Jacob Alan Powers v. Jon Noble, No. 24-2134, 3/25/25
The Seventh Circuit found that Jacob Powers was competent to stand trial in a Wisconsin court in 2006 for sexual assault of a child and child enticement. Although Powers’ IQ was in the borderline/mild mental retardation range; his trial testimony, trial counsel’s decision not to challenge his competency, and two experts’ findings that he was competent convinced the Court that he reasonably understood the charges against him, trial procedures, and could assist his lawyer in his defense. The Court therefore affirmed the district court’s order denying Powers’ petition for a writ of habeas corpus.
In 2006, a Fond du Lac County jury found Powers guilty of two counts of second-degree sexual assault of a child and one count of child enticement. He was sentenced to 33 years in prison. (p. 2-3).
Powers’ appointed counsel for appeal challenged his competency to proceed on appeal. Dr. Nathan Glassman concluded Powers was “moderately impaired,” read at a 5th grade level, and had concerns whether he could retain complex information. (p. 3). He testified at the competency hearing that Powers was not competent to proceed with his appeal. (Id.). Dr. Schoenecker found Powers was competent because he understood questions during their interview, was calm and cooperative, was not delusional or paranoid, and knew that he could ask his trial attorney questions. (Id.). The circuit court found Powers was competent for purposes of his direct appeal. (Id.).
Appointed counsel for Powers then filed a no-merit report, which addressed whether trial counsel was ineffective for not raising Powers’ competency. The Wisconsin Court of Appeals accepted the no-merit report and affirmed Powers’ convictions in 2008. (p. 4). The court acknowledged that Powers had a low IQ and mental health problems, but found that his trial testimony did not suggest he was incompetent. Powers did not file a petition for review with the Wisconsin Supreme Court. (p. 5).
Thus began Powers’ convoluted journey through Wisconsin and federal post-conviction procedures. After his state postconviction motion was denied, he filed a federal habeas petition in 2010 and argued that he was not competent when he went to trial and that trial counsel was ineffective.
Although Powers’ petition was filed after the one-year filing deadline and included claims that were not exhausted in the state courts, the State waived its procedural defense with respect to exhaustion and he claimed (now represented by appointed counsel) that his diminished mental capacity justified tolling the statute of limitations. (p. 5-6). To support his claim for equitable tolling, Dr. Sheryl Dolezal was appointed to evaluate Powers’ mental state. In 2013, Dr. Dolezal concluded Powers had difficulty reading, understanding, and replying to information sent to him by the courts. In 2015, Dr. Dolezal attempted to assess Powers’ competency at his 2006 trial and concluded he had a basic understanding of legal concepts, the roles of the different players in the court system, and the consequences of the judicial process, but that he had difficulty with reading and comprehension. Dr. Dolezal also considered that Powers might be exaggerating some of his symptoms and she found him competent to proceed. (p. 6).
Meanwhile, Powers amended his petition to add new claims and the federal district court stayed the proceedings to allow him to exhaust those claims in state court. After seven years of litigation, the state court denied those claims and the case returned to federal district court, where the stay on Powers’ habeas petition was lifted. (p. 6-7).
Powers did not pursue the new issues that were litigated in state court and relied on his original claims that he was denied due process because he was not competent at trial and that trial counsel was ineffective for failing to raise competency. The federal district court denied the petition, but issued a certificate of appealability. (p. 7).
The Seventh Circuit reviewed Powers’ petition de novo because he did not exhaust the competency issues in state court and the State waived its procedural defense. (Id.) He therefore avoided the deferential standard of review applicable to most habeas petitions from state court convictions imposed by 28 U.S.C. § 2254(d). The Court acknowledged that addressing Powers’ competency 20 years after his trial “is a challenge,” but considered that retrospectively analyzing competence is possible by considering facts preceding trial, evidence at trial, and the posttrial record. (p. 8).
The Court noted that Powers’ IQ is between 60 and 75, which is in the borderline/mild mental retardation range, which gave the Court “pause,” but was only one factor in the analysis. (Id.). The Court observed that Powers was found not guilty by reason of mental disease or defect for abusing his infant child in 1999, but remarked that “incompetency and the lack of mental responsibility defense are separate legal concepts.” (p. 9). In fact, the Court found that “asserting the lack of mental responsibility defense presupposes competency” because entering such a plea assumes that the defendant is competent to stand trial. So the Court concluded Powers was competent in 1999. (Id.).
The Court determined Powers’ actions at trial, in which he testified, did not suggest he was incompetent. He did not act erratically and he testified in detail regarding the night of the alleged offense. His testimony also demonstrated that he knew “right from wrong” because he denied knowing the alleged victim was underage and recalled telling his co-defendant not to get caught, which suggested he knew that sexual intercourse with a minor was illegal. (p. 10). And on cross-examination, the Court observed, Powers alleged other witnesses were motivated to fabricate allegations against him and tried to explain inconsistencies in his story. (p. 11). The Court concluded that Powers’ trial actions “show clear memory, strategic thinking about his case, and recognition of right from wrong from the downright unusual. He acted as an accused is expected to, helping his lawyer develop evidence to confront and answer the case against him.” (Id.).
The Court considered that trial counsel was in the best position to evaluate Powers’ competency, and that appellate counsel conferred with trial counsel and determined there was no merit to a competency claim: “From this, we can reasonably infer that trial counsel thought Powers was competent during trial.” (p. 11-12).
With respect to the competency evaluations, the Court noted that Dr. Schoenecker determined in 2007 and Dr. Dolezal in 2015 that Powers was competent. And although Dr. Glassman found Powers incompetent due to his low intellectual functioning, he noted that Powers understood the jury’s function. (p. 12).
The Court concluded the sum of the evidence supported finding that Powers was competent at trial:
Powers’ successful mental disease or defect defense in 1999 necessitated the conclusion that he was competent almost seven years before this criminal trial. Further . . . his testimony and demeanor at his criminal trial show him to be competent. Dr. Schoenecker found him competent less than a year after trial. And importantly, Powers’ trial attorney – who closely observed him and discussed legal and factual questions with him – did not raise competency concerns at trial. Even more, Powers’ appellate attorney, after speaking with his trial counsel, believed pursuing the issue of competency would be frivolous. Last, Dr. Dolezal also concluded Powers was competent.
(p. 13).
Finally, the Court considered Powers’ history of mental health issues; including suicide attempts, psychiatric hospitalizations, and use of antipsychotic medications. However, “mental illness is one factor among many when determining competency and is neither sufficient nor necessary.” Although Powers suffers from mental illness, the Court determined they “did not render him unable to understand the proceedings and assist his lawyer at trial.” (p. 15).
Because the Court found that Powers was competent at trial, it rejected Powers’ claim that trial counsel was ineffective for not raising Powers’ competence. (Id.).
