient threshold showing of incompetence. Panetti,

551 U.S. at 948. That showing included “pointed observations made by two experts the day

before petitioner's scheduled execution … [and] references to the extensive evidence of

mental dysfunction considered in earlier legal proceedings.” Id. at 950.

       In Panetti, the Supreme Court explains that the gravamen of an Eighth Amendment

incompetence claim is not that an inmate is delusional, but that the inmate suffers from

some “mental illness that is the source of gross delusions preventing him from

comprehending the meaning and purpose of the punishment to which he has been

sentenced.” Id. at 960 (emphasis added). The delusions must be such that “they so impair



                                              4
the prisoner's concept of reality that he cannot reach a rational understanding of the reason

for the execution.” Id. at 958.

        In Panetti, the inmate had a “genuine delusion involving his understanding of the

reason for his execution …. [that] recast petitioner's execution as ‘part of spiritual warfare ...

between the demons and the forces of the darkness and God and the angels and the forces of

light.’” Id. at 954 (citations omitted). As a result, even though “petitioner claims to

understand ‘that the state is saying that [it wishes] to execute him for [his] murder[s],’ he

believes in earnest that the stated reason is a ‘sham’ and the State in truth wants to

execute him ‘to stop him from preaching.’” Id. at 954-55 (emphasis added).

       Nothing in Dr. Logan’s statement, or in the other proof submitted with Middleton’s

petition, even approaches a substantial threshold showing that Middleton suffers from such

delusions. Instead, at most, they show that Middleton is delusional as to his innocence and

his chances of escaping execution. Middleton plainly understands he is to be executed as

punishment because he was found guilty of murdering his three victims; he simply believes

he should not have been convicted. Nothing in Panetti or Ford suggests that an inmate is

incompetent to be executed only if he both understands why he is being executed and agrees

that the sentence is justified.

       Instead, the Court in Panetti stated:

       The mental state requisite for competence to suffer capital punishment neither
       presumes nor requires a person who would be considered “normal,” or even
       “rational,” in a layperson's understanding of those terms. Someone who is
       condemned to death for an atrocious murder may be so callous as to be unrepentant;
       so self-centered and devoid of compassion as to lack all sense of guilt; so adept in
       transferring blame to others as to be considered, at least in the colloquial sense, to
       be out of touch with reality. Those states of mind, even if extreme compared to the
       criminal population at large, are not what petitioner contends lie at the threshold of a
                                               5
       competence inquiry. The beginning of doubt about competence in a case like
       petitioner's is not a misanthropic personality or an amoral character. It is a psychotic
       disorder.

Id. at 959-60 (emphasis added).

       Accordingly, this Court denies Middleton’s petition for a writ of habeas corpus on

the merits because he has failed to make a substantial threshold showing that he lacks the

competence to be executed that the Eighth Amendment demands.

       In making the foregoing determination, the Court has considered and rejected

Middleton’s contention that this Court has no authority to decide for itself whether his

petition makes a substantial threshold showing of incompetence and, instead, is bound by

the previous determination of the United States District Court on this issue. This argument

ignores the requirement that Middleton must raise his claim in this Court before attempting

to assert it in the federal courts, as the Eighth Circuit Court of Appeals explained in its July

15 decision vacating the first of two stays granted on that date by the District Court. Today,

in an opinion vacating the District Court’s second stay, 1 the Eighth Circuit again held:

       The Missouri courts are the proper forum in the first instance for Middleton’s
       claim of incompetency to be executed…. Middleton thus far has declined,
       perhaps for tactical reasons in light of § 2254(d) [which establishes the degree

1
   This second stay was for the stated purpose of giving Middleton time to raise his Eighth
Amendment incompetence claim in this Court. Respectfully, this Court does not believe that such a
stay was necessary. As both parties knew (and is always the case in these circumstances), this
Court stood ready to review any claim that Middleton might assert during the evening before his
execution date, including any requests for a stay that Middleton might think are needed because he
filed his claims so close to the execution date that the Court may not have sufficient time to
consider it. Moreover, the argument that Middleton was not able to prepare and present his Eighth
Amendment competency claim to this Court any earlier during the six weeks since his execution
date was set on May 30 is not tenable given that Dr. Logan was able to meet with Middleton – for
the first and only time – on June 16, more than four weeks ago. Middleton not only had time to file
his Eighth Amendment incompetence claim in the wrong court (twice) over the last week or two,
but he also had time to file a motion in this Court that referred to and attempted to prove – but
steadfastly refused to assert – precisely that claim.
                                                 6
       of deference federal courts must afford state court findings of fact and legal
       conclusions], to advance a Ford claim before the Supreme Court of Missouri.
       But that is where the claim must be presented in the first instance. Whatever
       might be said about possible justifications for Middleton’s failure to bring a
       Ford claim until fewer than 48 hours before the scheduled execution, there is
       no reason why Middleton cannot present a Ford claim and a motion for stay of
       execution to the Missouri courts in light of this court’s decision of July 15.

