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[NOT FOR PUBLICATION]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

___________________
probable cause and on brief pro se.
Gail Fisk Malone, Assistant United States Attorney, on
________________

memoran

in support of motion for summary disposition for appellee Gene Cart

____________________

____________________

Per Curiam.
__________

appeals

his

In

No. 96-1048, plaintiff

from a court

order dated December

Alfred Gallant

20, 1995 denying

motion to proceed in forma pauperis (IFP).

_________________

paid the filing fee

Plaintiff's

that same day, his appeal

motions to

proceed

IFP on

As plaintiff

is frivolous.

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

dismissing, on the ground

42 U.S.C.

1983

over his state

by

the

Plaintiff's

from

against the state court judge

habeas proceedings.

to

For

judgment

affirmed.
_________

proceed

who presided

the reasons recited

its order dated

is summarily

motions

of frivolousness, his action under

the district court in

judgment

appeals

February 7, 1996,

See Loc.
___

IFP

on

seeks

R.

appeal

27.1.

and

for

certificate

of

appointment of counsel are denied.

______

In

probable

denial

No.

96-1005,

plaintiff

cause in order to appeal from the district court's

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

his

Amendment

Sixth

Faretta
_______

right

plaintiff was

of

improperly denied

self-representation

v. California, 422 U.S. 806 (1975).

__________

under

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

impairments

defense

trial.

the

that

and had

The

was

suffering

disavowed any

in order to "protest"

ground

that

416 (Me.

plaintiff's

advanced.

1991).

As

from

intention of

what he regarded

Maine Supreme Judicial

"unequivocally"

413,

plaintiff

mental

mounting a

as a "sham"

Court (SJC) affirmed

request

See State
___ _____

we find

had

not

v. Gallant,
_______

that the

on

been

595 A.2d

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

Moran, 509 U.S.

_____

competency

identical

a determination runs afoul

389 (1993),

standard

to

that

where the Court

for waiving

for

the

right

standing trial.

of Godinez v.
_______

held that

the

to counsel

is

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

dictated by
________

a new

rule if the

result was

precedent existing

at the time

the defendant's

conviction became final."

not

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

compelled

his

conviction became

by existing

precedent to

final

would have

conclude that

felt

the rule

[he]

seeks was

Branch, 115
______

required by

S. Ct. 1275,

the Constitution.'"

1277 (1995) (per

Goeke
_____

v.

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,
_______

deem

surveying

the caselaw, took note of the divergent views that

that

See
___

Court

competency

equivalent.

was one

Godinez
_______

the two

standards

then prevailed.

The

to

See 509 U.S. at 395 n.5.

___

itself,

after

And this circuit

of the ones there identified as adhering to the view

the two

competency standards

United States v. Campbell,

_____________
________

might not

be identical.

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

______
_______

n.5); see also

________

United States
_____________

v. Pryor, 960
_____

F.2d 1, 2

395

(1st

Cir. 1992) (finding of competency to waive counsel "more than

covered" competency to stand trial).

In turn, neither

nonretroactivity

Ct.

at 956.

certain types

The

of the "two

narrow exceptions to

principle" applies here.

first pertains

of private

to

new rules

conduct "beyond

-5-

Caspari,
_______

the

114 S.

that place

the power of

the

criminal law-making authority to proscribe," Teague, 489 U.S.

______

at 307 (internal quotation

its

face.

The

omitted); this is inapplicable on

second pertains

criminal procedure implicating

to

"watershed

the fundamental fairness

accuracy of the criminal proceeding."

956 (internal quotations omitted).

Faretta itself

would fit

rules

into this

of

and

Caspari, 114 S. Ct. at

_______

It is not certain whether

second category.1
1

But

_______

however this may be,

it is apparent to

us that the

Godinez
_______

decision,

which simply

underlying

Faretta,
_______

occurrence,"

fine-tunes

is

not

Caspari, 114 S. Ct.

_______

the competency

"such

at 956, as

standard

groundbreaking

to trigger the

second Teague exception.

______

We have considered plaintiff's remaining allegations and

find

them

even less

plaintiff has

failed to make

denial of

a federal

880,

(1983),

893

availing.

to

the

proceed on

____________________

a "substantial showing

right," Barefoot
________

probable cause is denied

______

motions

Accordingly, inasmuch

application

certificate

and the appeal is terminated.

__________

appeal

of the

v. Estelle, 463
_______

for

IFP and

for

as

U.S.

of

The

appointment of

1
1
all
free

The Sixth Amendment right

its importance
choice,"

in upholding

Faretta, 422
_______

designed

to enhance

process;

as

prosecutions

the

the

Faretta
_______

U.S.

834, is

"in

Faretta
_______

decision itself

primarily

most

Wyrick, 568
______

F.2d

cert. denied, 435 U.S. 975 (1978).

____________

-6-

criminal

with counsel's
id.
___

retroactive effect
for this

not

truth-finding

their own unskilled efforts,"

to give

worth of

plainly

of the

better defend

courts declined

Martin v.
______

at

Court noted,

various

e.g.,
____

"the inestimable

reliability

defendants could

guidance than by

to self-representation, for

reason.

583, 587-88

Indeed,
to the
See,
___

(8th Cir.),

counsel

moot.

are denied.
______

The

motion for

recusal is

denied as
______

-7-