The opinion of the court was delivered by: Michael R. Merz Chief Magistrate Judge
DECISION AND ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT
This capital habeas corpus case is before the Court on Petitioner's Motion for Summary Judgment (Doc. No. 56) and Warden Bradshaw's Cross-Motion for Summary Judgment (Doc. No. 65). Both seek summary judgment on Petitioner's Second Ground for Relief which asserts that "The trial court failed to conduct a competency hearing when Petitioner's behavior [during trial] required it." (Petition, Doc. No. 21, at 17.)
When not in conflict with the Rules Governing § 2254 Cases ("Habeas Rules"), the Federal Rules of Civil Procedure may be applied to habeas corpus proceedings. Habeas Rule 11. This Court has therefore applied Fed. R. Civ. P. 56 governing summary judgment practice to habeas corpus cases when appropriate. The Supreme Court has approved the use of summary judgment procedure in appropriate habeas corpus cases. Blackledge v. Allison, 431 U.S. 63, 80-81 (1977); Browder v. Director, 434 U.S. 257, 266, n. 10 (1978).
The Celotex trilogy of cases (Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986);and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)) stands for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed. R. Civ. P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. "On summary judgment, the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed. 2d 176 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510. When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000), rev'd on other grounds, 536 U.S. 639 (2002).
Cross-motions for summary judgment are a useful mechanism for avoiding an unnecessary trial when both parties agree on the facts but disagree on which of them is entitled to judgment as a matter of law. However, when there is no agreement on the facts, cross-motions must be considered separately from one another.
Cross-motions [for summary judgment] are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. If any such issue exists it must be disposed of by a plenary trial and not on summary judgment.
Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968), quoted at Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2720 at 330. The parties here appear to understand that this interpretation will be applied as neither party asserts the ultimate facts are undisputed.
Applying summary judgment standards in a habeas corpus case is made difficult by the fact that the federal court performs both an appellate function and a factfinding function; the latter is sometimes de novo and sometimes deferential to the prior court findings. 28 U.S.C. §2254(e) as adopted by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA") relevantly provides: (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
The parties seek summary judgment on Petitioner Second Ground For Relief which asserts that "The trial court failed to conduct a competency hearing when Petitioner's behavior [during trial] required it." (Petition, Doc. No. 21, at 17.)
The standard for competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960).
A person who is mentally incompetent may not be tried for a crime so long as the incompetence continues. Bishop v. United States, 350 U.S. 961 (1956). This fundamental right, now protected by the Due Process Clause of the Fourteenth Amendment, has firm roots in the common law. Drope v. Missouri, 420 U.S. 162, 171 (1975), citing 4 Blackstone, Commentaries 24. To protect this right, a State must adopt and observe adequate procedures for determining whether a person is competent to stand trial. Pate v. Robinson, 383 U.S. 375 (1966). It is not unconstitutional to presume competence, as Ohio law does, and to place the burden of proving incompetence on a criminal defendant. Medina v. California, 505 U. S. 437 (1992). A determination of competence is a finding of fact. Demosthenes v. Ball, 495 U.S. 731, 735 (1990). It is therefore entitled to deference in habeas proceedings. Filiaggi v. Bagley, 445 F.3d 851 (6th Cir. 2006), citing Thompson v. Keohane, 516 U.S. 99, 110-11 (1995).
Whether a trial court should have conducted a competency hearing depends upon "whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency." Pate v. Smith, 637 F.2d 1068, 1072 (6th Cir. 1981); see also Spirko v. Anderson, Case No. 3:95CV7209, 2000 U.S. Dist. LEXIS 13182 (N.D. Ohio 2000). Only if a court fails to grant such a hearing when presented with sufficient evidence of incompetence, is a defendant's constitutional right to due process violated. Robinson, 383 U.S. at 385-386; Pate, 637 F.2d at 1072; United States v. Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994).
In the instant case the trial court conducted a competency hearing several months before trial at which it heard competing expert testimony and concluded Petitioner was competent to stand trial.*fn1
Petitioner now asserts that the testimony received before trial*fn2 , his subsequent behavior during the trial, relevant testimony of Dr. Eugene Cherry and family members at trial on his mental illness symptoms, and reported observations of his trial attorneys and a courtroom deputy required the trial judge to conduct another in-trial competency hearing. Petitioner relies on Drope, supra., where the Supreme Court held that "[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to ...