Middleton v. Roper, No. 14-2677 (July 16, 2014).

       This means that it is for this Court to decide whether Middleton has made a sufficient

threshold showing of incompetence in the first instance. Notwithstanding its respect for the

District Court, this Court is not bound by that court's premature determination of that issue

in a case that the Eighth Circuit has ruled (twice) was not properly before it.




Russell, C.J., Breckenridge, Fischer and Wilson, JJ., concur;
Draper, J., dissents in separate opinion filed; Stith and Teitelman, JJ., concur in
opinion of Draper, J.




                                               7
       STATE OF MISSOURI-Sct.


I, Bill L. Thompson, Clerk of the Supreme Court of the State of Missouri, certify that the
foregoing is a full, true and complete transcript of the order of said Supreme Court, entered
of record at the May Session thereof, 2014, and on the 16th day of July, 2014, in the above
entitled cause.

                     Given under my hand and seal of said Court, at the City of Jefferson,
                     this 16th day of July, 2014.



                                                                                    , Clerk



                                                       _________              , Deputy Clerk




                                              8
9
STATE OF MISSOURI – SCT.:

         I, BILL L. THOMPSON, Clerk of the Supreme Court of Missouri, do hereby certify that the foregoing is a true copy of the order of said

court, entered on the      day of       ,       , as fully as the same appears of record in my office.

                                                     IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said

                                                              Supreme Court. Done at office in the City of Jefferson, State aforesaid, this

                                                                     day of        ,      .



                                                                                                                    , Clerk



                                                                                                                    , Deputy Clerk




                                                                      10
        SUPREME COURT OF MISSOURI
                 en banc
JOHN C. MIDDLETON,                      )
               Petitioner,              )
                                        )
                                        )
v.                                      )      No. SC94325
                                        )
TERRY RUSSELL, Warden,                  )
Eastern Reception Diagnostic            )
Correctional Center,                    )
                     Respondent.        )

                           DISSENTING OPINION

      I respectfully dissent from the order entered today denying John

Middleton’s (“Middleton”) writ of habeas corpus on the merits.

Right to a Ford Hearing

      I believe Middleton’s right to due process is being grossly violated by this

Court’s order summarily denying him a right to a hearing pursuant to Ford v.

Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930

(2007). Ford and Panetti set forth the standard for granting a stay of execution

when a claim of incompetence has been asserted. While “[a]ll prisoners are at risk

of deteriorations in their mental state,” the “Eighth Amendment prohibits a State

from carrying out a sentence of death upon a prisoner who is insane.” Ford, 477

                                        1
U.S. at 409-10; Panetti, 551 U.S. at 943. In Panetti, the Court determined that

Justice Powell’s opinion in Ford, containing the narrowest holding, constituted

“clearly established” law for what showing is required to stay an execution due to

incompetence and the minimum standards a state must provide to a prisoner

raising a Ford claim. Panetti, 551 U.S. at 949. Justice Powell stated:

       Once a prisoner seeking a stay of execution has made a ‘substantial
       threshold showing of insanity,’ the protection afforded by procedural
       due process includes a ‘fair hearing’ in accord with fundamental
       fairness…. This protection means a prisoner must be accorded an
       ‘opportunity to be heard … though a constitutionally acceptable
       procedure may be far less formal than a trial.’

Id. (internal citations omitted).

       Here, however, this Court has denied Middleton even a bare modicum of

due process. Moreover, Middleton has raised serious allegations concerning the

Department of Corrections’ obstruction to his access to records and individuals

who could discuss his mental health at this critical time. 1 Middleton alleges that

despite the DOC’s obstructionist policies, he has been able to make a substantial

threshold showing that he is incompetent to be executed. This claim is one that

could not be raised until an execution date was set, which did not occur until May

30, 2014. The federal district court did not authorize funds for Middleton to retain

a psychiatrist to conduct a competency evaluation until after an execution date was


1
  Since Missouri has resumed executing prisoners on a monthly basis, this Court
has received several motions alleging continued and repeated lack of cooperation
by the DOC that interferes with the inmates’ ability to make their cases for claims
such as these. While there may be no constitutional interference, this Court cannot
be certain without judicial inquiry into the matter.
                                         2
set. The short time that has elapsed since the execution date was set and today is

insufficient to conduct a thorough investigation into Middleton’s competency to be

executed.

