Court: Court of Appeals for the Ninth Circuit; September 24, 2001; Federal Appellate Court
Mark Steven Van Buskirk appealed a decision from the District of Oregon denying post-conviction relief under 28 U.S.C. § 2254, following his guilty plea for the murder of Linda Newman in 1993. The appeal primarily centered on claims of ineffective assistance of counsel, asserting that his lawyers failed to adequately investigate his mental health history, which precluded a viable insanity defense. Initially, Van Buskirk filed a state post-conviction petition in 1994, raising two claims of trial court error and four claims of ineffective assistance, none of which addressed the alleged failure to investigate his mental health, leading to abandonment of those claims. The Ninth Circuit ultimately affirmed the denial of relief, emphasizing that the evidence presented by Van Buskirk did not meet the threshold for an "actual innocence" claim as established in Schlup v. Delo. The court also dismissed the Northern California Innocence Project's request to file an amicus brief and denied the petitions for rehearing and rehearing en banc. The amendments to the opinion clarified the legal standards applicable to claims of actual innocence and effective assistance of counsel under Strickland v. Washington.
Van Buskirk's federal habeas petition, filed in 1997, is subject to the limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), specifically 28 U.S.C. 2244(d)(1), which establishes a one-year limitation period for such applications. This period begins from either the finality of the state court judgment or when the factual basis for the claims could have been discovered through due diligence. After initially pursuing state court claims, Van Buskirk, with new counsel in December 1998, amended his petition to assert an insanity defense that his original counsel allegedly failed to investigate. He contends that his counsel was aware of his mental disturbances at arrest and during preliminary proceedings but did not investigate significant details from two prior automobile accidents, which he claims resulted in a coma and severe brain damage that impaired his mental state during the crime.
Van Buskirk argues that this failure constituted ineffective assistance of counsel, warranting an "actual innocence" claim under the Schlup v. Delo framework. The district court allowed the amendment, treating it as timely under Fed. R. Civ. P. 15(a)(1), and did not need to resolve complex AEDPA time bar issues since it ruled on the merits. Although the court considered the opinion of Dr. Muriel Lezak, a recognized psychologist regarding brain damage and criminal responsibility, it ultimately concluded that the evidence did not meet the Schlup standard for "actual innocence." The court found that Van Buskirk had procedurally defaulted on his new claim due to not raising it in state courts and rejected his argument that the default should be excused based on new evidence from Dr. Lezak, asserting that it did not substantiate a different theory of ineffective assistance from those previously pursued.
Dr. Lezak's report indicated that the brain injury and cognitive deficits severely impaired Van Buskirk's ability to control his behavior, making him unable to appreciate the dynamics of his relationship and conform to legal standards. His mental inflexibility and acute emotional distress resulted in a singular focus on preserving his marriage, limiting his capacity to consider alternative actions or moral implications. The district court concluded that Van Buskirk did not demonstrate actual innocence, as Lezak's evaluation did not meet the Oregon legal standards for insanity or extreme emotional disturbance. The court also referenced a conflicting assessment from Dr. Robert Luther, the state's psychiatrist, prior to Van Buskirk's guilty plea. This situation raises two key questions: whether Van Buskirk's expert testimony constitutes newly discovered evidence that could satisfy the Schlup actual innocence gateway and whether the amended petition warrants an evidentiary hearing regarding the competency of legal advice received prior to the plea. The district court's application of the Schlup standard was contested by Van Buskirk, who argued that the court misinterpreted the gateway standard by suggesting that a jury "could" reject Dr. Lezak's opinion, rather than assessing whether it was more likely than not that a reasonable juror would have found him not guilty of premeditated murder. Van Buskirk emphasized the distinction between the Schlup inquiry, which questions the likely behavior of jurors, and the Jackson v. Virginia standard, which pertains to the sufficiency of evidence. The district court's analysis implied that a conviction was possible, but failed to address the likelihood of juror behavior as required by Schlup.
The district court's misstatement regarding the legal standard was deemed a harmless error. It recognized that Dr. Lezak's evaluation conflicted significantly with existing evidence, particularly Dr. Luther's assessment, which found no evidence of psychosis in Van Buskirk. The state presented evidence showing that multiple mental health professionals had refused to admit Van Buskirk for treatment following his offense. The court noted that the record contained overwhelming evidence contradicting Dr. Lezak's opinion about Van Buskirk's mental state during the crime. Consequently, the court concluded that even if Dr. Lezak's opinion had been unchallenged, it lacked sufficient probative value to support a finding of actual innocence under the "more likely than not" standard established in Schlup. Because the evidence presented by the petitioner did not meet the necessary threshold for an "actual innocence" claim, the court did not need to address whether 28 U.S.C. 2254(e)(2) requires a showing of due diligence. The ruling was affirmed.
