The opinion of the court was delivered by: Hochberg, District Judge;
This matter comes before the Court to determine whether Defendant Sadiq Calloway is competent to proceed to sentencing. This Court held a hearing on May 8, 2012 at which both sides were afforded the opportunity present any evidence and argument that they wished to present. The Court also conducted a colloquy with respect to whether defense counsel would continue his representation of the defendant following the competency hearing.
On July 16, 2009, following a jury trial, Defendant was convicted of possession of a controlled substance with intent to distribute, possession of a firearm in furtherance of the crime, and possession of a firearm after having been convicted of a felony. Prior to sentencing, Defendant wrote to the Court that he had serious mental illness and that his trial counsel had not notified the Court about these issues. Specifically, Defendant wrote a letter dated July 23, 2009 in which he claimed that his court-appointed trial counsel failed to inform the Court that he had been diagnosed with "Schizophrenic paranoia" in 2006. Defendant also informed the Court that he was filing an ethics complaint against his trial counsel.
The Court then appointed a second CJA counsel, Stacy A. Biancamano, Esq., to represent Defendant. Ms. Biancamano is a highly experienced criminal defense attorney who had a successful and long tenure in the Office of the Public Defender prior to entering private law practice in a fine firm; she is admired both for her interpersonal skills and for her legal skills, and she is a highly empathetic and patient person. The Court also ordered that Defendant undergo a psychological evaluation at the Bureau of Prisons' ("BOP") Metropolitan Correctional Center ("MCC") in New York.
Following this evaluation by the MCC's Dr. William J. Ryan, Defendant was evaluated by Dr. Catherine M. Barber, an independent expert chosen by defense counsel, and then by Dr. John S. O'Brien II, an independent expert chosen by the government. Following these evaluations, which resulted in conflicting and inconclusive findings as to Defendant's competency to be sentenced, the Court ordered, pursuant to 18 U.S.C. § 4241(d), that Defendant be placed in the custody of the Attorney General for the purpose of receiving the care and treatment necessary to determine whether he would have the capacity to proceed to sentencing. Defendant was then committed to the BOP's Federal Medical Center at Butner, North Carolina ("FMC Butner") where he was evaluated by Dr. Jill R. Grant and Dr. Bruce Berger. The FMC Butner Forensic Evaluation by Drs. Grant and Berger and a Certificate of Restoration of Competency were filed with this Court on January 17, 2012.
In the FMC Butner Forensic Evaluation, Drs. Grant and Berger concluded:
[I]t is our opinion that Mr. Calloway is competent to be sentenced. He has an adequate factual and rational understanding of his charges and possible outcomes in his case. Psychological test results and behavioral observations indicate he has an adequate cognitive level to understand the charges against him and related legal proceedings. Monitored telephone calls and behavioral observations over a lengthy evaluation period indicate he has an ability to assist his attorney in the preparation of his defense if he chooses to do so. Although largely uncooperative, he has demonstrated an adequate understanding of the various facets related to his case and the possible outcomes.
FMC Butner Forensic Evaluation, Docket No. 73, Joint Exhibit 1 ("FMC Butner Report"), at 23.
The FMC Butner Report noted that on his monitored telephone calls, "Mr. Calloway consistently exhibited clear, organized, and goal-oriented speech," and that "[a]t no point during the evaluation did Mr. Calloway exhibit typical symptoms of a psychotic or mood disorder." Id. at 16. Because his communications differed markedly when he was being directly evaluated by psychologists as compared with his lucid and goal-directed private telephone calls, the question of possible malingering was a consideration.*fn1 Therefore, while at FMC Butner, Calloway underwent a Test a Memory Malingering ("TOMM") on which he received scores of 20, 22, and 22 on three trials. According to the report, "[t]ypically, scores on the second trial of this test are very high for non-malingerers, regardless of age, neurological dysfunction, or psychological symptoms" and "[a]ny score lower than 45 on the second trial or retention trial should raise concern that an individual is not putting forth maximum effort and is likely malingering." Id. at 19. Defendant's TOMM results were found to be "consistent with exaggerated memory impairment." Id. The FMC Butner Report also concluded that "[i]n consideration of behavioral inconsistencies, inconsistency between self-report and behavior, exaggerated and atypical symptom presentation, test results, and historical information, it appears Mr. Calloway most closely meets criteria for the condition of malingering." Id. at 21.
Mr. Calloway's communications with his second court-appointed counsel fared poorly as well, and despite exceptionally patient efforts on Ms. Biancamano's part to faithfully and diligently represent the defendant, she moved to withdraw as counsel. On December 30, 2011, the Court granted Ms. Biancamano's motion to withdraw as counsel following: (1) Defendant's letter to the Court stating that Ms. Biancamano "refused to assist [him] in filing motions in defense of [his] constitutional rights violations," and "[i]nstead . . . attempted to re-instate [his] original plea of 120 months maximum," Defendant's May 26, 2011 letter, Docket No. 63; and (2) Ms. Biancamano's certification that she was receiving threatening and hostile phone calls from Defendant despite several attempts to explain the legal steps she was taking in his defense and that "the attorney-client relationship has deteriorated to such an extent that effective communication and representation is no longer possible." November 7, 2011 Certification of Stacy A. Biancamano, Docket No. 67, ¶¶ 12-14.
On December 30, 2011, the Court appointed Timothy R. Anderson, Esq. as Defendant's new CJA counsel. Mr. Anderson is likewise an extremely calm and caring defense attorney, in addition to being of high skill as an attorney. After another 3 months, Mr. Anderson informed the Court by letter dated March 16, 2012 that Defendant wanted a new attorney appointed to replace him. According to Mr. Anderson, Defendant no longer trusted him and thought that Mr. Anderson was "out to get" Defendant. However, Mr. Anderson indicated that he was still ready and willing to represent Defendant at his competency hearing and beyond.
At the May 8, 2012 hearing, the Court addressed both Defendant's request that his appointed counsel be replaced and Defendant's competency pursuant to 18 U.S.C. § 4241. The Court engaged in a short colloquy with Mr. Calloway, after Mr. Anderson reported to the Court that his communications with Mr. Calloway had been quite good during the weeks prior to the hearing, and that he thought that Mr. Calloway no longer wised to replace him as counsel, having spoken to him about it just prior to the hearing. When the Court engaged Mr. Calloway in a colloquy to confirm the communications he has just had with Mr. Anderson in the lock-up prior to the hearing, Mr. Calloway again ...