      Despite the shortened period of time, Middleton has submitted several

affidavits that satisfy the threshold showing required under Ford. Middleton

included affidavits from other prison inmates who testified to Middleton’s

increasingly bizarre behavior. Middleton’s defense counsel submitted her own

affidavit outlining her observations of Middleton’s current mental status and his

belief that he will be exonerated and will return home to Iowa.             Finally,

Middleton’s counsel retained a psychiatrist, Dr. William Logan, to evaluate him

since the time his execution date has been set and when funds were authorized for

his services. Dr. Logan has rendered a preliminary opinion, which is due in large

part to the absence of additional materials and input from DOC staff directly

familiar with Middleton’s behavior. Although preliminary in nature, Dr. Logan’s

observations are sufficient to meet the substantial threshold showing to entitle

Middleton to a Ford hearing.      Dr. Logan has determined Middleton exhibits

symptoms of psychosis and that his mental state is characterized by:

      [R]ambling, tangential speech; rapid switching to irrelevant topics;
      auditory hallucinations to which he responds, at times observed by
      others; suspiciousness and preoccupation with irrelevant minor
      details which hinders the efforts of his defense attorneys, a pervasive
      distrust of the legal system including the efforts of previous
      attorneys on his behalf; and delusional ideas generally persecutory
      and grandiose in nature.



                                        3
Dr. Logan further explains Middleton suffers from a cognitive disorder, panic

disorder, depression, anxiety, and bipolar disorder. With respect to the pending

execution, Middleton can “recite the reason it was imposed, he in fact believes his

conviction was the result of a conspiracy which included his associates, law

enforcement, the courts, prosecutors, and his defense attorneys.”          Further,

Middleton demonstrates little emotional reaction and “believes he will not die

while incarcerated by will be cleared on the charges and return to the community.”

Dr. Logan concludes that Middleton “lacks a rational understanding of the reason

for the execution and is therefore not competent to be executed due to a diagnosis

of delusional disorder, a psychotic mental illness.”

       The federal district court found that Middleton has made a substantial

threshold showing of incompetence and should be afforded a hearing. I would

find likewise under these facts.

Constitutionality of Section 552.060

       Second, I believe Middleton has raised grave concerns regarding the

constitutionality of section 552.060, RSMo 2000. Section 552.060 governs the

procedure for determining whether a condemned prisoner is competent to be

executed. Section 552.060.1 prohibits the execution of any prisoner who “lacks

capacity to understand the nature and purpose of the punishment about to be

imposed upon him or matters in extenuation, arguments for executive clemency or

reasons why the sentence should not be carried out.” Section 552.060.2 provides

that if the DOC director has “reasonable cause to believe” that a condemned

                                          4
prisoner has a mental disease or defect excluding fitness for execution, the director

has a duty to notify the governor immediately, who must then issue a stay if there

is insufficient time to conduct a mental evaluation prior to the execution date. 2

       After the director makes a finding and notifies the statutorily enumerated

state authorities, the circuit court where the prisoner is incarcerated “shall conduct

an inquiry into the mental condition of the offender” after pertinent mental

examinations have been made. Section 552.060.3. If the circuit court determines

the prisoner is competent, then a new execution date is set; if not, he or she is

transferred to a mental hospital for treatment. Section 552.060.4. The statute

further provides, “Nothing in this chapter shall be construed to limit the governor

or any court in the exercise of any of their powers in any manner under the law or

Constitution of Missouri.” Section 552.060.5.

       I believe Middleton has raised a timely constitutional challenge to the

validity of section 552.060, which should be addressed by this Court after

appropriate briefing and oral argument. Middleton raises persuasive arguments

alleging section 552.060 does not comport with the minimum due process dictates

of Ford and Panetti. First, Middleton points out the fundamental structural flaw in

the statute is that only the DOC director has the capacity to initiate the process

relating to a determination of the sanity of the condemned prisoner. A plain


2
 The director must also notify the director of the department of mental health, the
prosecuting attorney of the county where the prisoner was tried, the circuit court
where the prisoner is incarcerated, and the attorney general. Notably absent from
this list is the prisoner’s defense counsel.
                                          5
reading of the statute shows that it is incumbent upon the director to initiate the

proceedings, if in his discretion, he determines there is “reasonable cause to

believe” a prisoner has a mental disease or defect that renders the prisoner

incompetent to be executed. In Ford, the Court criticized Florida’s statutory

scheme which consolidated the decision of whether a prisoner is competent to the

governor and other members of the executive branch. The Court stated, “In no

other circumstance of which we are aware is the vindication of a constitutional

right entrusted to the unreviewable discretion of an administrative tribunal.” Ford,

477 U.S. at 416. This Court has not addressed whether the statute cloaks the

director with unfettered and unreviewable discretion, but a cursory reading of the

statute places the characterization of the prisoner’s mental status solely in the

hands of the director. 3 This serious issue requires review by this Court en banc to

ensure Missouri does not commit the reprehensible and unconstitutional execution

of an incompetent prisoner.




3
  I am also troubled by the allegation Middleton has raised that the State has now
changed its position on whether section 552.060 or a writ of habeas corpus is the
appropriate means to raise the competency issue. Middleton alleges the State has
asserted previously that the statute was the appropriate means when answering the
same claim raised by Joseph Franklin in November 2013.
                                         6
      Therefore, I would issue the writ of habeas corpus and issue a stay of

execution so that Middleton could have a Ford hearing to determine his

competence to be executed.



                                            ______________________________
                                                  GEORGE W. DRAPER III, JUDGE




                                     7
